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EXHIBIT 10.35
AGREEMENT OF LEASE, made as of January ___, 1999, between 000 XXXXXX XXXXXX
LLC, a Delaware limited liability company with an address c/o Taconic Investment
Partners LLC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord"), and ABOVENET
COMMUNICATIONS, INC., a Delaware corporation, having an address at 00 Xxxx Xxx
Xxxxxxxx Xxxxxx, Xxxxx (10th) Floor, Xxx Xxxx, Xxxxxxxxxx 00000 ("Tenant").
W I T N E S S E T H:
The parties hereto, for themselves, their legal representatives, successors
and assigns, hereby covenant as follows.
DEFINITIONS
"Additional Rent" means Tenant's Tax Payment, Tenant's Labor Rate Payment,
and any and all other sums, other than Fixed Rent, payable by Tenant to Landlord
under this Lease.
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly, through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such first Person.
"Alterations" means alterations, installations, improvements, additions or
other physical changes (other than decorations, movable fixtures and equipment)
in or about the Premises.
"Base Rate" means the annual rate of interest publicly announced from time
to time by Citibank, N.A., New York, New York (or any successor thereto) as its
"base rate", or such other term as may be used by Citibank, N.A. from time to
time for the rate presently referred to as its base rate.
"Building" means all the buildings, equipment and other improvements and
appurtenances of every kind and description now located or hereafter erected,
constructed or placed upon the land and any and all alterations, renewals,
replacements, additions and substitutions thereto, presently known by the
address of 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
"Building Systems" means the mechanical, electrical, heating, ventilating,
air conditioning, elevator, plumbing, fuel, sanitary, life-safety and other
service systems of the Building, but shall not include the portions of such
systems installed in the Premises by Tenant.
"Business Days" means all days, excluding Saturdays, Sundays, and all days
observed by either the State of New York, the Federal Government or by the labor
unions servicing the Building as legal holidays.
"Commencement Date" means the date upon which Landlord delivers possession
of the Premises with Landlord's Work Substantially Completed as provided in
Section 4.2.
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"Control" means: (i) the ownership, directly or indirectly, of more than
fifty per cent (50%) of the voting stock of a corporation, or (ii) the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person.
"Default Rate" means a rate at all times four (4) percentage points above
the Base Rate.
"Environmental Laws" means any Legal Requirements now or hereafter in
effect relating to the environment, health, safety or Hazardous Materials.
"Expiration Date" means the last day of the third (3rd) month immediately
following the fifteenth (15th) anniversary of the Commencement Date.
"Governmental Authority" means any of the United States of America, the
State of New York, the City of New York, any political subdivision thereof and
any agency, department, commission, board, bureau or instrumentality of any of
the foregoing, now existing or hereafter created, having jurisdiction over the
Real Property or any portion thereof or the curbs, sidewalks, and areas adjacent
thereto.
"Hazardous Materials" means any substances, materials or wastes regulated
by any Governmental Authority or deemed or defined as a "hazardous substance",
"hazardous material", "toxic substance", "toxic pollutant", "contaminant",
"pollutant", "solid waste", "hazardous waste" or words of similar import under
applicable Legal Requirements, including oil and petroleum products, natural or
synthetic gas, polychlorinated biphenyls, asbestos in any form, urea
formaldehyde, radon gas, or the emission of non-ionizing radiation, microwave
radiation or electromagnetic fields at levels in excess of those (if any)
specified by any Governmental Authority or which may cause a health hazard or
danger to property, or the emission of any form of ionizing radiation.
"HVAC" means heat, ventilation and air conditioning.
"Initial Alterations" are defined in Section 4.3.
"Landlord's Work" is defined in Section 4.2(a).
"Legal Requirements" means all present and future laws, rules, orders,
ordinances, regulations, statutes, requirements, codes, executive orders, rules
of common law, and any judicial interpretations thereof, extraordinary as well
as ordinary, of all Governmental Authorities, including the Americans with
Disabilities Act (42 U.S.C. Section 12,101 et seq.), New York City Local Law 58
of 1987, and any law of like import, and all rules, regulations and government
orders with respect thereto, and any of the foregoing relating to environmental
matters, Hazardous Materials, public health and safety matters, and of any
applicable fire rating bureau, or other body exercising similar functions,
affecting the Real Property or the maintenance, use or occupation thereof, or
any street or sidewalk comprising a part of or in front thereof or any vault in
or under the same.
"Mortgage" means any mortgage or trust indenture which may now or hereafter
affect the Real Property, the Building or any Superior Lease and the leasehold
interest created
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thereby, and all renewals, extensions, supplements, amendments, modifications,
consolidations and replacements thereof or thereto, substitutions therefor, and
advances made thereunder; "Mortgagee" means any mortgagee, trustee or other
holder of a Mortgage.
"Permitted Use" means the use of the Premises by Tenant as an internet
service exchange center and other uses related thereto, including the operation
of incidental technical equipment, and office and support facilities in
connection therewith, and for no other purpose.
"Person" means any individual, corporation, partnership, limited liability
company, limited liability partnership, joint venture, estate, trust,
unincorporated association, business trust, tenancy-in-common or other entity,
or any Governmental Authority.
"Premises" means a portion of the second (2nd) floor of the Building, as
shown on the floor plan(s) attached to this Lease as Exhibit A and made a part
hereof.
"Premises Area" means the Rentable Square Foot area of the Premises,
consisting of a total of 26,846 Rentable Square Feet, as such Premises Area may
be increased or decreased from time to time pursuant to this Lease.
"Real Property" means the Building, together with the plot of land upon
which it stands.
"Rent Commencement Date" means the date which is one day prior to the date
which is three (3) calendar months following the Commencement Date.
"Rentable Square Feet" means the deemed rentable area of the Building or
any portion thereof, computed on the basis of the current standard employed by
Landlord on the date hereof with respect to the calculation of the deemed
Rentable Square Foot area of the Building; provided, however, that in no event
shall such deemed Rentable Square Footage constitute or imply any representation
or warranty by Landlord as to the actual size of any floor or other portion of
the Building, including the Premises.
"Roof Space" is defined in Section 9.9.
"Rules and Regulations" means the rules and regulations annexed hereto and
made a part hereof as Exhibit B, and such other and further rules and
regulations as Landlord may from time to time reasonably adopt.
"Substantial Completion" means, as to any construction performed by any
party in the Premises, including the Initial Alterations, any other Alterations,
or Landlord's Work, that such work has been completed substantially in
accordance with (i) the provisions of this Lease applicable thereto, (ii) the
plans and specifications for such work, and (iii) all applicable Legal
Requirements and Insurance Requirements, except for minor details of
construction, decoration and mechanical adjustments, if any, the noncompletion
of which does not materially interfere with Tenant's use of the Premises, or
which, in accordance with good construction practice, should be completed after
the completion of other work to be performed in the Premises.
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"Superior Lease(s)" means any ground or underlying lease of the Real
Property or any part thereof heretofore or hereafter made by Landlord and all
renewals, extensions, supplements, amendments and modifications thereof;
"Lessor" means a lessor under a Superior Lease.
"Tenant Delay" means any delay which results from any act, negligence,
failure to act or omission of any Tenant Party, including delays due to changes
in or additions to, or interference with, any work to be done by Landlord, or
delays by Tenant in submission of information, approving working drawings or
estimates or giving authorizations or approvals.
"Tenant Party" means any of Tenant, any Affiliate of Tenant, any subtenant
or any other occupant of the Premises, or any of their respective direct or
indirect partners, officers, shareholders, directors, members, trustees,
beneficiaries, employees, principals, contractors, licensees, invitees,
servants, agents or representatives.
"Tenant's Alterations" means all Alterations, including the Initial
Alterations, in and to the Premises or the Roof Space which may be made by or on
behalf of Tenant prior to and during the Term, or any renewal thereof, including
Tenant's Generators and the switch gear and conduit associated therewith,
distributing equipment, Tenant's HVAC System and related equipment, and
batteries and other uninterruptable power sources ("UPS").
"Tenant's Property" means Tenant's movable fixtures and movable partitions,
telephone and other communications, electrical components and equipment,
computer systems, furniture, trade fixtures, furnishings and other items of
personal property which are removable without material damage to the Premises or
Building.
"Term" means the term of this Lease, which shall commence on the
Commencement Date and shall expire on the Expiration Date.
ARTICLE 1. DEMISE, PREMISES, TERM, RENT
SECTION 1.1 Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Premises, for the Term to commence on the Commencement Date and to
end on the Expiration Date, at an annual rent ("Fixed Rent") as follows:
(a) Eight Hundred Seventy-Two Thousand Four Hundred Ninety-Five and 00/100
Dollars ($872,495.00) per annum ($72,707.92 per month) for the period commencing
on the Rent Commencement Date and ending one day prior to the third (3rd)
anniversary of the Rent Commencement Date;
(b) Nine Hundred Thirty-Nine Thousand Six Hundred Ten and 00/100 Dollars
($939,610.00) per annum ($78,300.83 per month) for the period commencing on the
third (3rd) anniversary of the Rent Commencement Date and ending one day prior
to the sixth (6th) anniversary of the Rent Commencement Date;
(c) Nine Hundred Ninety-Three Thousand Three Hundred Two and 00/100
Dollars ($993,302.00) per annum ($82,775.17 per month) for the period commencing
on the
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sixth (6th) the Rent Commencement Date and ending one day prior to the tenth
(10th) anniversary of the Rent Commencement Date; and
(d) One Million One Hundred Thousand Six Hundred Eight-Six and 00/100
Dollars ($1,100,686.00) per annum ($91,723.83 per month) for the period
commencing on the tenth (10th) anniversary of the Rent Commencement Date and
ending on the Expiration Date;
which Tenant agrees to pay to Landlord, without notice or demand, in lawful
money of the United States, in monthly installments in advance on the first
(1st) day of each calendar month during the Term, at the office of Landlord or
such other place as Landlord may designate, without any set-off, offset,
abatement or deduction whatsoever. Fixed Rent and Additional Rent shall be
payable by check drawn upon a bank which is a member of the New York
Clearinghouse Association or by wire transfer of immediately available funds.
SECTION 1.2 Notwithstanding anything to the contrary contained herein, upon
execution and delivery of this lease, Tenant shall pay to Landlord the sum of
Seventy-Two Thousand Seven Hundred Seven and 92/100 Dollars ($72,707.92)
representing the installment of Fixed Rent for the first (1st) full calendar
month of the Term after the Rent Commencement Date. If the Rent Commencement
Date shall occur on a date other than the first (1st) day of any calendar month,
Tenant shall also pay to Landlord, on the Rent Commencement Date, a sum equal to
Two Thousand Four Hundred Twenty-Three and 60/100 Dollars ($2,423.60),
multiplied by the number of calendar days in the period from the Rent
Commencement Date to the last day of the month in which the Rent Commencement
Date shall occur, both inclusive.
ARTICLE 2. USE AND OCCUPANCY
SECTION 2.1 Tenant shall use and occupy the Premises for the Permitted Use
and for no other purpose. Tenant shall not use or occupy or permit the use or
occupancy of any part of the Premises in any manner not permitted hereunder, or
which in Landlord's reasonable judgment would adversely affect (a) the proper
and economical rendition of any service required to be furnished to any tenant
or other occupant of the Building, (b) the use or enjoyment of any part of the
Building by any other tenant or other occupant, or (c) the appearance, character
or reputation of the Building.
SECTION 2.2 Tenant shall not use or permit the Premises or any part thereof
to be used: (a) for the business of printing or other manufacturing of any kind,
(b) as a retail branch of a bank or savings and loan association, or as a retail
loan company, as a retail stock broker's or dealer's office, (c) for the storage
of merchandise, (d) for the distribution, by mail-order or otherwise, of
merchandise, (e) as a restaurant or bar or for the sale of food or beverages,
(f) as a news or cigar stand, (g) as an employment agency, labor union office,
school, physician's or dentist's office, dance or music studio, (h) as a xxxxxx
shop or beauty salon, (i) for the sale, at retail or otherwise, of any goods or
products, (j) by the United States Government, the City or State of New York,
any Governmental Authority, any foreign government, the United Nations or any
agency or department of any of the foregoing or any Person having sovereign or
diplomatic immunity, (k) for the rendition of medical, dental or other
therapeutic or diagnostic services, or (l) for the conduct of an auction.
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SECTION 2.3 (a) Landlord shall not be subject to any liability for failure
to give possession of the Premises on a particular date and the validity of this
Lease shall not be impaired under such circumstances, nor shall the same be
construed to extend the term of this Lease; provided, however, that Landlord
agrees to use commercially reasonable efforts to deliver possession of the
Premises with Landlord's Work Substantially Completed as provided in Section
4.2(a) within ninety (90) days after the date on which this Lease is executed
and delivered to Tenant by Landlord. Notwithstanding the foregoing, if Landlord
fails to deliver possession of the Premises to Tenant with Landlord's Work
Substantially Completed within one hundred eighty (180) days after the date on
which this Lease is executed and delivered to Tenant by Landlord, and such
failure is not due to Unavoidable Delays or Tenant Delays, then as Tenant's sole
and exclusive remedy for such failure to deliver possession of the Premises,
Tenant shall have the right to terminate this Lease by notice to Landlord given
within ten (10) days of such one hundred eighty (180) day period, such
termination to be effective on the date which is ten (10) days after the date
such notice is given, upon which date this Lease shall come to an end and
terminate, subject to the provisions of Section 2.3(b). Landlord shall return
the Security Deposit (as defined in Section 29.1) to Tenant, together with all
prepaid Fixed Rent and Additional Rent, if any, and thereafter neither party
shall have any liability to the other hereunder.
(b) Notwithstanding anything to the contrary contained herein, if Tenant
shall give Landlord a notice of termination of this Lease pursuant to Section
2.3(a), and Landlord shall deliver possession of the Premises with Landlord's
Work Substantially Completed to Tenant at any time within ten (10) days
following Landlord's receipt of such notice by Tenant, such termination shall be
void and of no force and effect, and Tenant shall have no further right to
terminate this Lease pursuant to this Section 2.3.
(c) The foregoing shall constitute an express negation of Section 223-a of
the New York Real Property Law or any successor law or ordinance, which shall be
inapplicable hereto, and Tenant hereby waives any right to rescind this Lease
which Tenant might otherwise have thereunder.
ARTICLE 3. ALTERATIONS
SECTION 3.1 Tenant shall not make any Alterations without Landlord's prior
written consent in each instance, provided that Tenant's changing of wall
coverings, carpeting or paint shall not be deemed to be Alterations requiring
such consent. Landlord's consent shall be granted or denied in Landlord's sole
discretion; provided, however, that Landlord shall not unreasonably withhold its
consent to Alterations proposed to be made by Tenant to adapt the Premises for
the Permitted Use provided that such Alterations (a) are non-structural and do
not affect the Building Systems or services, (b) are performed only by
contractors approved in writing by Landlord, (c) do not affect any part of the
Building other than the Premises, (d) do not adversely affect any service
required to be furnished by Landlord to Tenant or to any other tenant or
occupant of the Building, and (e) do not reduce the value or utility of the
Building. Landlord hereby agrees that Tenant shall have the right to perform the
Alterations described on Exhibit F annexed hereto and made a part hereof, all in
accordance with the provisions of this Article 3.
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SECTION 3.2 (a) Prior to making any Alterations, Tenant shall (i) submit to
Landlord, for Landlord's written approval, detailed plans and specifications
therefor in form satisfactory to Landlord, (ii) if such Alterations require a
filing with Governmental Authority or require the consent of such authority,
then such plans and specifications shall (A) be prepared and certified by a
registered architect or licensed engineer, and (B) comply with all Legal
Requirements to the extent necessary for such governmental filing or consent,
(iii) at its expense, obtain all required permits, approvals and certificates,
(iv) furnish to Landlord duplicate original policies or certificates of worker's
compensation (covering all persons to be employed by Tenant, and all contractors
and subcontractors supplying materials or performing work in connection with
such Alterations) and comprehensive public liability (including property damage
coverage) insurance and Builder's Risk coverage (issued on a completed value
basis) all in such form, with such companies, for such periods and in such
amounts as Landlord may require, naming Landlord and its employees and agents,
and any Lessor and any Mortgagee as additional insureds, and (v) with respect to
any Alteration costing more than $250,000.00 to complete, furnish to Landlord
such evidence of Tenant's ability to complete and to fully and completely pay
for such Alteration as is satisfactory to Landlord. All Alterations shall be
performed by Tenant at Tenant's sole cost and expense (A) in a good and
workmanlike manner using new materials of first class quality, (B) in compliance
with all Legal Requirements, and (C) in accordance with the plans and
specifications previously approved by Landlord. Tenant shall at its cost and
expense obtain all approvals, consents and permits from every Governmental
Authority having or claiming jurisdiction prior to, during and upon completion
of such Alterations. Tenant shall promptly reimburse Landlord, as Additional
Rent and upon demand, for any and all actual out-of-pocket costs and expenses
incurred by Landlord in connection with Landlord's review of Tenant's plans and
specifications for any such Alteration.
(b) Landlord shall not unreasonably withhold, condition or delay its
approval of the contractors proposed to be used by Tenant for Tenant's
Alterations, provided that in the case of the mechanical, electrical, plumbing
and fire safety trades, Tenant shall select its contractors and sub-contractors
from Landlord's list of approved contractors. Attached hereto as Exhibit C is a
list of contractors currently approved by Landlord for the performance of work
in the Building, which list may be modified by Landlord from time to time.
