EXHIBIT 10.22
Agreement of Lease
BETWEEN
XXX.XXXX ASSOCIATES
Landlord
AND
FIRST ALBANY COMPANIES INC.
Tenant
Premises in Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dated: Xxxxx 00, 0000
Xxxx, Xxxxxx & Bettex Xxxxxx Xxxxxx, Esq.
Attorneys for Landlord Attorney for the Tenant
00 Xxxx 00xx Xxxxxx 6 East 43rd Street - 19th Floor
New York, New York 10165 Xxx Xxxx, Xxx Xxxx 00000-0000
TABLE OF CONTENTS
ARTICLE PAGE
1 Rent 2
2 Occupancy 2
S Alterations and Installations 2
4 Repairs 5
5 Requirements of Law; Fire Insurance 6
6 Subordination 7
7 Loss, Damage, Reimbursement, Liability, Etc8
S Destruction-Fire or Other Cause 10
9 Eminent Domain 12
10 Assignment & Subletting 15
11 Access to Demised Premises 20
12 Certificate of Occupancy 21
13 Bankruptcy 21
14 Default 24
15 Remedies of Landlord; Waiver of Redemption25
16 Fees and Expenses; Interest 27
17 No Representations by Xxxxxxxx 00
00 Xxx xx Xxxx 00
00 Quiet Enjoyment 28
20 Definitions 29
21 Adjacent Excavation-Shoring 29
22 Rules and Regulations 30
23 No Waiver 31
24 Waiver of Trial by Jury 32
25 Inability to Perform 32
26 Notices 33
27 Services 34
28 Escalation - Cost of Living Adjustments 42
29 Building Energy Escalation 44
30 Condition of Premises 47
31 Arbitration 48
32 Indemnity 48
33 Vault and Basement Space 48
34 Occupancy and Use by Tenant 49
35 Name of Building 50
36 Invalidity of Any Provision, Etc. 50
37 Captions 51
38 Certificate of Tenant 51
39 Security Deposit 53
40 Broker 54
41 Possession 54
42 Submission of Lease 55
43 Memorandum of Lease 55
44 Successors and Assigns 55
Exhibit A 59
Exhibit B 60
Exhibit C 65
RIDER TABLE OF CONTENTS
Article Page
45 Commencement Date; Term; Rent; Initial
Alteration Work; Work Contribution 67
46 Tax and Operating Expense Escalation 73
47 Alterations 81
48 Non-Disturbance Agreement 84
49 Renewal Option 85
50 Expansion Space 89
51 Miscellaneous 92
52 Security Deposit/Letter of Credit 96
AGREEMENT OF LEASE made as of this 21st day of March 1996 between
Min-Ciry ASSOCIATES, a general partnership with its office at 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, hereinafter referred to
as "Landlord", or "Lessor", and FIRST ALBANY COMPANIES' INC., a New
York corporation with an xxxxxx xx 0X Xxxxx xxxxx Xxxxxx, Xxxxxx,
Xxx Xxxx 00000
hereinafter referred to as "Tenant", or
"Lessee".
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord, in the building known as One Penn Plaza in the Borough of
Manhattan, City of New York (hereinafter referred to as the
"Building"), the following space: the entire rentable area of the
42nd Floor, consisting of approximately 33,774 rentable square feet
(which space is hereinafter referred to as "the demised premises" or
"the premises") approximately as shown on the plan or plans or
diagram or diagrams annexed hereto as "Exhibit A" (or incorporated
by reference into this Lease as though physically attached hereto);
for the term of years to commence
and to end as in Article 45 provided
(plus, if the term hereof commences on a day other than the first
day of a month, so many days as are necessary for the term to end on
the last day of the last month of the term) or until such term shall
sooner cease and terminate as hereinafter provided; at fixed annual
rental rates (without electricity) and subject to Article 28
adjustment) of $ set forth in Article 45 hereof.
The first month's rent due under this Lease shall be paid by Tenant
upon execution of this Lease.
* typical retail branch of a
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Tenant agrees to pay said fixed annual rent in lawful money of the
United States, 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 Land-lord 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 rent commence on any day other than on the
first day of a month, then the fixed rent for the unexpired portion of such
month shall be adjusted and prorated on a per diem basis.
The parties hereto, for themselves, their heirs, distributees, execu
tors, administrators, legal representatives, successors and assigns, hereby
covenant as follows:
ARTICLE 1
RENT
1.01.Tenant shall pay the fixed annual rent and additional rent as
above and as hereinafter provided, in United States legal tender, by
cash or by good and sufficient check drawn on a New York City bank
which is a member of the New York Clearing House or a successor
thereto. All sums other than fixed annual rent payable by Tenant
hereunder shall be deemed additional rent and payable on demand,
unless other payment dates are hereinafter provided.
ARTICLE 2
OCCUPANCY
2.01. Tenant may not use or occupy the
demised premises as a *savings bank, state or Federal savings and
loan association or commercial bank. or trust Company. Tenant shall
use and occupy the demised premises solely for executive and general
offices relating to Tenant's business,** and for no other purpose.
ARTICLE 3
ALTERATIONS AND INSTALLATIONS
3.01.Tenant shall make no alterations, installations, additions or
Improvements in or to the demised premises without Landlord's
______________________
**including for the installation, maintenance and operation in a
portion of the demised premises of a securities trading room and
computer room relating to Tenant's business and Tenant shall use and
occupy the demised premises for no other purpose. Any such
installation shall be effected in accordance with the applicable
provisions of this Lease, including Articles 3 and 47, and in
accordance with all applicable laws, rules and regulations.
* Landlord will not unreasonably withhold or delay its approval of
Tenant's contractors with respect to nonstructural interior
alteration work which does not affect utility services or plumbing
or electrical lines or other systems of the Building. Additionally,
within ten (10) days after a written request by Tenant, Landlord
shall provide Tenant with a list of three (3) additional contractors
who are approved for work in the Building, for any work or trade
specified by Tenant in its request.
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prior written consent; all such work shall be done only by
contractors or mechanics designated by Landlord as approved for the
Building. 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. Prior to commencement of such work, Tenant
shall obtain and deliver to Landlord a written letter of
authorization, in form satisfactory to Landlord's counsel, signed by
all architects, engineers, surveyors and designers to become
involved in such work, which shall confirm that*** any of their
drawings or plans are to be removed from any filing with
governmental authorities on the request of Landlord
3.02. 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 notice to
Tenant, by payment, filing of the bond required by law, or
otherwise.
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.
3.03. All alterations, installations, additions and improvements
made and installed by Landlord, 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.
3.04. 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, and all
related telephone, telecommunications and data processing equipment
and wiring and conduits, supplemental electrical cabling and wiring,
and related items, 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 the
Landlord shall have the right and privilege at any time prior to or
with three (3) months after the termination of the Lease to serve
notice upon Tenant requiring that nay or all of such alterations,
installations, additions and improvements, equipment, wiring,
cabling and conduits, shall be removed and, in the event of service
of such notice, Tenant will, at Tenant's own cost and expense,
promptly remove the same in accordance with such request, and
restore the premises to its original condition, ordinary wear and
tear excepted. The obligations under this Section shall survive the
expiration or sooner termination of the term of this Lease.
** See Rider Article 47 for Landlord's right to require Tenant to
remove certain installations from the demised
premises at the end of the term of this Lease.
*** in the event such work is discontinued or abandoned,
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3.05. Where furnished by or at the expense of Tenant, all
furniture, furnishings and trade fixtures, including without
limitation, murals, business machines and equipment, counters,
screens, grille work, special paneled doors, cages, partitions,
metal railings, closets, paneling, lighting fixtures and equipment,
drinking fountains, refrigerators, 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
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 in accordance
with such request. 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 the Landlord.
3.06. 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* hereinabove (herein in
this Section 3.06 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 said property and to dispose of the same without
accountability to Tenant and at the sole and reasonable 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 reasonable cost in repairing such damage.
The obligations under this Section shall survive the expiration or
sooner termination of the term of this Lease.
3.07.Tenant shall keep records of Tenant's alterations,
installations, additions and improvements, and the cost thereof**
Tenant shall, within 45 days after demand by Landlord, furnish to
Landlord copies of such records and cost if Landlord shall require
same in connection with any proceeding to reduce the assessed
valuation of the Building, or in connection with any proceeding
instituted pursuant to Article 9 hereof.
* in Articles 47 or 51 of this Lease
** , for a period of three (3) years after the completion of same.
* and subject to Section 7.05 of this Lease,
** within thirty (30) days after written notice of same (except in
an emergency. in which case no such notice shall be required),
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ARTICLE 4
REPAIRS
4.01. Tenant shall take good care of the demised premises and the
fixtures and appurtenances therein and shall promptly, at its sole
cost and expense, make all repairs and replacements, necessary to
keep the demised premises in good working order and condition
including structural repairs when these which are made necessary by
the act, omission or negligence of Tenant or its agents or employees
(subject to Section 7.05 hereof). Except as otherwise provided in
Section 3.05 of this Lease,* all damage or injury to the demised
premises and to its fixtures, glass, appurtenances and equipment or
to the Building or to its fixtures, glass, appurtenances and
equipment caused by the moving of Tenant's property in or out of the
Building, or by the installation or use of Tenant's property, or by
the use of the demised premises in a manner contrary to the purposes
for which same are leased to Tenant, 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, restorations or replacements**, same may be made by
Landlord at the expense of Tenant and such expense shall be
collectible as additional rent and shall be paid by Tenant within 15
days after rendition of a xxxx therefor. Landlord, at Landlord's
expense, shall effect all necessary repairs and replacements in and
to the demised premises which are not the obligation of Tenant
hereunder.***
4.02. 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.
Landlord certifies that the floor of the demised premises will carry
50 pounds live load per square foot of floor space and 20 pounds for
partitions per square foot of floor space. If Tenant shall desire a
floor load in excess of that set forth above, Landlord agrees
(provided Landlord's architects, in their sole discretion, find that
the work necessary to increase such floor load does not adversely
affect the structure of the Building, and further provided that such
work will not interfere with the amount or availability of any space
adjoining alongside, above or below the demised premises or
unreasonably interfere with the occupancy of other tenants in the
Building) to strengthen and reinforce the same so as to give the
live load desired provided Tenant shall submit to Landlord the plans
showing the locations of and the
______________________
*** including, without limitation, any structural repair or
replacement or any repair or replacement to the Building HVAC,
electrical, mechanical or plumbing systems serving the demised
premises, including leaks in the windows, and any repair or
replacement to the exterior and public portions of the Building,****
**** provided (subject to Section 7.05 of this Lease) such repair or
replacement is not made necessary by the act, omission or negligence of
Tenant.
______________________
*comparable first class building in mid-town Manhattan.
**, unless such work is required to remedy a condition that
threatens the health or safety of any occupant of the demised
premises, in which case Landlord shall employ so-called overtime
labor to remedy such condition.
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desired floor live load for the areas in question and provided
further that Tenant shall agree to pay for or reimburse Landlord on
demand for the cost of such strengthening and reinforcement as well
as any other costs to and expenses of Landlord occasioned by or
resulting from such strengthening or reinforcement.
4.03. Business machines and mechanical equipment belonging to
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, cold or heat. The parties hereto recognize that
the operation of elevators, air conditioning and heating equipment
will cause some vibration, noise, heat or cold which may be
transmitted to other parts of the Building and demised premises.
Landlord shall be under no obligation to endeavor to reduce such
vibration, noise, heat or cold beyond what is customary in current
good building practice for a building such as One Penn Plaza.*
4.04. Except as provided in Article 25 hereof and except as
otherwise 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, provided that Landlord shall use reasonable
diligence seek to minimize any interference with Tenant's business
operations. Tenant understands that work will be effected on
business days during normal business hours **
ARTICLE 5
REQUIREMENTS OF LAW; FIRE INSURANCE
5.01. Tenant, at its 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
5.02. Tenant shall not do or permit to be done any act or thing
upon said 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
***provided such compliance is necessitated by Tenant's particular
manner of use of the demised premises (as distinguished from general
office use thereof.) Landlord agrees that it will comply with all
laws, rules and regulations applicable to the demised premises or
the Building, other than such laws, rules and regulations (i) with
which Tenant is expressly obligated to comply by the terms of this
Lease or (ii) which by the express provisions thereof are the direct
obligation of Tenant. (See Section 14.04 for Tenant's right to
contest legal requirements.)
****(based on Tenant's particular manner of use of the demised
premises, as distinguished from general and executive office use
thereof)
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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 said 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 upon said premises; but nothing in this
Section 5.02 shall prevent Tenant's use of the demised premises for
the purposes stated in Article 2 hereof.
5.03. If as a result of** any act or omission by Tenant or
violation of this Lease, the rate of fire insurance applicable to
the Building shall be increased to an amount higher than it
otherwise would be, Tenant shall reimburse Landlord for all
increases of Landlord's fire insurance premiums so caused; such
reimbursement to be additional rent payable 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 said 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 said premises.
ARTICLE 6
SUBORDINAT!ON
6.01. This Lease is subject and subordinate to that certain
Agreement Restating Indenture of Lease, dated July 10, 1970 between
The Bowery Savings Bank, as Lessor, and Mid-City Associates, as
Lessee (hereinafter sometimes called "The Ground Lease") and to the
rights of Lessor thereunder, and to al] first mortgages which may
now or hereafter encumber The Ground Lease, and to all renewals,
modifications, consolidations, replacements and extensions of The
Ground Lease and of such mortgages.
6.02. In the event of a termination of The Ground 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 such mortgage, or if the holder of any such
mortgage acquires a lease in substitution therefor, then the Tenant
under this Lease will, at the option to be exercised in writing by
the Lessor under said Ground Lease or such purchaser, assignee or
lessee, as the case may be, (i) attorn to it and will perform for
its benefit all the terms, covenants and conditions of this Lease on
the Tenant's part to be performed with the same force and effect as
if said Lessor or such
* knowingly or negligently
**Tenant's particular manner of use of the demised premises (as
distinguished from general office use thereof)
8
purchaser, assignee or lessee, were the Landlord originally named in
this Lease, or (ii) enter into a new lease with said Lessor or such
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 then remaining.
ARTICLE 7
LOSS, DAMAGE, REIMBURSEMENT, LIABILITY, ETC.
7.01. Landlord or its agents shall not be liable for any injury or
damage to persons or property resulting from fire, explosion, falling
plaster, steam, gas, electricity, water, rain or snow or leaks from any
part of the Building, or from the pipes, appliances or plumbing works or
from the roof, street or subsurface or from any other place or by
dampness or by any other cause of whatsoever nature, unless any of the
foregoing shall be caused by or due to the negligence of Landlord, its
agents, servants or employees.
7.02. *Tenant shall reimburse Landlord for all expense, damages or
fines incurred or suffered by Landlord, and for which Landlord has not
been or will not be reimburse4 by insurance, by reason of any breach,
violation or nonperformance 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 3.05 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.
7.08. Tenant shall give Landlord notice in case of fire or accidents in
the demised premises promptly after Tenant is aware of such event.
7.04. 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*** the satisfaction of any right or
remedy of tenant for the collection of a judgment (or other judicial
process) requiring the payment of money by Landlord, in the event of any
liability by Landlord, and no other property or assets of Landlord shall
be subject to levy, execution, attachment, or other enforcement
procedure for the satisfaction of Tenant's remedies
*Subject to section 7.05 of this Lease,
** (or the proceeds thereof, including the net proceeds from
insurance or any condemnation award)
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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 (except for negligence).
7.05. (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 10 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, furnish
ings, fixtures and other property removable by Tenant under the pro-
visions of its lease of space in the Building 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
who shall have executed a similar waiver as set forth in this section
7.05(b), 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 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
10
recovery which it might otherwise have against Landlord, its servants,
and employees, and against every other tenant in the Building who shall
have executed a similar waiver as set forth in this Section 7.05(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 subparagraphs (a) and (b) above 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.
ARTICLE 8
DESTRUCTION-FIRE OR OTHER CAUSE
8.01. If the Building shall be partially damaged or destroyed or if
the demised premises shall be partially or totally damaged or destroyed
by fire, casualty or other cause, then, whether or not the damage or
destruction shall have resulted from the fault or neglect of Tenant, or
its servants, employees, agents, visitors or licensees (and if this
Lease shall not have been canceled as in this article hereinafter
provided), Landlord will repair the damage, and restore, replace, and
rebuild the Building and the demised premises at its expense, with
reasonable dispatch and continuity after notice to it of the damage or
destruction; provided, however, that Landlord shall not be required to
repair or replace any installation made by Tenant.* If the demised
premises shall be partially damaged or partially destroyed, the rent
and additional rent payable hereunder shall be abated to the extent
that the demised premises shall have been rendered untenantable or
unfit for Tenant's use and Tenant does not occupy such damaged or
destroyed part of the premises on other than an emergency basis for the
period from the date of such damage or destruction to the date that the
damage shall be repaired or restored. If the demised premises or a
major part thereof shall be totally, or substantially totally, damaged
or destroyed or rendered completely, or substantially completely,
Untenantable on account of fire, casualty or other cause, the rent and
additional rent shall completely xxxxx as of the date of the damage or
* which is not covered by Landlord's fire insurance policy for the
Building.
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destruction and until Landlord shall repair, restore, replace and
rebuild the demised premises (subject to Landlord's right to elect not
to restore the same as hereinafter provided); provided, however, that
should Tenant reoccupy a portion of the demised premises for the
purpose of conducting business during the period the restoration work
is taking place and prior to the date that the same is made completely
tenantable, rent and additional rent shall be apportioned and payable
by Tenant in proportion to the part of the demised premises occupied by
it Nevertheless, in case of any substantial damage or destruction to
the demised premises, Tenant, in addition to and without waiver of any
other rights or remedies available to it, may cancel this Lease by
written notice to Landlord, if (i) within 60 days from the date of the
damage or destruction, Landlord does not file a proof of loss with its
insurer; (ii) within 90 days of the date of damage or destruction
Landlord does not let a contract or contracts which shall provide for
the complete restoration of the demised one year premises within a
period of one year two years from the date of the damage or
destruction; (iii) work un3er. such contract or contracts has not
commenced within 120 days of the date of said damage or destruction; or
(iv) said work is not prosecuted with reasonable diligence to its
completion; provided that Tenant shall not be entitled to cancel this
Lease pursuant to this sentence more than thirty (30) days after
Landlord shall have given written notice to Tenant that the state of
facts specified in clause (i), (ii) or (iii) of this sentence, as the
case may be, has occurred. The period for the commencement or
completion of the required repairs and restoration work shall be
extended by the number of days lost (not to exceed, however, nine
months one year) in the event such loss results from strike, act of
God, war, governmental action, national or state or municipal
emergency, or any cause beyond the reasonable control of Landlord. *
8.02. In case the Building or the demised premises shall be
substantially damaged or destroyed by fire or other cause at any time
during the last two years of the term of this Lease, then Landlord or
Tenant may cancel this Lease upon written notice to the other party
Tenant given within ninety (90) days after such damage or destruction.
8.03. If the Building shall be so damaged at any time during the
term of this Lease that Landlord shall decide to demolish it or to
rebuild it, then in either of such events, Landlord may, within ninety
(90) days after such fire or other casualty, elect to cancel this Lease
by giving Tenant a notice in writing of such decision, and thereupon
the
*Notwithstanding the foregoing, in case of any substantial damage or
destruction to the demised premises, and if Landlord, subject to
Section 25.01 of this Lease (except that such one (1) year period shall
not be extended by more than nine (9) months as a result of any such
occurrence), shall not substantially complete such repair and
restoration work within one (1) year after that date of the fire or
other casualty, then Tenant may terminate this lease by thirty (30)
days prior to written notice to Landlord (unless such work is
substantially completed within thirty (30) days after Tenant gives such
termination notice, in which case such termination notice shall be null
and void and of nor force and effect.)
*In connection with repair or restoration work in any portion of the
demised premises, Landlord will use reasonable efforts to minimize any
interference with Tenant's business operations in the remaining portion
of the demised premises. Tenant understands that work will be effected
on business days during normal business hours, unless such work is
required to remedy a condition that threatens the health or safety of
any occupant, in which case Landlord shall employ so-called
overtime labor to remedy such condition.
12
term of this Lease shall expire by lapse of time upon the thirtieth day
after such notice is given, and Tenant shall vacate the demised
premises and surrender the same to Landlord.
8.04. In the event of the termination of this Lease pursuant to the
provisions of this Article, this Lease shall expire as fully and
completely on the date fixed in such notice of termination as if that
were the date definitely fixed for the expiration of this Lease, but
the rent and additional rent shall be apportioned and shall be paid up
to and including the date of such damage or destruction, and any
prepaid rent or prepaid additional rent shall be refunded to Tenant.
8.05. No damages, compensation or claim shall be payable by
Landlord for inconvenience, loss of business or annoyance arising from
any repair or restoration of any portion of the demised premises or of
the Building. *
8.06. The provisions of this Article shall be considered an express
agreement governing any case of damage or destructi6n of the Building
or the demised premises by fire or other casualty and Section 227 of
the Real Property Law of the State of New York1 and any other law of
like import now or hereafter in force providing for such contingency
shall have no application.
ARTICLE 9
EMINENT DOMAIN
9.01. 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 or purpose, this Lease and the term and estate hereby
granted shall forthwith cease and terminate as of the date of vesting
of title (hereinafter referred to as the "date of taking"), and Tenant
shall have no claim against Landlord for, or make any claim for, the
value of any unexpired term of this Lease, and the rent and additional
rent shall be apportioned as of such date.
9.02. In the event that any part of the demised premises shall be
so condemned or taken, then this Lease shall be and remain unaffected
by such condemnation or taking, except that the rent and additional
rent allocable to the part so taken shall be apportioned as of the date
of taking provided, however, that Tenant may elect to cancel this Lease
in the event that*** more than twenty-five (25%) of the demised
premises should be so condemned or taken, provided such notice of
election is given by Tenant to Landlord not later than thirty
** such condemnation or taking results in Tenant being unable to
reasonably use the demised premises for the purposes
permitted hereunder (a "Material Taking"),
13
(30) days after the date when title shall vest in the condemning
authority. Upon the giving of such notice, this Lease shall terminate
on the thirtieth day following the date of such notice and the rent and
additional rent shall be apportioned as of such termination date. Upon
such partial taking and this Lease continuing in force as to any part
of the demised premises, the rent and additional rent shall be
diminished by an amount representing the part of said rent and
additional rent properly applicable to the portion or portions of the
demised premises which may be so condemned or taken. If as a result of
the partial taking (and this Lease continuing in force as to the part
of the demised premises not so taken), any part of the demised premises
not taken is damaged. Landlord agrees with reasonable promptness to
commence the work necessary to restore the damaged portion to the
condition existing immediately prior to the taking, and prosecute the
same with reasonable diligence to its completion. In the event Landlord
and Tenant are unable to agree as to the amount by which the rent and
additional rent shall be diminished, the matter shall be determined by
arbitration in accordance with the provisions of Article 31 of this
Lease. Pending such determination, Tenant shall pay to Landlord the
rent as fixed by Landlord, subject to adjustment in accordance with the
arbitration.
9.03. Nothing hereinabove provided shall preclude Tenant from
appearing, claiming, proving and receiving in the condemnation
proceeding, Tenant's moving expenses, and the value of Tenant's
fixtures, or tenant1s alterations, installations and improvements which
do not become part of the Building, or property of Landlord, provided
Landlord's award is not thereby diminished.
9.04. In the event* that more than twenty-five (25%) of the demised
premises shall be so taken and Tenant shall not have elected to cancel
this Lease as above provided, the entire award for a partial taking
shall be paid to Landlord, and Landlord, at Landlord's own expense,
shall to the extent of the net proceeds (after deducting reasonable
expenses including attorneys' and appraisers' fees) of the award
restore the unaffected part of the Building to substantially the same
condition and tenantability as existed prior to the taking.
Until said unaffected portion is restored, Tenant shall be entitled to
a proportionate abatement of rent for that portion of the premises
which is being restored and is not usable until the completion of the
restoration or until the said portion of the premises is used by
Tenant, whichever occurs sooner. Said unaffected portion shall be
restored
* of a Material Taking
t
k
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within a reasonable time but not more than six (6) months after the
taking provided, however, if Landlord is delayed by strike, lockout,
the elements, or other causes beyond Landlord's control, the time for
completion shall be extended for a period equivalent to the delay.
Should Landlord fail to complete the restoration within the said six
(6) months or the time as extended, Tenant may elect to cancel this
Lease and the term hereby granted in the manner and with the same
results as set forth in the next two sentences of this Section 9.04. If
such partial taking shall occur in the last two years of the term
hereby granted, either party, irrespective of the area of the space
remaining, may elect to cancel this Lease and the term hereby granted,
provided such party shall, within thirty (30) days after. such taking,
give notice to that effect, and upon the giving of such notice, the
rent shall be apportioned and paid to the date of expiration of the
term specified and this Lease and the term hereby granted shall cease,
expire and come to an end upon the expiration of said thirty days
specified in said notice. If either party shall so elect to end this
Lease and the term hereby granted, Landlord need not restore any part
of the demised premises and the entire award for partial condemnation
shall be paid to Landlord, and Tenant shall have no claim to any part
thereof, except as to the items set forth in Section 9.03 where same
are applicable.