(c) Landlord agrees to respond to any written request for approval of
plans and specifications for Alterations proposed to be made by Tenant within
ten (10) Business Days after receipt by Landlord of complete and detailed
architectural, structural, mechanical and engineering plans and specifications
as required for such Alterations (collectively, "Tenant's Plans"). If Landlord
fails to approve or disapprove Tenant's Plans on or before the end of the
applicable review period set forth herein, Tenant shall have the right to
provide Landlord with a second written request for approval (a "Second
Request"), which shall specifically identify Tenant's Plans to which such
request relates, and set forth in bold capital letters the following statement:
IF LANDLORD FAILS TO RESPOND WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF THIS
NOTICE, THEN TENANT SHALL BE ENTITLED TO COMMENCE CONSTRUCTION IN ACCORDANCE
WITH THE PLANS AND SPECIFICATIONS PREVIOUSLY SUBMITTED TO LANDLORD AND TO WHICH
LANDLORD HAS FAILED TO TIMELY RESPOND. In the event that Landlord fails to
respond to a Second Request within five (5) Business Days after receipt by
Landlord, Tenant's Plans or revisions thereto for which the Second Request is
submitted shall be deemed to be
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approved by Landlord, and Tenant shall be entitled to commence construction of
the Alteration or portion thereof to which Tenant's Plans relate, provided that
Tenant's Plans have been appropriately filed in accordance with applicable Legal
Requirements, all permits and approvals required to be issued by any
Governmental Authority shall have been duly issued, and Tenant shall otherwise
have complied with all provisions of this Lease applicable to Alterations.
(d) Notwithstanding the foregoing provisions of this Article 3, Tenant
shall be permitted to make minor, non-structural alterations to the Premises
("Minor Alterations") upon prior notice to Landlord, but without the necessity
of procuring Landlord's consent thereto, provided that the estimated cost of
each such Minor Alteration does not exceed $100,000.00 in any one instance. The
provisions of Sections 3.2(a) and (b) shall be applicable to Minor Alterations.
Prior to commencing any Minor Alteration, Tenant shall furnish Landlord with (i)
working drawings or plans for such Minor Alteration in sufficient detail to
permit Landlord to determine that such Alteration complies with the requirements
hereof, and (ii) the names of the contractors proposed to be used by Tenant for
such Minor Alteration.
(e) Upon completion of any Alterations, Tenant, at its expense, shall
promptly obtain certificates of final approval of such Alterations as may be
required by any Governmental Authority, and shall furnish Landlord with copies
thereof, together with "as-built" plans and specifications for such Alterations
prepared on an Autocad Computer Assisted Drafting and Design System (or such
other system or medium as Landlord may accept) using naming conventions issued
by the American Institute of Architects in June, 1990 (or such other naming
convention as Landlord may accept) and magnetic computer media of such record
drawings and specifications, translated into DXF format or another format
acceptable to Landlord.
SECTION 3.3 All Alterations in and to the Premises or the Roof Space which
may be made by or on behalf of Tenant, prior to and during the Term or any
renewal thereof, shall become the property of Landlord upon the Expiration Date
or sooner termination of this Lease, and upon the Expiration Date or earlier
termination of the Term or any renewal thereof (a) Tenant shall remove Tenant's
Property from the Premises (but in no event shall Tenant have the right or
obligation to remove Tenant's Generators and the switch gear and conduit
associated therewith), and (b) unless Landlord notifies Tenant no later than
twenty (20) days prior to the Expiration Date that any or all items of Tenant's
Alterations shall not be removed from the Premises, Tenant shall remove Tenant's
Alterations from the Premises, at Tenant's sole cost and expense; provided,
however, that Tenant shall have no obligation to remove those portions of
Tenant's Alterations consisting of only ordinary and standard office
installations. Tenant shall repair and restore in a good and workmanlike manner
(reasonable wear and tear excepted) any damage to the Premises and the Building
caused by such removal of Tenant's Property and/or Tenant's Alterations. Any of
Tenant's Alterations or Tenant's Property not so removed by Tenant at or prior
to the Expiration Date or earlier termination of the Term shall be deemed
abandoned and may, at the election of Landlord, either be retained as Landlord's
property or be removed from the Premises by Landlord at Tenant's expense. The
covenants and agreements set forth in this Section 3.3 shall survive the
expiration or earlier termination of this Lease.
SECTION 3.4 If, because of any act or omission of Tenant, its employees,
agents, contractors, or subcontractors, any mechanic's lien, U.C.C. financing
statement or other lien, charge or order for the payment of money shall be filed
against Landlord, or against all or any
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portion of the Premises, the Building or the Real Property, Tenant shall, at its
own cost and expense, cause the same to be discharged of record, by bonding or
otherwise, within thirty (30) days after the filing thereof, and Tenant shall
indemnify, defend and save Landlord harmless against and from all costs,
expenses, liabilities, suits, penalties, claims and demands (including
reasonable attorneys' fees and disbursements) resulting therefrom.
SECTION 3.5 Tenant shall not, at any time prior to or during the Term,
directly or indirectly employ, or permit the employment of, any contractor,
mechanic or laborer in the Premises, whether in connection with any Alteration
or otherwise, if in Landlord's sole judgment such employment will materially
interfere or cause any conflict with other contractors, mechanics, or laborers
engaged in the construction, maintenance or operation of the Building by
Landlord, Tenant or others, or materially and adversely affect the use and
enjoyment of other tenants or occupants of the Building.
ARTICLE 4. CONDITION OF THE PREMISES; LANDLORD'S WORK
SECTION 4.1 Tenant has examined the Premises and, subject to the completion
of Landlord's Work as set forth herein, agrees to accept possession of the
Premises in their "as is" condition on the Commencement Date, and further agrees
that, except for the performance of Landlord's Work as expressly set forth in
this Article 4, Landlord shall have no obligation to perform any work, supply
any materials, incur any expenses or make any installations in order to prepare
the Premises for Tenant's occupancy. The taking of possession of the Premises by
Tenant shall be conclusive evidence as against Tenant that at the time such
possession was so taken, the Premises were in good and satisfactory condition,
subject to the provisions of Section 4.2.
SECTION 4.2 Prior to the Commencement Date, Landlord shall perform the
following work at the Premises, at Landlord's sole cost and in accordance with
all Legal Requirements ("Landlord's Work"): (i) demolish all existing
improvements, including piping and electrical conduit, which are then
permanently out of service, (ii) xxxxx or encapsulate any asbestos or
asbestos-containing materials ("ACM") within the Premises in accordance with all
Legal Requirements, and provide Tenant with a New York City Department of
Environmental Protection Form ACP-5 in connection therewith, and (iii) demise in
a Building standard manner and deliver the Premises in broom clean condition.
SECTION 4.3 Landlord acknowledges that Tenant intends to perform certain
Alterations in order to prepare the Premises for its occupancy, which
alterations shall include (i) the installation of a sprinkler system or other
fire suppression system satisfactory to Landlord, and (ii) the installation of
noise suppression materials and/or equipment with respect to Tenant's
telecommunications equipment and any Roof Equipment and Tenant's HVAC Equipment,
satisfactory to Landlord, all in compliance with Legal Requirements (the
"Initial Alterations").
SECTION 4.4 Upon the request of Tenant, Landlord, at Tenant's cost and
expense, shall join in any applications for any permits, approvals or
certificates from any Governmental Authority required to be obtained by Tenant,
and shall sign such applications reasonably promptly after request by Tenant
(provided that (i) the provisions of the applicable Legal Requirement shall
require that Landlord join in such application, and (ii) such application
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is reasonably acceptable to Landlord) and shall otherwise cooperate with Tenant
in connection therewith, provided that Landlord shall not be obligated to incur
any cost or expense, including attorneys' fees and disbursements, or suffer or
incur any liability, in connection therewith.
ARTICLE 5. REPAIRS; FLOOR LOAD
SECTION 5.1 (a) Landlord shall maintain in working order and shall repair
the Building Systems and the public portions of the Building, both exterior and
interior, and the structural elements thereof, including the roof, foundation
and curtain wall. Tenant, at Tenant's expense, shall take good care of the
Premises and the fixtures, systems, equipment and appurtenances therein, and
make all non-structural repairs thereto as and when needed to preserve them in
good working order and condition, except for reasonable wear and tear,
obsolescence and damage for which Tenant is not responsible pursuant to the
provisions of Articles 10 and 11. Notwithstanding the foregoing, but subject to
the provisions of Section 10.2(b), all damage or injury to the Premises or to
any other part of the Building, or to its fixtures, equipment and appurtenances,
caused by or resulting from carelessness, omission, neglect or improper conduct
of, or Alterations made by Tenant, Tenant's agents, employees or licensees,
shall be repaired at Tenant's expense, (i) by Tenant to the satisfaction of
Landlord (if the required repairs are non-structural and do not affect any
Building System), or (ii) by Landlord (if the required repairs are structural or
affect any Building System). Tenant also shall repair all damage to the Building
and the Premises caused by the making of any Alterations by Tenant or by the
moving of Tenant's Property. All of such repairs shall be of quality or class
equal to the original work or construction. If Tenant fails after fifteen (15)
days notice to proceed with due diligence to make repairs required to be made by
Tenant, Landlord may make such repairs at the expense of Tenant, and Tenant
shall pay the costs and expenses thereof incurred by Landlord, with interest at
the Default Rate, as Additional Rent within ten (10) days after rendition of a
xxxx or statement therefor.
(b) Landlord represents to Tenant that, to the best of Landlord's
knowledge, all Building Systems for which Landlord is responsible under this
Lease, including elevators, heating systems and life safety systems, will remain
fully functional and perform their normal operations on and after January 1,
2000, without interruption or malfunction as a result of the passage from the
year 1999 to the year 2000. Landlord shall make all repairs, alterations or
replacements to any Building Systems in order to prevent or eliminate any such
interruptions or malfunctions resulting from the passage from the year 1999 to
the year 2000.
SECTION 5.2 Tenant shall not place a load upon any floor of the Premises
exceeding the floor load per square foot which such floor was designed to carry
and which is allowed by law, which floor load is stated in the certificate of
occupancy for the Building in effect on the date of this Lease to be 200 pounds
per square foot. Tenant shall not move any safe, heavy equipment, business
machines, freight, bulky matter or fixtures into or out of the Building without
Landlord's prior consent. If such safe, equipment, freight, bulky matter or
fixtures requires special handling, Tenant shall employ only persons holding a
Master Rigger's license to do such work.
SECTION 5.3 Except as expressly set forth herein, there shall be no
allowance to Tenant for a diminution of rental value, no constructive eviction
of Tenant and no liability on the
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part of Landlord by reason of inconvenience, annoyance or injury to business
arising from Landlord making, or failing to make, any repairs, alterations,
additions or improvements in or to any portion of the Building or the Premises,
or in or to fixtures, appurtenances or equipment thereof. Landlord shall use
reasonable efforts to minimize interference with Tenant's access to and use and
occupancy of the Premises in making any repairs, alterations, additions or
improvements; provided, however, that Landlord shall have no obligation to
employ contractors or labor at overtime or other premium pay rates or to incur
any other overtime costs or additional expenses whatsoever, unless Tenant
requests the use of such overtime labor and agrees to pay the additional costs
for such overtime labor to Landlord upon demand.
SECTION 5.4 Notwithstanding anything to the contrary contained in any other
provision of this Lease, in the event that (a) Tenant is unable to use the
Premises for the ordinary conduct of Tenant's business due to Landlord's breach
of its obligations under this Lease to provide services, perform repairs, or
comply with Legal Requirements, in each case other than as a result of
Unavoidable Delays or Tenant Delays, and such condition continues for a period
in excess of ten (10) consecutive days (or, if Tenant's inability to use the
Premises or portion thereof results, in whole or in part, from Unavoidable
Delays and such condition continues for a period in excess of thirty (30)
consecutive days) after Tenant gives a notice to Landlord (the "Abatement
Notice") stating that Tenant's inability to use the Premises is solely due to
such condition, (b) Tenant does not actually use or occupy the Premises or such
portion thereof during such period, and (c) such condition has not resulted from
the negligence or misconduct of Tenant or any Tenant Party, then Fixed Rent,
Tenant's Tax Payment and Tenant's Operating Payment shall be abated as to the
Premises on a per diem basis for the period commencing on the tenth (10th) day
(or thirtieth (30th) day, if such condition results, in whole or in part, from
Unavoidable Delays, as the case may be) after Tenant gives the Abatement Notice,
and ending on the earlier of (i) the date Tenant reoccupies the Premises for the
ordinary conduct of its business, or (ii) the date on which such condition is
substantially remedied and Landlord has notified Tenant thereof.
SECTION 5.5 Tenant shall not require, permit, suffer or allow the cleaning
of any window in the Premises from the outside in violation of Section 202 of
the New York Labor Law or any successor statute thereto, or of any other Legal
Requirement.
ARTICLE 6. REAL ESTATE TAXES AND LABOR RATE INCREASES
SECTION 6.1 The following terms shall have the meanings set forth below:
(a) "Taxes" shall include the aggregate amount of (i) all real estate
taxes, assessments (special or otherwise), sewer and water rents, rates and
charges and any other governmental levies, impositions or charges, whether
general, special, ordinary, extraordinary, foreseen or unforeseen, which may be
assessed, levied or imposed upon all or any part of the Real Property, and (ii)
any expenses (including reasonable attorneys' fees and disbursements and
experts' and other witness' fees) incurred in contesting any of the foregoing or
the Assessed Valuation (as defined in Section 6.1(d)) of all or any part of the
Real Property. If at any time after the date hereof the methods of taxation
prevailing at the date hereof shall be altered so that in lieu of or as an
addition to or as a substitute for the whole or any part of the taxes,
assessments, rents, rates, charges, levies or impositions now assessed, levied
or imposed upon all
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or any part of the Real Property, there shall be assessed, levied or imposed (A)
a tax, assessment, levy, imposition or charge based on the rents received
therefrom whether or not wholly or partially as a capital levy or otherwise, (B)
a tax, assessment, levy, imposition or charge measured by or based in whole or
in part upon all or any part of the Real Property and imposed upon Landlord, (C)
a license fee measured by the rents or (D) any other tax, assessment, levy,
imposition, charges or license fee however described or imposed, then all such
taxes, assessments, levies, impositions, charges or license fees or the part
thereof so measured or based shall be deemed to be Taxes; provided, however,
that any such taxes, fees or charges which are in addition to taxes otherwise
payable under this Section 6.1 shall only be deemed Taxes if such taxes shall
generally be treated in other commercial buildings in New York City as
constituting real estate taxes for the purpose of calculating similar lease tax
escalation provisions. Taxes shall not include franchise, gift, inheritance,
estate, sales, income or profit taxes or any late charges or penalties imposed
upon Landlord, any Lessor or any Mortgagee by any Governmental Authority.
(b) "Tenant's Share" means one and 17/100 percent (1.17%).
(c) "Base Tax Year" means the Tax Year commencing on July 1, 1999 and
ending June 30, 2000.
(d) "Assessed Valuation" means the amount for which the Real Property is
assessed pursuant to applicable provisions of the New York City Charter and of
the Administrative Code of the City of New York for the purpose of imposition of
Taxes.
(e) "Tax Year" means the period July 1 through June 30 (or such other
period as may be duly adopted by the City of New York as its fiscal year for
real estate tax purposes).
(f) "Base Taxes" means an amount equal to the Taxes payable on account of
the Base Tax Year.
(g) "Comparison Year" means (i) with respect to Taxes, any Tax Year
commencing subsequent to the Base Tax Year, and (ii) with respect to Labor
Rates, any calendar year commencing subsequent to the Base Labor Year.
(h) "Landlord's Statement" means an instrument or instruments containing a
comparison of either (i) the Base Taxes and the Taxes payable for any Comparison
Year, or (ii) the Base Labor Rates and the Labor Rates applicable to any
Comparison Year.
(i) "Tenant's Projected Share of Taxes" means Tenant's Tax Payment (as
defined in Section 6.1(j)), if any, made by Tenant for the prior Comparison
Year, plus an amount equal to Landlord's reasonable estimate of the amount of
increase in Tenant's Tax Payment for the then current Comparison Year, divided
by twelve (12) and payable monthly by Tenant to Landlord as Additional Rent.
(j) "Tenant's Tax Payment" means Tenant's Share of the excess of the Taxes
payable for any Comparison Year over the Base Taxes.
SECTION 6.2 (a) If the Taxes payable for any Comparison Year (any part or
all of which falls within the Term) shall exceed the Base Taxes, Tenant shall
pay Tenant's Tax
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Payment to Landlord, as Additional Rent, within ten (10) Business Days after
demand from Landlord therefor, which demand shall be accompanied by Landlord's
Statement. Before or after the start of each Comparison Year, Landlord shall
furnish to Tenant a Landlord's Statement in respect of Taxes. If there shall be
any increase in Taxes payable for any Comparison Year, whether during or after
such Comparison Year or if there shall be any decrease in the Taxes payable for
any Comparison Year during such Comparison Year, Landlord may furnish a revised
Landlord's Statement for such Comparison Year, and Tenant's Tax Payment for such
Comparison Year shall be adjusted and, within ten (10) Business Days after
Tenant's receipt of such revised Landlord's Statement, Tenant shall (i) with
respect to any increase in Taxes payable for such Comparison Year, pay such
increase in Tenant's Tax Payment to Landlord, or (ii) with respect to any
decrease in Taxes payable for such Comparison Year, Landlord shall credit such
decrease in Tenant's Tax Payment against the next installment of Tenant's Share
of Taxes payable by Tenant pursuant to this Section 6.2(a), provided that if
such decrease in Taxes is attributable to the final Comparison Year of the Term,
Landlord shall pay the amount of such decrease in Tenant's Tax Payment to
Tenant. If, during the Term, Landlord shall elect to collect Tenant's Tax
Payments in full or in quarterly or bi-annual or other installments on any other
date or dates than as presently required, then following Landlord's notice to
Tenant, Tenant's Tax Payments shall be correspondingly revised. The benefit of
any discount for any early payment or prepayment of Taxes relating to all or any
part of the Real Property shall accrue solely to the benefit of Landlord and
Taxes shall be computed without subtracting such discount.
(b) With respect to each Comparison Year, on account of which Landlord
shall (or anticipates that it may) be entitled to receive Tenant's Tax Payment,
Tenant shall pay to Landlord, as Additional Rent for the then current Tax Year,
Tenant's Projected Share of Taxes. Upon each date that a Tax Payment or an
installment on account thereof shall be due from Tenant pursuant to the terms of
this Section 6.2, Landlord shall apply the aggregate of the installments of
Tenant's Projected Share of Taxes then on account with Landlord against Tenant's
Tax Payment or installment thereof then due from Tenant. In the event that such
aggregate amount shall not be sufficient to discharge such Tax Payment or
installment, Landlord shall so notify Tenant, and the amount of Tenant's payment
obligation with respect to such Tax Payment or installment pursuant to this
Section 6.2, shall be equal to the amount of the insufficiency and shall be
payable within ten (10) Business Days of demand by Landlord. If, however, such
aggregate amount shall be greater than the Tax Payment or installment, Landlord
shall credit the amount of such excess against the next payment of Tenant's
Projected Share of Taxes due hereunder.