9.05. In the event a]l or any part of the demised premises shall be
taken for a temporary use or occupancy, (a) demised term shall not be
reduced or affected in any way except as provided in (d) below, (b)
Tenant shall continue to be responsible for all of its obligations
hereunder and shall continue to pay all rents and additional rents when
due, (c) Tenant shall be entitled to receive that portion of the award
which represents reimbursement for the cost of restoration of the
demised premises, compensation for the use and occupancy of the demised
premises and for any taking of Tenant's property, except that, if the
temporary period of taking shall extend beyond the expiration of the
term of this Lease, the portion of the award representing compensation
for the use and occupancy of the demised premises shall be apportioned
between Landlord and Tenant as of said expiration date of said term and
Landlord shall receive that portion of the award which represents
reimbursements for the cost of restoration of the demised premises, and
(d) if the date of temporary taking of more than 25% of the demised
premises shall occur during the last three (3) years of the term of
this Lease. Tenant may elect to cancel this Lease by notice of election
given by Tenant to Landlord not later than thirty (30) days after the
date when title shall vest in the condemning authority. Upon the giving
of such notice, this Lease shall terminate on the thirtieth day
following the date of such notice and the rent and additional rent
shall be apportioned as of such termination date, with Landlord, and
not
* (except as otherwise specifically provided in this Article).
** (except as otherwise specifically provided in this Article)
*** but with a full release of Tenant from any and all obligations
accruing under this Lease from and after the effective date of such
assignment,
15
Tenant, to receive the portion of the award which represents reimburse
ment for the cost of restoration of the demised premises and the
portion of the award representing compensation for the use and
occupancy of the demised premises for the time subsequent to the
cancellation date.
ARTICLE 10
ASSIGNMENT AND SUBLETTING
10.01. Tenant, for itself, its heirs, distributees, executors, admin
istrators, legal representatives, successors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this Lease,
nor underlet, or suffer or permit the demised premises or any part
thereof to be used or occupied by others, without the prior written
consent of Landlord in each instance.* The merger or consolidation of
a corporate lessee or sublessee where the net worth of the resulting
corporation is less than the net worth of the lessee or sublessee
immediately prior to such merger or consolidation shall be deemed an
assignment of this lease or of such sublease. If this Lease be
assigned, or if the demised premises or any part thereof be underlet or
occupied by anybody other than Tenant, Landlord may, after default by
Tenant, collect rent from the assignee, undertenant or occupant, and
apply the net amount collected to the rent herein reserved, but no
assignment, underletting, occupancy or collection shall be deemed a
waiver of the provisions hereof, the acceptance of the assignee,
undertenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Landlord to an assignment or underletting
shall not in any wise be construed to relieve Tenant from obtaining the
express consent in writing of Landlord to any further assignment or
underletting. In no event shall any permitted sublessee assign or
encumber its sublease or further sublet all or any portion of its
sublet space, or otherwise suffer or permit the sublet space or any
part thereof to be used or occupied by others, without Landlord's prior
written consent in each instance. A modification, amendment or
extension of a sublease shall be deemed a sublease.
10.02. If Tenant desires to assign this Lease or to sublet all or
any portion of the demised premises, it shall** first submit in
writing to Landlord the documents described in Section 10.03 hereof,
and shall offer in writing, (i) with respect to a prospective
assignment, to assign this Lease to Landlord without any payment of
moneys or other consideration therefor,* or, (ii) with respect to a
prospective subletting, to sublet to Landlord the portion of the
demised premises involved "Leaseback Area") for the term specified by
Tenant in its offer and at the lower of (a) Tenant's proposed subrental
or (b) at the same rate of fixed rent and additional rent; and
otherwise on the same terms,
16
covenants and conditions (including provisions relating to escalation
rents), as are contained herein and as are allocable and applicable to
the portion of the demised premises to be covered by such subletting.
The offer shall specify the date when the Leaseback Area will be made
available to Landlord, which date shall be in no event earlier than
ninety (90) sixty (60) days nor later than one hundred eighty (180)
days following the acceptance of the offer. If an offer of sublease is
made, it shall in addition specify the duration of the term of the
proposed sublease as fixed by Tenant, except that if the proposed
sublease will result in all or substantially all of the demised
premises being sublet, then Landlord shall have the option to extend
the term of the proposed sublease for the balance of the term of this
Lease less one (1) day.
Landlord shall have a period of thirty (30) ninety (90) days from
the receipt of such offer to either accept or reject the same. Landlord
or its agents or designees shall have the right, during such time, at
reasonable times during business hours, to enter the demised premises
to exhibit same to prospective subtenants. If Landlord shall accept
such offer, Tenant shall then execute and deliver to Landlord, or to
anyone designated or named by Landlord, an assignment or sublease, as
the case may be, in either case in a form reasonably satisfactory to
Landlord's counsel.
If a sublease is so made to Landlord or its designee, it shall
expressly:
(a) permit Landlord to make further subleases of all or any
part of the Leaseback Area and (at no cost or expense to
Tenant) to make and authorize any and all changes,
alterations, installations and improvements in such space as
Landlord may deem necessary for such subletting, at Landlord's
expense;
(b) provide that Tenant will at all times permit reasonably
appropriate means of ingress to and egress from the Leaseback
Area;
(c) negate any intention that the estate created under such
sublease be merged with any other estate held by either of the
parties;
(d) provide that Landlord shall accent the Leaseback Area "as
is" except that Landlord, at Landlord's Tenant's expense,
shall perform all such work and make all such alterations as
may be required physically to separate the Leaseback Area from
the remainder of the demised premises and to permit lawful
occupancy, it being
* letter of intent with respect to
** (see Section 10.04 below), provided that the material terms thereof
are substantially the same as those set forth in the letter of intent
described in section 10.03 above.
***, provided that the material terms thereof are substantially the
same as those set forth in the letter of intent described in Section
10.03 above.
17
intended that Tenant shall have no other cost or expense in
connection with the subletting of the Leaseback Area;
(e) provide that at the expiration of the term of such
sublease Tenant will accept the Leaseback Area in its then
existing condition, subject to the obligations of Landlord to
make such repairs thereto as may be necessary to preserve the
Leaseback Area in good order and condition, ordinary wear and
tear excepted.
Landlord shall indemnify and save Tenant harmless from all ob
ligations under this Lease as to the Leaseback Area during the period
of time it is so sublet, except for fixed annual rent and additional
rents, if any, due under the within Lease, which are in excess of the
rent and additional rents due under such sublease.
Subject to the foregoing, performance by Landlord, or its
designee, under a sublease of the Leaseback Area shall be deemed
performance by Tenant of any similar obligation under this Lease and
any default under any such sublease shall not give rise to a default
under a similar obligation contained in this Lease, nor shall Tenant be
liable for any default under this Lease or deemed to be in default
hereunder if such default is occasioned by or arises from any act or
omission of the tenant under such sublease or is occasioned by or
arises from any act or omission of any occupant holding under or
pursuant to any such sublease.
10.03. If Tenant requests Landlord's consent to a specific assign
ment or subletting, it shall submit in writing to Landlord (i) the name
and address of the proposed assignee or sublessee, (ii) a duly executed
counterpart of *the proposed agreement of assignment or sublease***
(iii) reasonably satisfactory information as to the nature and
character of the business of the proposed assignee or sublessee, and as
to the nature of its proposed use of the space, and (iv) banking,
financial or other credit information relating to the proposed assignee
or sublessee reasonably sufficient to enable Landlord to determine the
financial responsibility and character of the proposed assignee or
sublessee.
10.04. If Landlord shall not have accepted Tenant's offer, as
provided in Section 10.02, then Landlord will not unreasonably withhold
condition or delay its consent to Tenant's request for consent to such
specific assignment or subletting*** (where Tenant will not move the
conduct of its business to another building in New York City in
violation of Article 34 hereof). ****Any consent of Landlord under
this Article shall be subject to the terms of this Article and
conditional upon there being no default by Tenant, beyond any grace
period,
**** Additionally, Landlord shall respond to Tenant with thirty (30)
days after Tenant's offer and request to the specific assignment or
subletting. If Landlord fails to respond with such thirty (30) day
period, then Tenant may notify Landlord in writing of such failure. If
Landlord again fails to respond with five (5) business days after it
receives such notice, then Landlord shall be deemed to have consented
to such request (provided such notice by Tenant reminds Landlord in
writing that its failure to respond with such five (5) business day
period will constitute such deemed consent by Landlord).
* the costs of Tenant, if any, in effecting the transaction, including
reasonable alteration costs, commissions, advertising costs and legal
fees)
** When the primary purpose of the transaction is to transfer this
lease; the
18
under any of the material terms, covenants and conditions of this Lease
at the time that Landlord's consent to any subletting or assignment is
requested and on the date of the commencement of the term of any
proposed sublease & the effective date of any proposed assignment.
10.05.Tenant understands and agrees that whether Landlord's written
consent thereto is required or not required, no assignment or
subletting shall be effective unless Tenant causes to be delivered to
Landlord a duly executed copy of the sublease or assignment (unless it
was theretofore delivered to Landlord). Any such sublease shall provide
that the sublessee shall comply with all applicable terms and
conditions of this Lease to be performed by the Tenant hereunder. Any
such assignment of lease shall contain an assumption by the assignee of
all of the terms, covenants and conditions of this Lease to be
performed by the Tenant.
10.06.If Landlord shall not have accepted any required Tenant's offer
and/or Tenant effects any assignment or subletting then Tenant
thereafter shall pay to Landlord a sum equal to (a) fifty percent (50%)
of any rent or other consideration paid to Tenant by any subtenant
which (after deducting the costs of Tenant, if any, in effecting the
subletting, including reasonable alteration costs, commissions and
legal fees) is in excess of the rent allocable to the subleased space
which is then being paid by Tenant to Landlord pursuant to the terms
hereof; and (b) fifty percent (50%) of any other profit or gain (after
deducting* any necessary expenses incurred) realized by Tenant from any
such subletting or assignment. All sums payable hereunder by Tenant
shall be payable to Landlord as additional rent upon receipt thereof by
Tenant.
10.07.Anything herein contained to the contrary notwithstanding:
(a) Tenant shall not advertise (but may list with-brokers)
its space for assignment or subletting at a rental rate lower
than the greater of the then Building rental rate for such
space. Or the rental rate then being paid by Tenant to
Landlord.
(b) **The transfer of a majority of the issued and outstanding
capital stock of, or of a controlling interest in, any
corporate tenant or subtenant of this Lease or a majority of
the total interest in any partnership tenant or subtenant,
however accomplished, and 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.*** The
transfer of outstanding capital stock of any corporate tenant,
for purposes of this Article, shall not include sale of such
stock by persons other than those deemed "insiders" within the
meaning of the Securities Exchange Act of 1984 as amended, and
which sale is effected through "over-the-counter market" or
through any recognized stock exchange.
*** The conversion of a partnership tenant or subtenant to a liability
company or limited liability partnership shall deemed an assignment of
this Lease or of such sublease.
*The term "Affiliate" as used in this Article shall mean any entity
controlled by, controlling or under common control with Tenant. The
term "control" shall mean ownership of more than fifty percent (50%) of
the equity and voting interest in any entity.
**and the reputation and experience of the transferee or of the
resulting or surviving corporation, as the case may be (or, if it is a
new entity,***
19
(c) No assignment or subletting shall be made:
(i) To any person or entity which shall at that time be a
tenant, subtenant or other occupant of any part of ~ of
which the demised premises form a part, or who negotiated
deals 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;
(ii) By the legal representatives of the Tenant or by any
person to whom Tenant's interest under this Lease passes by
operation of law, except in compliance with the provisions
of this Article;
(iii) To any person or entity for the conduct of a business
which is not in keeping with the standards and the general
character of the Building of which the demised premises form
a part
10.08.Anything hereinabove contained to the contrary notwithstanding,
the offer-back to Landlord provisions of Section l0.02 and section
10.06 hereof shall not apply to, and Landlord hereby grants will not
reasonably withhold or delay its consent to, an assignment of this
lease, or sublease of all or part of the demised premises, to: the
parent of Tenant or to an Affiliate (as hereinafter defined) a wholly
owned subsidiary of Tenant or of said parent of Tenant, provided the
net worth of the transferor or sublessor after such transaction, is
equal to or greater than its net worth immediately prior to such
transaction, and provided also that any such transaction complies with
the other provisions of this Article.*
10.09.Anything hereinabove contained to the contrary notwithstanding,
the offer-back to Landlord provisions of Section 10.02 hereof shall not
apply to, and Landlord will not unreasonably withhold condition, or
delay its consent to, an assignment of this Lease, or sublease of all
or part of the demised premises, to: any corporation (i) to which
substantially all the assets of Tenant are transferred or (ii) into
which Tenant may be merged or consolidated, provided that the net worth
experience and reputation of such transferee or of the resulting or
surviving corporation, as the case may be, is equal to or greater than
the net worth experience and reputation of Tenant and of any guarantor
of this Lease immediately prior to such transfer** and provided, also,
that any such transaction complies with the other provisions of this
Article. ******
00.00.Xx consent from Landlord shall be necessary under Sections 10.08
and 10.09 hereof where (i) reasonably satisfactory proof is delivered
to Landlord that the net worth and other provisions of 10.08 and 10.09,
as the case may be, and the other provisions of this Article, have been
satisfied and (ii) Tenant (provided it is still in existence), in a
writing reasonably satisfactory to Landlord's attorneys, agrees to
remain primarily liable jointly and severally with any transferee****
or assignee, for the obligations of Tenant under this Lease.****
***the reputation and experience of its principals), it is reasonably
acceptable to Landlord;
******(except that Section 10.06 shall only apply to the extent that a
specific value is ascribed to the Lease in any of the documents
relating to the transaction).
*****or any other permitted securities brokerage firm
****10.11. If and so long as First Albany Companies Inc., or its
Affiliate***** is in actual occupancy of the demised premises, and such
party is not in default beyond any grace period under any of the
material terms, covenants or conditions of this Lease, then the
provisions of Section 10.02 shall not apply to, and Landlord hereby
grants its consent to, the licensing by Tenant, from time to time, of
up to an aggregate of fifteen percent (15%) of the rentable square foot
area of the demised premises, for use by accountants, lawyers or
securities industry professionals; but any such licensing shall be
subject to all other applicable provisions of this Article.
* The provisions of this Section 10.12 shall not apply if Landlord
arbitrarily or in bad faith withholds, delays or conditions its consent
or approval to any proposed assignment or subletting under this
Article.
20
00.00.Xx no event shall Tenant 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 setoff,
counterclaim or defense) based upon any claim or assertion by Tenant
that Landlord has unreasonably withheld or unreasonably delayed its
consent or approval to a proposed assignment or subletting as provided
for in this Article. Tenant's sole remedy shall be an action or
proceeding to enforce any such provision, or for specific performance,
injunction or declaratory judgment. *
ARTICLE 11
ACCESS TO DEMISED PREMISES
11.01.Tenant shall permit Landlord, or its agents or designees, to
erect, use and maintain pipes, ducts and conduits in and through the
demised premises, provided the same are installed adjacent to or
concealed behind walls, floor and ceilings of the demised premises and
are installed by such methods and at such locations as will not
materially interfere with or impair Tenant's layout or use of the
demised premises or damage the appearance thereof** Landlord or its
agents or designees shall have the right, but only upon request made
to Tenant or any authorized employee of Tenant at the demised premises
to enter the demised premises, other than vaults or other enclosures
where money, securities or other valuables or confidential documents
are kept, at reasonable times during business hours, for the making of
such repairs or alterations as Landlord shall be required 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 the 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 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, except as otherwise
provided in this Lease, while said repairs or alterations are being
made, by reason of loss or interruption of the business of
**or reduce the rentable area of the demised premises (other than a de
minimis extent).
***reasonable request (which shall be at least 24 hours notice, except
in an emergency) made
* Landlord, at its expense, shall repair any damage to the demised
premises including Tenant's finish work, which is caused by any such
work or as a result of any such entry of the demised premises by
Landlord or its agents or employees.
21
Tenant because of the prosecution of any such work provided that,
Landlord shall seek use reasonable diligence to minimize any
interference with Tenant's business operations, as in Section 4.04
provided. *
11.02.Landlord or its agents or designees may, during the six (6) nine
(9) months prior to the expiration of the term of this Lease, at
reasonable times during business hours** enter the demised premises to
exhibit same to prospective tenants.
11.03.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 reason able care
to Tenant's property) and without in any manner affecting the
obligations and covenants of this Lease.
ARTICLE 12
CERTIFICATE OR 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.
Landlord represents that the certificate of occupancy for the Building
will permit the use of the demised premises for the purposes specified
in this Lease. Landlord will make no changes in the Building which
would result in a change in the certificate of occupancy which prevents
Tenant from using the demised premises for the purposes specified in
this Lease.
ARTICLE 13
BANKRUPTCY
13.01.Subject to then applicable law and to the provisions of Section
13.03, if at any time prior to the date herein fixed as the
commencement of the term of this Lease there shall be filed by or
against Tenant in any court pursuant to any statute either of the
United States or of any State a petition in bankruptcy or insolvency or
for reorganization or for the appointment of a receiver or a trustee of
all or a portion of Tenant's property, or if Tenant makes an assignment
for the benefit of creditors, or petitions for or enters into an
arrangement with creditors, this Lease shall ipso facto be canceled and
terminated, in which event neither Tenant nor any person
** , after reasonable prior notice (which may be oral and given on
the same day),
*** and Landlord has used reasonable efforts to contact an authorized
representative of Tenant, whose name and telephone number have
theretofore been provided to Landlord in writing,
22
claiming through or under Tenant or by virtue of any statute or of an
order of any court shall be entitled to possession of the demised
premises and Landlord, in addition to the other rights and remedies
given by Section 13.04 hereof and by virtue of any other provision
herein or elsewhere in this Lease contained or by virtue of any statute
or rule of law, may retain as liquidated damages any rent, security
deposit or monies received by it from Tenant or others in behalf of
Tenant upon the execution hereof.
13.02.Subject to then applicable law and to the provisions of Section
13.03, if at the date fixed as the commencement of the term of this
Lease or if at any time during the term hereby demised there shall be
filed by or against Tenant in any court pursuant to any statute either
of the United States or of any State a petition in bankruptcy or
insolvency or for reorganization or for the appointment of a receiver
or trustee of all or a portion of Tenant's property, or if Tenant makes
an assignment for the benefit of creditors, or petitions for or enters
into an arrangement with creditors, Landlord may at Landlord's option,
serve upon Tenant or any such trustee, receiver, or assignee, a notice
in writing stating that this Lease and the term hereby granted shall
cease and expire on the date specified in said notice, which date shall
be not less than ten days after the serving of said notice, and this
Lease and the term hereof shall then expire on the date so specified as
if that date had originally been fixed in this Lease as the expiration
date of the term herein granted.* (Thereupon, neither Tenant nor any
person claiming through or under Tenant by virtue of any statute or of
an order of any court shall be entitled to possession or to remain in
possession of the demised premises but shall forthwith quit and
surrender the premises, and Landlord, in addition to the other rights
and remedies Landlord has by virtue of any other provision herein or
elsewhere in this Lease contained or by virtue of any statute or rule
of law, may retain as liquidated damages any rent, security, deposit or
monies received by it from Tenant or others in behalf of Tenant.
00.00.Xx the event that at any times mentioned in either Sections 13.01
or 13.02 there shall be instituted against Tenant an involuntary
proceeding for bankruptcy, insolvency, reorganization or any other
relief described in Sections 13.01 and 13.02, Tenant shall have 120
ninety (90) days in which to vacate or stay the same before this Lease
shall terminate or before Landlord shall have any right to terminate
this Lease, provided the rent and additional rent then in arrears, if
any, are paid within thirty (30) fifteen (15) days after the
institution of
* Notwithstanding the foregoing, if and so long as Tenant is not in
default under this Lease beyond any grace period, Landlord shall not
exercise such termination right.
23
such proceeding, and further provided that the rent and additional rent
which shall thereafter become due and payable are paid when due, and
Tenant shall not otherwise be in default in the performance of the
terms and covenants of this Lease.
00.00.Xx the event of the termination of this Lease pursuant to
Sections 13.01, 13.02 or 13.03 hereof, Landlord shall forthwith,
notwithstanding any other provisions of this Lease to the contrary, be
entitled to recover from Tenant as and for liquidated damages an amount
equal to the difference between the rent reserved hereunder for the
unexpired portion of the term demised and the then fair and reasonable
rental value of the demised premises for the same period, if lower than
the rent reserved at the time of termination. If such premises or any
part thereof be re-let by Landlord for the unexpired term of said
Lease, or any part thereof, before presentation of proof of such
liquidated damages to any court, commission or tribunal, the amount of
rent reserved upon such re-letting shall be prima facie the fair and
reasonable rental value for the part or the whole of the premises so re-
let during the term of the re-letting. Nothing herein contained shall
limit or prejudice the, right of Landlord to prove for and obtain as
liquidated damages by reason of such termination, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time
when, and governing the proceedings in which such damages are to be
proved, whether or not such amount be greater, equal to, or less than
the amount of the difference referred to
above.
*30 (15 in case of a payment default)
**(or its permitted designee, sublessee, licensee or other successor-in-
interest)
***unless Tenant prevails in such action or preceding,
24
ARTICLE 14
DEFAULT
14.01. If Tenant defaults in fulfilling any of the covenants of this
Lease, including the payment of rent or additional rent, or if the
demised premises become abandoned vacant or deserted, then in any one
or more of such events, upon Landlord serving a written* days' notice
upon Tenant specifying the nature of said default and upon the
expiration of said 30 (15)days, if Tenant shall have failed to comply
with or remedy such default, or if the said default or omission
complained of shall be of such a nature that the same cannot be
completely cured or remedied within said 30-day period and if Tenant
shall not have diligently commenced to take action towards curing such
default within such day period and shall not thereafter with reasonable
diligence and in good faith proceed to remedy or cure such default, or
if any execution or attachment shall be issued against Tenant or any of
Tenant's property whereupon the demised premises shall be occupied by
someone other than Tenant** and such occupancy shall continue for a
period of thirty (30) days after written notice from Landlord, then
Landlord may serve a written 10 days' notice of cancellation of this
Lease upon Tenant, and, upon the expiration of said 10 days, this Lease
and the term hereunder and any rights of renewal or extension thereof
shall end and expire as fully and completely as if the date of
expiration of such 10-day period were the day herein originally fixed
for the end and expiration of this Lease and the term hereof and Tenant
shall then quit and surrender the demised premises to Landlord but
Tenant shall remain liable as hereinafter provided. If Tenant shall at
any time default hereunder, and if Landlord shall institute an action
or summary proceedings against Tenant based upon such default, then***
Tenant will reimburse Landlord for the expense of reasonable attorney's
fees and disbursements thereby incurred by Landlord.
14.02. If the notices provided for in Section 14.01 hereof
shall have been given, and the term shall expire as aforesaid, or if
Tenant shall make default in the payment of the rent reserved herein or
any item of additional rent herein provided or any part of either or in
making any other payment herein provided for, then and in any of
such events Landlord may, without notice, re-enter the demised premises
either by force or otherwise, and dispossess Tenant, the legal
representatives of Tenant or other occupant of the demised premises,
by summary proceedings or otherwise and remove their effects and
25
hold the premises as if this Lease had not been made, and Tenant hereby
waives the service of notice of intention to reenter and to institute
legal proceedings to that end.
14.03.Notwithstanding any lease term expiration or termination under
this Article 14 prior to the Lease expiration date originally fixed
herein, Tenant's obligation to pay any and all rent and additional rent
under this Lease shall continue to and cover all periods up to the date
originally fixed for the expiration of the term hereof.
14.04.Notwithstanding the provisions of Section 14.01 hereof, Tenant,
at its own cost and expense, in its name and/or (wherever necessary)
Landlord's name, may contest, in any manner permitted by law (including
appeals to a court, or governmental department or authority having
jurisdiction in the matter), the validity or the enforcement of any
governmental act, 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 at Xxx Xxxx Xxxxx, Xxx
Xxxx Xxxx to lien or sale;
(b) such non-compliance shall not be in violation of any fee
mortgage, or of any ground of 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 15
REMEDIES OF LANDLORD; WAIVER OF REDEMPTION
00.00.Xx case of such re-entry, expiration and/or dispossess by summary
proceedings or otherwise as set forth in Article 14 hereof (a)
26
the rent shall become due thereupon and be paid up to the time of such
re-entry, dispossess and/or expiration, together with such reasonable
expenses as Landlord may incur for legal expenses, reasonable
attorneys' fees, brokerage, and/or putting the demised premises in good
order or for preparing the same for re-rental; (b) Landlord may re-let*
the premises or any part or parts thereof, either in the name of
Landlord or otherwise, for a term or terms, which may at Landlord's
option be less than or exceed the period which would otherwise have
constituted the balance of the term of this Lease and may grant
concessions or free rent; and/or (c) Tenant shall also pay Landlord as
damages for the failure of Tenant to observe and perform said Tenant's
covenants herein contained, any deficiency between the rent hereby
reserved and/or covenanted to be paid and the net amount, if any, of
the rents collected on account of the lease or leases of the demised
premises for each month of the period which would otherwise have
constituted the balance of the term of this Lease. The failure or
refusal of Landlord to re-let the premises or any part or parts thereof
shall not release or affect Tenant's liability for damages. In
computing such damages there shall be added to the said deficiency such
reasonable expenses as Landlord may incur in connection with re-
letting, such as legal expenses, reasonable attorneys fees, brokerage
and for keeping the demised premises in good order or for preparing the
same for re-letting. Any such damages shall be paid in monthly
installments by Tenant on the rent days specified in this Lease and any
suit brought to collect the amount of the deficiency for any month
shall not prejudice in any way the rights of Landlord to collect the
deficiency for any subsequent month by a similar proceeding. Landlord,
at Landlord's option, may make such alterations, repairs, replacements
and/or decorations in the demised premises as Landlord, in Landlord's
sole judgment, considers advisable and necessary for the purpose of re-
letting the demised premises; and the making of such alterations and/or
decorations shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. Landlord shall in no event be liable
in any way whatsoever for failure or refusal to re-let the demised
premises or any parts thereof, or, in the event that the demised
premises are re-let, for failure to collect the rent thereof under such
re-letting. In the event of a breach or threatened breach by Tenant of
any of the covenants or provisions hereof, Landlord shall have the
right of injunction and the right to invoke any remedy allowed at law
or in equity as if re-entry, summary proceedings and other remedies
were not herein provided for. Mention in this Lease of any particular
remedy, shall not preclude Landlord from any other remedy, in law or in
equity.
* (Landlord shall seek to relet the demised premises provided there
is no other comparable space in the Building then available for leasing
by Landlord
27
15.02.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 demised premises, by reason of the
violation by Tenant of any of the covenants and conditions of this
Lease or otherwise.
ARTICLE 16
FEES AND EXPENSES; INTEREST
16.01.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 virtue of any of the covenants, 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, 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
reasonable expenditures or incurs any reasonable 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, shall be deemed to be additional rent
hereunder and shall be paid by Tenant to Landlord upon rendition of a
xxxx to Tenant therefor.
If Tenant is more than ten (10) day's late in making any payment due to
Landlord from Tenant under this Lease, then interest shall become due
and owing to Landlord on such payment from the date when it was due,
computed as provided in Section 20.04 hereof.
ARTICLE 17
NO REPRESENTATIONS BY LANDLORD
17.01. Landlord or Landlord's agents have made no representations or
promises with respect to the said Building or demised premises except
as herein expressly set forth. (SEE RIDER ARTICLE 51)
28
ARTICLE 18
END OF TERM
18.01.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 except as otherwise provided
herein provided Tenant's obligation to observe or perform this covenant
shall survive the expiration or sooner termination of the term of this
Lease.
18.02.Tenant agrees it shall indemnify and save Landlord harmless
against all costs, claims, loss or liability resulting from delay by
Tenant in so surrendering the premises, including, without limitation,
any claims made by any succeeding tenant founded on such delay.
Additionally, the parties recognize and agree that other damage to
Landlord resulting from any failure by Tenant timely to surrender the
premises will be substantial, will exceed the amount of monthly rent
theretofore payable hereunder, and will be impossible of accurate
measurement. Tenant therefore agrees that if possession of the premises
is not surrendered to Landlord within ten (10) days one (1) day after
the day of the expiration or sooner termination of the term of this
Lease, then Tenant will pay Landlord, as liquidated damages, for each
month and for each portion of any month during which Tenant holds over
in the premises after expiration or termination of the term of this
Lease, a sum equal two three times the average. rent and additional
rent which was payable per month under this Lease during the last six
months of the term thereof. The aforesaid obligations shall survive the
expiration or sooner termination of the term of this Lease.
ARTICLE 19
QUIET ENJOYMENT
19.01. Landlord covenants and agrees with Tenant that upon Tenant
paying the rent and additional rent and observing and performing all
the terms, covenants and conditions, on Tenant's part to be observed
and performed, Tenant may peaceably and quietly enjoy the premises
hereby demised, subject, nevertheless, to the terms and conditions of
this Lease, and to the ground leases, underlying leases and mortgages
hereinbefore mentioned.
29
ARTICLE 20
DEFINITIONS
20.01.The term "Landlord" as used in this Lease means only the owner,
or the mortgagee in possession, for the time being of the land and
Building (or the owner of a lease of the Building or of the land and
Building), so that in the event of any transfer of title to said land
and Building or said lease, or in the event of a lease of the Building,
or of the land and Building, upon notification to Tenant of such
transfer or lease the said transferor Landlord shall be and hereby is
entirely freed and relieved of all existing or future covenants,
obligations and liabilities of Landlord hereunder, and it shall be
deemed and construed as a covenant running with the land without
further agreement between the parties or their successors in interest,
or between the parties and the transferee of title to said land and
Building or said lease, or the said lessee of the Building, or of the
land and Building, that the transferee or the lessee has assumed and
agreed to carry out any and all such covenants, obligations and
liabilities of Landlord hereunder.
20.02.The words "re-enter" and "re-entry" as used in this Lease are not
restricted to their technical legal meaning.
20.03.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.
20.04.Except as otherwise specifically provided in this Lease, whenever
payment of interest is required by the terms hereof, it shall be
computed as follows: for an individual or partnership tenant, computed
at the maximum legal rate of interest; for a corporate tenant, computed
at* two (2%) percent per month unless there is an applicable maximum
legal rate of interest which then shall be used.
ARTICLE 21
ADJACENT EXCAVATION-SHORING
21.01.If an excavation 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
* the lower of (i) the rate of interest publicly announced New York
from time to time by Chase Manhattan Bank, N.A. its prime rate plus
four percent (4%) per annum, or (ii) applicable maximum legal rate of
interest
*Landlord shall seek to cause such work to be effected in a manner
which minimizes interference with Tenant's business operations in the
demised premises.
30
such work as shall be necessary to preserve the wall of or the Building
of which the demised premises form a part from injury or damage and to
support the same by proper foundations without any claim for damages or
indemnity against Landlord, or diminution or abatement of rent.*
ARTICLE 22
RULES AND REGULATIONS
22.01.Tenant and Tenant's servants, employees and agents shall observe
faithfully and comply strictly with the Rules and Regulations set forth
in Exhibit B 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. In case Tenant disputes
the reasonableness of any additional Rule or Regulation hereafter made
or adopted by Landlord or Landlord's agents, the parties hereto agree
to submit the question of the reasonableness of such Rule or Regulation
for decision to the Chairman of the Board of Directors of the
Management Division of the Real Estate Board of New York, Inc., or to
such impartial person or persons as he may designate, provided however,
if Tenant objects to submitting the question to such Chairman or to his
designee or designees, the same shall be submitted to arbitration as
set forth in Article 81 hereof, and the determination of the Chairman,
his designee or designees, or the arbitrators as the case may be, shall
be final and conclusive upon the parties hereto. The right to dispute
the reasonableness of any additional Rule or Regulation upon Tenant's
part shall be deemed waived unless the same shall be asserted by
service of a notice in writing upon Landlord within 60 days after
written notice to Tenant of the adoption of any such additional Rule or
Regulation. Nothing in this Lease contained~shal1 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. Landlord shall
enforce or not enforce the Rules and Regulations uniformly, and
Landlord shall not apply the Rules and Regulations against Tenant in a
discriminatory manner.
31
ARTICLE 23
NO WAIVER
00.00.Xx 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 said
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 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 or payment by
Tenant of rent with knowledge of the breach of any covenant of this
Lease shall not be deemed a waiver of such breach. The failure of
Landlord to enforce any of the Rules and Regulations set forth herein,
or hereafter adopted, against Tenant and/or any other tenant in the
Building shall not be deemed a waiver of any such Rules and
Regulations. No provision of this Lease shall be deemed to have been
waived by Landlord or Tenant, as the case may be unless such waiver be
in writing signed by Landlord.* No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent herein stipulated
shall be deemed to be other than on account of the earliest stipulated
rent, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment of rent be deemed an accord and
satisfaction, and Landlord may accept 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.
23.02.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.
*the other party.
ARTICLE 24
WAIVER OF TRIAL BY JURY
24.01.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 personal injury or property damage), and any
emergency statutory or any other statutory remedy. It is further
mutually agreed that in the event Landlord commences any summary
proceeding for non-payment of rent, Tenant will not interpose and does
hereby waive the right to interpose any counterclaim of whatever nature
or description in any such proceeding *
ARTICLE 25
INABILITY TO PERFORM
25.01.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 (6) any cause beyond Landlord's 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, this Lease and Tenant's obligation to pay rent hereunder shall
in no wise be affected, impaired or excused. As Landlord shall learn of
the happening of any of the foregoing conditions, Landlord shall
promptly notify Tenant of such event and, if ascertainable, its
estimated duration, and will proceed promptly and diligently with the
fulfillment of its obligations as soon as reasonably possible.
If, for any reason whatsoever, unless the result of the causes
set forth in numbers (l)-(6) of the first paragraph of this Section
25.01, or because of failure of the public utility supplying
electricity or heat to the Building to supply such service: (a) all of
the elevators in the banks of elevators which service the floor or
floors on which the demised premises are located be inoperative for
more than seven (7) ten (10) consecutive business days so that to
obtain access to any floor of the demised premises it would be
necessary to walk up or down more than four flights of stairs (a flight
of stairs shall consist of all stairs in a
* , provided Tenant does not thereby waive any defense or the right
to assert such claim in a separate action or proceeding
*, in addition to any rights Tenant may have under this Lease or in
law or at equity,
** Except for rent bills (which may be sent by regular mail) and
emergency repair notices (which may be hand delivered to the demised
premises), any
*** three (3) business days after
33
public stairway of the Building between one floor and the floor above
or below), unless elevators in a bank of elevators which service floors
above or below the floors upon which the demised premises are located
are in operation and if Tenant used same it would not be necessary to
walk up or down more than four flights of stairs, or (b) if the heating
or air conditioning system which services the demised premises be
inoperative for a period of more than seven (7) ten (10) consecutive
business days during the days when said system would normally be
operating to service the Building, so that Tenant and its employees
cannot and do not use, except on an emergency basis, part or all of the
demised premises for the purposes for which the premises are leased,
Tenant shall* be entitled to an abatement of rent for each day after
said seven (7) ten (10) day period for such portion of the demised
premises which is inaccessible or which cannot be used as above set
forth.
ARTICLE 26
NOTICES
26.01.**Any notice or demand, consent, approval or disapproval 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
Lan4lord, shall be in writing. 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 by Landlord and received by Tenant,*** when
Landlord shall have deposited such notice or demand by registered or
certified mail return receipt requested, enclosed in a securely closed
post-paid. wrapper, in a United States Government general or branch
post office, or official depository with the exclusive care and custody
thereof, addressed to Tenant, at the address set forth after Tenant's
name on page 1 of this Lease. After Tenant shall occupy the demised
premises, the address of Tenant for notices, demands, consents,
approvals or disapprovals shall be Xxx Xxxx Xxxxx, Xxx Xxxx, X.X.,
00000.**** Such notice, demand, consent, approval or disapproval
shall be given, and shall be deemed to have been served and given by
Tenant and received by Landlord,*** when Tenant shall have deposited
such notice or demand by registered or certified mail return receipt
requested, enclosed in a securely requested, closed postpaid wrapper,
in a United States Government general or branch post office or,
official depository with the exclusive care and custody thereof,
addressed to Landlord at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, X.X., 00000.
Either party may, by notice as aforesaid, designate a different address
or addresses for notices, demands, consents, approvals or disapprovals.
****, with a copy of any default notice to: First Albany Companies
Inc., 00 Xxxxx Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000, Attention:
General Counsel
* Landlord represents that it is presently the policy of the Building
that Landlord viii furnish such air-conditioning, ventilation and
heating services on all weekdays except for: New Year's Day, Christmas
Day, Memorial Day, Fourth of July, Labor Day and Thanksgiving Day;
provided, however, that if any such holiday falls on a Saturday or
Sunday and the applicable union observes such holiday on a weekday
prior to or subsequent to such actual holiday then no such service will
be provided on such weekday.
34
ARTICLE 27
27.01.Landlord shall provide necessary passenger elevator facilities on
business days from 8:00 A. M. to 6:00 P.M. and shall have sufficient
elevators available 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. (SEE RIDER ARTICLE 51)
27.02.Landlord at its expense shall cause the space in the demised
premises other than any space used for the preparation or consumption
of food or for storage to be kept clean in accordance with the
standards set forth in Exhibit C attached hereto and made a part hereof
entitled "Cleaning Schedule".
27.03.(a)Landlord at its expense, shall, through the air conditioning
system of the Building, furnish to the demised premises on an all year
round basis, air conditioning, ventilation and the hours
from 8:00 A.M. to 6:00 P.M. on business days.* Provided tenant shall
comply with Building Regulations, the air conditioning system will be
designed to provide summer interior conditions of 78F when outside
conditions are 95F and winter interior conditions of 68F with outside
conditions of 10F.***
(b) Landlord at its expense, will maintain*** the air
conditioning system in a manner befitting a first class building and
will use all reasonable care to keep the same in proper and efficient
operating condition. Tenant acknowledges that it has been advised that
the conditions hereinbefore described cannot be maintained in the event
of the occupancy of the demised premises by more than an average of one
person for each 100 square feet of usable area or if Tenant installs
and operates lighting, machines and appliances the total connected
electrical load of which exceeds 4 1/2 xxxxx per square foot of usable
area.
(c) Tenant agrees to keep and cause to be kept closed all the
windows in and the exterior doors to the demised premises at all times,
and Tenant agrees to cooperate fully with Landlord and to abide by all
the regulations and requirements which Landlord may reasonably
prescribe for the proper functioning and protection of said air
conditioning system.
(d) The Tenant acknowledges it has been advised that the Building
has sealed windows and that, therefore, the air in the
**and repair (provided such repair is not necessitated by the act,
omission or negligence of Tenant or its agents or employees)
***Landlord will turn on the air-conditioning system sufficiently in
advance to enable the system to meet the design specifications set
forth above, during the hours set forth above.
*, but in no event at a rate greater than the then Building rate
charged for such service. The rate for such overtime EVAC service shall
be pro-rated between Tenant and any other Tenant who requests and
receives such service at the same time as Tenant.
**Subject to Sections 27.04(g) and (h) below, if
35
demised premises can become stale and even unbreathable when the
ventilating, air-conditioning, and heating system is not operating.
Tenant agrees that Landlord shall not be obligated to operate such
ventilating, air-conditioning, and heating system after or before
regular business hours as set forth in Section 27.03(a) except after
prior written notice from and payment by Tenant as hereinafter
specified. Tenant agrees that Landlord's failure to operate such system
in the absence of such notice and payment shall not be deemed a partial
or other eviction, or disturbance of Tenant's use, enjoyment, or
possession of the premises, and shall not render Landlord liable for
damages, by abatement of rent or otherwise, and Tenant shall not be
relieved from any obligation under this Lease. Landlord will provide
Tenant with ventilation, air-conditioning; or heating at times other
than during regular business hours, at the hourly rate hereinafter set
forth, provided that Tenant shall give written notice prior to 1:00
P.M. in the case of such service on business days and prior to 1:00 P.
M. on Fridays in the case of such service on Saturdays and Sundays (or
8:00 P.M. on the preceding business day, in the case of holidays). The
hourly rate for such ventilating, air-conditioning, or heating service
shall-be the Landlord's actual operating cost per hour plus 10% *
27.04.(a) Landlord shall furnish to Tenant the electric energy which
Tenant requires in the demised premises on a "rent inclusion" basis.
There shall be no charge to Tenant therefor by way of measuring the
same on any meter or otherwise, electric current being included as an
additional service in the fixed annual rent payable hereunder. Landlord
shall not in anywise be liable or responsible to Tenant for any loss or
damage or expense which Tenant may sustain or incur if either the
quantity or character of electric service is changed or is no longer
available or suitable for Tenant's requirements, unless such change is
caused by the willful or negligent act or omission of Landlord.
(b) **and so long as Landlord provides electricity to the demised
premises on a rent inclusion basis, Tenant agrees that the fixed annual
rent shall be increased by the amount of the Electricity Rent Inclusion
Factor (the "ERIF"), as hereinafter defined, to compensate Landlord as
hereinafter provided, for its obtaining and making available to Tenant
the redistribution of electric current as an additional service,
through the presently installed electrical facilities, for Tenant's
reason-able use of ordinary lighting and light office equipment, during
ordinary business hours. The "Electricity Rent Inclusion Factor" shall
36
mean the amount determined by applying the estimated connected
electrical load of Tenant, which shall be deemed to be the demand (KW),
and hours of use thereof, which shall be deemed to be the energy (KWH),
as determined by the electrical consultant as hereinafter provided, to
the rate charged for such load and energy usage in the SC-4, Rate I
Service Classification in effect on March 1, 1996 May 1, 1992 (and not
the time-of-day rate schedule, if any), as increased or decreased by
all electricity cost changes of Landlord since March 1, 1996 May 1,
1992, as hereinafter provided.
The parties acknowledge that the fixed annual rent hereinabove
set forth has not yet been, but is to be, increased by the ERIF.
Tenant, therefore, agrees to have the fixed annual rent hereinabove set
forth so increased by an ERIF of $3.00 per rentable square foot, to be
paid in equal monthly installments, in advance, from the date when
Landlord commenced to furnish electricity to Tenant on a rent inclusion
basis.
If the cost to Landlord of electricity shall have been. or shall
be, increased or decreased subsequent to March 1, 1996 May 1, 1992
(whether such change occurs prior to or during the term of this Lease),
by change in Landlord's electric rates or service classifications, or
by any increase or decrease subsequent to the last such electric rate
or service classification change, in fuel adjustments or charges of any
kind, or by taxes, imposed on Landlord's electricity purchases, or on
Landlord's electricity redistribution, or for any other such reason,
then the aforesaid ERIF portion of the fixed annual rent shall be
changed in the same percentage as any such change in cost due to
changes in electric rates or service classifications, and, also,
Tenant's payment obligation, for electricity redistribution, shall
change from time to time so as to reflect any such increase or decrease
in fuel adjustments or charges, and such taxes.
Any such percentage change in Landlord's cost due to change in
Landlord's electric rates or service classifications, shall be computed
on the basis of the average consumption of electricity for the Building
for the twelve full months immediately prior to the rate change or
other such change in cost, energy and demand, and any changed methods
of or rules on billing for same, applied on a consistent basis to the
new electric rate or service classification and to the immediately
prior existing electric rate or service classification. 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, and that the foregoing reference to changes
in methods of or rules on billing is intended to include any such
change.
37
The parties agree that a reputable, independent electrical consultant
firm, selected by Landlord ("Landlord's consultant"), may from time to
time make surveys in the demised premises covering the electrical
equipment and fixtures and use of current therein. If such survey shall
disclose a change in Tenant's connected electrical load or hours of
energy use, then the connected electrical load and energy usage portion
of the ERIF shall be changed in accordance with such survey, and the
ERIF redetermined, accordingly, by Landlord's consultant. The fixed
annual rent shall be appropriately adjusted effective as of the date of
any such change in connected load and/or energy usage, as disclosed by
said survey. In no event, whether because of surveys, rate changes or
for any other reason, is such originally specified $2.85 per square
foot ERIF portion of the fixed annual rent (plus any net increase
thereof, but not decrease, by virtue of all electricity rate or service
classification changes of Landlord subsequent to May 1, 1992) to be
reduced.
The determination of changes in the ERIF by Landlord's consultant shall
be binding and conclusive on Landlord and on Tenant unless within
thirty (30) fifteen (15) days after the delivery of copies of such
determination to Landlord and Tenant, either Landlord or Tenant
disputes such determination by written notice Landlord to the other.
If Tenant either party disputes the determination, it shall, at its own
expense, within sixty (60) forty-five (45) days after advising the
other Landlord of such dispute, obtain from a reputable independent
electrical consultant its own survey of Tenant's electrical lighting
and power load and hours of energy use, and a determination of such
change in the ERIF in accordance with the provisions of this Article.
Tenant's consultant and Landlord's consultant then shall seek to agree
on a finding of such determination of such change in the ERIF. If they
cannot agree, they shall choose a third reputable electrical consultant
whose cost shall be shared equally by Landlord and Tenant, to make a
similar survey, and the determination of such ERIF change by such third
electrical consultant shall be controlling. (If they cannot agree on
such third consultant, within ten (10) days, then either party may
apply to the Supreme Court in the County of New York for the
appointment of such third consultant.) However, pending such
determination, Tenant shall pay to Landlord the amount of ERIF as
determined by Landlord's consultant; provided however, if the amount of
ERIF determined as aforesaid by such third consultant is different from
that determined by Landlord's consultant, then Landlord and Tenant
shall make adjustment for any deficiency owed by Tenant or overage paid
by Tenant pursuant to the determination of Landlord's consultant,
*, provided Landlord does so, also, with respect to all other rent
inclusion tenants on the same riser as Tenant,
**, except as provided in Section 27.04(j), below.
***and light office equipment as described in Section 27.04(b) below
38
(c) Landlord reserves the right to discontinue furnishing
electric energy to Tenant* at any time upon sixty (60) days' written
notice to Tenant, and from and after the effective date of such termina
tion, Landlord shall no longer be obligated to furnish Tenant with
electric energy, provided, however, that such termination date may be
extended for a time reasonably necessary for Tenant to make arrange
ments to obtain electric service directly from the public utility
company servicing the Building. If Landlord exercises such right of
termination, this Lease shall remain unaffected thereby and shall
continue in full force and effect; and thereafter Tenant shall
diligently arrange to obtain electric service directly from the public
utility company servicing the Building, and may, at no charge to
Tenant, utilize the then existing electric feeders, risers and wiring
serving the demised premises to the extent available and safely capable
of being used for such purpose and only to the extent of Tenant's then
authorized connected load. Landlord shall be obligated to pay no part
of any cost required for Tenant's direct electric service**.
Commencing with the date when
Tenant receives such direct service and as long as Tenant shall
continue to receive such service, the fixed annual rental rate payable
under this Lease shall be reduced by the amount of the ERIF portion
thereof which; was payable hereunder immediately prior to the date when
Tenant received such direct service.
(d) Tenant agrees that at all times its use of electric current
shall not exceed the capacity of existing feeders to the Building or
the risers or wiring installation. Tenant agrees not to connect any
additional electrical equipment of any type to the Building electric
distribution system, other than typewriters, lamps and small office
machines*** which consume comparable amounts of electricity, without
Landlord's prior written consent, which consent shall not be unreason
ably withheld, conditioned 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 in Landlord's sole
judgment will not cause permanent damage or injury. to the Building or
the demised premises or cause or create a dangerous or hazardous
condition or entail excessive or unreasonable alterations, repairs or
expense to Landlord or interfere with or disturb other tenants or
occupants.
(e) Supplementing Section 86.03 hereof, if all or part of the
ERIF payable in accordance with subdivision (b) of this Section 27.04
becomes uncollectible or reduced or refunded by virtue of any law,
order or regulation, the parties agree that, at Landlord's option, in
lieu of the ERIF, and in consideration of Tenant's use of the
building's electrical distribution system and receipt of redistributed
electricity and payment by Landlord of consultants' fees and other
39A
(g) Notwithstanding anything to the contrary set forth in this
Section 27.04, the term "ordinary business hours" shall be deemed to
include electricity for use on a 24 hour basis, if that
use is consistent for the normal business operation of a brokerage
office or is necessary to comply with the cleaning and other services
to be performed by the Landlord, including those referred to on Exhibit
C.
(h) The phrase "Tenants reasonable use of ordinary lighting and
light office equipment" referred to in Section 27.04(b) of this Lease
shall be deemed to include Tenant's reasonable use of clocks,
refrigerators, lamps, typewriters, fax machines, copiers, TVs, videos,
fans, phones, microwaves, personal computers, and other machines and
equipment which are then normal or customary for use in a securities
brokerage office, and of supplemental HVAC units approved by Landlord
as in Article 5l provided.
(i) Landlord shall, at Landlord's expense, be responsible for all
electric service redistributed to the demised premises, and shall
repair or replace at its expense any electric meter, panel board and
all wires, wiring, feeders, risers, conductors and other electrical
equipment serving the demised premises, provided that the same have not
been damaged by the act, omission or negligence of Tenant, its agents
or employees.