(c) Only Landlord shall be eligible to institute Tax reduction or other
proceedings to reduce the Assessed Valuation of the Real Property, and the
filings of any such proceeding by Tenant without Landlord's prior written
consent shall constitute a default hereunder. If the Taxes payable for the Base
Tax Year are reduced by final determination of legal proceedings, settlement or
otherwise, then Base Taxes shall be correspondingly revised, the Additional Rent
theretofore paid or payable on account of Tenant's Tax Payment hereunder for all
Comparison Years shall be recomputed on the basis of such reduction, and Tenant
shall pay to Landlord, as Additional Rent within ten (10) Business Days after
receipt of a xxxx therefor, any deficiency between the amount of such Additional
Rent theretofore computed and paid by Tenant to Landlord and the amount thereof
due as a result of such recomputations. If the Taxes payable for the Base Tax
Year are increased by such final determination of legal proceedings, settlement
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or otherwise, then, Landlord shall either pay to Tenant, or at Landlord's
election, credit against subsequent payments due under this Section 6.2, an
amount equal to the excess of the amounts of such Additional Rent theretofore
paid by Tenant over the amount thereof actually due as a result of such
recomputations. If Landlord shall receive a refund or reduction of Taxes for any
Comparison Year, Landlord shall, within a reasonable time after such refund is
actually received or such credit is actually applied against Taxes then due and
payable, either pay to Tenant, or, at Landlord's election, credit against
subsequent payments under this Section 6.2, an amount equal to Tenant's Share of
the refund or reduction, provided that such amount shall not exceed Tenant's Tax
Payment paid for such Comparison Year. Nothing herein contained shall obligate
Landlord to file any application or institute any proceeding seeking a reduction
in Taxes or Assessed Valuation.
(d) Tenant's Tax Payment shall be made as provided in this Section 6.2
regardless of the fact that Tenant may be exempt, in whole or in part, from the
payment of any taxes by reason of Tenant's diplomatic or other tax exempt status
or for any other reason whatsoever.
(e) Without duplication of any amounts payable on account of Taxes, Tenant
shall pay to Landlord, as Additional Rent upon demand, any Commercial Rent or
Occupancy Tax imposed pursuant to Title 11, Chapter 7 of the New York City
Administrative Code or any successor statute hereafter enacted, if payable by
Landlord in the first instance or hereafter required to be paid by Landlord.
(f) If the Commencement Date or the Expiration Date shall occur on a date
other than July 1 or June 30, respectively, any Additional Rent payable by
Tenant to Landlord under this Section 6.2 for the Comparison Year in which such
Commencement Date or Expiration Date shall occur, shall be apportioned in that
percentage which the number of days in the period from the Commencement Date to
June 30 or from July 1 to the Expiration Date, as the case may be, both
inclusive, shall bear to the total number of days in such Comparison Year. In
the event of a termination of this Lease, any Additional Rent under this Section
6.2 shall be paid or adjusted within thirty (30) days after submission of
Landlord's Statement. In no event shall Fixed Rent ever be reduced by operation
of this Section 6.2 and the rights and obligations of Landlord and Tenant under
the provisions of this Section 6.2 with respect to any Additional Rent shall
survive the expiration or earlier termination of this Lease.
SECTION 6.3 The following terms shall have the meanings set forth below:
(a) "Comparison Year" shall mean any calendar year subsequent to the Base
Labor Year.
(b) "R.A.B." shall mean the Realty Advisory Board on Labor Relations,
Incorporated, or its successor.
(c) "Local 32B-32J" shall mean Local 32B-32J of the Building Service
Employees International Union, AFL-CIO, or its successor.
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(d) "Class A Office Buildings" shall mean office buildings so categorized
under any agreement between R.A.B. and Local 32B-32J, regardless of the
designation given to such office buildings in any such agreement.
(e) "Labor Rates" shall mean a sum equal to the regular hourly wage rate
required to be paid to Others (hereinafter defined) employed in Class A Office
Buildings pursuant to an agreement between R.A.B. and Local 32B-32J; provided,
however, that:
(i) if, as of October 1st of any Comparison Year, any such agreement
shall require Others in Class A Office Buildings to be regularly employed
on days or during hours when overtime or other premium pay rates are in
effect pursuant to such agreement, then the term "regular hourly wage
rate", as used in this Section 6.3 shall mean the average hourly wage rate
for the hours in a calendar week during which Others are required to be
regularly employed;
(ii) if no such agreement is in effect as of October 1st of any
Comparison Year with respect to Others, then the term "regular hourly wage
rate", as used in this Section 6.3 shall mean the regular hourly wage rate
actually paid to Others employed in the Building by Landlord or by an
independent contractor engaged by Landlord; and
(iii) the term "regular hourly wage rate" in all events shall exclude
payments and benefits directly to taxing authorities or others on account
of the employment and all welfare, pension and fringe employee benefits and
payments of any kind paid or given pursuant to such agreement.
(f) "Others" shall mean that classification of employee engaged in the
general maintenance and operation of Class A Office Buildings most nearly
comparable to the classification now applicable to "others" in the current
agreement between R.A.B. and Local 32B-32J.
(g) "Base Labor Year" shall mean the calendar year 1999.
(h) "Base Labor Rates" shall mean the Labor Rates in effect for the Base
Labor Year.
(i) "Tenant's Labor Rate Payment" is defined in Section 6.4(a).
SECTION 6.4 (a) If the Labor Rates in effect for any Comparison Year (any
part or all of which falls within the Term) shall be greater than the Base Labor
Rates, then Tenant shall pay, as Additional Rent for such Comparison Year and
continuing thereafter until a new Landlord's Statement is rendered to Tenant, an
amount ("Tenant's Labor Rate Payment") equal to (i) 26,846 multiplied by (ii)
the number of cents (inclusive of any fractions of a cent) by which the Labor
Rates in effect for such Comparison Year exceed the Base Labor Rates, multiplied
by (iii) eighty percent (80%).
(b) At any time prior to, during or after any Comparison Year Landlord
shall render to Tenant a Landlord's Statement showing (i) a comparison of the
Labor Rates for the
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Comparison Year with the Base Labor Rates, and (ii) the amount of Tenant's Labor
Rate Payment resulting from such comparison. Landlord's failure to render a
Landlord's Statement during or with respect to any Comparison Year shall not
prejudice Landlord's right to render a Landlord's Statement during or with
respect to any subsequent Comparison Year and shall not eliminate or reduce
Tenant's obligation to pay Tenant's Labor Rate Payment pursuant to this Article
6 for such Comparison Year.
(c) Tenant's Labor Rate Payment shall be payable by Tenant on the first
day of the month following the furnishing to Tenant of a Landlord's Statement,
in equal monthly installments, each such installment to be equal to 1/12th of
Tenant's Labor Rate Payment for such Comparison Year multiplied by the number of
months (and any fraction thereof) of the Term then elapsed since the
commencement of such Comparison Year, continuing monthly thereafter until
rendition of the next succeeding Landlord's Statement.
(d) The provisions of this Section 6.4 shall be effective irrespective of
whether or not (i) the Building is classified as a Class A office building from
time to time, or (ii) any Building employees are members of Local 32B-32J.
Tenant acknowledges and agrees that the computation of Labor Rates hereunder is
intended to serve solely as a formula for an agreed rental adjustment, rather
than an actual operating expense calculation, and is not intended to reflect the
actual cost to Landlord of wages at the Building or any increases or decreases
in such cost.
SECTION 6.5 (a) If the Commencement Date or the Expiration Date shall occur
on a date other than January 1 or December 31, respectively, any Additional Rent
under this Article 6 for the Comparison Year in which such Commencement Date or
Expiration Date shall occur shall be apportioned in that percentage which the
number of days in the period from the Commencement Date to December 31 or from
January 1 to the Expiration Date, as the case may be, both inclusive, shall bear
to the total number of days in such Comparison Year. In the event of a
termination of this Lease, any Additional Rent under this Article shall be paid
or adjusted within thirty (30) days after submission of a Landlord's Statement.
In no event shall Fixed Rent ever be reduced by operation of this Section 6.5
and the rights and obligations of Landlord and Tenant under the provisions of
this Article 6 with respect to any Additional Rent shall survive the expiration
or earlier termination of this Lease.
(b) The computations of Additional Rent under this Article 6 are intended
to constitute a formula for an agreed rental adjustment and may or may not
constitute an actual reimbursement to Landlord for costs and expenses paid by
Landlord with respect to the Building.
SECTION 6.6 Landlord's failure to render a Landlord's Statement with
respect to any Comparison Year shall not prejudice Landlord's right to
thereafter render a Landlord's Statement with respect thereto or with respect to
any subsequent Comparison Year, nor shall the rendering of a Landlord's
Statement prejudice Landlord's right to thereafter render a corrected Landlord's
Statement for that Comparison Year. Nothing herein contained shall restrict
Landlord from issuing a Landlord's Statement at any time there is an increase in
Taxes or Labor Rates during any Comparison Year or any time thereafter.
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SECTION 6.7 If any capital improvement is made to the Real Property during
any calendar year during the Term in compliance with any Legal Requirements
enacted or imposed subsequent to the date of this Lease (including
reinterpretations or new rules or regulations applicable to existing Legal
Requirements), then Tenant shall pay to Landlord, immediately upon demand
therefor, Tenant's Proportionate Share of the reasonable annual amortization,
with interest, of the cost of such improvement in each calendar year during the
Term during which such amortization occurs.
ARTICLE 7. LEGAL REQUIREMENTS
SECTION 7.1 Tenant, at its sole expense, shall comply with all Legal
Requirements applicable to the Premises or the use and occupancy thereof by
Tenant, and make all repairs or Alterations required thereby, whether structural
or nonstructural, ordinary or extraordinary; provided, however, that Tenant
shall not be obligated to comply with any Legal Requirement requiring any
structural Alteration to the Premises unless the application of such Legal
Requirement arises from (i) Tenant's manner of use or occupancy of the Premises
(as distinguished from the use or occupancy of the Premises as executive and
general offices), (ii) any cause or condition created by or on behalf of Tenant
or any Tenant Party (including any Alterations), (iii) the breach of any of
Tenant's obligations under this Lease, (iv) any Hazardous Materials having been
brought into the Building by any Tenant Party, or (v) the enforcement, by any
Governmental Authority or as a consequence of private action, of the Americans
With Disabilities Act, 42 U.S.C. Section 12101 (et seq.) or New York City Local
Law 58 of 1987. Tenant shall not do or permit to be done any act or thing upon
the Premises which will invalidate or be in conflict with Landlord's insurance
policies, and shall not do or permit anything to be done in or upon the
Premises, or use the Premises in a manner, or bring or keep anything therein,
which shall increase the rates for casualty or liability insurance applicable to
the Building. If, as a result of any act or omission by Tenant or by reason of
Tenant's failure to comply with the provisions of this Article, the insurance
rates for the Building shall be increased, then Tenant shall desist from doing
or permitting to be done any such act or thing and shall reimburse Landlord, as
Additional Rent hereunder, for that part of all insurance premiums thereafter
paid by Landlord which shall have been charged because of such act, omission or
failure by Tenant, and shall make such reimbursement upon demand by Landlord.
SECTION 7.2 Tenant, at its expense, shall comply with all Environmental
Laws and with any directive of any Governmental Authority which shall impose any
violation, order or duty upon Landlord or Tenant under any Environmental Laws
with respect to the Premises or the use or occupation thereof. Tenant's
obligations hereunder with respect to Hazardous Materials shall extend only to
those matters directly or indirectly based on, or arising or resulting from (a)
the actual or alleged presence of Hazardous Materials on the Premises or in the
Building which is caused or permitted by Tenant, and (b) any Environmental Claim
(defined below) relating in any way to Tenant's operation or use of the Premises
or the Building.
SECTION 7.3 Tenant shall provide Landlord with copies of all communications
and related materials regarding the Premises which Tenant shall receive from or
send to (a) any Governmental Authority relating in any way to any Environmental
Laws, or (b) any Person with respect to any claim based upon any Environmental
Laws or relating in any way to Hazardous Materials (any such claim, an
"Environmental Claim"). Landlord or its agents may perform an
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environmental inspection of the Premises at any time during the Term, upon prior
notice to Tenant except in an emergency.
SECTION 7.4 Landlord, at its expense, shall comply with all Legal
Requirements with respect to the Building in the event that the failure to so
comply prevents Tenant's use of the Premises for the Permitted Use.
ARTICLE 8. SUBORDINATION AND NON-DISTURBANCE; ESTOPPEL CERTIFICATES
SECTION 8.1 Subject to the provisions of Section 8.5, this Lease, and all
rights of Tenant hereunder, are and shall be subject and subordinate in all
respects to all Mortgages and Superior Leases. This Section 8.1 shall be
self-operative and no further instrument of subordination shall be required. In
confirmation of such subordination, Tenant shall promptly execute and deliver
any instrument that Landlord or any Lessor or Mortgagee may reasonably request
to evidence such subordination.
SECTION 8.2 In the event of any act or omission of Landlord which would
give Tenant the right, immediately or after lapse of a period of time, to cancel
or terminate this lease, or to claim a partial or total eviction, Tenant shall
not exercise such right (a) until it has given written notice of such act or
omission to each Mortgagee and Lessor whose name and address shall previously
have been furnished to Tenant in writing, and (b) unless such act or omission
shall be one which is not capable of being remedied by Landlord or such
Mortgagee or Lessor within a reasonable period of time, until a reasonable
period for remedying such act or omission shall have elapsed following the
giving of such notice and following the time when such Mortgagee or Lessor shall
have become entitled under such Mortgage or Superior Lease, as the case may be,
to remedy the same (which reasonable period shall in no event be less than the
period to which Landlord would be entitled under this Lease or otherwise, after
similar notice, to effect such remedy), provided such Mortgagee or Lessor shall
with due diligence give Tenant written notice of its intention to remedy such
act or omission, and such Mortgagee or Lessor shall commence and thereafter
continue with reasonable diligence to remedy such act or omission. If more than
one Mortgagee or Superior Lessor shall become entitled to any additional cure
period under this Section 8.2, such cure periods shall run concurrently, not
consecutively.
SECTION 8.3 Subject to the provisions of Section 8.5, if a Mortgagee or
Lessor shall succeed to the rights of Landlord under this Lease, whether through
possession or foreclosure action or delivery of a new lease or deed, then at the
request of such party so succeeding to Landlord's rights ("Successor Landlord")
and upon Successor Landlord's written agreement to accept Tenant's attornment,
Tenant shall attorn to and recognize Successor Landlord as Tenant's landlord
under this Lease, and shall promptly execute and deliver any instrument that
Successor Landlord may reasonably request to evidence such attornment. Upon such
attornment this Lease shall continue in full force and effect as, or as if it
were, a direct lease between Successor Landlord and Tenant upon all of the
terms, conditions and covenants as are set forth in this Lease and shall be
applicable after such attornment except that Successor Landlord shall not:
(a) be liable for any previous act or omission of Landlord under this
Lease;
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(b) be subject to any offset, not expressly provided for in this Lease,
which shall have theretofore accrued to Tenant against Landlord; or
(c) be bound by any previous modification of this Lease, not expressly
provided for in this Lease, or by any previous prepayment of more than one
month's fixed rent, unless such modification or prepayment shall have been
expressly approved in writing by such Mortgagee or Lessor.
SECTION 8.4 Each party agrees, at any time and from time to time, as
requested by the other party, upon not less than ten (10) days' prior notice, to
execute and deliver to the other a written statement executed and acknowledged
by such party (a) stating that this Lease is then in full force and effect and
has not been modified (or if modified, setting forth all modifications), (b)
setting forth the then annual Fixed Rent, (c) setting forth the date to which
the Fixed Rent and Additional Rent have been paid, (d) stating whether or not,
to the best knowledge of the signatory, the other party is in default under this
Lease, and if so, setting forth the specific nature of all such defaults, (e)
stating the amount of the Security Deposit, (f) stating whether there are any
subleases affecting the Premises, (g) stating the address of the signatory to
which all notices and communication under the Lease shall be sent, the
Commencement Date and the Expiration Date, and (i) as to any other matters
reasonably requested by the party requesting such certificate. The parties
acknowledge that any statement delivered pursuant to this Section 8.4 may be
relied upon by others with whom the party requesting such certificate may be
dealing, including any purchaser or owner of the Real Property or the Building,
or of Landlord's interest in the Real Property or the Building or any Superior
Lease, or by any Mortgagee or Lessor, or by any prospective or actual sublessee
of the Premises or assignee of this Lease, or permitted transferee of or
successor to Tenant.
SECTION 8.5 Notwithstanding the foregoing provisions of this Article 8,
Landlord agrees to (a) obtain from the Mortgagee under the existing Mortgage,
and (b) to use commercially reasonable efforts (which shall not include the
payment of any sums or the prosecution of any legal actions) to obtain from each
of the Mortgagees or Lessors under any Mortgages or Superior Leases entered into
after the date hereof, a Non-Disturbance Agreement; provided, however, that if
Landlord shall be unsuccessful in so obtaining any such Non-Disturbance
Agreement from any Mortgagee or Lessor under any Mortgage or Superior Lease
entered into after the date hereof, then Landlord shall have no liability to
Tenant therefor, and this Lease shall remain in full force and effect. Tenant
shall reimburse Landlord, within ten (10) days after demand therefor, for
Landlord's actual out-of-pocket costs and expenses, including reasonable
attorney's fees and disbursements, incurred in connection with such efforts. A
"Non-Disturbance Agreement" shall mean a subordination, attornment and
non-disturbance agreement duly executed and acknowledged by the holder of a
Mortgage or a Superior Lease, as the case may be, and by Tenant, and in
recordable form, and (i) with respect to the existing Mortgage, in the form
attached to this Lease as Exhibit E, and (ii) with respect to any Mortgages or
Superior Leases entered into after the date hereof, in the form customarily
employed by such Mortgagee or Lessor. Landlord represents to Tenant that (i)
LaSalle National Bank, as Trustee for GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series 1998-GSFL1 ("Lender") is
the sole Mortgagee of the Building and the Real Property, and (ii) there are no
Superior Leases affecting the Building or the Real Property. If Landlord fails
to deliver to Tenant a Non-Disturbance Agreement executed by Lender within sixty
(60) days
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following the execution and delivery of this Lease, then Tenant shall have the
right to terminate this Lease by notice to Landlord, such termination to be
effective on the date which shall be thirty (30) days after the date such notice
is given, upon which date this Lease shall come to an end and terminate, and
neither party shall have any liability to the other hereunder, and Landlord
shall return the Security Deposit to Tenant, together with all prepaid Fixed
Rent and Additional Rent, if any, deposited by Tenant hereunder. Notwithstanding
anything to the contrary contained herein, if Landlord shall deliver such
Non-Disturbance Agreement executed by Lender, to Tenant at any time within
thirty (30) days following Landlord's receipt of such notice by Tenant, such
termination shall be void and of no force and effect, and Tenant shall have no
further right to terminate this Lease pursuant to this Section 8.5.
ARTICLE 9. SERVICES
SECTION 9.1 Landlord shall provide, at Landlord's expense, except as
otherwise set forth herein, the following services:
SECTION 9.2 ELECTRICITY. (a) Landlord, subject to the provisions of this
Article 9, shall make available to Tenant, at a location in the basement of the
Building to be designated by Landlord, AC electric capacity at a level not less
than 2800 amperes, 480 volt, 3-phase, 4-wire, dedicated to Tenant. Tenant shall
be solely responsible, at Tenant's sole cost and expense, for the installation
of all risers and other electrical facilities and equipment required in order to
deliver such electric power to the Premises and to distribute it therein. Tenant
shall pay to Landlord for making such electric power available to Tenant a
one-time fee of $838,600.00 on the date on which Landlord makes such additional
electric power available to Tenant. Tenant covenants that Tenant's use and
consumption of electric current shall not at any time exceed the electrical
capacity supplied to the Premises from time to time pursuant to this Section
9.2, nor exceed the capacity of any of the electrical facilities and
installations in or otherwise serving or being used in the Premises. Tenant
shall pay Landlord, as Additional Rent, at any time and from time to time, but
no more frequently than monthly, for its consumption of electric power at the
Premises, as provided herein.
(b) In the event that Tenant's total power requirements at the Premises,
based on an annual review of Tenant's consumption following the first (1st)
anniversary of the Commencement Date, shall be less than the 2800 ampere, 480
volt service described above, Tenant shall pay to Landlord an annual sum equal
to the fee, if any, which Landlord is obligated to pay to the Electricity
Provider (as hereinafter defined), commonly known as a "use it or lose it" fee,
for the availability of such capacity, presently payable by Landlord to the
Electricity Provider at the rate of $12.50 per unused ampere per annum. Further,
if as of the third (3rd) anniversary of the Commencement Date, Tenant shall
continue to require less than the 2800 ampere, 480 volt service described above,
then Landlord shall have the right to reduce the level of electric power
supplied to the Premises to not less than one hundred twenty-five percent (125%)
of Tenant's actual power requirements as measured at the peak demand level
occurring during the immediately preceding calendar quarter.
(c) The calculations and determinations of the charges for electric power
consumed by Tenant shall be based on the readings of one or more submeters to be
installed by Landlord at Tenant's sole expense, applied to Landlord's
Electricity Cost, as defined in Section
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9.2(d). Tenant shall pay for electricity consumed as determined thereunder as
measured and calculated from time to time by such submeter or submeters, plus
Landlord's charge for overhead and supervision, which charge shall not exceed
five percent (5%) of such payment by Tenant. In addition, Tenant shall pay to
Landlord, as Additional Rent (i) the fees and expenses of Landlord's electrical
contractor for services rendered by such contractor in the maintenance and
repair of such submeter(s), and (ii) the amount of any taxes imposed by any
Governmental Authority on Landlord's receipts from the sale of electricity to
Tenant. In the event that more that one submeter is used to measure Tenant's
consumption of electricity in the Premises, Tenant shall be billed only on the
basis of the "totalized" demand, i.e., as though a single meter were measuring
such usage.
(d) "Landlord's Electricity Cost" means the cost per kilowatt hour and
cost per kilowatt demand, adjusted by time of day factors, fuel adjustment
charges and other applicable rate adjustments, to Landlord for the purchase of
electricity from the public utility or other electricity provider furnishing
electricity service to the Building from time to time (the "Electricity
Provider"), including sales and other taxes imposed by any Governmental
Authority on Landlord's purchase of electricity. If at any time during the Term
the cost elements comprising Landlord's Electricity Cost shall be increased by
the Electricity Provider, or Landlord's Electricity Cost shall be increased for
any other reason, then effective as of the date of such increase, Tenant's
payment for submetered electricity under this Section 9.2 shall be
proportionately increased. Landlord reserves the right to contract with
different Electricity Providers from time to time in its sole judgment, and
without reference to whether any Electricity Provider selected by Landlord
provides lower rates than any other electricity supplier. Currently, Landlord's
Electricity Cost is based upon Consolidated Edison Company's Service
Classification rate schedule S.C. #4 Rate II as in effect on the Commencement
Date.
(e) During the period beginning on the Commencement Date and ending on the
date upon which the submeters to be installed by Landlord in the Premises become
operational, Tenant shall pay to Landlord a fixed fee for electric energy
supplied to the Premises of (i) during the period prior to the date upon which
Tenant first occupies all or any portion of the Premises for the conduct of its
business, an amount per annum equal to One and 00/100 Dollar ($1.00) multiplied
by the number of Rentable Square Feet in the Premises, in equal monthly
installments on the first (1st) day of each month during such period, and (ii)
from and after the date upon which Tenant first occupies all or any portion of
the Premises for the conduct of its business, an amount per annum equal to Four
and 00/100 Dollars ($4.00) multiplied by the number of Rentable Square Feet in
the Premises, in equal monthly installments on the first (1st) day of each month
during such sentence, through the date upon which such submeters become
operational.
(f) Tenant covenants that Tenant's use and consumption of electric current
shall not at any time exceed the capacity of any of the electrical facilities
and installations in or otherwise serving or being used in the Premises and
Tenant shall, upon the submission by Landlord to Tenant of written notice,
promptly cease the use of any of Tenant's electrical equipment which Landlord
believes will cause Tenant to exceed such capacity. Any additional feeders,
risers, electrical facilities and other such installations required for electric
service to the Premises will be supplied by Landlord, at Tenant's expense, upon
Landlord's prior consent in each instance, provided that, in Landlord's
judgment, such additional electrical facilities and
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installations, feeders or risers are necessary and are permissible under Legal
Requirements (including the New York State Energy Conservation Construction
Code) and insurance regulations and the installation of such feeders or risers
will not cause permanent damage or injury to the Building or the Premises or
cause or create a dangerous or hazardous condition or entail excessive or
unreasonable alterations or repairs or interfere with, or disturb, other tenants
or occupants of the Building. In addition, Landlord shall have no obligation to
consent to such additional feeders, risers, electrical facilities and
installations if in Landlord's judgment, the same would give Tenant a
disproportionate amount of the electrical current supplied to the Building at
the expense of, or in derogation of the needs of other tenants or occupants of
the Building.
(g) Landlord shall not in any way be liable or responsible to Tenant for
any loss, damage or expense which Tenant may sustain or incur as a result of the
unavailability of or interruption in the supply of electric current to the
Premises or a change in the quantity or character or nature of such current and
such change, interruption or unavailability shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent (except that Tenant's liability to pay Landlord for
electricity under this Section 9.2 shall cease as of the date of such
disturbance), or relieve Tenant from any of its obligations under this Lease, or
impose any liability upon Landlord, or its agents, by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant's business, or
otherwise.
(h) Landlord reserves the right to discontinue furnishing electricity to
Tenant in the Premises on not less than one hundred twenty (120) days' notice to
Tenant. If Landlord exercises such right to discontinue, or is compelled to
discontinue furnishing electricity to Tenant, this Lease shall continue in full
force and effect and shall be unaffected thereby, except only that from and
after the effective date of such discontinuance, Landlord shall not be obligated
to furnish electricity to Tenant, and Tenant shall have no further obligation to
pay Landlord for electricity supplied to the Premises. If Landlord so
discontinues furnishing electricity to Tenant, Tenant shall arrange to obtain
electricity directly from the Electricity Provider. Such electricity may be
furnished to Tenant by means of the then existing electrical facilities serving
the Premises to the extent that the same are available, suitable and safe for
such purposes. All equipment which may be required for Tenant to obtain
electricity shall be installed by Landlord at the sole cost and expense of (i)
Landlord, if Landlord voluntarily discontinues such service, (ii) Landlord and
Tenant equally, if Landlord is compelled to discontinue such service by the
Electricity Provider or pursuant to applicable Legal Requirements, or (iii)
Tenant, if such discontinuance arises out of the acts or omissions of Tenant.
Landlord will not voluntarily discontinue furnishing electricity to Tenant until
Tenant is able to receive electricity directly from the Electricity Provider.
(i) If submetering of electricity in the Building is hereafter prohibited
by any Legal Requirement, or by any order or ruling of the Public Service
Commission of the State of New York, then Tenant shall apply, within ten (10)
days of Tenant's receiving notice thereof, to the Electricity Provider in order
to obtain direct electric service, and Tenant shall bear all costs and expenses,
as set forth in Section 9.2(g), necessary to comply with all rules and
regulations of the Electricity Provider pertinent thereto, and from and after
the date upon which Tenant procures direct electric service, Landlord shall be
relieved of any further obligation to furnish electricity to Tenant pursuant to
this Section 9.2. Such electricity may be furnished to Tenant by
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means of the then existing electrical facilities serving the Premises, including
Building feeders and risers, to the extent that the same are suitable and safe
for such purposes.
SECTION 9.3 HEAT. (a) Landlord shall provide heat to the Premises on
Business Days from 8:00 A.M. to 6:00 P.M., when required in Landlord's judgment
for the comfortable use and occupancy of the Premises, through use of the
Building standard heating system (the "Building Heating System).
(b) Anything in this Section 9.3 to the contrary notwithstanding, Landlord
shall not be responsible if the normal operation of the Building Heating System
shall fail to provide heat at reasonable temperatures. Tenant at all times shall
cooperate fully with Landlord and shall abide by the regulations and
requirements which Landlord may prescribe for the proper functioning and
protection of the Building Heating System.
(c) Landlord shall not be required to furnish heat during periods other
than the hours and days set forth in this Section 9.3 for the furnishing and
distributing of such services ("Overtime Periods"), unless Landlord has received
advance notice from Tenant requesting such service not less than twenty-four
(24) hours prior to the time when such service shall be required. Accordingly,
if Landlord shall furnish heat to the Premises at the request of Tenant during
Overtime Periods, Tenant shall pay Landlord, as Additional Rent within ten (10)
days after demand, for such services at the standard rate then fixed by Landlord
for the Building, which rate as of the date of this Lease is $250.00 per hour,
subject to increase during the Term due to increases in Landlord's costs.
Failure by Landlord to furnish or distribute heat or any other services during
Overtime Periods shall not constitute an actual or constructive eviction, in
whole or in part, or entitle Tenant to any abatement or diminution of Fixed Rent
or Additional Rent, or relieve Tenant from any of its obligations under this
Lease, or impose any liability upon Landlord or its agents by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business or otherwise.
(d) Landlord shall have no obligation to provide air-conditioning or
ventilation services to the Premises. Landlord agrees that Tenant shall have the
right, subject to the provisions of Article 3, to install a self-contained
package HVAC unit, at Tenant's sole cost and expense, as part of the Initial
Alterations ("Tenant's HVAC System") at a location on the roof of the Building
("Roof") as provided in Section 9.9 below or in a location otherwise designated
by Landlord. Tenant shall repair and maintain Tenant's HVAC System in good
working order at Tenant's sole cost and expense. Upon the expiration or sooner
termination of the Term of this Lease, at Landlord's request, Tenant shall
remove Tenant's HVAC System and restore any damage to the Building and the
Premises resulting from such removal.
SECTION 9.4 ELEVATORS. (a) Landlord shall provide passenger elevator
service to the Premises on Business Days from 8:00 A.M. to 6:00 P.M. and freight
elevator facilities on a non-exclusive basis, on Business Days from 8:00 A.M. to
4:45 P.M. ("Freight Business Hours"), and shall have one passenger elevator
available at all other times. Tenant shall have access to the Building and the
Premises twenty-four (24) hours a day, seven (7) days per week. Such elevator
service shall be subject to such rules and regulations as Landlord may
promulgate from time to time with respect thereto. Landlord shall have the right
to change the operation or manner of operation of any of the elevators in the
Building and/or to discontinue, temporarily or
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permanently, the use of any one or more cars in any of the passenger, freight or
truck elevator banks. Tenant shall have the non-exclusive right to use the
Building's loading platform in common with Landlord and the other tenants of the
Building during regular business hours, in accordance with rules and regulations
therefore promulgated by Landlord, and on a "first come first served" basis.
(b) Tenant shall not use the freight elevator during Freight Business
Hours for the delivery of construction materials or for moving into or out of
the Premises. Landlord will make the freight elevator available to Tenant during
other than Freight Business Hours, upon not less than 48 hours prior request by
Tenant, and Tenant shall pay as Additional Rent the charge therefor established
by Landlord from time to time, payable within ten (10) days of rendition of a
xxxx therefor. As of the date hereof, Landlord' s current charge for freight
elevator service during other than Freight Business Hours is $99.00/hour, which
charge is subject to increase to reflect increases in Landlord's costs of
providing such service (including the charges for a hoisting engineer).
SECTION 9.5 CLEANING. Tenant shall, at Tenant's sole cost, provide cleaning
services at the Premises pursuant to reasonable rules and regulations
established by Landlord from time to time, and use a cleaning contractor
approved by Landlord. Tenant shall cause all refuse and rubbish removed from the
Premises by Tenant's contractor to be brought to an area of the Building
designated from time to time by Landlord, and Landlord shall cause such refuse
and rubbish to be removed from such designated area. Tenant shall reimburse
Landlord, as Additional Rent, within twenty (20) days of delivery of Landlord's
statement therefor, for Landlord's out-of-pocket costs in removing Tenant's
refuse and rubbish from the Building.
SECTION 9.6 WATER. Landlord shall furnish hot and cold water in such
quantities as Landlord deems sufficient for ordinary drinking, lavatory and
cleaning purposes to the Premises. If Tenant requires, uses or consumes water
for any purpose in addition to ordinary lavatory, cleaning and drinking
purposes, Landlord may install a hot water meter and a cold water meter and
thereby measure Tenant's consumption of water for all purposes. Tenant shall (a)
pay to Landlord the cost of any such meters and their installation, (b) at
Tenant's sole cost and expense, keep any such meters and any such installation
equipment in good working order and repair, and (c) pay to Landlord, as
Additional Rent, as and when billed therefor for water consumed, together with a
charge for any required pumping or heating thereof, all sewer rents, charges or
any other taxes, rents, levies or charges which now or hereafter are assessed,
imposed or shall become a lien upon the Premises or the Real Property pursuant
to law, order or regulation made or issued in connection with any such metered
use, consumption, maintenance or supply of water, water system, or sewage or
sewage connection or system, and in default in making such payment Landlord may
pay such charges and collect the same from Tenant.
SECTION 9.7 RUBBISH AND REMOVAL. Tenant shall, at Tenant's sole cost,
provide refuse and rubbish removal service at the Premises at times, and
pursuant to regulations, established by Landlord from time to time.
SECTION 9.8 NO WARRANTY OF LANDLORD. Landlord does not warrant that any of
the services to be provided by Landlord to Tenant hereunder, or any other
services which Landlord may supply (a) will be adequate for Tenant's particular
purposes or as to any other
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particular need of Tenant or (b) will be free from interruption, and Tenant
acknowledges that any one or more such services may be interrupted or suspended
by reason of Unavoidable Delays. In addition, Landlord reserves the right to
stop, interrupt or reduce service of the Building Systems by reason of
Unavoidable Delays, or for repairs, additions, alterations, replacements,
decorations or improvements which are, in the judgment of Landlord, necessary to
be made, until said repairs, alterations, replacements or improvements shall
have been completed. Any such interruption or discontinuance of service, or the
exercise of such right by Landlord to suspend or interrupt such service shall
not (i) constitute an actual or constructive eviction, or disturbance of
Tenant's use and possession of the Premises, in whole or in part, (ii) entitle
Tenant to any compensation or to any abatement or diminution of Fixed Rent or
Additional Rent, except as provided in Section 5.4, (iii) relieve Tenant from
any of its obligations under this Lease, or (iv) impose any responsibility or
liability upon Landlord or its agents by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business, or otherwise.
Landlord shall use reasonable efforts to minimize interference with Tenant's
access to and use and occupancy of the Premises in making any repairs,
alterations, additions, replacements, decorations or improvements; provided,
however, that Landlord shall have no obligation to employ contractors or labor
at "overtime" or other premium pay rates or to incur any other "overtime" costs
or additional expenses whatsoever. Landlord shall not be required to furnish any
services except as expressly provided in this Article 9.
SECTION 9.9 ROOF EQUIPMENT.