(j) Notwithstanding anything to the contrary set forth in Section
27.04(c) of this Lease, Landlord shall not discontinue furnishing
redistributed electric energy until Tenant is reasonably able to obtain
such electric energy directly from the public utility. Tenant has been
advised that the public utility installs its meter(s) for its direct
customers. All additional panel boards, feeders, risers, wiring,
conductors and other electrical equipment, which may be required to
obtain electric energy directly form the public utility, whether or not
located within the demised premises, shall be installed and maintained
by the Landlord at Landlord's expense where discontinuance is at the
election of Landlord (as distinguished from future law or regulations
requiring such change).
*See Section 27.04(g), (h), (i) and (j) on page 39A following this
page.
** (as distinguished from a normal office pantry)
***Tenant shall employ an exterminator reasonably acceptable to
Landlord on a regular basis,
39
redistribution costs, the fixed annual rental rate(s) 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 sq. ft. of the demised
premises, changed in the same percentage as any increases or decreases
in the cost to Landlord for electricity for the entire building
subsequent to May 1, 1992, March 1, 1996, because of rate changes, such
percentage change to be computed as in subdivision (b) of this Section
27.04 provided.
(f) Anything hereinabove to the contrary notwithstanding, in no
event is the ERIF or any "alternate charge" to be less than an amount
equal to the total of Landlord's payment to the public utility for the
electricity consumed by Tenant (and any taxes thereon or on
redistribution of same) plus 5% thereof for transmission line loss,
plus 15% thereof for other redistribution costs.
27.05.* Subject to the provisions of Section 25.01, Landlord
reserves the right to stop services on the air conditioning, elevator,
plumbing and electric systems when necessary by reason of accident or
emergency or for repairs, alterations, replacements or improvements,
provided that except in case of emergency, Landlord will notify Tenant
in advance, if possible, of any such stoppage and, if ascertainable,
its estimated duration, and will proceed diligently with the work
necessary to resume such service as promptly as possible and in a
manner so as to minimize interference with the Tenant's use and
enjoyment of the demised premises.
27.06.Landlord, at its expense will supply tenant with an adequate
quantity of hot and cold water for lavatory, cleaning, pantry and
drinking purposes. If Tenant requires water for any additional
purpose, Tenant shall pay the cost thereof at the cost to Landlord as
the same is measured by a meter to be installed and maintained at
Tenant's expense.
00.00.Xx the event Tenant shall employ any contractor to do in the
demised premises any work permitted by Section 3.01 of this Lease, such
contractor and any subcontractor shall agree to employ only such labor
as will not result in jurisdictional disputes or strikes. Tenant will
inform Landlord in writing of the names of any contractor or
subcontractor Tenant proposes to use in the demised premises at least
five (5) days prior to the beginning of work by such contractor or
subcontractor.
27.08.If Tenant is permitted hereunder to and does have a separate
kitchen or cafeteria area for the preparation or consumption of food**
in the demised premises, Tenant shall pay to Landlord the cost of
removal from the Building of any refuse or rubbish from such area
and*** the cost of employing on a regular basis, an exterminator to
keep the demised premises free from vermin; and Tenant shall provide a
refrigerated garbage storage room, the plans and specifications thereof
to be
*, except if delivered by U.P.S., Federal Express or the U.S. Postal
Service.
**, or may have light meals delivered to the Building from restaurants
or delis outside the building (or front restaurants or delis in the
commercial portion of the building),
40
approved by Landlord, or other means of disposing of garbage reasonably
satisfactory to Landlord.
00.00.Xx is expressly agreed that only Landlord or any one or more
persons, firms or corporations authorized in writing by Landlord will
be permitted to furnish: laundry, linen, towels, drinking water, ice
and other similar supplies and services to tenants and licensees in the
Building.
Landlord may fix, in its own absolute reasonable discretion, at
any time and from time to time, the hours during which and regulations
under which such supplies and services are to be furnished. Landlord
expressly reserves the right to act as or to designate, at any time and
from time to time, an exclusive supplier of all or any one or more of
the said supplies and services, provided that the quality thereof and
the charges therefor are reasonably comparable to that of other
suppliers; and Landlord furthermore expressly reserves the right to
exclude from the Building any person, firm or corporation attempting to
furnish any of said supplies or services but not so designated by
Landlord.
00.00.Xx is expressly agreed that only Landlord or any one or more
persons, firms or corporations authorized in writing by Landlord will
be permitted to sell, deliver or furnish any food or beverages
whatsoever for consumption within the demised premises or elsewhere in
the Building. Landlord expressly reserves the right to act as or to
designate at any time, or from time to time, an exclusive supplier or
suppliers of such food and beverages; and Landlord further expressly
reserves the right to exclude from the Building any person, firm or
corporation attempting to deliver or purvey any such food or beverages
but not so designated by Landlord.* It is understood, however, that
Tenant or regular office employees of Tenant who are not employed by
any supplier of such food or beverages or by any person, firm or
corporation engaged in the business of purveying such food or beverages
may personally bring food or beverages into the Building** for consump
tion within the demised premises by the said Tenant or employees of
Tenant, but not for resale to or for consumption by any other tenant,
or the employees or guests of any other tenant. Landlord may fix in
its absolute reasonable discretion, at any time and from time to time,
the hours during which, and the regulations under which food and
beverages may be brought into the Building by Tenant or its regular
employees.
27.11.Tenant acknowledges that it has been advised that the cleaning
contractor for the Building may be a division or affiliate of
** Landlord represents that it is currently the policy of the
Building not to charge tenants for the removal from the demised
premises of broken down cardboard boxes or recyclables.
***provided that the quality of service rendered is equivalent,
41
Landlord. Tenant agrees to employ such contractor or such other office
maintenance contractor as Landlord may from time to time designate, for
all waxing, polishing, lamp replacement, cleaning and maintenance work
of or in the demised premises, and Tenant's furniture, fixtures and
equipment, provided that the quality thereof and the charges therefor
are reasonably comparable to that of other contractors or individuals.
Tenant shall not employ any other such contractor or individual without
Landlord's prior written consent, but nothing herein contained shall
prohibit Tenant from performing such work for itself by use of its own
regular employees.
27.12.Landlord will not be required to furnish any other services,
except as provided in this Article 27, and except that Landlord agrees
to provide on business days (not including Saturdays, Sundays and
holidays) the cleaning set forth in Exhibit C hereof. Tenant shall pay
to Landlord, on demand, a reasonable charge* for the removal from the
demised premises of any refuse and rubbish of Tenant as shall not be
contained in the waste receptacles described in Exhibit C.** Landlord,
its cleaning contractor and their employees shall have after-hours
access to the demised premises and the use of tenant's light, power and
water in the demised premises as may be reasonably required for the
purpose of cleaning the demised premises.
27.18.If Tenant contests the reasonableness of any charges made by any
supplier or contractor designated by Landlord as set forth in any
section of this Article 27, Landlord and Tenant shall each obtain two
bona fide bids for such work from independent reputable contractors,
and not controlled directly or indirectly by Landlord or affiliated
with Landlord or Landlord's Managing Agent, or by or with Tenant, and
the average of the four bids thus obtained shall be the standard of
comparison in determining the reasonableness of such charges. If the
supplier or contractor designated by Landlord is unwilling to accept
the average of such bids as full payment for its suppliers or services,
Landlord may substitute another supplier or contractor who will accept
such average as full payment,*** or if Landlord fails to make such
substitution within fifteen (15) days after the ascertainment of the
average of the bids, Tenant shall be free to make its own arrangements
for such work or supplies for the remainder of the term.
27.14.Landlord shall manage and maintain the Building as a first class
office building. Tenant and its employees shall occupy and use the
demised premises in a manner befitting such building.
* (not to exceed the then Building's rate charged for such service)
42
ARTICLE 29
ESCALATION - COST OF LIVING ADJUSTMENTS
28.01 The fixed annual rent reserved in this Lease and payable by
Tenant hereunder shall be adjusted, as of the times and in the manner
set forth in this Article:
(a) Definitions: For the purposes of this Article 28 the following
definitions shall apply:
(i) The term "Base Year" shall mean the full calendar year
during which the term of this Lease commences.
(ii) The term "Price Index" shall mean the "Consumer Price
Index" published by the Bureau of Labor Statistics of
the U.S. Department of Labor, All Items, New York,
N.Y. - North-eastern, N.J., for urban wage earners and clerical
workers, or a successor or substitute index
appropriately adjusted.
(iii) The term "Price Index or the Base Year" shall mean the
average of the monthly All Items Price Indexes for each of
the 12 months of the Base Year.
(b) Effective as of each January and July subsequent to the Base Year
there shall be made a cost of living adjustment of the
annual rental rate payable hereunder. The July
adjustment shall be based on the percentage difference between the
Price Index for the preceding month of June and the
Price Index for the Base Year. The January adjustment shall
be based on such percentage difference between the Price Index of the
preceding month of December and the Price Index for the
Base Year.
(i) In the event the Price Index for June in any calendar year
during the term of this Lease reflects an increase over
the Price Index or the Base Year, then the fixed annual
rent originally herein provided to be paid as of the July 1st following
such month of June (unchanged by any adjustments under
this Article) all be multiplied by the percentage
difference between the Price Index for June and the Price Index for the
Base Year, and the resulting sum shall be added to such fixed annual
rent, effective as of such July 1st. Said adjusted
annual rent shall thereafter be payable hereunder, in equal
monthly installments, until it is readjusted pursuant to the terms of
this Lease.
43
(ii) In the event the Price Index for December in any calendar
year during the term of this Lease reflects an increase over
the Price Index for the Base Year, then the fixed annual
rent originally herein provided to be paid as of the January 1st
following such month of December (unchanged by an adjust
ments under this Article) shall be multiplied by the
percentage difference between the Price Index for December and
the Price Index for the Base Year, and the resulting sum shall be added
to such fixed annual rent effective as of January 1st. Said
adjusted annual rent shall thereafter be payable
hereunder, in equal monthly installments, until it is readjusted
pursuant to the terms of this Lease.
The following illustrates the intention of the parties
hereto as to the computation of the aforementioned cost of living
adjustment in the annual rent payable hereunder:
Assuming that said fixed annual rent (is $10,000, that the
Price Index for the Base Year was 102.0 d that the
Price Index for the month of June, in a calendar year
following the Base Year was 105.0, then the percentage in increase thus
reflected, i.e., 2.941% (3.0/102.0) would be multiplied by
$10,000, and said fixed annual rent would be increased by
$294.10 effective as of July 1st of said calendar year.
In the event that the Price Index ceases to use 1982-1984=100
as the basis of calculation, or a substantial change is made in the
terms or number of items contained in the Price Index, then the Price
Index shall be adjusted to the figure that would have been arrived at
had the manner of computing the Price Index in effect at the date of
this Lease not been altered. In the event such Price Index (or a
successor or substitute index) is not available, a reliable
governmental or other non-partisan publication evaluating the
information theretofore used in determining the Price Index shall be
used.
No adjustments or recomputations, retroactive or otherwise shall
be made due to any revision which may later be made in the first
published figure of the Price Index for any month.
(c) The statements of the cost of living adjustment to be
furnished by Landlord as provided in subdivision (b) above shall
consist of data prepared for the Landlord by a firm of Certified Public
Accountants (who may be the firm now or then currently employed by
Landlord for the audit of its accounts). The statements thus furnished
44
to Tenant shall constitute a final determination as between Landlord
and Tenant of the cost of living adjustment for the periods represented
thereby.
(d) In no event shall the fixed annual rent originally provided
to be paid under this Lease (exclusive of the adjustments under this
Article) be reduced by virtue of this Article.
(e) Any delay or failure of Landlord , beyond July or January
of any year, in computing or billing for the rent adjustments
hereinabove provided, shall not constitute a waiver of or in any way
impair the continuing obligation of Tenant to pay such rent adjustments
hereunder.
(f) Notwithstanding any expiration or termination of this
Lease prior to the lease expiration date originally provided herein
(except in the case of a cancellation by mutual agreement) Tenant's
obligation to pay rent as adjusted under this Article shall continue
and shall cover all periods up to said lease expiration date, and shall
survive any earlier expiration or termination of this Lease.
ARTICLE 29
BUILDING ENERGY ESCALATION
29.01 For purposes of this Article, the term "Building Energy Costs"
shall mean the costs and expenses incurred or borne by Landlord for
steam, oil, electricity or any other fuel or energy source purchased
or used for the Building (other than electricity which is redistributed
to tenants on a rent inclusion or a submetering basis); the parties
acknowledge and agree that forty (40%) percent of the Building's
payment to the public utility for the purchase of electricity shall be
deemed to be payment for electricity purchased or used for the
Building. The term "the proportionate share" shall mean a percentage
computed on the basis of a fraction, the numerator of which is the
rentable square foot area of the demised premises and the denominator
of which is the total rentable square foot area of the office and
commercial space in the Building (excluding garage space). The parties
acknowledge and agree that the total rentable square foot area of the
presently demised premises shall be deemed to be
sq. ft., and that the rentable square foot area of the office and
commercial space in the Building shall be deemed to be 2,072,136 sq.
ft. The term "Base Year" shall mean the full calendar year prior to
the year during which the term of this Lease commences. The term
45
"comparative year" shall mean the calendar year in which the term of
this Lease commences and each subsequent calendar year.
If the Building Energy Costs for any comparative year shall be
greater than those for the Base Year, Tenant shall pay to Landlord, as
additional rent, a sum equal to Tenant's proportionate share of the
excess of the Building Energy Costs for such comparative year over
those for the Base Year (such amount being hereinafter called the
"Energy Payment").
1. Following the expiration of each comparative year and
after receipt thereof from Landlord's certified public accountants,
Landlord shall submit to Tenant a statement, certified by Landlord,
setting forth the Building Energy Costs for the preceding comparative
year and the Energy Payment, if any, due to Landlord from Tenant for
such comparative year. The rendition of such statement to Tenant shall
constitute prima facie proof of the accuracy thereof and, if such
statement shows an Energy Payment due from Tenant to Landlord with
respect to the preceding comparative year then (a) Tenant shall make
payment of any unpaid portion thereof within ten (10) days after
receipt of such statement; and (b) Tenant shall also pay to Landlord,
as additional rent, within ten (10) days after receipt of such
statement, an amount equal to the product obtained by multiplying the
total Energy Payment for the preceding comparative year by a fraction,
the denominator of which shall be 12 and the numerator of which shall
be the number of months of the current comparative year which shall
have elapsed prior to the first day of the month immediately following
the rendition of such statement; and (c) Tenant shall also pay to
Landlord, as additional rent, commencing as of the first day of the
month immediately following the rendition of such statement and on the
first day of each month thereafter until a new statement is rendered,
1/12th of the total Energy Payment for the preceding comparative year.
The aforesaid monthly payments based on the total Energy Payment for
the preceding comparative year shall be adjusted to reflect, if
Landlord can reasonably so estimate, known increases in rates, for the
current comparative year, applicable to the categories involved in
computing Building Energy Costs, whenever such increases become known
prior to or during such current comparative year. The payments required
to be made under (b) and (c) above shall be credited toward the Energy
Payment due from Tenant for the then current comparative year, subject
to adjustment as and when the statement for such current comparative
year is rendered by Landlord
46
Tenant shall make Energy Payments on account of such payments due
for the first comparative year on the basis of reasonable estimates
prepared by Landlord, payments to be made monthly on the first day of
each month during such first comparative year. The payments based on
such estimates shall then be adjusted by the parties following the
expiration of said first comparative year, on the basis of landlord's
actual costs for that year.
Landlord's certified public accountant may rely on landlord's
allocations and estimates wherever allocations or estimates are needed
for Building Energy Costs. The statements of the Building Energy Costs
thus furnished by Landlord to Tenant shall constitute a final
determination as between Landlord and Tenant of the Building Energy
Costs for the periods represented thereby, unless Tenant within sixty
(60) days after they are furnished shall give a notice to Landlord that
it disputes their accuracy or their appropriateness, which notice
shall specify the particular respects in which the statement is
inaccurate. Pending the resolution of such dispute, Tenant shall pay
the additional rent to Landlord in accordance with the statements
furnished by Landlord. After payment of said additional rent, Tenant
shall have the right, during reasonable business hours and upon not
less than five (5) business days' prior written notice to Landlord, to
examine Landlord's books and records with respect to the foregoing,
provided such examination is commenced within (30) days and concluded
within sixty (60) days following the rendition of the statement in
question.
Any dispute as to said statement shall be resolved by arbitration
in accordance with the provisions of Article 31 hereof, which arbitra
tion shall be by three (3) arbitrators each of whom shall have at least
ten (10) years' experience in the supervision of the operation and
management of major office buildings in Manhattan.
2. In no event shall the fixed annual rent under this Lease
be reduced by virtue of this Article.
3. If the commencement date of the term of this Lease is not
the first day of the first comparative year, then the additional rent
due hereunder for such first comparative year shall be a proportionate
share of said additional rent for the entire comparative year, said
proportionate share to be based upon the length of time that the Lease
term shall have been in existence during such first comparative year.
Upon the date of any expiration or termination of this Lease (except
termination because of Tenant's default) whether the same be the date
47
hereinabove set forth for the expiration of the term or nay prior or
subsequent date, a proportionate share of said additional rent for the
comparative year during which such expiration or termination occurs
shall immediately become due and payable by Tenant to Landlord, if it
was not theretofore already billed and paid. The said proportionate
share shall be based upon the length of time that this Lease shall have
been in existence during such comparative year. Landlord shall as soon
as practicable cause statements of the Building Energy Costs for that
comparative year to be prepared and furnished to Tenant. Landlord and
Tenant shall thereupon make appropriate adjustments of amounts then
owing.
4. Landlord's and Tenant's obligation to make the
adjustments referred to in subdivision (3) above shall survive any
expiration or termination of this Lease
5. A delay or failure of landlord in billing any Energy
Payment hereinabove provided shall not constitute a waiver of or in any
way impair the continuing obligation of Tenant to pay such
Energy Payments hereunder.
ARTICLE 30
CONDITION OF PREMISES
30.01.* Tenant expressly acknowledges that it has inspected the
demised premises and is fully familiar with the physical condition
thereof. Tenant agrees to accept the demised premises in its as is
condition and Tenant acknowledges that Landlord shall have no
obligation to do any work in and to the demised premises in order to
make them suitable and ready for occupancy and use by Tenant **except
for any work which may be hereinafter specified in this Article as work
which Landlord will substantially complete in the demised premises
prior to the commencement date of the term of this Lease. If any such
work is not so completed by Landlord prior to the commencement date of
the term of this Lease then Tenant's obligation to pay fixed annual
rent shall not commence until the substantial completion of any such
work
[Any such Landlord's work is to be set forth at
this point, or
in a schedule annexed to this Lease]
* Except as provided in Article 51 of this Lease,
** , except as provided in Article 46 hereof.
48
ARTICLE 31
ARBITRATION
00.00.Xx each case specified in this Lease in which resort to
arbitration shall be required, such arbitration (unless otherwise speci
fically 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, and
judgment upon the award rendered by the arbitrators may be entered in
any court having jurisdiction thereof.
ARTICLE 32
INDEMNITY
32.01 Tenant shall indemnify and save Landlord harmless from and
against any liability or expense arising from the use or occupation of
the demised premises by Tenant or anyone on the premises with Tenant's
permission, or from any breach of this Lease.
ARTICLE 33
VAULT AND BASEMENT SPACE
33.01.Landlord shall have the right from time to time, to substitute
for the basement space, if any, then occupied by Tenant, comparable
space in the basement, provided Landlord shall give at least thirty
(30) days' prior written notice to Tenant of its intention so to do. No
vault or basement space not within the property line of the Building is
leased hereunder, anything to the contrary indicated elsewhere in this
Lease notwithstanding. Any vault or basement space not within the
property line of the Building, which Tenant may be permitted to use or
occupy, shall be used or occupied under revocable license and if the
amount of such space be diminished or required by any governmental
authority having jurisdiction, Landlord shall not be subject to any
liability nor shall Tenant be entitled to abatement of rent, nor shall
such diminution or abatement be deemed a constructive or actual
eviction. Any fee or license charge or tax of municipal authorities for
such vault or basement space shall be paid by Tenant to Landlord as
additional rent within thirty (30) five (5) days after written demand
therefor. If such fee, tax or charge shall be for vault or basement
space greater in area than that occupied by Tenant, the charge to
Tenant shall be pro-rated.
49
ARTICLE 34
OCCUPANCY AND USE BY TENANT
34.01 (a) Tenant acknowledges that its continued occupancy of the
demised premises, and the regular conduct of its business therein, are
of utmost importance to the Landlord in the renewal of other leases in
the building, in the renting of vacant space in the building, in the
providing of electricity, air conditioning, steam and other services to
the tenants in the building, and in the maintenance of the character
and quality of the tenants in the building. Tenant therefore covenants
and agrees that it will occupy the entire demised premises, and will
conduct its business therein in the regular and usual manner,
throughout the term of this Lease. Tenant acknowledges that Landlord is
executing this Lease in reliance upon these covenants and that these
covenants are a material element of consideration inducing the Landlord
to execute this Lease. Tenant further agrees that if it vacates the
demised premises or fails to so conduct business therein, at any time
during the term of this Lease, without the prior written consent of
the Landlord, then all rent and additional rent reserved in this Lease
from the date of such breach to the expiration date of this Lease shall
become immediately due and payable to Landlord.
(b) The parties recognize and agree that the damage to Landlord
resulting from any breach of the covenants in subdivision (a) hereof
will be extremely substantial, will be far greater than the rent
payable for the balance of the term of this Lease, and will be
impossible of accurate measurement. The parties, therefore, agree that
in the event of a breach or threatened breach of the said covenants, in
addition to all of Landlord's other rights and remedies, at law or in
equity or otherwise, Landlord shall have the right of injunction to
preserve Tenant's occupancy and use. The words "become vacant or
deserted" as used elsewhere in this Lease shall include Tenant's
failure to occupy or use as by this Article required.
(c) If Tenant breaches either of the covenants in subdivision (a)
above, and this Lease be terminated because of such default, then, in
addition to Landlord's rights of re-entry, restoration, preparation for
and rerental, and anything elsewhere in this Lease to the contrary
notwithstanding, Landlord shall retain its right to judgment on and
collection of Tenant's aforesaid obligation to make a single payment to
Landlord of a sum equal to the total of all rent and additional rent
reserved for the remainder of the original term of
50
this Lease, subject to future credit or repayment to Tenant in the
event of any rerenting of the premises by Landlord, after first
deducting from rerental income all expenses incurred by Landlord in
reducing to judgment or otherwise collecting Tenant's aforesaid
obligation, and in obtaining possession of restoring, preparing for and
re-letting the premises. In no event shall tenant be entitled to a
credit or repayment for rerental income which exceeds the sums payable
by Tenant hereunder or which covers a period after the original term of
this Lease.
ARTICLE 35
NAME OF BUILDING
35.01.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 36
INVALIDITY OF ANY PROVISION, ETC.
36.01.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.
36.02.If any term, covenant, condition or provision of this Lease is
found invalid or unenforceable to any extent, by a final judgment or
award which shall not be subject to change by any appeal, then either
party to this Lease may initiate an arbitration in accordance with the
provisions of Article 31, which arbitration shall be by three (3)
arbitrators each of whom shall have at least ten (10) years' experience
in the supervision of the operation and management of major office
buildings in Manhattan. Said arbitrators shall devise a valid and
enforceable substitute term, covenant, condition or provision
51
for this Lease which shall as nearly as possible carry out the
intention of the parties with respect to the terms, covenant, condition
or provisions theretofore found invalid or unenforceable. Such
substitute term, covenant, condition or provision, as determined by the
arbitrators, shall thereupon be deemed a part of this Lease.
00.00.Xx the event the fixed annual rent or additional rent or any part
thereof provided to be paid by Tenant under the provisions of this
Lease during the demised term shall become uncollectible or shall be
reduced or required to be reduced or refunded by virtue of any Federal,
State, County or City law, order or regulation, or by any direction of
a public officer or body pursuant to law, or the orders, rules, code or
regulations of any organization or entity formed pursuant to law,
whether such organization or entity be public or private, then
Landlord, at its option, may at any time thereafter terminate this
Lease, by not less than thirty (30) days' written notice to Tenant, on
a date set forth in said notice, in which event this Lease and the term
hereof shall terminate and come to an end on the date fixed in said
notice as if the said date were the date originally fixed herein for
the termination of the demised term. Landlord shall not have the right
so to terminate this Lease if Tenant within such period of thirty (30)
days shall in writing lawfully agree that the rentals herein reserved
are a reasonable rental and agree to continue to pay said rentals, and
if such agreement by Tenant shall then be legally enforceable by
Landlord.
ARTICLE 37
CAPTIONS
37.01.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 38
CERTIFICATE OF TENANT
38.01.Tenant shall, without charge, at any time and from time to time,
within twenty (20) ten (10) days after request by Landlord, deliver a
written instrument to Landlord or any other person, firm or corporation
specified by Landlord, duly executed and acknowledged, certifying:
(a)That this Lease is unmodified and in full force and effect or,
if there has been any modification, that the same is in full force
and effect as modified and stating any such modification;
52
(b) Whether or not there are then existing any setoffs or defenses
against the enforcement of any of the agreements, terms,
covenants, or conditions of this Lease and any modification
thereof upon the part of Tenant to be performed or complied with,
and, if so, specifying the same;
(c) The dates to which the basic rent, and additional rent, and
other charges hereunder, have been paid; and
(d) Whether the term of this Lease has commenced and rent become
payable thereunder; and whether Tenant has accepted possession of
the demised premises; and whether Landlord has substantially
completed its required work under Article 30 hereof.