(a) Landlord hereby grants to Tenant, for Tenant's own use and not for
resale purposes, a non-exclusive license of sufficient space on the roof of the
Building, at a location designated by Landlord in its sole discretion (the "Roof
Space") for the installation by Tenant of (i) the Antenna Equipment (as defined
in Section 9.10), (ii) Tenant's HVAC System (together with any dry coolant
condensers, chillers and related HVAC equipment), and (iii) Tenant's Generators
(as defined in Section 9.11) (together with related cabling, pumps, mountings
and supports for all of the foregoing, collectively, the "Roof Equipment"), at a
location or locations designated by Landlord. In connection therewith, and
subject to the rights of any tenant leasing space in the Building as of the date
of this Lease, Landlord shall make available to Tenant reasonable access to the
roof for the construction, installation, upgrade, maintenance, repair, operation
and use of the Roof Equipment. If any of the Roof Equipment generates noise
which is likely, in Landlord's reasonable judgment, to disturb other tenants or
occupants of the Building or the surrounding buildings, then Tenant shall
install sound attenuated acoustic enclosures reasonably satisfactory to Landlord
designed to eliminate such noise or reduce such noise to acceptable levels. If
Tenant requires riser space for conduit connecting the Premises to the Roof
Equipment, Landlord shall make available to Tenant, for Tenant's use solely in
connection with the Roof Equipment, at a location or locations determined by
Landlord in its sole judgment, riser space sufficient for the installation of
telecommunications lines, cabling and supply and return lines reasonably
required for the operation of the Roof Equipment. Tenant shall pay Landlord's
annual charge for such conduit as provided in Section 9.12, and all work in
connection with the installation of such conduit shall be performed as provided
in Section 9.12. References herein to the Roof Equipment shall be deemed to
include such riser and any conduit therein.
(b) The installation of the Roof Equipment shall be performed by Tenant at
Tenant's sole cost and expense (including any actual costs and expenses in
connection with
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reinforcing the roof of the Building, if required, subject to Section 9.12) in
accordance with and subject to the provisions of Article 3. Tenant shall pay a
license fee to Landlord for the Roof Space, as Additional Rent in advance on the
first day of each month during the Term, as follows (i) during the period from
the Rent Commencement Date through the day before the fifth (5th) anniversary of
the Rent Commencement Date, one-twelfth (1/12) of the product of the usable
square foot area of the Roof Space, multiplied by Fifteen and 00/100 Dollars
($15.00) per annum, (ii) during the period from the fifth (5th) anniversary of
the Rent Commencement Date through the day before the tenth (10th) anniversary
of the Rent Commencement Date, one-twelfth (1/12) of the product of the usable
square foot area of the Roof Space, multiplied by Eighteen and 00/100 Dollars
($18.00) per annum, and (iii) during the period from the tenth (10th)
anniversary of the Rent Commencement Date through the Expiration Date,
one-twelfth (1/12) of the product of the usable square foot area of the Roof
Space, multiplied by Twenty-One and 00/100 Dollars ($21.00) per annum. All of
the provisions of this Lease shall apply to the installation, use and
maintenance of the Roof Equipment, including all provisions relating to
compliance with Legal Requirements, insurance, indemnity, repairs and
maintenance. The license granted to Tenant in this Section 9.9 shall not be
assignable by Tenant separately from this Lease.
(c) Landlord retains the right to use the portion of the roof on which the
Roof Equipment is located for any purpose whatsoever, provided such use shall
not materially interfere with the functioning of the Roof Equipment. Tenant
shall have reasonable access to the Roof Equipment at all times, and Landlord
shall not interfere with, the use of the Roof Equipment so as to cause the
operation thereof to be materially interrupted or impaired. Tenant shall use the
Roof Equipment so as not to cause any material interference to Landlord's use of
the roof, including the use by Landlord or other tenants or occupants of the
Building of other equipment thereon (including data transmission or other
similar or dissimilar equipment), or materially damage to or interference with
the operation of the Building or the Building Systems. If any of Tenant's Roof
Equipment materially interferes with any equipment installed by Landlord or any
tenant leasing space in the Building as of the date of this Lease, or materially
interferes with the operation of the Building or the Building Systems, then
Tenant, at its sole cost and expense, shall take all steps necessary to
eliminate such interference, and if Tenant shall fail to eliminate such
interference, Tenant shall relocate the Roof Equipment to another area on the
roof designated by Landlord. In the event Tenant fails, within thirty (30) days
after notice, to relocate or remove the Roof Equipment, Landlord may do so, and
Tenant shall promptly reimburse Landlord for any costs and expenses incurred by
Landlord in connection therewith. If following any relocation, such interference
continues to occur, then Tenant, at its sole cost and expense, shall
immediately, upon notice from Landlord discontinue its use of the Roof Equipment
and remove the Roof Equipment from the Roof. In the event Tenant fails, within
five (5) days' after notice from Landlord, to relocate or remove the Roof
Equipment or otherwise fails to comply with any of the conditions set forth in
this Section 9.9 or if Landlord shall determine, in its reasonable judgment,
that the Roof Equipment (i) may cause a health hazard or danger to property,
(ii) may violate or otherwise fail to comply with any governmental or
quasi-governmental standards for non-ionizing radiation for occupational and/or
general public levels, without limiting the rights and remedies landlord may
otherwise have under this Lease, Landlord may relocate or remove the Roof
Equipment, and Tenant shall promptly reimburse Landlord for any costs incurred
by Landlord in connection therewith.
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(d) Landlord may at its option, at any time during the Term upon not less
than sixty (60) days prior notice to Tenant (except in the event of an
emergency) relocate the Roof Equipment to another area on the roof designated by
Landlord, provided that such relocation of the Roof Equipment does not cause the
operation thereof to be interrupted or impaired, other than temporarily, and
except as set forth in Section 9.9(c), such relocation is performed at
Landlord's sole cost and expense. Landlord shall use reasonable efforts to
minimize the duration of such interruption, provided that Landlord shall have no
obligation to employ contractors or labor at overtime or other premium pay rates
or to incur any other overtime costs or additional expenses whatsoever, unless
Tenant shall first pay to Landlord Landlord's reasonable estimate of all
incremental cost increases to do so. In such event Tenant shall pay, as
Additional Rent upon presentation of appropriate invoices, all additional costs
incurred by Landlord in connection therewith.
(e) Landlord shall not have any obligations with respect to the Roof
Equipment or compliance with any Legal Requirements (including the obtaining of
any required permits or licenses, or the maintenance thereof) relating thereto,
nor shall Landlord be responsible for any damage that may be caused to Tenant or
the Roof Equipment by any other tenant or occupant of the Building.
(f) Tenant shall (i) be solely responsible for any damage caused as a
result of the use of the Roof Equipment, (ii) promptly pay any tax, license,
permit or other fees or charges imposed pursuant to any Legal Requirements
relating to the installation, maintenance or use of the Roof Equipment, (iii)
promptly comply with all precautions and safeguards recommended by Landlord's
insurance company and all Governmental Authorities, and (iv) promptly and
diligently perform all necessary repairs or replacements to, or maintenance of,
the Roof Equipment, provided, however, that if Tenant's failure after thirty
(30) days' notice from Landlord to so repair, replace or maintain the Roof
Equipment materially jeopardizes in any way Landlord's or any other tenant's
property located on the roof or within the Building, Landlord may, at Landlord's
option, elect to perform such repairs, replacements or maintenance at Tenant's
sole cost and expense. Landlord shall give Tenant thirty (30) days' prior notice
of its election to perform such repairs, except in an emergency.
(g) The privileges granted Tenant under this Section 9.9 merely constitute
a license and shall not, now or at any time after the installation of the Roof
Equipment, be deemed to grant Tenant a leasehold or other real property interest
in the Building or any portion thereof, including the Building's roof. The
license granted to Tenant in this Section 9.9 shall continue until and
automatically terminate and expire upon the expiration or earlier termination of
this Lease and the termination of such license shall be self-operative and no
further instrument shall be required to effect such termination. For so long as
this Lease shall be in full force and effect, Landlord will not terminate the
license granted to Tenant hereby. Notwithstanding the foregoing, upon request by
Landlord, Tenant, at Tenant's sole cost and expense, shall promptly execute and
deliver to Landlord, in recordable form, any certificate or other document
reasonably required by Landlord confirming the termination of Tenant's right to
use the roof of the Building.
(h) The Roof Equipment shall be treated for all purposes of this Lease as
Tenant's Alterations. If requested by Landlord, Tenant shall cause Roof
Equipment and all equipment and installations appurtenant thereto to be
designated as one or more separate tax lots
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by the City of New York for all purposes of assessment and payment of Taxes, and
Tenant shall pay all Taxes imposed thereon directly to the taxing authorities,
without deduction or offset against Rent under this Lease. If for any reason
Tenant fails (with or without Landlord's consent thereto) to so cause Roof
Equipment to be designated as one or more separate tax lots, Tenant shall pay to
Landlord monthly, as Additional Rent upon demand, the amount, determined by
Landlord in its reasonable discretion, by which Taxes imposed upon the Building
have been increased on account of Tenant's installation of the Roof Equipment.
SECTION 9.10 ANTENNA EQUIPMENT.
(a) Subject to the provisions of Section 9.9, Landlord hereby grants to
Tenant, for use by Tenant and Tenant's colocation customers and not for resale
purposes, a non-exclusive license of five hundred (500) square feet of space on
the roof of the Building, at a location designated by Landlord in its sole
discretion, for the construction, installation, operation and use by Tenant of
antennas, not to exceed ten feet (10') in height, for use in conjunction with
Tenant's equipment and facilities in the Premises together with related cabling,
mountings and supports for the foregoing (collectively, the "Antenna
Equipment"), at a location designated by Landlord, taking into account any
reasonable "line of sight" requirements of Tenant.
(b) Supplementing the provisions of Section 9.9(c), if the Antenna
Equipment materially interferes with any equipment installed by Landlord or any
tenant leasing space in the building as of the date of this Lease, or materially
interferes with the operation of the Building or the Building Systems, or if
Landlord shall determine that the operation thereof (i) may cause a health
hazard or danger to property, (ii) may not be in accordance with governmental or
quasi-governmental standards for non-ionizing radiation for occupational or
general public health levels, then Tenant, at its sole cost and expense, shall
take all steps necessary to eliminate such interference, and if Tenant shall
fail to eliminate such interference, Tenant shall relocate the Antenna Equipment
to another area on the roof of the Building designated by Landlord, as provided
in Section 9.9(c).
(c) Supplementing the provisions of Section 9.9(e), Landlord makes no
representation that the Antenna Equipment will be able to receive or transmit
communication signals without interference or disturbance (whether or not by
reason of the installation or use of similar equipment by others on the roof)
and Tenant agrees that Landlord shall not be liable to Tenant therefor.
SECTION 9.11 TENANT'S EMERGENCY GENERATORS.
(a) Subject to the provisions of Section 9.9, Landlord hereby grants to
Tenant, for Tenant's own use and not for resale purposes, a non-exclusive
license of sufficient space on the roof of the Building, at a location
designated by Landlord in its sole discretion, for the construction,
installation, operation and use by Tenant of two diesel-powered electric
generators, each having a capacity of up to 2000 kW at 480 volts, and other
related equipment, including mountings and supports (collectively, "Tenant's
Generators"). Tenant shall have the right, subject to Article 3, to connect
Tenant's Generators to one of the Building's diesel fuel tanks as designated by
Landlord and Landlord shall make available to Tenant up to four hundred (400)
gallons of diesel fuel to Tenant's Generators from such fuel tank. Tenant shall
reimburse
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Landlord for Landlord's actual cost for such diesel fuel used by Tenant, as
indicated on a meter to be installed by Landlord, at Tenant's expense, at a
point designed by Landlord along the fuel line to be installed by Tenant (at
Tenant's cost and expense) connecting such fuel tank to Tenant's Generators.
Tenant shall pay to Landlord for making such diesel fuel available to Tenant a
one-time fee of $200,000.00 on the date on which Landlord makes such diesel fuel
available to Tenant. Tenant shall be solely responsible, at Tenant's sole cost
and expense, for the installation of all fuel lines, pumps, piping, meters and
other equipment or installations necessary for the operation of Tenant's
Generators as provided in this Section 9.11. Tenant shall pay Landlord, as
Additional Rent, at any time and from time to time, but no more frequently than
monthly, for its consumption of diesel fuel as provided herein. Subject to the
rights of other tenants leasing space in the Building as of the date of this
Lease, Landlord shall make available to Tenant reasonable access to the roof for
the construction, installation, maintenance, repair, operation and use of
Tenant's Generators. Tenant shall be responsible for all reinforcement and
bracing necessary to enable the roof of the Building to support Tenant's
Generators; provided, however, that Landlord shall have the right, by notice to
Tenant within ten (10) days of delivery to Landlord of Tenant's plans and
specifications for Tenant's Generators, to require Tenant to install Tenant's
Generators in a vertically contiguous arrangement (i.e., one generator on top of
the other), and if Landlord shall require Tenant's Generators to be installed in
such vertically contiguous arrangement, then Landlord shall reimburse Tenant for
fifty percent (50%) of any costs and expenses reasonably incurred by Tenant to
reinforce or brace the roof of the Building, if necessary, to allow Tenant's
Generators to be installed in such vertically contiguous arrangement. If Tenant
requires riser space for electrical conduits connecting Tenant's Generators to
the Premises, or for fuel lines connecting Tenant's Generators to the Building
fuel tank designated by Landlord, then, subject to availability of riser space
in the Building, Landlord shall make such riser space available to Tenant, and
Tenant shall pay for such riser space, all as provided in Section 9.12.
References herein to Tenant's Generators shall be deemed to include such riser
and the electrical conduits and fuel lines appurtenant thereto.
(b) Tenant's Generators shall be treated for all purposes of this Lease as
Tenant's Alterations. Landlord shall have no right to require Tenant and Tenant
shall have no right to remove Tenant's Generators on the Expiration Date or
sooner termination of this Lease. If requested by Landlord, Tenant shall cause
Tenant's Generators and all equipment and installations appurtenant thereto to
be designated as a separate tax lot by the City of New York for all purposes of
assessment and payment of Taxes, and Tenant shall pay all Taxes imposed thereon
directly to the taxing authorities, without deduction or offset against Rent
under this Lease. If for any reason Tenant fails (with or without Landlord's
consent thereto) to so cause Tenant's Generators to be designated as a separate
tax lot, Tenant shall pay to Landlord monthly, as Additional Rent upon demand,
the amount, determined by Landlord in its reasonable discretion, by which Taxes
imposed upon the Building have been increased on account of Tenant's
installation of Tenant's Generators.
(c) Landlord acknowledges that Tenant requires the temporary use of a
portable emergency generator (the "Temporary Generator") until such time as
Tenant's Generators are installed. Provided that Tenant shall obtain all
necessary permits and approvals from all requisite Governmental Authorities,
Landlord shall permit Tenant to place the Temporary Generator, at a location
determined by Landlord in its sole judgment, on a street or sidewalk adjacent to
the Building. If Tenant is unable to obtain the necessary permits and
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approvals required to enable Tenant to place the Temporary Generator outside of
and adjacent to the Building or if Landlord, in its sole discretion, prohibits
Tenant from placing the Temporary Generator outside of the Building, Landlord
will make space available to Tenant for the installation of the Temporary
Generator, at a location determined by Landlord in its sole judgment, in the
truck loading area of the Building. Tenant, if necessary and only in connection
with Tenant's installation and use of the Temporary Generator, shall have the
right to install (i) an emergency generator plug on the outside of the Building
adjacent to the loading dock area, through a pathway to be designated by
Landlord, for the purpose of connecting the Premises to the Temporary Generator,
and (ii) an electrical grounding system as required for the Temporary Generator,
subject to Landlord's review and approval of plans, which approval shall not be
unreasonably withheld or delayed. Upon the earlier to occur of (i) the
installation of Tenant's Generators, and (ii) the date which is six (6) months
from the Commencement Date, Tenant shall cease using and at its sole cost and
expense remove the Temporary Generator and all related equipment from the
Building, and shall restore any damage to the Building resulting therefrom.
Tenant's installation of the Temporary Generator shall constitute an Alteration
and shall be performed by Tenant at Tenant's sole cost and expense in accordance
with and subject to the provisions of Article 3. All of the provisions of this
Lease shall apply to the installation, use and maintenance of the Temporary
Generator, including all provisions relating to compliance with Legal
Requirements, insurance, indemnity, repairs and maintenance. Tenant acknowledges
and agrees that the privileges granted Tenant under this Section 9.11(c) shall
merely constitute a license and shall not, now or at any time after the
installation of the Temporary Generator, be deemed to grant Tenant a leasehold
or other real property interest in the Building or any portion thereof,
including the Building loading dock. Tenant further acknowledges and agrees that
the license granted to Tenant under this Section 9.11(c) shall automatically
terminate and expire in accordance with the terms of this Section 9.11(c) and
the termination of such license shall be self-operative and no further
instrument shall be required to effect such termination.
SECTION 9.12 CONDUIT. Landlord will make available to Tenant, without
additional charge, riser space sufficient to accommodate (a) the electrical
conduits required in order to deliver electric power from the basement of the
Building to the Premises and (b) the electrical conduits required in order to
connect Tenant's Generator to the Premises. If Tenant requires additional riser
space for electrical conduits, telecommunications and fiber optic lines or for
use in connection with the Roof Equipment, then upon request by Tenant, subject
to availability of riser space in the Building, Landlord will make available
riser space at Landlord's then-current rates for riser space in the Building,
which rates are currently as follows: (i) for riser space not exceeding two
inches (2") in diameter, an annual charge of $5.00 per lineal foot, and (ii) for
riser space in excess of two inches (2") in diameter but not exceeding four
inches (4") in diameter, an annual charge of $7.50 per lineal foot. All work in
connection with the installation of such conduit, including core drilling, if
required, shall be performed by Tenant at Tenant's sole cost and expense,
including the cost of a fire watch and related supervisory costs relating to any
core drilling, which shall be performed in such a manner and at such times as
Landlord shall prescribe. Landlord shall make available to Tenant reasonable
access within the Building core for purposes of such installation work.
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ARTICLE 10. INSURANCE
SECTION 10.1 Tenant, at its expense, shall obtain and keep in
full force and effect a policy of commercial general liability insurance under
which Tenant is named as the insured and Landlord, Landlord's managing agent for
the Building, and any Lessors and any Mortgagees (whose names shall have been
furnished to Tenant) are named as additional insureds, which insurance shall
provide primary coverage without contribution from any other insurance carried
by or for the benefit of Landlord, Landlord's managing agent or any Lessors or
Mortgagees named as additional insureds. Tenant's primary commercial general
liability policy shall contain a provision that the policy shall be
noncancelable unless twenty (20) days' written notice shall have been given to
Landlord and Landlord shall similarly receive twenty (20) days' notice of any
material change in coverage. The minimum limits of liability shall be a combined
single limit with respect to each occurrence in an amount of not less than
$5,000,000 per location general aggregate limit; provided, however, that
Landlord shall retain the right to require Tenant to increase said coverage to
that amount of insurance which in Landlord's reasonable judgment is then being
customarily required by prudent landlords of comparable buildings in the City of
New York, and provided further that Landlord shall require similar increases of
other tenants of space in the Building comparable to the Premises, to the extent
Landlord shall then have the right to do so under applicable leases. Tenant
shall also obtain and keep in full force and effect during the Term, (a)
insurance against loss or damage by fire, and such other risks and hazards as
are insurable under then available standard forms of "all risk" insurance
policies with extended coverage, to Tenant's Property and Tenant's Alterations
for the full insurable value thereof or on a replacement cost basis; (b)
Workers' Compensation Insurance, as required by law; (c) New York Disability
Benefits Law Policy; and (d) such other insurance in such amounts as Landlord,
any Mortgagee or Lessor may reasonably require from time to time. All insurance
required to be carried by Tenant pursuant to the terms of this Lease shall be
effected under valid and enforceable policies issued by reputable and
independent insurers permitted to do business in the State of New York, and
rated in Best's Insurance Guide, or any successor thereto (or if there be none,
an organization having a national reputation) as having a Best's Rating" of "A-"
and a "Financial Size Category" of at least "XI" or if such ratings are not then
in effect, the equivalent thereof.
SECTION 10.2 (a) The parties hereto do hereby waive, any and all
rights of recovery against the other, or against the officers, employees,
partners, agents and representatives of the other, for loss of or damage to the
property of the waiving party to the extent such loss or damage is insured
against under any insurance policy carried by Landlord or Tenant hereunder. In
addition, the parties hereto shall procure an appropriate clause in, or
endorsement on, any fire or extended coverage insurance covering the Premises,
the Building and personal property, fixtures and equipment located thereon or
therein, pursuant to which the insurance companies waive subrogation or consent
to a waiver of right of recovery and subject to obtaining such clauses or
endorsements of waiver of subrogation or consent to a waiver of right of
recovery, hereby agree not to make any claim against or seek to recover from the
other for any loss or damage to its property or the property of others resulting
from fire or other hazards covered by such fire and extended coverage insurance;
provided, however, that the release, discharge, exoneration and covenant not to
xxx herein contained shall be limited by and coextensive with the terms and
provisions of the waiver of subrogation clause or endorsements or clauses or
endorsements consenting to a waiver of right of recovery. If the payment of an
additional
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premium is required for the inclusion of such waiver of subrogation or consent
to waiver provision, each party shall advise the other of the amount of any such
additional premiums and the other party at its own election may, but shall not
be obligated to, pay the same. If such other party shall not elect to pay such
additional premium, the first party shall not be required to obtain such waiver
of subrogation or consent to waiver provision. Tenant acknowledges that Landlord
shall not carry insurance on and shall not be responsible for damage to,
Tenant's Alterations (if any) or Tenant's Property, and that Landlord shall not
carry insurance against, or be responsible for any loss suffered by Tenant due
to, interruption of Tenant's business.
(b) As to each party hereto, provided such party's right of full
recovery under the applicable insurance policy is not adversely affected, such
party hereby releases the other (its servants, agents, contractors, employees
and invitees) with respect to any claim (including a claim for negligence) which
it might otherwise have against the other party for loss, damages or destruction
of the type covered by such insurance with respect to its property by fire or
other casualty i.e. in the case of Landlord, as to the Building, and, in the
case of Tenant, as to Tenant's Property and Tenant's Alterations (including
rental value or business interruption, as the case may be) occurring during the
Term of this Lease.
SECTION 10.3 On or prior to the Commencement Date, Tenant shall
deliver to Landlord appropriate certificates of insurance required to be carried
by Tenant pursuant to this Article 10, including evidence of waivers of
subrogation required pursuant to Section 10.2. Evidence of each renewal or
replacement of a policy shall be delivered by Tenant to Landlord at least twenty
(20) days prior to the expiration of such policy.
SECTION 10.4 Landlord agrees to maintain (a) insurance against
loss or damage to the Building by fire and such other risks and hazards as are
insurable under then available forms of "all risk" insurance policies with
extended coverage, and (b) a policy of commercial general liability insurance
with minimum limits of liability in amounts comparable to insurance maintained
by other prudent landlords of comparable office buildings in the City of New
York.
ARTICLE 11. DESTRUCTION OF THE PREMISES; PROPERTY LOSS OR DAMAGE
SECTION 11.1 If the Premises shall be damaged by fire or other
casualty, or if the Building shall be so damaged that Tenant shall be deprived
of reasonable access to the Premises, Tenant shall give prompt notice thereof to
Landlord, and the damage shall be repaired (i) by and at the expense of Landlord
as to the core, shell, floors, roof, curtain wall and other structural elements
of the Building located in the Premises and Building Systems servicing the
Premises (the "Base Building Restoration"), and (ii) by and at the expense of
Tenant as to all other elements of the Premises, including Tenant's Alterations
and Tenant's Property. Commencing on the date of such fire or other casualty,
and until the Base Building Restoration shall be Substantially Completed, Fixed
Rent and Additional Rent shall be reduced in the proportion which the area of
the part of the Premises which is neither usable nor used by Tenant bears to the
total Premises Area. Landlord shall have no obligation to repair any damage to,
or to replace, any of Tenant's Alterations or Tenant's Property.
SECTION 11.2 Anything contained in Section 11.1 to the contrary
notwithstanding, if the Premises are totally damaged or are rendered wholly
untenantable, and if
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Landlord shall decide not to restore the Premises, or if the Building shall be
so damaged by fire or other casualty that, in Landlord's opinion, substantial
alteration, demolition, or reconstruction of the Building shall be required
(whether or not the Premises shall have been damaged or rendered untenantable),
then in any of such events, Landlord may, not later than sixty (60) days
following the date of the damage, give Tenant a notice in writing terminating
this Lease, provided Landlord similarly terminates the leases of other tenants
in the Building covering at least twenty-five percent (25%) of the Rentable
Square Footage of the then-leased portions of the Building. If this Lease is so
terminated, the Term shall expire upon the tenth (10th) day after such notice is
given, and Tenant shall vacate the Premises and surrender the same to Landlord.
Upon the termination of this Lease under the conditions provided for in this
Section 11.2, Tenant's liability for Fixed Rent and Additional Rent shall cease
as of the date of such fire or other casualty, and any prepaid portion of Fixed
Rent or Additional Rent for any period after such date shall be refunded by
Landlord to Tenant.
SECTION 11.3 If the Premises are damaged by fire or other
casualty and are rendered wholly untenantable thereby, or if the Building shall
be so damaged that Tenant shall be deprived of reasonable access to the
Premises, and if Landlord shall elect to restore the Premises, Landlord shall,
within sixty (60) days following the date of the damage, cause a contractor or
architect selected by Landlord to give notice (the "Restoration Notice") to
Tenant of the date by which such contractor or architect believes the Base
Building Restoration shall be Substantially Completed. If the Restoration Notice
shall indicate that the Base Building Restoration shall not be Substantially
Completed on or before the date which shall be six (6) months following the date
of such damage or destruction, Tenant shall have the right to terminate this
Lease by giving written notice (the "Termination Notice") to Landlord not later
than thirty (30) days following receipt of the Restoration Notice. If Tenant
gives a Termination Notice, this Lease shall be deemed canceled and terminated
as of the date of the giving of the Termination Notice as if such date were the
Expiration Date, and Fixed Rent and Additional Rent shall be apportioned and
shall be paid or refunded, as the case may be up to and including the date of
such damage or destruction. If Tenant shall have had the right to give a
Termination Notice pursuant to this Section 11.3, but Tenant nonetheless shall
have failed to give a Termination Notice hereunder, and thereafter Landlord
fails to Substantially Complete the Base Building Restoration on or before the
date which is thirty (30) days following the date set forth in the Restoration
Notice, then Tenant shall again have the right to terminate this Lease by giving
a Termination Notice (a "Second Termination Notice"), and, unless Landlord
Substantially Completes the Base Building Restoration within thirty (30) days
following the giving of such Second Termination Notice, this Lease shall be
deemed canceled and terminated as set forth in this Section 11.3.
Notwithstanding anything set forth to the contrary in this Article 11, in the
event that a fire or other casualty rendering the Premises wholly untenantable
shall occur during the final year of the Term, either Landlord or Tenant may
terminate this Lease by giving the other party a Termination Notice as set forth
herein.
SECTION 11.4 This Article 11 constitutes an express agreement governing
any case of damage or destruction of the Premises or the Building by fire or
other casualty, and Section 227 of the Real Property Law of the State of New
York, which provides for such contingency in the absence of an express
agreement, and any other law of like nature and purpose now or hereafter in
force shall have no application in any such case.
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ARTICLE 12. EMINENT DOMAIN
SECTION 12.1 If (a) all of the floor area of the Premises, or so
much thereof as shall render the Premises wholly untenantable, shall be acquired
or condemned for any public or quasi-public use or purpose, or (b) a portion of
the Real Property, not including the Premises, shall be so acquired or
condemned, but by reason of such acquisition or condemnation, Tenant no longer
has means of access to the Premises, then this Lease and the Term shall end as
of the date of the vesting of title with the same effect as if that date were
the Expiration Date. In the event of any termination of this Lease and the Term
pursuant to the provisions of this Article 12, Fixed Rent and Additional Rent
shall be apportioned as of the date of sooner termination and any prepaid
portion of Fixed Rent or Additional Rent for any period after such date shall be
refunded by Landlord to Tenant.
SECTION 12.2 In the event of any such acquisition or condemnation
of all or any part of the Real Property, Landlord shall be entitled to receive
the entire award for any such acquisition or condemnation. Tenant shall have no
claim against Landlord or the condemning authority for the value of any
unexpired portion of the Term or Tenant's Alterations, and Tenant hereby
expressly assigns to Landlord all of its right in and to any such award. Nothing
contained in this Section 12.2 shall be deemed to prevent Tenant from making a
separate claim in any condemnation proceedings for the then value of any
Tenant's Property included in such taking and for any moving expenses, provided
such award shall be made by the condemning authority in addition to, and shall
not result in a reduction of, the award made by it to Landlord.
SECTION 12.3 If only a part of the Real Property shall be so
acquired or condemned then, subject to Section 12.1, this Lease and the Term
shall continue in force and effect. If a part of the Premises shall be so
acquired or condemned and this Lease and the Term shall not be terminated,
Landlord, at Landlord's expense, shall restore that part of the Premises not so
acquired or condemned so as to constitute tenantable Premises. From and after
the date of the vesting of title, Fixed Rent and Additional Rent shall be
reduced in the proportion which the area of the part of the Premises so acquired
or condemned bears to the total area of the Premises immediately prior to such
acquisition or condemnation.
ARTICLE 13. ASSIGNMENT AND SUBLETTING
SECTION 13.1 Except as otherwise expressly provided herein,
Tenant, for itself, its heirs, distributees, executors, administrators, legal
representatives, successors and assigns, expressly covenants that it shall not
assign, mortgage, pledge, encumber, or otherwise transfer this Lease, nor sublet
(nor underlet), nor suffer, nor permit the Premises or any part thereof to be
used or occupied by others (whether for desk space, mailing privileges or
otherwise), without the prior written consent of Landlord in each instance. If
this Lease is assigned, or if the Premises or any part thereof are sublet or
occupied by anybody other than Tenant, or if this Lease or the Premises or
Tenant's personal property are encumbered (whether by operation of law or
otherwise) without Landlord's consent, then Landlord may, after default by
Tenant, collect rent from the assignee, subtenant or occupant, and apply the net
amount collected to Fixed Rent and Additional Rent, but no assignment,
subletting, occupancy or collection shall be deemed a waiver by Landlord of the
provisions hereof, the acceptance by Landlord of the assignee, subtenant or
occupant as a tenant, or a release by Landlord of Tenant from the further
performance by Tenant
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its obligations under this Lease, and Tenant shall remain fully liable therefor.
Notwithstanding the foregoing sentence, Landlord acknowledges that Tenant shall
have the right, from time to time, to grant security interests in and to
Tenant's personal property located in the Premises, provided that no such
security interest shall ever attach to any part of the Real Property. The
consent by Landlord to any assignment or subletting shall not in any way be
construed to relieve Tenant from obtaining the express consent in writing of
Landlord to any further assignment or subletting. In no event shall any
permitted subtenant 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. Any assignment, sublease, mortgage, pledge,
encumbrance or transfer in contravention of the provisions of this Article 13
shall be void.
SECTION 13.2 If Tenant shall, at any time or from time to time,
during the Term desire to assign this Lease or sublet all or part of the
Premises, Tenant shall give notice (a "Tenant's Notice") thereof to Landlord,
which Tenant's Notice shall set forth: (a) with respect to an assignment of this
Lease, the date Tenant desires the assignment to be effective and any
consideration Tenant would receive under such assignment, (b) with respect to a
sublet of all or a part of the Premises (i) the dates upon which Tenant desires
the sublease term to commence and expire, (ii) the rental rate and other
material business terms upon which Tenant would sublet such premises, and (iii)
a description of the Premises showing the portion to be sublet, the effective or
commencement date of which shall be not less than thirty (30) nor more than one
hundred and eighty (180) days after the giving of such notice, (c) a statement
setting forth in reasonable detail the identity of the proposed assignee or
subtenant, the nature of its business and its proposed use of the Premises, (d)
current financial information with respect to the proposed assignee or
subtenant, including its most recent financial report, (e) a true and complete
copy of the proposed assignment or sublease and any other agreements relating
thereto, and (f) an agreement by Tenant to indemnify Landlord against liability
resulting from any claims that may be made against Landlord by the proposed
assignee or subtenant or by any brokers or other Persons claiming a commission
or similar compensation in connection with the proposed assignment or sublease.
Tenant's Notice shall be deemed an offer from Tenant to Landlord whereby
Landlord (or Landlord's designee) may, at its option, (I) sublease such space
(the "Leaseback Space") from Tenant upon the terms and conditions set forth in
Section 13.4, or terminate the Lease with respect to only the Leaseback Space,
or (II) if the proposed transaction is (1) an assignment of this Lease, or (2) a
subletting of fifty percent (50%) or more of the rentable area of the Premises,
terminate this Lease. Said options may be exercised by Landlord by notice given
to Tenant at any time within sixty (60) days after Tenant's Notice has been
given by Tenant to Landlord, and during such sixty-day period, Tenant shall not
assign this Lease nor sublet such space to any Person other than Landlord.
Notwithstanding the foregoing, Tenant shall not be required to obtain Landlord's
consent as described in Section 13.1 and Landlord shall not have the right to
exercise the option described in this Section 13.2 with respect to a sublease
demising not more than twenty percent (20%) of the Premises Area (an "Excepted
Sublease"), provided that the area so subleased shall not be separately demised
nor have an entrance or reception area separate from the remainder of the
Premises; provided, further, that any Excepted Sublease shall be subject to all
of the other terms and conditions of this Article 13.
SECTION 13.3 If Landlord exercises its option to terminate this
Lease with respect to all or a portion of the Premises pursuant to Section 13.2,
then this Lease shall end and expire
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on the date that such assignment or sublease was to be effective or commence, as
the case may be, and the Fixed Rent and Additional Rent due hereunder shall be
paid and apportioned to such date. In such event, Landlord and Tenant, upon
request of either party, shall enter into an amendment of this Lease ratifying
and confirming such total or partial termination, and setting forth appropriate
modifications, if any, to the terms and provisions hereof. Following such
termination, Landlord shall be free to and shall have no liability to Tenant if
Landlord should lease the Premises (or any part thereof) to Tenant's prospective
assignee or subtenant.
SECTION 13.4 If Landlord exercises its option to sublet the
Leaseback Space, such sublease to Landlord or its designee (as subtenant) shall
be at a rental rate equal to the product of (i) the lesser of (A) the rental
rate per rentable square foot of Fixed Rent and Additional Rent then payable
pursuant to this Lease, or (B) the rental rate per rentable square foot of rent
and additional rent set forth in Tenant's Notice, multiplied by (ii) the number
of rentable square feet of the Leaseback Space, and shall be for the same term
as that of the proposed subletting, and such sublease shall:
(a) be upon such other terms and conditions as are
contained in Tenant's Notice, and be expressly subject to all of the
covenants, agreements, terms, provisions and conditions of this Lease,
except such as are irrelevant or inapplicable, and except as expressly
set forth in this Article 13 to the contrary;
(b) give the subtenant the unqualified and unrestricted
right, without Tenant's permission, to assign such sublease or any
interest therein and/or to sublet the space covered by such sublease or
any part or parts of such space and to make any and all changes,
alterations and improvements in the space covered by such sublease, and
if the proposed sublease will result in all or substantially all of the
Premises being sublet, grant Landlord or its designee the option to
extend the term of such sublease for the balance of the Term of this
Lease less one day;
(c) provide that any assignee or further subtenant of
Landlord or its designee, may, at Landlord's option, be permitted to
make alterations, decorations and installations in such space or any
part thereof and shall also provide in substance that any such
alterations, decorations and installations in such space therein made by
any assignee or subtenant of Landlord or its designee may be removed, in
whole or in part, by such assignee or subtenant, at its option, prior to
or upon the expiration or other termination of such sublease; provided,
however, that such assignee or subtenant shall, at its sole cost and
expense, repair any damage and injury caused by such removal; and
(d) provide that (i) the parties to such sublease
expressly negate any intention that any estate created under such
sublease be merged with any other estate held by either of said parties,
(ii) any assignment or sublease by Landlord or its designee (as the
subtenant) may be for any purpose or purposes that Landlord, in
Landlord's uncontrolled discretion, shall deem suitable or appropriate,
(iii) Tenant shall, at Tenant's sole cost and expense, at all times
provide and permit reasonably appropriate means of ingress to and egress
from such space so sublet by Tenant to Landlord or its designee, (iv)
Landlord may, at Tenant's sole cost and expense, make such alterations
as may be required or deemed necessary by Landlord to physically
separate the subleased space
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from the balance of the Premises and to comply with any legal or
insurance requirements relating to such separation, and (v) that at the
expiration of the term of such sublease, Tenant will accept the space
covered by such sublease in its then existing condition, subject to the
obligations of the subtenant to make such repairs thereto as may be
necessary to preserve the premises demised by such sublease in good
order and condition.