38.02.Tenant agrees that, except for the first month's rent hereunder,
it will pay no rent under this Lease more than thirty (30) days in
advance of its due date, 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 first mortgage
on the Ground Lease who shall have furnished such holder's last address
to Tenant, and until a reasonable time 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.
38.03 Anything in this Lease contained to the contrary notwithstanding,
under no circumstances shall the holder of any first mortgage on the
Ground 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 such mortgage, or if the holder of such
mortgage acquires a lease in substitution therefor, then such
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 subject to or liable for any offsets or deductions from rent,
claims or defenses which the Tenant might have against any prior
landlord under this Lease.
***The security deposit shall be deposited in an interest bearing
account with a banking institution in New York City selected by
Landlord, and any interest earned thereon (less the maximum
administrative fee allowed by law to which Landlord shall be entitled
under the law) shall be added onto and become part of the security
deposit.
53
ARTICLE 39
SECURITY DEPOSIT
39.01.Tenant has deposited with landlord the sum of $180,128 as
security for the faithful performance and observance by Tenant of the
terms, provisions and conditions of this Lease; it is. agreed that in
the event Tenant defaults in respect of any of the terms, provisions
and conditions of this Lease, *including, but not limited to, the
payment or rent and additional rent, landlord may (but shall not be
required to) 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 so in default or
for any sum which Landlord may expend or may be required to expend by
reason of Tenant's default in respect of any of the terms covenants and
conditions of this Lease, including but not limited to, any damages or
deficiency in the reletting of the premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-
entry by Landlord. Tenant shall, upon demand, deposit with Landlord the
full amount of security deposit so used or applied by Landlord, in
order that Landlord shall have the full security deposit on hand at all
times during the term of this Lease. In the event that Tenant shall
fully and faithfully comply with all of the material terms,
provisions, covenants and conditions of this Lease, the security shall
be returned to Tenant 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, of which the demised premises form a part, landlord
shall have the right to transfer the security to the vendee or lessee
and Landlord shall thereupon be released by Tenant from all liability
for the return of such security: and Tenant agrees to look to the new
Landlord solely for the return of said security; and it is agreed that
the provisions hereof shall apply to every transfer or assignment made
of the security 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 succes
sors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.***
* beyond any applicable notice and/or grace period
** , except that Landlord may retain any portion of such security
which Landlord reasonably believes is required to cure any then
existing default with respect to any non-material term, provision,
covenant or condition of this Lease.
54
ARTICLE 40
BROKER
40.01.Tenant represents and warrants that it neither consulted nor
negotiated with any broker or finder with regard to the demised
premises other than Helmsley-Spear, Inc. and The Xxxxxxxxx Company.
L.P.
Tenant agrees to indemnify, defend and save Landlord harmless from and
against any claims for fees or commissions from anyone other than
Helmsley-Spear, Inc. and The Xxxxxxxxx Company. L.P.
with whom Tenant has dealt in connection with the demised premises or
this Lease. Landlord agrees to pay any commission or fee owing to the
aforesaid Helmsley-Spear, Inc. and The Xxxxxxxxx Company. L.P.
ARTICLE 41
POSSESSION
41.01.Supplementing Articles 25 and 80 hereof, if Landlord shall be
unable to give possession of the premises on the commencement date of
the term of this Lease, because of the holding-over or retention of
possession of any tenant or occupant, or for any other reason, Landlord
shall not be subject to any liability for such failure. In such event,
this Lease shall stay in full force and effect, without extension of
its term. However, the rent hereunder shall not commence until the
premises are made available for occupancy by Tenant (with the
substantial completion in the premises of any work required by this
Lease to be completed therein by Landlord at Landlord's expense prior
to the commencement date of the term of this Lease). If Landlord is
unable to give possession of the premises on the commencement date of
the term, because changes, repairs or decorations being made for
Tenant's use at Tenant's expense have not been completed, there shall
be no abatement of rent and the rent shall commence on the date
specified herein. If permission is given to Tenant to occupy the
premises, or other premises, prior to the commencement date of the
term, such occupancy shall be deemed to be pursuant to the terms of
this Lease, except that the parties shall separately agree as to the
obligation of Tenant to pay rent for such occupancy. The provisions of
this Article are intended to constitute an "express provision to the
contrary" within the meaning of Section 223-a of the New York Real
Property Law.
55
ARTICLE 42
SUBMISSION OF LEASE
00.00.Xx is understood and agreed that this Lease is submitted to
Tenant on the understanding that it shall not be considered an offer
and shall not bind Landlord in any way until (i) Tenant has duly
executed and delivered duplicate originals to Landlord and (ii)
landlord has executed and delivered one of said originals to Tenant.
ARTICLE 43
MEMORANDUM OF LEASE
43.01.This lease shall not be recorded without the prior written
consent of Landlord. At the request of either party, Landlord and
Tenant shall promptly execute, acknowledge and deliver a memorandum
with respect to this Lease sufficient for recording. Such memorandum
shall not in any circumstances be deemed to change or otherwise affect
any of the obligations or provisions of this Lease.
ARTICLE 44
SUCCESSORS AND ASSIGNS
44.01.The covenants, conditions and agreements contained in this Lease
shall bind and inure to the benefit of Landlord and Tenant and their
respective heirs, distributees, executors, administrators, successors,
and, except as otherwise provided in this Lease, their assigns.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first above written.
SEE RIDERS ANNEXED HERETO AND MADE A PART HEREOF
MID-CIT ASSOCIATES
By: HELMSLEY-SPEAR, INC., Agent
Witness: (as to Landlord) (Landlord)
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Nertha
--------------------- -------------------------
Xxxxxx X. Nertha
Vice-President
FIRST ALBANY COMPANIES INC.
(Tenant)
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
Tenant's Federal I.D. Number
56
STATE OF NEW YORK}
COUNTY OF NEW YORK } ss: (Landlord)
On the day of , 19,before me personally
came ,residing at
,to me known and
known to me to be a member of MID-CITY ASSOCIATES, a general Co-
partnership and the person described in and who executed the foregoing
instrument in the name of MID-CITY ASSOCIATES and he duly acknowledged
to me that he executed the same as and for the act and deed of MID-
CITY ASSOCIATES.
(Notary Public)
STATE OF NEW YORK}
COUNTY OF NEW YORK } ss: (Landlord)
On the day of,19 , before me personally
came , to me known, who being by me duly sworn, did
depose and say that he resides at , that
he
is the of HELMSLEY-SPEAR, INC., a New York
corporation, the corporation mentioned in, and foregoing instrument;
and that he signed h name thereto by
order of the Board of Directors of said corporation.
(Notary Public)
STATE OF NEW YORK}
COUNTY OF NEW YORK } ss: (Corporate Tenant)
On the day of , 19,before me personally
came ,to me known, who being by me
duly sworn, did depose and say that he resides at
, that he
is the of
a corporation, the corporation mentioned
in, and which executed the foregoing instrument; and that he signed his
name thereto by order of the Board of Directors of said corporation.
(Notary Public)
STATE OF NEW YORK}
COUNTY OF NEW YORK } ss: (Partnership Tenant)
On the day of , 19,before me personally
came ,residing at
, to me known and known to me to be
a member of a co-partnership and the person
described in and who executed the foregoing instrument in the name of
and he duly acknowledged to me that he executed the same as and for the
act and deed of
(Notary Public)
00
XXXXX XX XXX XXXX}
XXXXXX XX XXX XXXX } ss: (Individual Tenant)
On the day of , 19, before me personally
came , to me known and known to me to be the
individual described in, and who executed the foregoing instrument, and
acknowledged to me that he executed the same.
(Notary Public)
59
EXHIBIT A
The plan(s) or diagram(s) comprising this Exhibit are attached
hereto at the back cover of this Lease.
60
EXHIBIT B
RULES AND REGULATIONS
1. The sidewalks, and public portions of the Building, such as en
trances, passages, courts, elevators, vestibules, stairways, corridors
or halls shall not be obstructed or encumbered by any tenant or used
for any purpose other than ingress and egress to and from the demised
premises.
2. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, blinds, shades, louvered openings
or screens shall be attached to or hung in, or used in connection with,
any window or door of the demised premises, without the prior written
consent of Landlord* unless installed by Landlord.
3. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any tenant on any part of
the outside of the demised premises or Building or on corridor walls.
Signs on entrance door or doors shall conform to building standard
signs, samples of which are on display in Landlord's rental office.
Signs on entrance doors shall, at the tenant's expense, be inscribed,
painted or affixed for each tenant by sign makers approved by
Landlord.** In the event of the violation of the foregoing by any
tenant, Landlord may remove same without any liability, and may charge
the expense incurred by such removal to the tenant or tenants violating
this rule.
4. The sashes, sash doors, skylights, windows, heating, ventilating
and air conditioning vents and doors that reflect or admit light and
air into the halls, passageways or other public places in the building
shall not be covered or obstructed by any tenant, nor shall any
bottles, parcels, or other articles be placed on the window xxxxx.
5. No show cases or other articles shall be put in front of or
affixed to any part of the exterior of the Building, nor placed in the
public halls, corridors or vestibules without the prior written consent
of Landlord.
* (which consent shall not be unreasonably withheld or delayed),
**which approval shall not be unreasonably withheld or delayed.
61
6. Whenever Tenant shall submit to landlord any plan, agreement or
other document for Landlord's consent or approval, or review and
acceptance, Tenant agrees to pay landlord as additional rent, on
demand, a processing fee in a sum equal to the reasonable fee of any
architect, engineer or attorney employed by landlord to review said
plan, agreement or document. *
7. The water and wash closets and other plumbing fixtures shall not
be used for any purposes other than those for which they were
constructed, and no sweepings, rubbish, rags, or other substances shall
be thrown therein. All damages resulting from any misuse of the
fixtures shall be borne by the Tenant who, or whose servants,
employees, agents, visitors or licensees, shall have caused the same.
8. No tenant shall in any way deface any part of the demised
premises or the Building of which they form a part. No tenant shall lay
linoleum, or other similar floor covering, so that the same shall come
in direct contact with the floor of the demised premises, and, 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, soluble in water, the use of
cement or other similar adhesive material being expressly prohibited.
9. No bicycles, vehicles or animals of any kind shall be brought
into or kept in or about the premises. No cooking shall be done or
permitted by any Tenant on said premises except in conformity to law
and then only in the utility kitchen, if any, as set forth in Tenant's
layout, which is to be primarily used by Tenant's employees for heating
beverages and light snacks. No tenant shall cause or permit any unusual
or objectionable odors to be produced upon or permeate from the demised
premises.
10. No space in the Building shall be used for manufacturing,
distribution, or for the storage of merchandise or for the sale of
merchandise, goods or property of any kind at auction.
11. No tenant shall make or permit to be made. any unseemly or
disturbing noises or disturbing noises or reasonably disturb or
interfere with occupants of the Building or neighboring buildings or
premises or those having business with them, whether by the use of any
musical instrument,
* The provisions of this Rule 6 shall not apply to the Initial
Alteration Work (as hereinafter defined in Article 45).
62
radio, talking machine, unmusical noise, whistling, singing, or in any
other way. No tenant shall throw anything out of the doors, windows or
skylights or down the passageways.
12. No tenant, nor any of the tenant's servants, employees, agents,
visitors or licensees, shall at any time bring or keep upon the demised
premises any inflammable, combustible or explosive fluid, or chemical
substance, other than reasonable amounts of cleaning fluids and
solvents required in the normal operation of tenant's business offices.
13. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by any tenant, nor shall any changes be made in
existing locks or the mechanism thereof, without the prior written
approval of the landlord and unless and until a duplicate key is
delivered to Landlord. Each tenant must, upon the termination of his
tenancy, restore to the Landlord all keys of stores, offices and toilet
rooms, either furnished to, or otherwise procured by, such tenant, and
in the event of the loss of any keys, so furnished, such tenant shall
pay to landlord the cost thereof.
14. All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description, must take place during
the hours and pursuant to such procedures as Landlord or its agent may
reasonably determine from time to time. Landlord reserves the right to
inspect all freight to be brought into the Building and to exclude from
the Building all freight which violates any of these Rules and
Regulations or the Lease of which these Rules and Regulations are a
part.
15. No tenant shall occupy or permit any portion of the premises
demised to it to be occupied as an office for a public stenographer or
typist, or for the possession, storage, manufacture, or sale of liquor,
narcotics, tobacco in any form, or as a xxxxxx or manicure shop or as a
public employment bureau or agency, or for a* public finance (personal
loan) business. No tenant shall engage or pay any employees on the
demised premises, except those actually working for such tenant on said
premises, nor advertise for laborers giving an address at said
premises.
16. Landlord shall have the right to prohibit any advertising by any
tenant, mentioning the Building, which, in Landlord's reasonable
opinion, tends to impair the reputation of the Building or its
* personal loan business (except as may be incidental to Tenant's
business). The foregoing shall not apply to possession by Tenant and
its employees of small quantities of liquor and tobacco for personal
use, and of narcotics prescribed by a medical doctor or otherwise
lawful for personal use.
63
desirability as a building for offices, and upon written notice from
landlord, tenants shall refrain from or discontinue such advertising.
17. Landlord reserves the right to exclude from the Building between
the hours of 6:00 P.M. and 8:00 A.M. and at all hours on Sundays and
legal holidays all persons who do not present a pass to the Building
signed by a tenant. Each tenant shall be responsible for all persons
for whom such pass is issued and shall be liable to Landlord for all
acts of such persons.
18. At the option of Tenant Landlord, the Tenant may agree to
purchase from
Landlord or its agents all lamps and bulbs used in the demised premises
and to pay for the cost of installation thereof.
19. The premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
20. Tenant shall employ pay to Landlord the cost of an exterminator*
to keep the demised premises free from vermin.**
21. The requirements of tenants will be attended to only upon
application at the office of the Building. Building employees shall not
perform any work or do anything outside of their regular duties, unless
under special instructions from the office of Landlord.
22. Canvassing, soliciting and peddling in the Building are
prohibited and each tenant shall cooperate to prevent the same.
23. There shall not be used in any space, or the public halls of any
building, either by any tenant or by jobbers or others, in the delivery
or receipt of merchandise, any hand trucks, except those equipped with
rubber tires and side guards. No hand trucks shall be used in passenger
elevators.
24. Tenants, in order to obtain maximum effectiveness of the cooling
system, shall lower and/or close Venetian or vertical blinds or drapes
when the sun's rays fall directly on windows of demised premises and
shall permit Landlord to install and maintain on the interior of said
windows mylar or other such insulating materials.
25. In order that the Building can and will maintain a uniform ap
pearance to those outside of same, each Tenant in building perimeter
areas shall (a) use only*** building standard lighting in
*reasonably acceptable to Landlord
**(or, at Tenant's option, Tenant may pay Landlord the reasonable cost
of such exterminator, and Landlord will arrange for such service).
*** lighting reasonably approved by Landlord
64
areas where lighting is visible from the outside of the Building and
(b) use only building standard venetian or vertical blinds* in window
areas which are visible from the outside of the Building.
26. Replacement of ceiling tiles after they are removed for Tenant by
telephone company installers, in both the demised premises and the
public corridors, will be charged to Tenant on a per tile basis. **
27. All paneling, grounds or other wood products not considered fur
xxxxxx shall be of fire retardant materials. Before installation of any
such materials, certification of the materials' fire retardant
characteristics shall be submitted to Landlord, or its agents, in a
manner satisfactory to the Landlord.
Whenever the above rules conflict with any of the rights or obligations
of Tenant pursuant to the provisions of the Articles of this Lease, the
provisions of the Articles shall govern.
* reasonably approved by landlord
** The foregoing shall not apply to any full floor premises occupied
by Tenant.
**This Section ("Lavatories in the Core") is not part of Landlord's
cleaning obligation under Section 27.12 of this Lease. This Section
appears here soley as a reference in connection with
Subdivision of Article 51 of this Lease.
65
EXHIBIT C
CLEANING SCHEDULE
GENERAL
All linoleum, rubber, asphalt file and other similar types of hard-
surfaced flooring to be swept nightly, using approved dust-check type
of mop.
All carpeting and rugs to be vacuum-cleaned nightly.
Hand dust and wipe clean all furniture, fixtures and window xxxxx
nightly; wash xxxxx when necessary.
Empty and clean nightly all waste receptacles of customary office
size.
Empty and clean all ash trays and screen all sand urns nightly. Dust
interior of all waste disposal cans and baskets nightly; damp-dust as
necessary.
Wash clean all water fountains and coolers nightly.
Dust all telephones as necessary.
Sweep all private stairway structures nightly.
LAVATORIES IN THE CORE **
Sweep and wash all lavatory floors nightly using proper disinfect-
ants. Wash and polish all minors, powder shelves, bright work and
enameled surfaces in all lavatories nightly.
Wash and disinfect all basins, bowls and urinals throughout all
lavatories, nightly.
Wash all toilet seats, nightly.
Empty paper towel receptacles and transport waste paper to designated
area in basement, nightly.
Fill toilet tissue holders, towel receptacles and soap dispensers,
nightly.
Empty sanitary disposal receptacles, nightly
Thoroughly wash and polish all wall tile and stall surface as often as
necessary.
*Dust and clean all glass furniture tops with impregnated cloths.
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RIDER ATTACHED TO AND FORKING A PART OF
LEASE BETWEEN KID-CITIC ASSOCIATES, LANDLORD,
MD FIRST ALBANY COMPANIES INC., TENANT
ARTICLE 45
Commencement Date; Term; Rent; Initial
Alteration Work; Work Contribution, Etc.
A. The term of this Lease shall commence on the date (the
"Commencement Date") when this Lease is executed and delivered by
Landlord and Tenant, and Landlord makes available to Tenant possession
of the demised premises; and the term of this Lease shall expire on the
last day of the twelfth Lease Year (as hereinafter defined), unless it
shall sooner end as in this Lease provided.
Landlord shall, in accordance with the foregoing, fix the
Commencement Date and notify Tenant of the date so fixed. When the
Commencement Date has so been determined; the parties hereto shall,
within thirty (30) days thereafter, at Landlord's request, execute a
written agreement confirming such date as the Commencement Date. Any
failure of the parties to execute such written agreement shall not
affect the validity of the Commencement Date as fixed and determined by
Landlord, as aforesaid.
The term "Lease Year" when used in this Lease shall mean the twelve
months commencing on the first day of the month following the month in
which occurs the Rent Commencement Date (as hereinafter defined) and
each subsequent period of twelve months. The first Lease Year shall
include the period, if any, from the Rent Commencement Date to the end
of the month in which the Rent Commencement Date occurs.
The term "Rent Commencement Date" when used in this Lease shall mean
the date which is 150 days after the Commencement Date.
B. Supplementing the preface of this Lease, Tenant shall pay
Landlord fixed annual rent (without electricity and subject to increase
by the Escalated Amount, as hereinafter defined and described in this
Subdivision B) at the following rates:
$500,000 a year for the first Lease Year;
$750,000 a year for the second Lease Year;
$950,000 a year for the third Lease Year;
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$1,013,220 a year for each of the fourth and fifth
Lease Years;
$1,046,994 a year for each of the sixth, seventh,
eighth and ninth Lease Years; and
$1,080,768 a year for each of the tenth, eleventh and
twelfth Lease Years.
The foregoing fixed annual rental rates shall be increased by an
amount equal to the Escalated Amount (as hereinafter defined), for the
period from January 1, 2000 through the expiration of the initial term
of this Lease. For purposes of this Lease, the "Escalated Amount"
shall mean an amount equal to the total of all real estate tax and
operating expense escalation additional rent due under Article 46 of
this Lease for the 1999 comparative year (as hereinafter defined in
said Article 46). The Escalated Amount shall not include any amount
paid under said Article 46 during the 1999 comparative year on account
of any other comparative year. Landlord acknowledges that the final
determination of the real estate tax and operating expense escalation
additional rent due under said Article 46 for the 1999 comparative year
may be delayed due to Tenant's right under said Article 46 to dispute
such amounts and to audit Landlord's books and records with respect to
the operating expenses for the Building; pending the resolution of any
such dispute, the Escalated Amount shall be deemed to be the amounts
set forth in the statements furnished to Tenant under Article 46 for
the 1999 comparative year; upon the resolution of any such dispute (and
the final determination of the real estate tax and operating expense
escalation additional rent due under said Article 46 for the 1999
comparative year), Landlord and Tenant shall make adjustment for any
overage paid by Tenant or for any deficiency owed by Tenant.
C. Supplementing Article 41 of this Lease and Subdivision A of
this Article:
Tenant acknowledges that it has been advised that the demised
premises is currently occupied by a certain tenant (the "Existing
Tenant") pursuant to a certain lease with Landlord, the term of which
expires on May 31, 1996.
Landlord shall not be liable to Tenant in any way if the Existing
Tenant fails to vacate all or any portion of the demised premises by or
before the May 31, 1996 expiration date of the term of its Lease.
However, if such tenant fails to vacate such space by or before such
expiration date, Landlord will then use reasonable diligence to cause
such tenant to vacate such space, including, without limitation, the
commencement and diligent prosecution of a summary holdover dispossess
proceeding.
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Notwithstanding anything contained herein to the contrary, if
Landlord is unable to make possession of the demised premises available
to Tenant within twelve (12) months after the date of this Lease, then,
at Tenant's election to be exercised by written notice given by Tenant
to Landlord within ten (10) days after the end of such twelve (12)
month period (time being of the essence), unless Landlord makes
possession of such space available to Tenant within twenty (20) days
after the end of such ten (10) day period, the term of this Lease shall
end as if the last day of such twelve (12) month period were the date
originally set forth in this Lease as the expiration date of the term,
and the parties shall have no further obligations or liabilities to
each other hereunder, except that Landlord shall return any advance
rent or security deposit paid by Tenant hereunder.
D. Supplementing Article 30 of this Lease, Tenant agrees that it
will effect all such alterations, additions and improvements in and to
the demised premises as are necessary for Tenant to conduct its
business therein (the "Initial Alteration Work"). Such Initial
Alteration Work shall include the installation of all new partitions,
floor covering, ceiling, wall covering, lighting, fixtures and
equipment, so as to create a first class office installation in the
demised premises. Such Initial Alteration Work may also include the
installation in the demised premises of a file room, a computer room
and an uninterrupted power supply (UPS) Landlord agrees that the
Initial Alteration Work may be effected in stages over a period of time
between the commencement date of the term of this Lease and October 31,
1997.
Tenant shall, within thirty (30) days after the execution of this
Lease by Tenant, furnish Landlord for its approval a complete set of
architectural and engineering plans and specifications for the Initial
Alteration Work. Landlord, promptly upon receipt of same, shall
approve such plans and specifications, or return them with advice as to
what changes are required for its approval to be forthcoming. In the
event such plans and specifications are so returned to Tenant, Tenant
shall revise them to incorporate such changes as are required for
Landlord's approval to be forthcoming and shall resubmit such revised
plans and specifications to Landlord, within five (5) days after they
are returned (unapproved) by Landlord. Such plan approval process
shall continue until Landlord has approved a complete set of
architectural and engineering plans and specifications for the Initial
Alteration Work.
Tenant, at its own cost and expense (except as provided in
Subdivision F of this Article), will cause the Initial Alteration Work
to be effected in a good and workmanlike manner, in accordance with
Tenant's approved plans and specifications, in accordance with the
provisions of Article 3, as supplemented by
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Article 47, and all other applicable provisions of this Lease, and in
compliance with all applicable laws, rules and regulations.
E. Landlord agrees that, at its sole cost and expense, it will
effect the following work ("Landlord's Work") in and to the demised
premises:
(a) In connection with the Initial Alteration Work, Landlord
shall be solely responsible for and shall, at Landlord's expense,
cause to be effected any removal, encapsulation, encasement or
other treatment of asbestos required by laws, rules, regulations
or ordinances of any governmental authority having jurisdiction
over the demised premises (and Landlord will provide Tenant with
documentary evidence of such abatement work, including any form
required in order for Tenant to obtain its building permit).
However, Landlord and Tenant agree that any such compliance made
necessary by improvements or other work effected by or for Tenant
after Tenant opens for business at the demised premises, shall be
effected at Tenant's expense
(b) Landlord shall effect all work necessary to remove the
internal stairway between the 41st and 42nd floors of the
Building, including without limitation, the closing of the slab
between such floors.
(c) Tenant acknowledges that it has been advised that there is
currently a 400 amp, 460 volts, three phase switch located on the
11th floor of the Building. Landlord will effect all work
necessary to extend such existing electrical service to a new
switch on the 42nd floor of the Building at a location designated
by Landlord. It is further acknowledged and understood, however,
that the extension of such electrical service to the 42nd floor
of the Building will result in a so-called "line loss" of
available amperage, resulting in actual delivered service of
between 275 and 325 amps at 460 volts, three phase.
Landlord will effect Landlord's Work in a good and workmanlike
manner, and in accordance with all applicable laws, rules and
regulations. Landlord will effect Landlord's Work simultaneously with
the performance of the Initial Alteration Work by Tenant. Tenant shall
cooperate with Landlord by providing Landlord and its contractors with
such access to the demised premises as is necessary for Landlord to
effect all of Landlord's Work. Landlord shall cooperate with Tenant by
consulting with
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Tenant and its contractors and by using reasonable diligence to
coordinate the performance of Landlord's Work with the performance of
the Initial Alteration Work.
F. Landlord will reimburse Tenant for up to the first $1,350,960 of
the costs of labor and materials, excluding architectural and
engineering fees and the costs of Tenant's personal property (as
described in Section 3.05), in effecting the Initial Alteration Work.
If such costs are lower than $1,350,960, then Landlord's aforedescribed
contribution obligation shall be satisfied by its reimbursing Tenant
such amount lower than $1,350,960. Any such costs in excess of
$1,350,960 shall be paid promptly by Tenant.
In connection with the Initial Alteration Work, Tenant shall
provide Landlord with true copies of paid bills or bills which have
been certified by Tenant as approved for payment, showing the cost of
the items of the Initial Alteration Work to be included in the
aforesaid total up to $1,350,960 and Landlord shall reimburse Tenant
for the amount set forth in said bills in accordance with Landlord's
obligation hereunder. (See Subdivision G of this Article.)
The foregoing work contribution by Landlord shall be conditioned
on Tenant not being in default, beyond any applicable notice and/or
grace period, under any of the material terms, covenants and conditions
of this Lease. Upon the occurrence of any such default by Tenant, such
reimbursement obligation shall be deemed suspended unless and until
Tenant fully cures such default, at which time such reimbursement
obligation shall resume and continue until Tenant has received the full
amount thereof (or Tenant again so defaults).
G. Anything contained herein to the contrary notwithstanding, if
Tenant, at any time during the term of this Lease after Tenant has been
granted all or a portion of the work contribution described in this
Article, breaches any covenant, condition or provision of this Lease
and fails to cure such breach within any applicable grace period, and
provided that this Lease is terminated by Landlord because of such
default, then, in addition to all other damages and remedies herein
provided and to which Landlord may otherwise be entitled, Landlord
shall also be entitled to the repayment of the unamortized portion of
any work contribution theretofore enjoyed by Tenant, which sum shall be
deemed additional rent hereunder and shall be due upon demand by
Landlord. Such unamortized portion shall be computed by multiplying
the total work contribution enjoyed by Tenant hereunder by a fraction,
the numerator of which shall be 144 minus the total number of calendar
months of the term of this Lease which have elapsed after the
Commencement Date but prior to such termination, and denominator of
which shall be 144. The obligation of Tenant to pay such additional
rent (or damages) to
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Landlord shall survive the expiration or sooner termination of the term
of this Lease.
Landlord agrees that any additional rent (or damages) which
Tenant is obligated to pay to Landlord pursuant to the immediately
preceding grammatical paragraph shall be set off against any damages
which Tenant is obligated to pay to Landlord on account of any future
rents or additional rents under this Lease (see subdivisions (a) and
(c) of Section 15.01).
H. If and so long as Tenant shall not be in default under any of the
material terms, covenants or conditions of this Lease, beyond any grace
period, Tenant shall be entitled to a rent credit in the amount of
$33,415, which rent credit shall be applied, until fully depleted,
against the first fixed annual rents due to Landlord under this Lease.
RIDER ATTACHED TO AND FORMING
A PART OF LEASE BETWEEN
MID-CITY ASSOCIATES, LANDLORD
AND FIRST ALBANY COMPANIES INC. ,TENANT
73
ARTICLE 46
TAX AND OPERATING EXPENSE ESCALATION
Tenant shall pay to landlord, as additional rent, tax escalation
and operating expense escalation in accordance with this Article:
(a) Definitions: For the purpose of this Article, the following
definitions shall apply:
(i)The term "base year" as hereinafter set forth for the
determination of expense escalation, shall mean the calendar year
1997.
(ii) The term "base tax year" as hereinafter set forth for
the determination of real estate tax escalation shall mean the
average of the New York City real estate tax years commencing
July 1, 1996 and ending June 30, 1997 and commencing July 1, 1997
and ending June 30, 1998 (i.e. "base tax year" representing an
amount of taxes).*
(iii) The term "The Percentage" shall mean 1.630 percent
(1.630%) for real estate tax escalation and shall mean 1.751
percent (1,751%) for expense escalation. The Percentage has been
computed on the basis of a fraction, the numerator of which is
the rentable square foot area of the presently demised premises
and the denominator of which is the total rentable square foot
area of the office and commercial space in the building project
(excluding garage space), for tax escalation and the denominator
of which is the total rentable square foot area of the office
space in the building project, for expense escalation. The
parties acknowledge and agree that the total rentable square foot
area of the presently demised premises shall be deemed to be
33.774 sq. ft., and that the rentable square foot area of the
office and commercial space in the building project shall be
deemed to be 2,072,136 sq. ft. and that of its office space shall
be deemed to be 1,928,539 sq. ft.
(iv) The term "the building project" shall mean all of the
land together with the improvements in which landlord has an
interest below 33rd Street, in Pennsylvania Station and below, on
and above ground level in the block bounded by 34th Street, 8th
Avenue, 33rd Street, and 7th Avenue, exclusive of the frontage
100 feet deep west of 0xx Xxxxxx and the frontage 52 feet 5 1/2
inches deep east of 8th Avenue (i.e., Block 783. Lot 1).
(v) The term "comparative year" for tax escalation and
shall mean the New York City real estate tax year commencing July
1, 19 and each subsequent period of twelve (12) months;* for
expense
* or such other period of twelve (12) months occurring during the term
of this Lease as hereafter may be duly adopted as the fiscal year for
real estate tax purposes by the City of New York.
*From and after January 1, 2000, the "base year" shall mean the
calendar year 1999, and the "base tax year" shall mean the average of
the New York City real estate tax years commencing July 1, 1998 and
ending June 30, 1999 and ending June 30, 2000 (i.e., "base tax Year"
representing an amount of taxes).
****Where more than one assessment is imposed by the City of New York
for any tax year, whether denominated an "actual assessment" or a
"transitional assessment" or otherwise, the phrases herein "assessed
value" and "assessments" shall mean whichever of the actual,
transitional or other assessment is designated by the City of New York
as the taxable amount for that tax year.
***** (and, from and after January 1, 2000, for each of tax year
1998/99 and tax year 1999/2000)
74
escalation "comparative year" shall mean the twelve (12) months
following the base year and each subsequent period of twelve (12)
months *
(vi) The term "real estate taxes" shall mean the total of
all taxes and special or other assessments levied, assessed or imposed
at any time by any governmental authority upon or against the
building project** and also any tax or assessment levied, assessed or
imposed at any time by any governmental authority in connection with
the receipt of income or rents from said building project to the extent
that same shall be in lieu of all or a portion of any of the aforesaid
taxes or assessments, or additions or increases thereof, upon or
against said building project*** a due to a future change in the method
of taxation or in the taxing authority, or for any other reason, such
franchise, income, transit, profit or other tax or governmental
imposition, however designated, shall be levied against Landlord in
substitution in whole or in part for the real estate taxes, or in lieu
of additions to or increases of said real estate taxes. Then such
xxxxxxxx, income, transit, profit or other tax or governmental
imposition shall be deemed to be included within the definition of
"real estate taxes" for the purpose hereof. As to special assessments
which are payable over a period of time extending beyond the term of
this Lease, only a pro rata portion thereof, covering the portion of
the term of this Lease unexpired at the time of the imposition of such
assessment, shall be included in "real estate taxes". If, by law, any
assessment may be paid in installments, then, for the purposes hereof
(a) such assessment shall be deemed to have been payable in the maximum
number of installments permitted by law and (b) there shall be included
in real estate taxes, for each comparative year in which such
installments may be paid, the installments of such assessment so
becoming payable during such comparative year, together with interest
payable during such comparative year.
(vii)****Where a "transition assessment" is imposed by the City
of New York for any tax (fiscal) year, then the phases "assessed value"
and "assessments" shall mean the transition assessment for that tax
(fiscal) year.
(viii) The phrase "real estate taxes payable during the base tax year"
shall mean that amount obtained by multiplying the assessed value of
the building project for each of tax year 1996/97 and tax year
1997/98***** by the applicable tax rate for such year and then
obtaining the avenge of the taxes for such two tax years.
*(so that real estate taxes for any comparative year will be the
average of the real estate taxes payable for two different tax years).
**, any assessment by a business improvement district (BID),
***A franchise, income, transit, profit or other tax or governmental
imposition shall not be included within the definition of real real
estate taxes for purposes hereof, unless,
* (calculated in accordance with generally applied real estate
practice, consistently applied)
** the following if incurred or borne in accordance with sound
management practices:
***,provided the same are not leased or to be leased to space tenants;
75
(ix) The term "Expenses" shall mean the total of all the costs
and expenses incurred or borne by Landlord* with respect to the
operation and maintenance of the building project and the services
provided tenants therein, including, but not limited to, the costs and
expenses incurred for and with respect to** steam and any other fuel;
water rates and sewer rents; air-conditioning; ventilation and heating;
cleaning, by contract or otherwise, window washing (interior and
exterior); elevators; escalators; xxxxxx and matron service; Building
electric current;* protection and security; lobby decoration, repairs;
association fees or dues; maintenance; painting of non-tenant areas***
replacements and improvements which are appropriate for the continued
operation of the building project**** fire, extended coverage, boiler
and machinery, sprinkler, apparatus, public liability and property
damage, rental and plate glass insurance and any insurance required by
a mortgagee; management fees; supplies; wages, salaries, disability
benefits, pensions, hospitalization, retirement plans and group
insurance respecting employees of the Landlord up to and including the
building manager; uniforms and working clothes for such employees and
the cleaning thereof; expenses imposed on the Landlord pursuant to any
law or to any collective bargaining agreement with respect to such
employees; workmen's compensation insurance, payroll, social security,
unemployment and other similar taxes with respect to such employees.
Provided, however, that***** the foregoing costs and expenses shall
exclude or have deducted from them, as the case may be and as shall be
appropriate:
(a) leasing commissions******
(b) Managing agents' fees or commissions in excess of the rates then
customarily charged for building management for buildings of like class
and character;
(c) executives' salaries above the grade of building manager;
(d) expenditures for capital improvements except those which under
generally applied real estate practice are expensed or regarded as
deferred expenses and except for capital expenditures
*i.e. Building electric current shall be deemed to mean all electricity
purchased for the Building except that which is redistributed to
tenants in the Building; the parties acknowledge and agree that Forty
percent (40%) of the Building's payment to the public utility for the
purchase of electricity shall be deemed to be payment for Building
electric current.
****and which are not capital in nature, except as provided in (d)
below);
***** notwithstanding the foregoing,
******and other lease related expenses, including legal fees;
76
required by law, in either of which cases the cost thereof shall be
included in Expenses for the base year and the comparative year in
which the costs are incurred and subsequent comparative years, on a
straight line basis, to the extent that such items are amortized over
an appropriate period, but not less more than ten years, with an
interest factor equal to the prime rate of the Chemical Bank of New
York at the time of Landlord's having incurred said expenditure.
(e) amounts received by Landlord through proceeds of insurance to the
extent the proceeds are compensation for expenses which were previously
included in Expenses hereunder;
(f) cost of repairs or replacements incurred by reason of fire or
other casualty, but only to the extent to which Landlord is compensated
therefor through proceeds of insurance, or caused by the exercise of
the right of eminent domain;
(g) advertising and promotional expenditures;
(h) legal fees for disputes with tenants and legal and auditing fees,
other than legal and auditing fees reasonably incurred in connection
with the maintenance and operation of the Building or in connection
with the preparation of statements required pursuant to additional rent
or lease escalation provisions;
(i) costs incurred in performing work or furnishing services for
individual tenants (including this Tenant) at such tenant's expense to
the extent that such work or service is in excess of any work or
service landlord at its expense is obligated to furnish to this Tenant;
costs of performing work or furnishing services for tenants other than
this Tenant at Landlord's expense to the extent that such work or
service is in excess of any work or service landlord is obligated to
furnish to this Tenant at Landlord's expense; if any work or service is
performed or furnished by landlord to or for any tenant other than this
Tenant at such tenant's expense, then, but only to the extent that
landlord is obligated to perform such work or furnish such service to
or for this Tenant at landlord's expense, such work or service shall be
deemed to have been performed or furnished to. such other tenant at
landlord's expense and shall therefore be included in Expenses. *
If landlord shall purchase any item of capital equipment or make
any capital expenditure designed to result in net savings or reductions
in Expenses, then the costs for same shall be included in Expenses. The
costs of capital equipment or capital expenditures are
* ;see page 76A following this page.
-76A-
(j)real estate taxes;
(k)capital improvements, except as provided in (d) above;
(1)interest on debt or amortization payments or any other
payments under any mortgage or under any ground or underlying lease;
(m)real estate brokerage commissions and other expenses which
are related to the sale of the Building;
(n)services to retail stores or ground floor offices;
(o)all items and services for which Tenant or other tenants
reimburse Landlord or are paid by third parties or which third parties
are liable to pay or reimburse Landlord;
(p)costs of correcting defects (whether lawful or otherwise) and
the construction of the Building;
(q)Any cost representing an amount paid to a person or entity
affiliated with Landlord or any of its principals which is in excess of
the amount which would have been paid had there not been such a
relationship; and
(r) Landlord's general business operation overhead,
including, without limitation, compensation paid to its officers,
directors and partners other than the salary for the building manager.
-77A-
After Landlord has furnished Tenant with the aforesaid statement,
Tenant shall pay Landlord, together with the monthly installments of
rent due on June 1 and December 1 of each such comparative year, an
amount equal to one half (1/2) of the total sum of additional rent due
from Tenant to Landlord pursuant to such statement for such comparative
year. If, during the term of this Lease, any such taxes are required
by the taxing authority or by a mortgagee's tax escrow requirements, to
be paid, in full or in quarterly or other installments, on any other
date or dates than as presently required, then Tenant's tax escalation
payment(s) shall be correspondingly accelerated so that said payments
are due at least thirty (30) days prior to the date proportionate
payments are due to the taxing authority or the mortgagee. If a
statement is furnished to Tenant after the commencement of the
comparative year in respect of which such statement is rendered, Tenant
shall, within thirty (30) days thereafter pay to Landlord an amount
equal to those installments or the total tax escalation payable as
provided in the preceding sentence during the period prior to the
first day of the month next succeeding the month in which the
applicable statement has been furnished.
77
so to be included in Expenses for the base year and the comparative
year in which the costs are incurred and subsequent comparative years,
on a straight line basis, to the extent that such items are amortized
over such period of time as reasonably can be estimated as the time in
which such savings or reductions in Expenses are expected to equal
Landlord's costs for such capital equipment or capital expenditure,
with an interest factor equal to the prime rate of the chemical Bank of
New York at the time of Landlord's having incurred said costs. If
Landlord shall lease any such item of capital equipment designed to
result in net savings or reductions in Expenses, then the rentals and
other costs paid pursuant to such leasing shall be included in Expenses
for the comparative year in which they were incurred.
If during all or part of the base year or of any comparative
year. Landlord shall not furnish any particular items(s) of work or
service (which would constitute an Expense hereunder) to portions of
the building project, due to the fact that such portions are not
occupied or leased, or because such item of work or service is not
required or desired by the tenant of such portion, or such tenant is
itself obtaining and providing such item of work or service, or for
other reasons, then, for the purposes of computing the additional rent
payable hereunder, the amount of the expenses for such item for such
period shall be increased by an amount equal to the additional
operating and maintenance expenses which would reasonably have been
incurred during such period by Landlord if it had at its own expense
furnished such item of work or services to such portion of the building
project
(b) Real Estate Taxes:
0.Xx the event that the real estate taxes payable for any
comparative year shall exceed the amount of such real estate taxes
payable during the base tax year, Tenant shall pay to Landlord, as
additional rent for such comparative year, an amount equal to The
Percentage of the excess.* By or after the start of the comparative
year following the base tax year, and by or after the start of each
comparative year thereafter, Landlord shall furnish to Tenant a
statement of the real estate taxes payable for such comparative year,
and a statement of the real estate taxes payable during the base tax
year.** If the real estate taxes payable for such comparative year
exceed the real estate taxes payable during the base tax year,
additional rent for such comparative year, in an amount equal to The
Percentage of the excess, shall be due from Tenant to Landlord and such
additional rent shall be payable to Tenant to Landlord*** within ten
(10) days after receipt of the aforesaid statement.
* (See Subdivision (i) of this Article.)
** Upon Tenant's written request, Landlord shall provide Tenant with
copies of all pertinent tax bills.
***as follows: (See page 77A following this page)
*actual, then customary, out-of-pocket
**Landlord's obligations under this Subdivision (b) 3 shall survive the
end of the term of this Lease.
***(See Subdivision (i) of this Article.)
****such CPA or by Landlord, in reasonable detail
78
2. Should the real estate taxes payable during the base tax year
be reduced by final determination of legal proceedings, settlement or
otherwise, then, the real estate taxes payable during the base tax year
shall be correspondingly revised, the additional rent theretofore paid
or payable hereunder for all comparative years shall be recomputed on
the basis of such reduction, and Tenant shall pay to Landlord as
additional rent, within thirty (30) ten (10) days after being billed
therefor, any deficiency between the amount of such additional rent as
theretofore computed and the amount thereof dues as the result of such
recomputations. Should the real estate taxes payable during the base
tax year be increased by such final determination of legal proceedings,
settlement or otherwise, then appropriate recomputation and adjustment
also shall be made.
3. If, after Tenant shall have made a payment of additional rent
under this subdivision (b), Landlord shall receive a refund of any
portion of the real estate taxes payable for any comparative year after
the base tax year on which such payment of additional rent shall have
been based, as a result of a reduction of such real estate taxes by
final determination of legal proceedings, settlement or otherwise,
Landlord shall within then (10) days after receiving the refund pay to
Tenant The Percentage of the refund less The Percentage of* expenses
(including attorney's and appraiser's fees) incurred by Landlord in
connection with any such application or proceeding. If, prior to the
payment of taxes for any comparative year, Landlord shall have obtained
a reduction of that comparative year's assessed valuation of the
building project, and therefor of said taxes, then the term "real
estate taxes" for that comparative year shall be deemed to include the
amount of Landlord's* expenses in obtaining such reduction in assessed
valuation, including attorney's fees and appraisers' fees.**
(c) Expenses:
1. If the Expenses for any comparative year shall be greater than
the Expenses for the base year, Tenant shall pay to Landlord, as
additional rent for such comparative year, in the manner hereinafter
provided, an amount equal to The Percentage of the excess of the
Expenses for such comparative year over the Expense for the base year
(such amount being hereinafter called the "Expense Payment").***
Following the expiration of each comparative year and after
receipt thereof from Landlord's certified public accountant, Landlord
shall submit to Tenant a statement, certified by**** Landlord, setting
forth the Expenses for the preceding comparative year, the
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Expenses for the base year, and the Expense Payment, if any due to
Landlord from Tenant for such comparative year. The rendition of such
statement to Tenant shall constitute prima facie proof of the accuracy
thereof and, if If such statement shows an Expense Payment due from
Tenant to Landlord with respect to the preceding comparative year then
(i) Tenant shall make payment of any unpaid portion thereof within
thirty (30) ten (10) days after receipt of such statement; and (ii)
Tenant shall also pay to Landlord, as additional rent, within thirty
(30) ten (10) days after receipt of such statement, an amount equal to
the product obtained by multiplying the total Expense Payment for the
preceding comparative year by a fraction, the denominator of which
shall be twelve (12) and the numerator of which shall have elapsed
prior to the first day of the month immediately following the rendition
of such statement; and (iii) Tenant shall also pay to Landlord, as
additional rent, commencing as of the first day of the month following
rendition of such statement and on the first day of each month
thereafter until a new statement is rendered, one-twelth (1/12) of the
total Expense Payment for the preceding comparative year. The
aforesaid monthly payments based on the total Expense Payment for the
preceding comparative year shall be adjusted to reflect, if Landlord
can reasonable so estimate, known increases or decreased in rates, for
the current comparative year, applicable to the categories involved in
computing Expenses, whenever such increases become known prior to or
during such current comparative year. The payments required to be made
under (ii) and (iii) above shall be credited toward the Expense Payment
due from Tenant for the then current comparative year, subject to
adjustement as and when the statement for such current comparative year
is rendered by Landlord.*
(d) The statements of the real estate taxes and of the Expenses
to be furnished by Landlord as provided in subdivisions (b) and (c)
above shall be certified by Landlord, and shall be prepared in
reasonable detail for the Landlord by a certified public accountant
(who may be the CPA now or then currently employed by Landlord for the
audit of its accounts); said certified public accountant may rely on
Landlord's allocations and estimates wherever operating cost
allocations or estimates are needed for this Article. The statement
thus furnished to Tenant shall** constitute a final determination as
between Landlord and Tenant of the real estate taxes and Expenses for
the periods represented thereby, unless Tenant within ninety (90)
thirty (30) days after they are furnished shall give a written notice
to Landlord that it disputes their accuracy or their appropriateness.
which notice shall specify the
* If such statement for such current comparative year indicates that
the payments made under (ii) and (iii) above exceeded the actual
Expense Payment for such comparative year, by an amount equal to the
greater of (a) $100,000 or (b) 10%, then Landlord shall pay Tenant
interest on the amount of such overpayment, at the rate set forth in
Section 20.04 hereof, from the date such overpayment was made by
Tenant.
**, subject to mathematical errors in calculation and computation,
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particular respects in which the statement is inaccurate or
inappropriate.
If Tenant shall so dispute said statements then, pending the
resolutions of such dispute, Tenant shall pay the additional rent to
Landlord in accordance with the statements furnished by Landlord*
(e) In no event shall the fixed annual rent under this Lease be
reduced by virtue of this Article.
(f) If the term of this Lease commences on a day which is not the
first day of a comparative year, then the additional rent due hereunder
for such comparative year shall be a proportionate share of said
additional rent for the entire comparative year, said proportionate
share to be based upon the length of time that the term of this Lease
will be in existence during such comparative year. Upon the date of any
expiration or termination of this Lease (except termination because of
Tenant's default), whether the same be the date hereinabove set forth
for the expiration of the term or any prior or subsequent date, a
proportionate share of said additional rent for the comparative year
during which such expiration or termination occurs shall immediately
become due and payable by Tenant to landlord, if not theretofore
already billed and paid. The said proportionate share shall be based
upon the length of time that this Lease shall have been in existence
during such comparative year. Landlord shall, as soon as reasonably
practicable, compute the additional rent due from Tenant, as aforesaid,
which computations shall either be based on that comparative year's
actual figures or be an estimate based upon the most recent statements
theretofore prepared by Landlord and furnished to Tenant under
subdivisions (b) and (c) above. If an estimate is used, then Landlord
shall cause statements to be prepared on the basis of the comparative
year's actual figures as soon as they are available, and within ten
(10) days after such statement or statements are prepared by Landlord
and furnished to Tenant, Landlord and Tenant shall make appropriate
adjustments of any estimated payments theretofore made.
(g) Landlord's and Tenant's obligation to make the adjustments
referred to in subdivision (f) above shall survive any expiration or
termination of this Lease.
(h) Any delay or failure of landlord in billing for any
additional rent hereunder shall not constitute a waiver of or in any
way impair the continuing obligation of Tenant to pay such additional
rent.
(i) (See Page 80B following this page.)
*(i) (See Page 80A following this page.)
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After payment of said additional rent with respect to operating
expenses only, Tenant shall have the right, during reasonable business
hours and upon not less than twenty (20) days' prior written notice to
Landlord, to examine Landlord's relevant books and records with respect
to the foregoing (including such records in respect to the base year),
provided such examination is commenced within eighteen (18) months
after the giving of such written notice by Tenant and concluded within
thirty (30) days thereafter. Landlord shall cooperate with Tenant by
making available to Tenant such relevant books and records as Tenant
reasonably requires in connection with such examination.
Any such dispute as to operating expenses shall be resolved by
arbitration in accordance with the provisions of Article 31 of this
Lease. In the event the award in any such arbitration shows that
Tenant was overcharged by at least an amount equal to the greater of
(i) $100,000 or (ii) ten percent (10%) of the Expense Payment
determined to be due hereunder, then Landlord shall, in addition to
refunding to Tenant the amount of such overcharge, pay Tenant interest
on such amount, at the rate set forth in Section 20.04 of this Lease,
from and after the date payment was made by Tenant
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Notwithstanding anything hereinabove contained to the contrary, it is
the intention of the parties that this Tenant's obligation to pay
escalation additional rents for Expenses and for real estate taxes
shall be capped or limited for the period through the calendar year
1999. The intention is that the cap be based on a limitation on the
increase of Expenses from and after the base year and a limitation in
the increase of real estate taxes from and after the base tax year.