SECTION 13.5 (a) If Landlord exercises its option to sublet the
Leaseback Space, Landlord shall indemnify and save Tenant harmless from all
obligations under this Lease as to the Leaseback Space during the period of time
it is so sublet to Landlord, except as to any obligation which arises out of or
results from the negligence or willful misconduct of Tenant, or any of its
agents, servants or employees.
(b) Performance by Landlord, or its designee, under a sublease of
the Leaseback Space 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.
(c) Tenant shall have no obligation, at the expiration or earlier
termination of the Term, to remove any alteration, installation or improvement
made in the Leaseback Space by Landlord (or Landlord's designee).
(d) Any consent required of Tenant, as Landlord under the
sublease, shall be deemed granted if consent with respect thereto is granted by
Landlord under this Lease, and any failure of Landlord (or its designee) to
comply with the provisions of the sublease other than with respect to the
payment of Fixed Rent and Additional Rent to Tenant, shall not constitute a
default thereunder or hereunder if Landlord shall have consented to such
non-compliance.
(e) Tenant shall have no obligation to provide to Landlord or
Landlord's designee any services other than those services provided by Landlord
to Tenant under this Lease. Tenant shall have the right to contract directly
with Landlord or Landlord's designee to purchase additional services which
Tenant provides to itself at the Premises.
SECTION 13.6 In the event Landlord does not exercise either
option provided to it pursuant to Section 13.2, or if Tenant shall request
consent to enter into an Excepted Sublease, and provided that no Event of
Default shall have occurred and be continuing under this Lease as of the time
Landlord's consent is requested by Tenant, Landlord's consent (which must be in
writing and in form and substance satisfactory to Landlord) to the proposed
assignment or sublease shall not be unreasonably withheld or delayed; provided,
however, that:
(a) Tenant shall have complied with the provisions of Section
13.2 hereof and Landlord shall not have exercised any of its options thereunder
within the time permitted therefor;
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(b) In Landlord's judgment, the proposed assignee or
subtenant is engaged in a business or activity, and the Premises, or the
relevant part thereof, will be used in a manner, which (i) is in keeping
with the then standards of the Building, and (ii) does not violate the
restrictions set forth in Article 2;
(c) The proposed assignee or subtenant is a reputable
Person with sufficient financial worth considering the responsibility
involved, and Landlord has been furnished with evidence thereof;
(d) In the event Landlord has reasonably comparable space
in the Building available for lease, then (i) neither the proposed
assignee or subtenant nor any Person which, directly or indirectly,
controls, is controlled by, or is under common control with, the
proposed assignee or subtenant, is then an occupant of any part of the
Building, and (ii) the proposed assignee or subtenant is not a Person
(or Affiliate of a Person) with whom Landlord or Landlord's agent is
then, or has been within the previous six (6) month period, negotiating
in connection with rental of space in the Building;
(e) The form of the proposed sublease or instrument of
assignment shall be reasonably satisfactory to Landlord and shall comply
with the applicable provisions of this Article 13, and Tenant shall
deliver a true and complete original, fully executed counterpart of such
sublease or other instrument to Landlord promptly upon the execution and
delivery thereof;
(f) Tenant and its proposed subtenant or assignee, as the
case may be, shall execute and deliver to Landlord an agreement, in form
and substance satisfactory to Landlord, setting forth the terms and
conditions upon which Landlord shall have granted its consent to such
assignment or subletting, and the agreement of Tenant and such subtenant
or assignee, as the case may be, to be bound by the provisions of this
Article 13;
(g) There shall not be more than three (3) subtenants of
the Premises;
(h) The amount of the aggregate rent to be paid by the
proposed subtenant shall not be less than the then current market rent
per rentable square foot for the Premises, determined as though the
Premises were vacant, and the rental and other terms and conditions of
the sublease shall be substantially the same as those contained in
Tenant's Notice;
(i) Tenant shall reimburse Landlord, as Additional Rent
upon demand, for (A) the reasonable costs and expenses incurred by
Landlord in connection with the assignment or sublease, including the
costs of making investigations as to the acceptability of the proposed
assignee or subtenant and the cost of reviewing plans and specifications
proposed to be made in connection therewith, and (B) Landlord's
reasonable out-of-pocket legal fees and disbursements incurred in
connection with the granting of any requested consent and the
preparation of Landlord's written consent to the sublease or assignment;
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(j) Tenant shall not have (i) advertised or publicized in
any way the availability of the Premises without prior notice of and
approval by Landlord, or (ii) listed the Premises for sublease or
assignment with a broker, agent or otherwise at a rental rate less than
the fixed rent and additional rent at which Landlord is then offering to
lease comparable space in the Building; and
(k) The proposed subtenant or assignee shall not be
entitled, directly or indirectly, to diplomatic or sovereign immunity
and shall be subject to the service of process in, and the jurisdiction
of the courts of New York State.
Except for any sublease by Tenant to Landlord or its designee pursuant to this
Article 13, each sublease pursuant to this Section 13.6 shall be subject to all
of the covenants, agreements, terms, provisions and conditions contained in this
Lease. Notwithstanding any such sublease to Landlord or any such sublease to any
other subtenant, or any acceptance of Fixed Rent or Additional Rent by Landlord
from any subtenant, Tenant will remain fully liable for the payment of the Fixed
Rent and Additional Rent due and to become due hereunder and for the performance
of all the covenants, agreements, terms, provisions and conditions contained in
this Lease on Tenant's part to be observed and performed, and for all acts and
omissions of any licensee or subtenant or anyone claiming under or through any
subtenant which shall be in violation of any of the obligations of this Lease,
and any such violation shall be deemed to be a violation by Tenant. If Landlord
shall decline to give its consent to any proposed assignment or sublease, or if
Landlord shall exercise either of its options under Section 13.2, Tenant shall
indemnify, defend and hold harmless Landlord against and from any and all
losses, liabilities, damages, costs, and expenses (including attorneys' fees and
disbursements) resulting from any claims that may be made against Landlord by
the proposed assignee or subtenant arising from or in connection with such
proposed assignment or subletting, or by any brokers or other Persons (with whom
Tenant or its proposed assignee or subtenant may have dealt) claiming a
commission or similar compensation in connection with the proposed assignment or
sublease.
SECTION 13.7 In the event that (a) Landlord fails to exercise
either of its options under Section 13.2 and consents to a proposed assignment
or sublease, and (b) Tenant fails to execute and deliver the assignment or
sublease to which Landlord consented within one hundred twenty (120) days after
the giving of such consent, then, Tenant shall again comply with all of the
provisions and conditions of Section 13.2 before assigning this Lease or
subletting all or part of the Premises.
SECTION 13.8 With respect to each and every sublease authorized
by Landlord under the provisions of this Lease, it is further agreed that:
(a) No sublease shall be for a term ending later than one day
prior to the Expiration Date of this Lease;
(b) No sublease shall be delivered, and no subtenant shall take
possession of the Premises or any part thereof, until an executed
counterpart of such sublease has been delivered to Landlord and approved
in writing by Landlord; and
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(c) Each sublease shall be subject and subordinate to this Lease
and to the matters to which this Lease is or shall be subordinate, and
each subtenant by entering into a sublease is deemed to have agreed that
in the event of termination, re-entry or dispossession by Landlord under
this Lease, Landlord may, at its option, take over all of the right,
title and interest of Tenant, as sublandlord, under such sublease, and
such subtenant shall, at Landlord's option, attorn to Landlord pursuant
to the then executory provisions of such sublease, except that Landlord
shall not (i) be liable for any previous act or omission of Tenant under
such sublease, (ii) be subject to any counterclaim, offset or defense,
not expressly provided in such sublease, which theretofore accrued to
such subtenant against Tenant, (iii) be bound by any previous
modification of such sublease or by any previous prepayment of more than
one month's Fixed Rent or of any Additional Rent, or (iv) be obligated
to perform any work in the subleased space or to prepare it for
occupancy, and in connection with such attornment, the subtenant shall
execute and deliver to Landlord any instruments Landlord may reasonably
request to evidence and confirm such attornment. Each subtenant or
licensee of Tenant shall be deemed, automatically upon and as a
condition of its occupying or using the Premises or any part thereof, to
have agreed to be bound by the terms and conditions set forth in this
Article 13. The provisions of this Article 13 shall be self-operative
and no further instrument shall be required to give effect to this
provision.
SECTION 13.9 If Landlord shall consent to any assignment of this
Lease or to any sublease, or if Tenant shall enter into any other assignment or
sublease permitted hereunder, Tenant shall, in consideration therefor, pay to
Landlord, as Additional Rent:
(a) In the case of an assignment, on the effective date of the
assignment, an amount equal to fifty percent (50%) of (i) all sums and
other consideration paid to Tenant by the assignee for or by reason of
such assignment (including sums paid for Tenant's Property, less, in the
case of a sale of Tenant's Property, the then net unamortized or
undepreciated cost thereof, determined on the basis of Tenant's federal
income tax returns) less (ii)(A) all expenses reasonably and actually
incurred by Tenant on account of brokerage commissions and attorneys'
fees in connection with such assignment, (B) the costs of improvements
or Alterations made by Tenant solely for the purpose of preparing the
Premises or a portion thereof for such assignment, and (C) any amounts
attributable to rent concessions, free rent periods or rent abatements;
or
(b) In the case of a sublease, an amount equal to fifty percent
(50%) of (i) all rents, additional charges or other consideration
payable to Tenant under the sublease in excess of the Fixed Rent and
Additional Rent accruing during the term of the sublease in respect of
the subleased space (at the rate per square foot payable by Tenant
hereunder) pursuant to the terms hereof (including sums paid for the
sale or rental of Tenant's Property, less, in the case of the sale of
Tenant's Property, the net unamortized or undepreciated cost thereof,
determined on the basis of Tenant's federal income tax returns) less
(ii)(A) all expenses reasonably and actually incurred by Tenant on
account of brokerage commissions and attorneys' fees in connection with
such sublease, (B) the costs of improvements or Alterations made by
Tenant solely for the purpose of preparing the Premises or a portion
thereof for such sublease, and (C) any amounts attributable to rent
concessions, free rent periods or rent abatements, which amounts shall,
for purposes
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of calculating amounts payable by tenant hereunder, be amortized over
the term of such sublease. The sums payable under this clause shall be
paid by Tenant to Landlord as Additional Rent as and when payable by the
subtenant to Tenant.
SECTION 13.10 (a) If Tenant is a corporation (but not a public
corporation), the provisions of Section 13.1 shall apply to a transfer (by one
or more transfer(s)), of a majority of the stock of Tenant as if such transfer
of a majority of the stock of Tenant were an assignment of this Lease. It is
expressly understood that the term "transfer(s)" shall be deemed to include the
issuance of new stock which results in a majority of the stock of Tenant being
held by Persons which do not hold a majority of the stock of Tenant on the date
hereof. The provisions of this Article 13 shall not apply to transactions with a
corporation into or with which Tenant is merged or consolidated or to which
substantially all of Tenant's assets are transferred; provided, however, that
(i) such transfer shall have been made for a legitimate independent business
purpose and not for the principal purpose of transferring this Lease, (ii) the
successor to Tenant shall have a net worth, computed in accordance with
generally accepted accounting principles, at least equal to the greater of (A)
the net worth of Tenant immediately prior to such merger, consolidation or
transfer, or (B) the net worth of Tenant herein named on the date of this Lease,
and (iii) proof satisfactory to Landlord of such net worth shall have been
delivered to Landlord at least ten (10) days prior to the effective date of any
such transaction.
(b) If Tenant is a partnership, the provisions of Section 13.1
shall apply to a transfer (by one or more transfers) of a majority interest in
the partnership, as if such transfer were an assignment of this Lease.
(c) The limitations set forth in this Section 13.10 shall be
deemed to apply to subtenant(s), assignee(s) and guarantor(s) of this Lease, if
any, and any transfer by any such Person in violation of this Section 13.10
shall be deemed to be a transfer in violation of Section 13.1.
(d) A modification, amendment or extension of a sublease shall be
deemed a sublease for the purposes of Section 13.1, and a takeover agreement
shall be deemed a transfer of this Lease for the purposes of Section 13.1.
SECTION 13.11 Tenant may, without Landlord's consent, but upon
not less than ten (10) days' prior notice to Landlord, permit any Affiliate of
Tenant to sublet all or part of the Premises for any Permitted Use, or assign
this Lease to any Affiliate, subject however to compliance with Tenant's
obligations under this Lease. No such sublease shall be deemed to vest in any
such Affiliate any right or interest in this Lease or the Premises nor shall it
relieve, release, impair or discharge any of Tenant's obligations hereunder.
SECTION 13.12 (a) Any assignment or transfer, whether made with
Landlord's consent pursuant to Section 13.1 or without Landlord's consent to the
extent permitted under Sections 13.10 and 13.11, shall be made only if, and
shall not be effective until, the assignee shall execute, acknowledge and
deliver to Landlord an agreement in form and substance satisfactory to Landlord
whereby the assignee shall assume the obligations of this Lease on the part of
Tenant to be performed or observed from and after the effective date of such
assignment or transfer, and whereby the assignee shall agree that the provisions
in Section 13.1 shall,
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notwithstanding such assignment or transfer, continue to be binding upon it in
respect of all future assignments and transfers.
(b) The joint and several liability of Tenant and any immediate
or remote successor in interest of Tenant and the due performance of the
obligations of this Lease on Tenant's part to be performed or observed shall not
be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord, or any grantee or assignee of Landlord by way of
mortgage or otherwise, extending the time, or modifying any of the obligations
of this Lease, or by any waiver or failure of Landlord, or any grantee or
assignee of Landlord by way of mortgage or otherwise, to enforce any of the
obligations of this Lease.
(c) The listing of any name other than that of Tenant, whether on
the doors of the Premises or the Building directory, or otherwise, shall not
operate to vest any right or interest in this Lease or in the Premises, nor
shall it be deemed to be the consent of Landlord to any assignment or transfer
of this Lease or to any sublease of Premises or to the use or occupancy thereof
by others. Any such listing shall constitute a privilege extended by Landlord,
revocable at Landlord's will by notice to Tenant, provided that Landlord shall
not unreasonably revoke such privilege as to any Affiliate of Tenant, or any
subtenant of Tenant or assignee of this Lease approved by Landlord pursuant to
this Article 13.
SECTION 13.13 Landlord acknowledges that the collocation of
communications equipment not owned by Tenant at the Premises shall not
constitute an assignment or sublease requiring the consent of Landlord
hereunder. For purposes of this Lease, "collocation" means the installation by
Tenant's customers of telecommunications equipment in Tenant's facilities
therefor, in the ordinary course of Tenant's business, for which such customers
pay fees based upon access to such facilities. In no event shall any collocation
arrangement entered into by Tenant entail the construction of a separate
entrance to the Premises from the Building common corridor for any party thereto
other than Tenant.
ARTICLE 14. ACCESS TO PREMISES
SECTION 14.1 Tenant shall permit Landlord, Landlord's agents and
public utilities servicing the Building to erect, use and maintain concealed
ducts, pipes and conduits in and through the Premises, provided such work is
performed by Landlord in a manner so as to minimize any interference that might
be occasioned to Tenant's business operations and to minimize any damage that
might result to the Premises, Tenant's Alterations or Tenant's Property.
Landlord shall promptly repair any damage to the Premises, Tenant's Alterations
or Tenant's Property caused by any work performed by Landlord pursuant to this
Article 14; provided, however, that Landlord shall have no obligation to employ
contractors or labor at overtime or other premium pay rates or to incur any
other overtime costs or additional expenses whatsoever, unless Tenant shall
first pay to Landlord as Additional Rent Landlord's reasonable estimate of any
excess costs and expenses incurred by Landlord in employing such overtime or
premium rate labor, and shall thereafter reimburse Landlord for any additional
costs and expenses incurred by Landlord in excess of such estimated amount.
Landlord or Landlord's agents shall have the right to enter the Premises at all
reasonable times upon reasonable prior notice (except no such prior notice shall
be required in case of emergency), which notice may be oral, to examine the
same, to show them to prospective purchasers, Mortgagees, Lessors or
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lessees of the Building and their respective agents and representatives or
prospective tenants of the Premises, and to make such repairs, alterations,
improvements or additions (a) as Landlord may deem necessary or desirable to the
Premises or to any other portion of the Building, or (b) which Landlord may
elect to perform following Tenant's failure to make repairs or perform any work
which Tenant is obligated to make or perform under this Lease, or (c) for the
purpose of complying with Legal Requirements, and Landlord shall be allowed to
take all material into and upon the Premises that may be required therefor
without the same constituting an eviction or constructive eviction of Tenant in
whole or in part and, except as and to the extent provided in Section 5.4, Fixed
Rent and Additional Rent will not be abated while said repairs, alterations,
improvements or additions are being made, by reason of loss or interruption of
business of Tenant, or otherwise.
SECTION 14.2 If Tenant shall not be present when for any reason
entry into the Premises shall be necessary or permissible, Landlord or
Landlord's agents may enter the same without rendering Landlord or such agents
liable therefor (if during such entry Landlord or Landlord's agents shall accord
reasonable care to Tenant's property), and without in any manner affecting this
Lease. Nothing herein contained, however, shall be deemed or construed to impose
upon Landlord any obligation, responsibility or liability whatsoever for the
care, supervision or repair of the Building or any part thereof, other than as
herein provided.
SECTION 14.3 Landlord shall have the right from time to time to
alter the Building and, without the same constituting an actual or constructive
eviction and without incurring any liability to Tenant therefor, to change the
arrangement or location of entrances or passageways, doors and doorways, and
corridors, elevators, stairs, toilets, or other public parts of the Building and
to change the name, number or designation by which the Building is commonly
known. All parts (except surfaces facing the interior of the Premises) of all
walls, windows and doors bounding the Premises (including exterior Building
walls, exterior core corridor walls, exterior doors and entrances other than
doors and entrances solely servicing the Premises), all balconies, terraces and
roofs adjacent to the Premises, all space in or adjacent to the Premises used
for shafts, stacks, stairways, chutes, pipes, conduits, ducts, fan rooms,
heating, air cooling, plumbing and other mechanical facilities, service closets
and other Building facilities are not part of the Premises, and Landlord shall
have the use thereof, as well as access thereto through the Premises for the
purposes of operation, maintenance, alteration and repair.