The total of the Expense Payment and the real estate tax escalation
additional rent payable hereunder for the 1998 comparative year shall
not be more than an amount equal to ten percent (10%) of the total of
the Expense Factor and the Tax Factor (each as hereinafter defined);
and the total of the Expense Payment and the real estate tax escalation
additional rent payable hereunder for the 1999 comparative year shall
not be more than an amount equal to twenty percent (20%) of the total
of the Expense Factor and the Tax Factor.
For Purposes of this cap or limitation on escalation additional rents,
the "Expense Factor" shall mean an amount equal to (x) The Percentage
for expense escalation (1.751%) multiplied by (y) the Expenses for the
base year; and The "Tax Factor" shall mean an amount equal to (x) The
Percentage for real estate tax escalation (1.630%) multiplied by (y)
the real estate taxes payable for the base tax year.
The following illustrates the manner in which the above is intended to
operate:
For example only: If the Expenses for the base year are
$13,500,000 and the real estate taxes payable for the base tax
year are $12,500,000, then the Expense Factor would be:
1.751% x $13,500,000 or $236,385;
and the Tax Factor would be:
1.630% x $12,500,000 or $203,750;
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accordingly, the total of Expense Payment and real estate tax
escalation additional rent payable hereunder for the 1996 comparative
year shall not be more than an amount equal to:
10% x ($236,385 + $203,750) or $44,013.50 and
the total Expense Payment and real estate tax escalation additional
rent payable hereunder for the 1999 comparative year shall not be more
than an amount equal to:
20% x ($236,385 + $203,750) or $88,027.
It is understood and agreed that there shall be no limitation or so-
called cap on any increase in the amount of real estate tax or
operation expense escalation additional rent due hereunder for the
comparative year 2000 or for any comparative year thereafter during the
term of this Lease.
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Article 47
Alterations
A. Supplementing Article 3 hereof, Landlord will not unreasonably
withhold, condition or delay approval of written requests of Tenant to
make non-structural interior alterations, additions and improvements
(herein referred to as "alterations") in and to the demised premises,
provided that such alterations do not adversely affect utility services
or plumbing and electrical lines or other Systems of the Building. All
alterations shall be performed in accordance with the following terms
and conditions:
(a) All such alterations costing more than $50,000 shall be
performed in accordance with plans and specifications first submitted
to Landlord for its prior written approval. Landlord shall be given, in
writing, a good description of all other alterations.
(b) All alterations shall be done in a good and workmanlike
manner. Tenant shall, prior to the commencement of any such
alterations, at its sole cost and expense, obtain and exhibit to
Landlord any governmental permit required in connection with such
alterations.
(c) All alterations shall be done in compliance with all
other applicable provisions of this Lease and with all applicable laws,
ordinances, directions, rules and regulations of governmental
authorities having jurisdiction, including, without limitation, The
Americans with Disabilities Act of 1990 and New York City Local Law No.
58/87 and similar present or future laws, and rules and regulations
issued pursuant thereto, and also (except as provided in Subdivision E
of Article 45) No. 76 and similar present or future laws, and rules and
regulations issued pursuant thereto, on abatement, storage,
transportation and disposal of asbestos, which work, if required, shall
be effected at Tenant's sole cost and expense, by contractors and
consultants approved by Landlord and in strict compliance with the
aforesaid laws and regulations and with Landlord's rules and
regulations thereon.
(d) All work shall be performed with union labor having the
proper jurisdictional qualifications.
(e) 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.
(f) Prior to the commencement of any work by or for Tenant,
Tenant shall furnish to Landlord certificates
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evidencing the existence of the following insurance (of Tenant or of
any contractor performing such work for Tenant):
(i) Worker's compensation insurance covering all
persons employed for such work and with respect to
whom death or bodily injury claims could be
asserted against Landlord, Tenant or the demised
premises.
(ii) Broad form general liability insurance
written on an occurrence basis naming Tenant as an
insured and naming Landlord and its designees as
additional insureds, with limits of not less than
$3,000,000 combined single limit for personal
injury in any one occurrence, and with limits of
not less than $500,000 for property damage. (The
foregoing limits may be revised from time to time
by Landlord to such higher limits as Landlord from
time to time reasonably requires.) Tenant, at its
sole cost and expense, shall cause all such
insurance to be maintained at all times when the
work to be performed for or by Tenant is in
progress. All such insurance shall be in a company
authorized to do business in New York and all
policies, or certificates therefor, issued by the
insurer and bearing notation evidencing the
payment of premiums, shall be delivered to
Landlord. Blanket coverage shall be acceptable,
provided that coverage meeting the requirements of
this paragraph is assigned to Tenant's location at
the demised premises.
(g) All work to be performed by Tenant shall be done in
manner which will not unreasonably interfere with or disturb other
tenants and occupants of the Building.
(h) Any alterations or other work and installations in and
for the demised premises, which shall be consented to by Landlord as
provided herein, and which is effected by Landlord, its agents or
contractors at Tenant's request, shall be paid for by Tenant promptly
when billed.
(i) Supplementing Section 3.04 of this Lease, Landlord may
require Tenant to remove from the demised premises, upon the expiration
or sooner termination of the term of this Lease, any nonstandard office
installation (e.g., internal stairways, private lavatories, etc., but
not raised flooring or
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pantries) made by or for Tenant, provided Landlord makes such election
at the time it approves such installation (but only if Tenant's request
for approval reminds Landlord in writing of the need to make such
election)
B. Supplementing Article 3 hereof, and notwithstanding anything
to the contrary contained in this Article, Landlord's prior written
approval will not be required with respect to non-structural interior
alterations costing $50,000 or less, or decorative work such as
painting or wall covering, provided that such alterations or decorative
work do not affect utility services or plumbing or electrical lines or
other systems of the Building; and provided, further, that all such
alterations and decorative work shall be performed in accordance with
the provisions set forth in Article 3, as supplemented by this Article
47, and all other applicable provisions of the Lease (except the
requirement of Landlord's approval of plans and specifications for such
work; Tenant, nevertheless, shall be required to provide Landlord with
a copy of any existing plans and specifications for such work, or a
good written description, as the case may be, at least ten (10) days
prior to the start of the alteration in question).
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Article 48
Non - Disturbance Agreement
Supplementing Article 6 of this Lease, Landlord will obtain, for
the benefit of Tenant, from the ground lessor under The Ground Lease
and/or from the holder of any mortgage which may now or hereafter
encumber The Ground Lease or Landlord's interest in the Building, a non-
disturbance agreement in the form then customarily used by such ground
lessor and/or mortgagee, providing in any event in substance that so
long as Tenant is not in default under this Lease beyond any applicable
notice and/or grace period, then the grantor of such non-disturbance
agreement will not disturb Tenant's occupancy or terminate this Lease
or take any action to recover possession of the demised premises,
notwithstanding any default under, or termination of, such ground lease
or any foreclosure of such mortgage Tenant agrees to execute and
deliver the aforedescribed non-disturbance agreements. Any fees or
costs imposed by the grantor of the non-disturbance agreement or its
attorneys for the granting of such non-disturbance agreement, shall be
shared equally by Landlord and Tenant.
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Article 49
Renewal Option
Tenant shall have the option to extend and renew the term of this
Lease with respect to the then existing demised premises in its then
"as is" condition, for one (1) additional period of five (5) years
commencing on the first day of the thirteenth Lease Year, and ending on
the last day of the seventeenth Lease Year, upon the same terms and
conditions as contained in this Lease (unless changed or modified by
mutual agreement) except that (i) the fixed annual rental rate, without
electricity (but subject to increase pursuant to Section 27.04 and to
escalation additional rents pursuant to Article 46 hereof), for the
extended term shall be a sum equal to the fair and reasonable annual
market rental value of the demised premises as of the first day of the
thirteenth Lease Year, taking into account the rentals at which leases
are being concluded for comparable space in the Building and in
comparable buildings in the same rental area as the Building; (ii) for
the extended term, the terms "base year" for operating expense
escalation and "base tax year" for real estate tax escalation, under
Article 46, each shall be deemed to mean the calendar year during which
the first day of the thirteenth Lease Year occurs (so that taxes for
the base tax year will be the average of the taxes payable for two (2)
different tax years), the "comparative year(s)" under Article 46 shall
be unchanged; and (iii) this Lease, as extended, shall not contain the
renewal option provided in this Article or the rent credit or work
contribution set forth in Article 45.
The exercise of such option shall only be effective upon, and in
strict compliance with, the following terms and conditions:
1. Written notice of such election shall be given by Tenant to
Landlord not later than twelve (12) months prior to the expiration date
of the initial term (the "Initial Term") of this Lease. Time shall be
of the essence in connection with the exercise of any election of
Tenant hereunder.
2. The fair and reasonable annual market rental value of the
demised premises effective as of the commencement of the extended term
shall take into account, also, the five (5) year term of the extension,
and it shall be determined, as aforesaid, during the last nine (9)
months of the Initial Term. Landlord and Tenant shall seek to agree as
to the amount of such fair and reasonable annual market rental value
for the demised premises. If they shall not agree as to such value by
the start of the last eight (8) months of the Initial Term, then and in
such event said fair and reasonable annual market rental value shall be
determined by appraisal as hereinafter in this Article provided.
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Notwithstanding the foregoing, and any appraisal as hereinafter
provided, the parties understand and agree that in no event shall the
fixed annual rental rate (without electricity) for the extended term be
less than the aggregate of the fixed annual rental rate (without
electricity) payable as of the last month of the Initial Term, plus the
sum of the operating expense escalation and real estate tax escalation
additional tents payable under Article 46 for the last twelve (12)
months of the Initial Term.
If at the commencement date of the extended term, the amount of
the fixed annual rental rate payable during said term in accordance
with the foregoing paragraphs of this Article shall not have been
determined, then, pending such determination, Tenant shall pay fixed
annual rent at a rate equal to 120% of the fixed annual rental rate
payable hereunder as of the last month of the initial term of this
Lease (the "Temporary Rate"). After the determination by appraisal of
the fair and reasonable annual market rental value of the demised
premises, if the fixed annual rental rate payable pursuant to this
Article is greater than the Temporary Rate, Tenant shall promptly pay
to Landlord the difference between the rent theretofore paid at the
Temporary Rate and the greater rental rate determined after the
appraisal; and the greater fixed annual rental rate so determined after
the appraisal shall be payable during the extended term; if said rental
rate is lower than the Temporary Rate, Landlord shall promptly remit
any overpayment made by Tenant; and the fixed annual rental rate so
determined hereunder shall be payable during the extended term.
3. Upon determination of the fixed annual rent, for the
extended term, Landlord and Tenant shall execute, acknowledge and
deliver to each other an agreement specifying the amount of the fixed
annual rental rate for such extended term (but any failure to execute
such an agreement shall not affect Tenant's obligation to pay and
Landlord's right to receive such fixed annual rent).
4. Tenant shall not be in default under any of the material
terms, covenants and conditions of this Lease beyond any grace period
hereunder (i) at the time Tenant gives written notice to Landlord of
its election to extend the term of this Lease; or (ii) at the
commencement date of the extended term.
5. If Landlord and Tenant shall be unable to agree as to the
fair and reasonable annual market rental rate by the date hereinabove
set forth, then and in such event said fair and reasonable annual
market rental value for the demised premises shall be determined as
follows:
Either party shall give a notice to the other, stating the name
and address of an impartial person to act as appraiser hereunder, and
within thirty (30) days after the receipt of such
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notice, the other party shall give notice to the sender of the first-
mentioned notice, likewise, stating the name and address of an
impartial person to act as appraiser hereunder.
The appraisers so specified in such notices shall be licensed
real estate brokers doing business in the Borough of Manhattan, City
and State of New York (including such brokers who specialize in acting
as such brokers to tenants), each having not less than twenty (20)
years active experience as real estate brokers in said Borough.
In making their determinations, the appraisers shall consider and
follow the directions set forth in this Article.
Before proceeding to determine the fair and reasonable annual
market rental value of the demised premises ("the value"), as
aforedescribed, the appraisers so appointed shall subscribe and swear
to an oath fairly and impartially to determine such value. If, within
thirty (30) days following the appointment of the latter of said
appraisers, said two appraisers shall be unable to agree upon the said
value, the said appraisers shall appoint, by an instrument in writing,
as third appraiser, an impartial person, similarly qualified, who upon
taking a similar oath, shall proceed with the two appraisers first
appointed to determine the said value. The written decision of any two
of the appraisers so appointed, fixing such value, shall be binding and
conclusive on the parties.
If, within forty-five (45) days following the appointment of the
third appraiser, any two of the appraisers have not by written decision
fixed such value then the third appraiser shall find as correct the
value that was determined by either the appraiser specified by Landlord
or the appraiser specified by Tenant and render a written decision
fixing such value as the fair and reasonable annual market rental value
for the demised premises, which written decision shall be binding and
conclusive on the parties.
If, after notice of the appointment of an appraiser, the other
party shall fail, within the above specified period of thirty (30)
days, to appoint an appraiser, such appointment of a similarly
qualified appraiser may be made, upon application without notice by the
person who shall have been appointed an appraiser, by the American
Arbitration Association in New York City, (or if the American
Arbitration Association in New York City will not so act, then such
appointment shall be made by the Justice of the Supreme Court, New York
County, then presiding in Special Term, Part II thereof, or the
equivalent of said Part II). If the two appraisers aforesaid shall be
unable to agree, within thirty (30) days following the appointment of
the latter of said appraisers, upon such value and shall fail to
appoint in writing a third appraiser within fifteen (15) days
thereafter, the necessary
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appraiser shall be appointed by said American Arbitration Association
in New York City (or by said Justice). If any appraiser appointed as
aforesaid by either of the parties, by said American Arbitration
Association, by said Justice, or by the two appraisers so appointed,
shall die, be disqualified or incapacitated or shall fail or refuse to
act, before such value shall have been determined, the necessary
appraiser shall be promptly appointed by the person or persons who
appointed the appraiser who shall have died, become disqualified or
incapacitated, or who shall have failed or refused to act, as
aforesaid.
Landlord and Tenant shall each pay the fees of the person acting
as appraiser hereunder for Landlord and Tenant, respectively, and
Landlord and Tenant shall each pay one-half (1/2) of the fees of any
third appraiser appointed pursuant to the provisions of the preceding
paragraph
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Article 50
Expansion Space
If, at any time during the initial term only (and not during any
renewal term) of this Lease, Tenant notifies Landlord that Tenant needs
and wants additional expansion space, and such space of up to 15,000
rentable square feet on any floor in the same elevator bank as the
premises originally demised hereunder is then vacant and available for
leasing by Landlord (i.e., not currently under offer to a proposed
tenant or subject to the option of another tenant; and subject to the
right of any existing tenant to renew and extend its occupancy of such
space), then, provided Tenant is not then in default beyond any grace
period under any of the material terms, covenants or conditions of this
Lease, Tenant shall have the option(s) to add to the premises demised
hereunder all but not part of such space (hereinafter call the
"Expansion Space(s)"), but only upon strict compliance with the terms
and conditions set forth herein.
Tenant shall give Landlord written notice by certified or
registered mail, return receipt requested, of its election so to add
all but not part of the Expansion Space(s) to the demised premises,
which notice shall be given no later than ten (10) days after written
notice from Landlord of the availability of such Expansion Space.
Time shall be of the essence in connection with the exercise by
Tenant of any option hereunder.
The term of the leasing of such Expansion Space(s) shall commence
on the first day of the month following the month in which Tenant
exercises the within option, and shall end on the expiration or sooner
termination date of the initial term of this Lease, or, if the Tenant
exercises its renewal option as in Article 49 provided, the expiration
or sooner termination date of the renewal term, but in no event shall
the commencement date of the term of the leasing of any Expansion Space
be later than the last day of the seventh Lease Year, so that the term
of the leasing of any Expansion Space shall in no event be less than
five (5) years.
For the Expansion Space(s), the fixed annual rental rate (without
electricity) shall be a sum equal to the then fair and reasonable
annual market rental value of the Expansion Space(s), taking into
account the rentals at which leases are being concluded for comparable
space in the Building and in comparable buildings in the same rental
area as the Building.
In the event Tenant exercises the within option, Landlord and
Tenant shall promptly seek to agree as to the amount
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of such fair and reasonable annual market rental value for the
Expansion Space(s). If they shall not agree as to such value within
thirty (30) days after the exercise of such option, then and in such
event said fair and reasonable annual market rental value shall be
determined in accordance with he provisions of paragraph 5 of Article
49 (Renewal Option).
Notwithstanding the foregoing, and any appraisal as in Article 49
provided, the parties understand and agree that in no event shall the
fixed annual rental rate (without electricity) for the Expansion
Space(s) be less than the aggregate of the fixed annual rental rate
(without electricity) payable for the within demised premises
(proportionately adjusted for the size of the Expansion Space(s)) as of
the month during which Tenant exercises the within option(s) (the
"Option Month"), plus the sum of the operating expense escalation and
real estate tax escalation additional rents payable for the within
demised premises (proportionately adjusted for the size of the Option
Space(s)) under Article 45 for the twelve (12) month period ending with
such Option Month.
If at the commencement date of the term of the leasing of the
Expansion Space(s), the amount of the fixed annual rental rate payable
during said term in accordance with the foregoing paragraphs of this
Article shall not have been determined, then, pending such
determination, Tenant shall pay fixed annual rent for the Expansion
Space(s) at a rate equal 120% of the fixed annual rental rate payable
for the within demised premises (proportionately adjusted for the size
of the Expansion Space(s)) as of the Option Month (the "Temporary
Option Rate"). After the determination by appraisal of the fair and
reasonable annual market rental value of the Expansion Space(s), if the
fixed annual rental rate payable pursuant to this Article is greater
than the Temporary Option Rate, Tenant shall promptly pay to Landlord
the difference between the rent theretofore paid at the Temporary
Option Rate and the greater rental rate determined after the appraisal;
and the greater fixed annual rate so determined after the appraisal
shall be payable with respect to the Expansion Space; if said rental
rate is lower than the Temporary Option Rate, Landlord shall promptly
remit any overpayment made by Tenant; and the fixed annual rental rate
so determined hereunder shall be payable with respect to the Expansion
Space.
Tenant agrees to accept the Expansion Space(s) in its then "as
is" condition, with no obligation in Landlord to do any work therein or
thereto, and Landlord need not demolish or erect demising walls, to
make the Expansion Space suitable and ready for Tenant's occupancy and
use.
The base year for expense escalation and the base tax year for
tax escalation under Article 46 hereof shall be the calendar year
during which the commencement date of the term of
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the leasing of the Expansion Space occurs. "The Percentage(s)" for the
Expansion Space(s) shall be determined in accordance with Article 45
and Landlord's then standard practice for measuring space in the
Building. Otherwise, the Expansion Space(s) shall be added to the
demised premises pursuant to all of the applicable terms, covenants and
conditions of this Lease, including, without limitation, an ERIF
computed in accordance with the provisions of Section 27.04
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Article 51
Miscellaneous
A. Supplementing Section 5.01 hereof, Tenant agrees that it shall
be responsible for compliance with all New York City and State and
Federal disability laws, rules and regulations with respect to the
entire demised premises.
B. Landlord represents that the demised premises are presently in
compliance with all applicable Environmental Laws (as hereinafter
defined) affecting the demised premises.
For purposes of this Lease, the term "Environmental Laws" shall
mean all applicable statutes, approvals, plans, authorizations,
concessions, franchises, agreements and similar items, of or with any
and all governmental agencies, departments, commissions, boards,
bureaus or instrumentalities of the United States of America, states
and political subdivisions thereof and all applicable judicial and
administrative and regulatory decrees, judgments and orders relating to
the protection of human health or the environment, including, without
limitation, (i) all requirements, including, but not limited to, those
pertaining to reporting, licensing, permitting, investigation and
remediation of emissions, discharges, releases or threatened releases
of hazardous materials, chemicals, hazardous substances, toxic
substances, or hazardous wastes, including, but not limited to,
asbestos and PCBs (collectively, "Hazardous Materials"), into the air,
surface water, groundwater or land, or relating to the manufacture,
distribution, processing, use, treatment, storage, disposal, transport
or handling of Hazardous Materials; and (ii) all requirements
pertaining to the protection of the health and safety of employees or
the public.
C. Landlord represents that the Building is presently in
compliance with New York City Local Law 5.
D. Supplementing Section 27.01, Tenant may use the freight
elevators in the Building, on a nonexclusive basis, during such
elevators' normal hours of operation, without any charge to Tenant but
subject to Landlord's rules and regulations regarding such use, as same
may be modified and amended from time to time. Tenant may also use such
freight elevators, on a nonexclusive basis, outside of such normal
hours of operation, provided that Tenant shall first schedule an
appointment with the Building management office for such use; and
provided, further, that Tenant shall pay Landlord in accordance with
Landlord's then existing rate schedule for such after-hours use of the
freight elevators, which rate schedule shall be subject to increase
(proportionate to Landlord's increase in costs for providing such
service) from time to time during the term of this Lease; but in no
event shall
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Tenant be charged a rate which is in excess of the then Building rate
charged for such service. Any such use of the freight elevators
outside of their normal hours of operation shall also be subject to
Landlord's rules and regulations regarding such use, as same may be
modified and amended from time to time.
E. Supplementing Section 27.03 hereof, Tenant may install,
maintain and operate, at Tenant's sole cost and expense, a supplemental
air-conditioning unit(s) in and for the demised premises, which
installation shall be made in one of the notch areas of the Building
(in a location designated by Landlord), and otherwise in accordance
with plans and specifications first approved by Landlord and in
compliance with all applicable provisions of this Lease regarding
alterations and installations. The number of such supplemental units
shall also be subject to Landlord's prior approval.
Upon the expiration or sooner termination of the term of this
Lease, Tenant, at its sole cost and expense, and unless Landlord elects
otherwise in writing, shall remove any such supplemental unit from the
demised premises, as the case may be, and shall repair any damage
caused by such removal.
Tenant agrees that all charges for the electricity consumed by
the operation of such supplemental unit(s) shall be computed in
accordance with the provisions of Section 27.04 hereof.
F. Supplementing Article 40 hereof, Landlord represents and
warrants that it neither consulted nor negotiated with any broker or
finder with regard to the demised premises other than Helmsley-Spear,
Inc. and The Xxxxxxxxx Company, L.P. Landlord agrees to indemnify and
save Tenant harmless from and against any claims for fees or
commissions from anyone other than Helmsley-Spear, Inc. and The
Xxxxxxxxx Company, L.P. with whom Landlord has dealt in connection with
the demised premises or this Lease.
G. Landlord shall provide Tenant with access to the demised
premises on a 24 hour basis, 7 days a week, 365 days a year, subject to
emergencies and requirements of law.
H. Landlord represents that Landlord is currently in the process
of renovating the lobby of the Building. As part of such lobby
renovation, Landlord intends to install a computer operated directory
of the tenants in the Building. Landlord agrees that, at no charge to
Tenant, Landlord shall provide Tenant with up to 25 listings on any
such computer operated tenant directory installed in the lobby of the
Building by Landlord.
I. Supplementing Section 27.12 of this Lease, Landlord represents
that it is currently the policy of the Building that the cleaning
services for lavatories in the core, as set forth in
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Exhibit C hereto, are not provided, without charge, to tenants
occupying a full floor. Accordingly, Tenant agrees that, upon the
execution and delivery of this Lease, it shall enter into a service
contract directly with the cleaning contractor for the Building for the
furnishing to such lavatories of the applicable cleaning, maintenance
and supplies described in said Exhibit C. Landlord agrees that the
rates in such service contract shall not exceed the reasonable and
customary charges for such services, and that Tenant shall be entitled
to a rent credit in the amount of 50% of all charges paid by Tenant
under said contract (except for additional items not described in said
Exhibit C). Such rent credit shall be applied, until fully depleted,
to the first rents and additional rents due under this Lease after such
charges have been paid by Tenant- Tenant shall promptly pay when due
all sums which are due and payable under said service contract, and
shall provide Landlord with paid invoices for all such charges.
J. Supplementing Section 27.12 of this Lease, Landlord agrees
that, in connection with Tenant's move into the Building, Tenant shall
not be charged for the removal from the demised premises of any
cardboard boxes and other packing materials customarily used by a
normal office tenant for moving into a Building, provided such boxes
and packing materials are broken down and neatly stacked by Tenant.
K. In the event of any inconsistency between the provisions of
this Rider and the provisions of the printed form of this Lease, the
provisions of this Rider shall prevail.
L. Tenant shall have the option to occupy, on a temporary basis,
Xxxx 0000, consisting of 8,563 rentable square feet on the 24th floor
of the Building (the "Temporary Space"). Tenant may exercise such
option by notifying Landlord thereof at any time prior to the date
which is thirty (30) days after the date of this Lease. The term of
such temporary occupancy shall commence on date Landlord receives such
notice and shall end (unless it shall sooner terminate as in this Lease
provided) on the date (the "Temporary Space Expiration Date") which
shall be the earlier to occur of (i) the Rent Commencement Date or (ii)
the effective date of any cancellation of this Lease by Tenant under
Subdivision C of Article 45; provided, however, that Tenant shall have
the right to terminate the term of its occupancy of the Temporary Space
upon three (3) days' prior notice to Landlord. Tenant agrees to take
possession of the Temporary Space in its "as is" condition with no
obligation in Landlord to do any work therein or thereto to make such
space suitable and ready for Tenant's occupancy and use. Tenant shall
surrender broom-clean possession to Landlord of the Temporary Space on
or before the Temporary Space Expiration Date (or such sooner date that
Tenant cancels its occupancy of the Temporary Space, as above
provided). For the Temporary Space, Tenant shall not be required to
pay any fixed annual rent or escalation additional rent, but Tenant
shall be required to pay an
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ERIF at the rate of $3.00 per rentable square foot per annum, under
Section 27.04, for electricity. Otherwise, Tenant's occupancy and use
of the Temporary Space shall be pursuant to all of the applicable
provisions of this Lease.
In the event that Tenant shall fail timely to vacate and
surrender the Temporary Space, then Tenant shall pay to Landlord, as
liquidated damages, for each day during which Tenant continues to
occupy the Temporary Space after the Temporary Space Expiration Date
(or such sooner date that Tenant cancels the term of its occupancy of
the Temporary Space, as above provided), $587, it being agreed that the
damage to Landlord resulting from the failure by Tenant to timely
vacate and surrender the Temporary Space will be substantial and will
be impossible of accurate measurement.
M. Landlord agrees that, at Tenant's request within a reasonable
period of time after the date of this Lease, Landlord will enter into a
license with Tenant for the use of a portion of the roof of the
building, to be designated by Landlord, for the installation,
maintenance and operation of up to nine (9) VSAT satellite dish
antennas, each with radius of not more than three and one-half (3 1/2)
feet. Such license shall include the right to install the necessary
wiring and conduit between the demised Premises and such antennas.
Such license shall be on Landlord's then standard form of antenna
license agreement for the Building, at the reasonable and customary
license fees then being charged by this Landlord and similar landlords
for such antenna installation and use of the roof of the Building.
Tenant shall be responsible for complying with all applicable laws,
rules and regulations relating to such antenna installation and use.
The installation of all antennas permitted hereunder shall be effected
as part of Tenant's Initial Alteration work under this Lease and Tenant
shall be responsible for all costs and expenses relating to the
maintenance and use of such antennas.
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Article 52
Security Deposit/Letter of Credit
A. Supplementing Article 39 of this Lease, if and so long as
Tenant is not in default under any of the material terms, covenants or
conditions of this Lease, beyond any grace period, the amount of the
security deposit required under Article 39 of this Lease shall be
reduced from $180,128 to $90,064 on the last day of the fourth Lease
Year.
B. Anything hereinabove to the contrary notwithstanding, and
supplementing Article 39 hereof, Tenant, instead of depositing cash
with Landlord as security deposit hereunder, may elect to substitute
therefor and deliver to Landlord, as and for a security deposit, an
unconditional, irrevocable commercial Letter of Credit, negotiable
(hereinafter called .'the Credit"), to be held and used under the
security deposit provisions of this Lease, which Credit shall be issued
by a bank (i) which is a member of the New York Clearing House
Association or a successor thereto or
(ii) which is reasonably acceptable to Landlord, in the amount of
$180,128 (which may be reduced as in Subdivision A above provided),
naming Landlord (or its successor as Landlord) as beneficiary and
authorizing the beneficiary to draw on the bank in said amount, or any
portion thereof, available by the beneficiary's sight draft, without
presentation of any other documents, statements or authorizations. The
Credit shall have a term of at least twelve (12) months, and it shall
by its terms be renewed, automatically, each year, by the bank, unless
the bank gives written notice to the beneficiary, at least forty-five
(45) days prior to the expiration date of the then existing Credit that
the bank elects that it not be renewed The Credit shall be
transferable. Tenant agrees that it shall pay to Landlord any transfer
fees imposed by the bank. The bank shall further agree with drawers,
endorsers, and all bona fide holders that drafts drawn under and in
compliance with the terms of the Credit will be duly honored upon
presentation to the bank at an office located in Manhattan The Credit
shall be subject to the Uniform Customs and Practice for Documentary
Credits (1993 Revision} International Chamber of Commerce Publication
No. 500.
If during the term of this Lease the Credit and/or the proceeds
of all or part of said Credit become less than the full amount of the
security deposit hereinabove required, then and in such event Tenant
shall, upon demand, deposit with Landlord the amount of any security
deposit/credit theretofore used or applied by Landlord pursuant to the
terms hereof in order that Landlord shall have the full security
deposit on hand at all times during the term of this Lease. If at the
expiration of the term of this Lease, Landlord holds all or part of
said Credit, and Tenant is not in default beyond any applicable notice
and/or grace period
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under any of the material terms, covenants and conditions of this
Lease, then Landlord will turn over said Credit to Tenant or assign it
to the designee of Tenant (except, however, that, before turning over
the Credit, Landlord may draw on it and retain such amount as Landlord
reasonably deems necessary to satisfy any then existing default under
any nonmaterial provision of this Lease).
It shall be the obligation of Tenant during the term of this
Lease to deliver to Landlord at least thirty (30) days prior to the
expiration date of the then existing Credit, a renewal or extension of
said Credit or a substitute Credit (each fully complying with the
foregoing). If for any reason Landlord has not received such renewal
or extension or substitute Credit within twenty (20) days prior to the
expiration date of the then existing Credit, then and in such event
Landlord shall be free to draw on the Credit and hold and use and apply
the proceeds thereof in accordance with the security deposit provisions
of this Lease. In the event Landlord so draws upon the Credit it
shall be entitled to reimbursement for any reasonable attorneys' fees
incurred in connection therewith.
LEASE MODIFICATION AGREEMENT
AGREEMENT, made as of this 17th day of June, 1996 between
MID-CITY ASSOCIATES, a New York general partnership with an office at 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called
"Landlord"), and FIRST ALBANY COMPANIES INC., a New York corporation with
an office at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000 (hereinafter
called "Tenant")
W I T N E S S E T H:
WHEREAS, Landlord is the landlord and Tenant is the tenant under
that certain lease, dated as of March 21, 1996, covering the entire
rentable area of the 42nd floor (the "42nd Floor Space") of the building
("the 'Building") known as Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx (which
lease, as same may have been modified through the date hereof, is
hereinafter called the "Lease") ; and
WHEREAS, the parties wish to modify the Lease so as to add to the
premises demised thereunder approximately 19,826 rentable square feet
of space on the 41st floor of the Building, approximately as
shown on the space diagram annexed hereto as Exhibit A and made a part
hereof (the "41st Floor Space"), in accordance with the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree that the Lease be, and
the Lease hereby is, modified as follows:
1. The 41st Floor Space is hereby added to the demised premises
for a term commencing as provided in Article 45A of the Lease and ending
on the last day of the twelfth Lease Year of the Lease (unless said term
is sooner terminated as in the Lease provided). Tenant shall
receive a rent credit of $803.90 a day for each day beyond the Commencement
Date of the leasing of the 42nd Floor Space during which Landlord has
not yet made available to Tenant possession of the 41st Floor Space.
2. The 41st Floor Space is leased pursuant to all of the
applicable terms, covenants and conditions of the Lease, including the same
Lease Years as for the 42nd Floor Space, except as modified herein
and except as hereinafter provided.
3. For the 41st Floor Space:
(a) The fixed annual rental rates (without electricity, and
subject to increase by the Escalated Amount as in Article 46B on page 68
of the Lease defined and described) shall be as follows:
$293,425 a year for the first Lease Year;
$440,335 a year for the second Lease Year;
$557,705 a year for the third Lease Year;
$594,780 a year for each of the fourth and fifth Lease Years;
$614,606 a year for each of the sixth, seventh, eighth and ninth
Lease Years; and
$634,432 a year for each of the tenth, eleventh and twelfth Lease
Years.
Accordingly, for the combined 42nd Floor Space and 41st Floor
Space, the fixed annual rental rates (without
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electricity, and subject to increase by the Escalated Amount as in Article
46B on page 68 of the Lease defined and described) shall be as follows:
$793,425 a year for first Lease Year;
$1,190,335 a year for the second Lease Year;
$1,507,705 a year for the third Lease Year;
$1,608,000 a year for each of the fourth and fifth Lease Years;
$1,661,600 a year for each of the sixth, seventh, eighth and
ninth Lease Years; and
$1,715,200 a year for each of the tenth, eleventh, and twelfth
Lease Years.
(b) (i) The Percentage shall mean .9568% for real
estate tax escalation which, when added to The Percentage for the 42nd
Floor Space, becomes a total of 2.5868% for the combined 42nd Floor Space
and 41st Floor Space.
(ii) The Percentage shall mean 1.028% for expense
escalation which, when added to The Percentage for the 42nd Floor Space,
becomes a total of 2.779% for the combined 42nd Floor Space and 41st Floor
Space.
(c) Supplementing Article 45F and 45G of the Lease,
Landlord will reimburse Tenant for up to the first $396,520 of the costs of
labor and materials for Tenant's Initial Alteration Work as on page 71
of the Lease described and provided, so that Landlord's total
reimbursement to Tenant, subject to the provisions of Article 4SF
and 45G, in connection with its Initial Alteration Work, shall be
$1,747,480.
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Notwithstanding anything to the contrary contained in said
Articles 45F and 45G, if such costs are lower than $1,747,480,
then Tenant shall be entitled to an additional rent credit in an amount
equal to the difference between such costs and $1,747,480, which rent
credit shall be applied, until fully depleted, against the first
fixed annual rent (without electricity) due under the Lease (as
modified hereby), subject to the application of the rent credits
described in Subdivision (d) of this Paragraph 3 and Article 45H of the
Lease. Any such costs in excess of $1,747,480 shall be paid promptly by
Tenant.
(d) Supplementing Article 45H of the Lease, for the 41st
Floor Space Tenant shall be entitled to the following rent credits if
and so long as Tenant is not then in default under any of the material
terms, covenants or conditions of the Lease beyond any grace period: (i)
a credit in the amount of $19,516, to be applied against the second
month's rent due under the Lease, and (ii) a credit in the amount of
$396,520, to be applied in equal installments of $24,782.50 per month
against the 3rd through the 18th month's rent due under the Lease.
(e) Supplementing Articles 39 and 52 of the Lease, Tenant
shall deposit with Landlord an additional security deposit (or letter of
credit) in the amount of $105,738.66, which when added to the security
deposit (or letter of credit) for the 42nd Floor Space, shall make for a
total of $285,866.66. Said amount, if and so long as Tenant is not then in
default under any of the material terms, covenants or conditions of
the Lease beyond any
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grace period, shall be reduced from $285,866.66 to $142,933.33 on the last
day of the fourth Lease Year.
4. The following language shall be deemed to be and hereby is
substituted in place and instead of the language of the third paragraph
on page 80B through page 80C of the Lease:
"For purposes of this cap or limitation on escalation
additional rents, the "Expense Factor" shall mean
an amount equal to (x) The Percentage for expense
escalation (2.779%) multiplied by (y) the Expenses for the
base year; and The "Tax Factor" shall mean an amount equal
to (x) The Percentage for real estate tax escalation
(2.5868%) multiplied by (y) the real estate taxes
payable for the base tax year.
The following illustrates the manner in which the above
is intended to operate:
For example only: If the Expenses for the base year
are $13,500,000 and the real estate taxes payable for
the base tax year are $12,500,000, then the Expense
Factor would be:
2.779% x $13,500,000 or $375,165
and the Tax Factor would be:
2.5868% x $12,500,000 or $323,350
accordingly, the total of Expense Payment and real estate
tax escalation additional rent payable hereunder for
the 1998 comparative year shall not be more than an
amount equal to:
10% x ($375,165 + $323,350) or $69,851.50
the total Expense Payment and real estate tax escalation
additional rent payable hereunder for the 1999
comparative year shall not be more than an amount equal
to:
20% x ($375,165 + $323,350) or $139,703
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It is understood and agreed that there shall be no
limitation or so-called cap on any increase in the amount
of real estate tax or operation expense
escalation additional rent due hereunder for the
comparative year 2000 or for any comparative year
thereafter during the term of this Lease."
5. Subdivision (b) of Article 45E on page 70 of the Lease (as to
removal of internal stairway) shall be deemed to be and hereby is
deleted from the Lease. Tenant has advised it will keep and use said
internal stairway. Landlord confirms that Tenant's removal obligations
under Article 47A(i) on page 82 of the Lease shall not include the existing
internal stairway between the 42nd Floor Space and the 41st Floor Space.
6. The provisions of the cleaning schedule on page 65 of the
Lease and Article 51I on page 94 of the Lease are hereby clarified
so as to confirm that Landlord's cleaning obligation, without charge,
applies to the public lavatories on the 41st floor and not to any
lavatory within the demised premises on a multi-tenanted floor such
as the 41st floor. Such cleaning obligation of Landlord shall
include supplying the public lavatories on the 41st floor with Building
standard quantities of Building standard soap, toilet paper and paper hand
towels.
7. The words "the expense" shall be deemed added to the language
in Article 46 (a) (v) in the margin at the bottom of page 73 of the Lease,
so that it reads " (v) the term "comparative year" for tax escalation and
the expense escalation "comparative year" shall mean..., etc.".
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8. The parties confirm and agree that the provisions of Article 51F
on page 93 of the Lease, respecting the Xxxxxxxxx Company, L.P. and
Helmsley-Spear, Inc. are and shall be applicable to the leasing hereunder
of the 41st Floor Space.
9. In Article 50 on page 89 of the Lease, the word "originally"
shall be deemed to be and hereby is deleted from the fifth line thereof.
10. Article 45E(a) on page 70 of the Lease shall be deemed to be and
hereby is modified so that Landlord, in connection with Tenant's Initial
Alteration Work, in addition to described obligations as to asbestos, shall
also, at Landlord's expense for the 41st Floor Space, erect a demising wall
and create a public corridor.
11. Supplementing Subdivision D of Article 45 of the Lease, Tenant
agrees that, as part of its Initial Alteration Work, it shall effect all
work necessary (i) to upgrade the existing common area bathrooms on the
41st Floor so that they shall be equal to or better than Building standard
for such bathrooms; and (ii) to cause the 41st Floor to comply with all
requirements of the American with Disabilities Act of 1990 and New York
City Local Law No. 58/87 (including any rules and regulations issued
pursuant thereto) with respect to bathrooms. Such work shall be effected
in accordance with the provisions of Subdivision D of Article 45 and all
other applicable provisions of the Lease regarding alterations and
installations, including, without limitation, Articles 3 and 47. In
consideration of Tenant effecting such
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work, Landlord agrees that Tenant shall be entitled to a rent credit
in an amount equal to the 41st Floor Bathroom Credit Amount (as hereinafter
defined), which rent credit shall be applied, until fully depleted,
against the first fixed annual rent due under the Lease for the 41st
Floor Space, from and after the application of the rent credits
described in Subdivisions (d) and (c) of Paragraph B of this Agreement.
For purposes of this Agreement, the "41st Floor Bathroom Credit Amount"
shall mean the first $20,000 of the costs of labor and materials in
effecting the work described in this Paragraph 11. Tenant agrees that it
shall provide Landlord with copies of paid bills showing the cost of
such work. If such bills total less than $20,000, then the 41st Floor
Bathroom Credit shall be such lesser amount.
12. Except as herein modified, all of the other terms, covenants
and conditions of the Lease are and shall remain in full force and effect,
and are hereby ratified and confirmed.
13. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective legal representatives,
successors and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have executed this
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Agreement as of the day and year first above written.
WITNESS: (As to Landlord) MID CITY ASSOCIATES
By: Helmsley Spear, Inc., Agent
/s/ Xxxxxx X. Xxxxxxx By: /s/Xxxxxx X. Nerta
--------------------- -----------------------
WITNESS: (As to Tenant) FIRST ALBANY COMPANIES INC.
/s/ Xxxxxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxx
--------------------- -----------------------
SECOND LEASE MODIFICATION AGREEMENT
AGREEMENT, made as of this 12th day of July 1996, between MID-CITY
ASSOCIATES, a New York general partnership with an office at 00 Xxxx 00xx
Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (hereinafter called "Landlords"), and FIRST ALBANY
COMPANIES
INC., a New York corporation with an office at 00 Xxxxx Xxxxx Xxxxxx,
Xxxxxx, Xxx Xxxx
00000 (hereinafter called "Tenant").
WITNESSETH
WHEREAS, Landlord is the landlord and Tenant is the tenant under that
certain lease, dated as of March 21, 1996, covering the entire rentable
area of the 42nd floor (the "42nd Floor Space) of the building (the
'tBuilding") known as Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, which lease was
modified by a certain Lease Modification Agreement, dated as of June 17,
1996 (which lease, as so modified, and as same may have otherwise been
modified through the date hereof, is hereinafter called the "Lease") ; and
WHEREAS, approximately 19,826 rentable square feet of space on the
41st floor of the Building (the "41st Floor Space") was added to the
premises demised under the Lease pursuant to said June 17, 1996 Lease
Modification Agreement; and
WHEREAS, the parties wish to further modify the Lease so as to add to
the premises demised thereunder approximately 8,079 rentable square feet of
space on the 40th floor of the Building, approximately as shown on the
space diagram annexed hereto as Exhibit A and made a part hereof (the "40th
Floor Space"), in accordance with the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree that the Lease be, and the Lease hereby is, modified as
follows:
1. The 40th Floor Space is hereby added to the demised premises for
a term commencing as provided in Article 45A of the Lease and ending on the
last day of the twelfth Lease Year of the Lease (unless said term is sooner
terminated as in the Lease provided).
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2. The 40th Floor space is leased pursuant to all of the applicable
terms, covenants of the Lease, including the same Lease Years as for the
41st and 42nd Floor Space, except as modified herein and except as
hereinafter provided:
3. For the 40th Floor Space:
(a) The fixed annual rental rates (without electricity, and
subject to increase by the Escalated Amount as in Article 46B on page 68 of
the Lease defined and described) shall be as follows:
$179,760 a year for each of the first and second Lease Years;
$220,800 a year for the third Lease Year;
$242,370 a year for each of the fourth and fifth Lease Years;
$250,449 a year for each of the sixth, seventh, eighth and ninth
Lease Years; and
$258,528 a year for each of the tenth, eleventh and twelfth Lease
Years.
Accordingly, for the combined 40th Floor Space, 41st Floor Space and
42nd Floor Space, the fixed annual rental rates (without electricity, and
subject to increase by the Escalated Amount as in Article 46B on page 68 of
the Lease defined and described) shall be as follows:
$973,185 a year for first Lease Year;
$1,370,095 a year for the second Lease Year;
$1,728,505 a year for the third Lease Year;
$1,850,370 a year for each of the fourth and fifth Lease Years;
$1,912,049 a year for each of the sixth, seventh, eighth and ninth Lease
Years; and
$1,973,728 a year for each of the tenth, eleventh, and twelfth Lease Years.
(b) (i) The Percentage shall mean .3899% for real estate tax
escalation which, when added to The Percentage for the 41st Floor Space and
42nd Floor Space, becomes a total of 2.9767% for the combined 00xx Xxxxx
Xxxxx, 00xx Xxxxx Space and 42nd Floor Space.
(ii) The Percentage shall mean .4189% for expense escalation which,
when added to The Percentage for the 41st Floor Space and 42nd Floor Space,
becomes a total of 3.1979% for the combined 00xx Xxxxx Xxxxx, 00xx Xxxxx
Space and 42nd Floor Space.
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(c) Supplementing Article 45F and 45G of the Lease, Landlord will
reimburse Tenant for up to the first $43,788 of the costs of labor and
materials for Tenant's Initial Alteration Work as on page 71 of the Lease
described and provided, so that Landlord's total reimbursement to Tenant,
subject to the provisions of Article 4SF and 45G, in connection with its
Initial Alteration Work, shall be $1,791,268.
Notwithstanding anything to the contrary contained in said Articles
45F and 45G, if such costs are lower than $1,791,268, then Tenant shall be
entitled to an additional rent credit in an amount equal to the difference
between such costs and $1,791,268, which rent credit shall be applied,
until fully depleted, against the first fixed annual rent (without
electricity) due under the Lease (as modified hereby), subject to the
application of the rent credits described in subdivision (d) of this
Paragraph 3 and Article 45H of the Lease. Any such costs in excess of
$1,791,268 shall be paid promptly by Tenant.
(d) Supplementing Article 45H of the Lease, for the 40th Floor Space
Tenant shall be entitled to the following rent credits if and so long as
Tenant is not then in default under any of the material terms, covenants or
conditions of the Lease beyond any grace period: (i) a credit in the amount
of $299,600, to be applied in equal installments of $14,980 per month
against the 1st through the 20th month's rent due under the Lease; and (ii)
a rent credit in the amount of $8,269.45, to be applied against the 20th
month's rent due under the Lease.
(e) Supplementing Articles 39 and 52 of the Lease, Tenant Shall
deposit with Landlord an additional security deposit (or letter of credit)
in the amount of $43,088, which when added to the security deposit (or
letter of credit) for the 41st Floor Space and 42nd Floor Space, shall make
for a total of $328,954.66. Said amount, if and so long as Tenant is not
then in default under any of the material terms, covenants or conditions of
the Lease beyond any grace period, shall be reduced from $328,954.66 to
$164,477.33 on the last day of the fourth Lease Year.
4. The following language shall be deemed to be and hereby is
substituted in place and instead of the language of the third paragraph on
page 80B through page 80C of the Lease:
"For purposes of this cap or limitation on escalation additional
rents, the "Expense Factor" shall mean an amount equal to (x)
The Percentage for expense escalation (3.1979%) multiplied by
(y) the expenses for the base year; and The "Tax Factor" shall
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mean an amount equal to (x) The Percentage for real estate tax
escalation (2.9767%) multiplied by (y) the real estate taxes
payable for the base tax year.
The following illustrates the manner in which the above is
intended to operate:
For example only: If the Expenses for the base year are
$13,500,000 and the real estate taxes payable for the base tax
year are $12,500,000, then
the Expense Factor would be:
3.1979% x $13,500,000 or $431,716.50
and the Tax Factor would be:
2.9767% x $12,500,000 or $372,087.50
accordingly, the total of Expense Payment and real estate tax
escalation additional rent payable hereunder for the 1998
comparative year shall not be more than an amount equal to:
10% x ($431,716.50 + $372,087.50) or $80,380.40
the total Expense Payment and real estate tax escalation
additional rent payable hereunder for the 1999 comparative year
shall not be more than an amount equal to:
20% x ($431,716.50 + $372,087.50) or $160,760.80
It in understood and agreed that there shall be no limitation or
so-called cap on any increase in the amount of real estate tax or
operation expense escalation additional rent due hereunder for
the comparative year 2000 or for any comparative year thereafter
during the term of this Lease.
5. Tenant has advised it will keep and use the existing internal
stairway between the 40th Floor Space and the 41st Floor Space. Landlord
confirms that Tenant's removal obligations under Article 47A(i) on page 82
of the Lease shall not include said internal stairway.
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6. The provisions of the cleaning schedule on page 65 of the Lease and
Article 51I on page 94 of the Lease are hereby clarified so as to confirm
that Landlord's cleaning obligation, without charge, applies to the public
lavatories on the 40th floor and not to any lavatory within the demised
premises on a multi-tenanted floor such as the 40th floor. Such cleaning
obligation of Landlord shall include supplying the public lavatories on the
40th floor with Building standard quantities of Building standard soap,
toilet paper and paper hand towels.
7. The parties confirm and agree that the provisions of Article 51F on
page 93 of the Lease, respecting the Xxxxxxxxx Company, L.P. and Helmsley-
Spear, Inc., are and shall be applicable to the leasing hereunder of the
40th Floor Space.
8. Article 45E(a) on page 70 of the Lease shall be deemed to be and
hereby is modified so that Landlord, in connection with Tenant's Initial
Alteration Work, in addition to described obligations as to asbestos, shall
also, at landlord's expense, for the 40th Floor Space, erect a demising
wall and create a public corridor.
9. Except as herein modified, all of the other terms, covenants and
conditions of the Lease are and shall remain in full force and effect, and
are hereby ratified and confirmed.
10. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective legal representatives, successors
and permitted designs.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
WITNESS: (As to Landlord) MID CITY ASSOCIATES
By: Helmsley Spear, Inc., Agent
/s/ Xxxxxx X. Xxxxxxx By: /s/Xxxxxx X. Nerta
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WITNESS: (As to Tenant) FIRST ALBANY COMPANIES INC.
/s/ Xxxxxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxx
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