ARTICLE 15. CERTIFICATE OF OCCUPANCY
Tenant shall not at any time use or occupy the Premises in
violation of the certificate of occupancy (a true and correct copy of which has
been delivered to Tenant) at such time issued for the Premises or for the
Building and in the event that any department of the City or State of New York
shall hereafter contend or declare by notice, violation, order or in any other
manner whatsoever that the Premises are used for a purpose which is a violation
of such certificate of occupancy, Tenant shall, upon five (5) days' written
notice from Landlord or any Governmental Authority, immediately discontinue such
use of the Premises. Failure by Tenant to discontinue such use after such notice
shall be considered a default in the fulfillment of a material covenant of this
Lease and Landlord shall have the right to terminate this Lease immediately, and
in addition thereto shall have the right to exercise any and all rights and
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privileges and remedies given to Landlord by and pursuant to the provisions of
Articles 16 and 17.
ARTICLE 16. DEFAULT
SECTION 16.1 Each of the following events shall be an "Event of
Default" hereunder:
(a) if Tenant defaults in the payment when due of any
installment of Fixed Rent or Additional Rent, and such default shall
continue for a period of seven (7) days after notice thereof from
Landlord; provided, however, that if Tenant shall default in the timely
payment of Fixed Rent or Additional Rent, and any such default shall
occur more than two (2) times in any period of twelve (12) consecutive
months, then, notwithstanding that such defaults shall have each been
cured within the applicable period provided above, upon any further
similar default, Landlord may serve a three days' notice of termination
upon Tenant without affording to Tenant an opportunity to cure such
further default; or
(b) if Tenant's interest in this Lease is transferred in
violation of Article 13; or
(c) if the Premises or a substantial portion thereof
becomes abandoned; or
(d) (i) if Tenant admits in writing its inability to pay
its debts as they become due; or
(ii) if Tenant commences or institutes any case,
proceeding or other action (A) seeking relief as a debtor, or to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts under
any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, or (B) seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or
any substantial part of its property; or
(iii) if Tenant makes a general assignment for the benefit
of creditors; or
(iv) if any case, proceeding or other action is commenced
or instituted against Tenant (A) seeking to have an order for
relief entered against it as debtor or to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts under any existing
or future law of any jurisdiction, domestic or foreign, relating
to bankruptcy, insolvency, reorganization or relief of debtors,
or (B) seeking appointment of a receiver, trustee, custodian or
other similar official for it or for all or any substantial part
of its property, which either (1) results in any such entry of
an order for relief, adjudication of bankruptcy or
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insolvency or such an appointment or the issuance or entry of
any other order having a similar effect, or (2) remains
undismissed for a period of ninety (90) days; or
(v) if any case, proceeding or other action is commenced
or instituted against Tenant seeking issuance of a warrant of
attachment, execution, distraint or similar process against all
or any substantial part of its property which results in the
entry of an order for any such relief which has not been vacated,
discharged, or stayed or bonded pending appeal within ninety (90)
days from the entry thereof; or
(vi) if Tenant takes any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any
of the acts set forth in clauses (ii), (iii), (iv) or (v) of
Section 16.1(d); or
(vii) if a trustee, receiver or other custodian is
appointed for any substantial part of the assets of Tenant, which
appointment is not vacated or effectively stayed within seven (7)
Business Days, or if any such vacating or stay does not
thereafter remain in effect; or
(e) if Tenant defaults in the observance or performance of
any other term, covenant or condition of this Lease on Tenant's part to
be observed or performed and Tenant fails to remedy such default within
thirty (30) days after notice by Landlord to Tenant of such default, or,
if such default is of such a nature that it cannot be completely
remedied within said period of thirty (30) days, if Tenant fails to
commence to remedy such default within such thirty-day period, or fails
thereafter to diligently prosecute to completion all steps necessary to
remedy such default; or
(f) if Tenant or any Affiliate of Tenant defaults beyond
applicable grace and notice periods in the payment of any fixed rent or
additional rent under any other lease of space in the Building, or if
any such lease is terminated by Landlord as a result of a default by the
tenant thereunder.
SECTION 16.2 (a) If an Event of Default occurs, Landlord may at any time
thereafter give written notice to Tenant stating that this Lease and the Term
shall expire and terminate on the date specified in such notice, which date
shall not be less than seven (7) days after the giving of such notice. If
Landlord gives such notice, this Lease and the Term and all rights of Tenant
under this Lease shall expire and terminate as if the date set forth in such
notice were the Fixed Expiration Date and Tenant immediately shall quit and
surrender the Premises, but Tenant shall remain liable as hereinafter provided.
Anything contained herein to the contrary notwithstanding, if such termination
shall be stayed by order of any court having jurisdiction over any proceeding
described in Section 16.1(d), or by federal or state statute, then, following
the expiration of any such stay, or if the trustee appointed in any such
proceeding, Tenant or Tenant as debtor-in-possession shall fail to assume
Tenant's obligations under this Lease within the period prescribed therefor by
law or within one hundred twenty (120) days after entry of the order for relief
or as may be allowed by the court, or if said trustee, Tenant or Tenant as
debtor-in-possession shall fail to provide adequate protection of Landlord's
right, title and interest in and to the Premises or adequate assurance of the
complete and continuous future
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performance of Tenant's obligations under this Lease, Landlord, to the extent
permitted by law or by leave of the court having jurisdiction over such
proceeding, shall have the right, at its election, to terminate this Lease on
seven (7) days' notice to Tenant, Tenant as debtor-in-possession or said trustee
and upon the expiration of said seven (7) day period this Lease shall cease and
expire as set forth above and Tenant, Tenant as debtor-in-possession or said
trustee shall immediately quit and surrender the Premises as aforesaid.
SECTION 16.3 If, at any time, (a) Tenant shall comprise two (2)
or more Persons, (b) Tenant's obligations under this Lease shall have been
guaranteed by any Person other than Tenant, or (c) Tenant's interest in this
Lease shall have been assigned, the word "Tenant," as used in Section 16.1(d),
shall be deemed to mean any one or more of the Persons primarily or secondarily
liable for Tenant's obligations under this Lease. Any monies received by
Landlord from or on behalf of Tenant during the pendency of any proceeding of
the types referred to in Section 16.1(d) shall be deemed paid as compensation
for the use and occupation of the Premises and the acceptance of any such
compensation by Landlord shall not be deemed an acceptance of Fixed Rent and/or
Additional Rent or a waiver on the part of Landlord of any rights under this
Lease.
ARTICLE 17. REMEDIES AND DAMAGES
SECTION 17.1 (a) If an Event of Default shall occur, and this
Lease and the Term shall expire and come to an end as provided in Article 16:
(i) Tenant shall quit and peacefully surrender the Premises to
Landlord, and Landlord and its agents may immediately, or at any time
after such Event of Default or after the date upon which this Lease and
the Term shall expire and come to an end, re-enter the Premises or any
part thereof, without notice, either by summary proceedings, or by any
other applicable action or proceeding, or by legal force or other legal
means (without being liable to indictment, prosecution or damages
therefor), and may repossess the Premises and dispossess Tenant and any
other Persons from the Premises and remove any and all of their property
and effects from the Premises; and
(ii) Landlord, at Landlord's option, may relet the whole or any
part or parts of the Premises from time to time, either in the name of
Landlord or otherwise, to such tenant or tenants, for such term or terms
ending before, on or after the Expiration Date, at such rental or
rentals and upon such other conditions, which may include concessions
and free rent periods, as Landlord, in its sole discretion, may
determine; provided, however, that Landlord shall have no obligation to
relet the Premises or any part thereof and shall in no event be liable
for refusal or failure to relet the Premises or any part thereof, or, in
the event of any such reletting, for refusal or failure to collect any
rent due upon any such reletting, and no such refusal or failure shall
operate to relieve Tenant of any liability under this Lease or otherwise
affect any such liability, and Landlord, at Landlord's option, may make
such repairs, replacements, alterations, additions, improvements,
decorations and other physical changes in and to the Premises as
Landlord, in its sole discretion, considers advisable or necessary in
connection with any such reletting or proposed reletting, without
relieving Tenant of any liability under this Lease or otherwise
affecting any such liability.
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(b) Tenant hereby waives the service of any notice of intention
to re-enter or to institute legal proceedings to that end which may otherwise be
required to be given under any present or future law. Tenant, on its own behalf
and on behalf of all Persons claiming through or under Tenant, including all
creditors, does further hereby waive any and all rights which Tenant and all
such Persons might otherwise have under any present or future law to redeem the
Premises, or to re-enter or repossess the Premises, or to restore the operation
of this Lease, after (i) Tenant shall have been dispossessed by a judgment or by
warrant of any court or judge, (ii) any re-entry by Landlord, or (iii) any
expiration or termination of this Lease and the Term, whether such dispossess,
re-entry, expiration or termination shall be by operation of law or pursuant to
the provisions of this Lease. The words "re-enter," re-entry" and "re-entered"
as used in this Lease shall not be deemed to be restricted to their technical
legal meanings. In the event of a breach or threatened breach by Tenant, or any
Persons claiming through or under Tenant, of any term, covenant or condition of
this Lease, Landlord shall have the right to enjoin such breach and the right to
invoke any other remedy allowed by law or in equity as if re-entry, summary
proceedings and other special remedies were not provided in this Lease for such
breach. The rights to invoke the remedies hereinbefore set forth are cumulative
and shall not preclude Landlord from invoking any other remedy allowed at law or
in equity.
SECTION 17.2 (a) If this Lease and the Term shall expire and come
to an end as provided in Article 16, or by or under any summary proceeding or
any other action or proceeding, or if Landlord shall re-enter the Premises
pursuant to legal process as provided in Section 17.1, or by or under any
summary proceeding or any other action or proceeding, then, in any of such
events:
(i) Tenant shall pay to Landlord all Fixed Rent and Additional
Rent payable under this Lease by Tenant to Landlord to the date upon
which this Lease and the Term shall have expired and come to an end or
to the date of re-entry upon the Premises by Landlord, as the case may
be;
(ii) Tenant also shall be liable for and shall pay to Landlord,
as damages, any deficiency (the "Deficiency") between (A) Fixed Rent and
Additional Rent for the period which otherwise would have constituted
the unexpired portion of the Term (conclusively presuming the Additional
Rent for each year thereof to be the same as was payable for the year
immediately preceding such termination or re-entry), and (B) the net
amount, if any, of rents collected under any reletting effected pursuant
to the provisions of Section 17.1(a)(ii) for any part of such period
(first deducting from the rents collected under any such reletting all
of Landlord's expenses in connection with the termination of this Lease,
Landlord's re-entry upon the Premises and with such reletting including
all repossession costs, brokerage commissions, legal expenses,
attorneys' fees and disbursements, alteration costs and other expenses
of preparing the Premises for such reletting). Tenant shall pay the
Deficiency in monthly installments on the days specified in this Lease
for payment of installments of Fixed Rent, and Landlord shall be
entitled to recover from Tenant each monthly Deficiency as the same
shall arise. No suit to collect the amount of the Deficiency for any
month shall prejudice Landlord's right to collect the Deficiency for any
subsequent month by a similar proceeding; and
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(iii) whether or not Landlord shall have collected any monthly
Deficiency as aforesaid, Landlord shall be entitled to recover from
Tenant, and Tenant shall pay to Landlord, on demand, in lieu of any
further Deficiency as and for liquidated and agreed final damages, a sum
equal (A) to the amount by which the Fixed Rent and Additional Rent for
the period which otherwise would have constituted the unexpired portion
of the Term (conclusively presuming the Additional Rent for each year
thereof to be the same as was payable for the year immediately preceding
such termination or re-entry) exceeds (B) the then fair and reasonable
rental value of the Premises, including Additional Rent for the same
period, both discounted to present value at the rate of four percent
(4%) per annum less (C) the aggregate amount of Deficiencies previously
collected by Landlord pursuant to the provisions of Section 17.2(a)(ii)
for the same period. If, before presentation of proof of such liquidated
damages to any court, commission or tribunal, Landlord shall have relet
the Premises or any part thereof for the period which otherwise would
have constituted the unexpired portion of the Term, or any part thereof,
the amount of net rents collected in connection with such reletting
shall be deemed, prima facie, to be the fair and reasonable rental value
for the part or the whole of the Premises so relet during the term of
the reletting.
(b) If Landlord shall relet the Premises, or any part thereof,
together with other space in the Building, the net rents collected under any
such reletting and the expenses of any such reletting shall be equitably
apportioned for the purposes of this Section 17.2. Tenant shall in no event be
entitled to any rents collected or payable under any reletting, whether or not
such rents shall exceed the Fixed Rent reserved in this Lease. Nothing contained
in Article 16 or this Article 17 shall be deemed to limit or preclude the
recovery by Landlord from Tenant of the maximum amount allowed to be obtained as
damages by any statute or rule of law, or of any sums or damages to which
Landlord may be entitled in addition to the damages set forth in this Section
17.2.
ARTICLE 18. FEES AND EXPENSES
SECTION 18.1 If an Event of Default shall occur under this Lease
or if Tenant shall do or permit to be done any act or thing upon the Premises
which would cause Landlord to be in default under any Superior Lease or
Mortgage, or if Tenant shall fail to comply with its obligations under this
Lease and the preservation of property or the safety of any tenant, occupant or
other person is threatened, Landlord may, after reasonable prior notice to
Tenant except in an emergency, perform the same for the account of Tenant or
make any expenditure or incur any obligation for the payment of money for the
account of Tenant. All amounts expended by Landlord in connection with the
foregoing, including reasonable attorneys' fees and disbursements in
instituting, prosecuting or defending any action or proceeding or recovering
possession, and the cost thereof, with interest thereon at the Default Rate,
shall be deemed to be Additional Rent hereunder and shall be paid by Tenant to
Landlord within ten (10) days of rendition of any xxxx or statement to Tenant
therefor.
SECTION 18.2 If Tenant shall fail to pay any installment of
Fixed Rent and/or Additional Rent when due, Tenant shall pay to Landlord, in
addition to such installment of Fixed Rent and/or Additional Rent, as the case
may be, as a late charge and as Additional Rent, a sum
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equal to interest at the Default Rate on the amount unpaid, computed from the
date such payment was due to and including the date of payment.
ARTICLE 19. NO REPRESENTATIONS BY LANDLORD
Landlord and Landlord's agents have made no warranties,
representations, statements or promises with respect to (a) the rentable and
usable areas of the Premises or the Building, (b) the amount of any current or
future Labor Rates or Taxes, (c) the compliance with applicable Requirements of
the Premises or the Building, or (d) the suitability of the Premises for any
particular use or purpose. No rights, easements or licenses are acquired by
Tenant under this Lease, by implication or otherwise, except as expressly set
forth herein. This Lease (including any Exhibits referred to herein and all
supplementary agreements provided for herein) contains the entire agreement
between the parties and all understandings and agreements previously made
between Landlord and Tenant are merged in this Lease, which alone fully and
completely expresses their agreement. Tenant is entering into this Lease after
full investigation, and is not relying upon any statement or representation made
by Landlord not embodied in this Lease.
ARTICLE 20. END OF TERM
SECTION 20.1 Upon the Expiration Date or other termination of
this Lease, Tenant shall quit and surrender to Landlord the Premises, vacant,
broom clean, in good order and condition, ordinary wear and tear and damage for
which Tenant is not responsible under the terms of this Lease excepted, and
Tenant shall remove all of Tenant's Property in accordance with the provisions
of Section 3.3, and this obligation shall survive the expiration or sooner
termination of the Term. If the last day of the Term or any renewal thereof
falls on Saturday or Sunday, this Lease shall expire on the Business Day
immediately preceding. Tenant expressly waives, for itself and for any Person
claiming through or under Tenant, any rights which Tenant or any such Person may
have under the provisions of Section 2201 of the New York Civil Practice Law and
Rules and of any successor law of like import then in force in connection with
any holdover summary proceedings which Landlord may institute to enforce the
foregoing provisions of this Article 20.
SECTION 20.2 Tenant acknowledges that Tenant or any subtenant
of Tenant remaining in possession of the Premises after the expiration or
earlier termination of this Lease would create an unusual hardship for Landlord
and for any prospective tenant. Tenant, therefore, covenants that if for any
reason Tenant or any subtenant of Tenant shall fail to vacate and surrender
possession of the Premises or any part thereof on or before the expiration or
earlier termination of this Lease and the Term, then Tenant's continued
possession of the Premises shall be as a "month-to-month" tenant, during which
time, without prejudice and in addition to any other rights and remedies
Landlord may have hereunder or at law, Tenant shall pay to Landlord for each
month and for each portion of any month during which Tenant holds over, an
amount equal to: (a) one hundred twenty-five percent (125%) of the total monthly
amount of Fixed Rent and Additional Rent payable hereunder immediately prior to
such termination (the "Existing Rent") for the first thirty (30) days during
which Tenant holds over, (b) one hundred fifty percent (150%) of the Existing
Rent for the next thirty (30) days during which Tenant holds over, and (c) two
hundred percent (200%) of the Existing Rent thereafter. The provisions of this
Section 20.2 shall not in any way be deemed to (a) permit Tenant to remain in
possession of the Premises after
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the Expiration Date or sooner termination of this Lease or (b) imply any right
of Tenant to use or occupy the Premises upon expiration or termination of this
Lease and the Term, and no acceptance by Landlord of payments from Tenant after
the Expiration Date or sooner termination of the Term shall be deemed to be
other than on account of the amount to be paid by Tenant in accordance with the
provisions of this Article 20. Tenant's obligations under this Article shall
survive the expiration or earlier termination of this Lease.
ARTICLE 21. QUIET ENJOYMENT
Provided no Event of Default has occurred and is continuing,
Tenant may peaceably and quietly enjoy the Premises without hindrance by
Landlord or any Person lawfully claiming through or under Landlord, subject,
nevertheless, to the terms and conditions of this Lease.
ARTICLE 22. NO WAIVER; NON-LIABILITY
SECTION 22.1 No act or thing done by Landlord or Landlord's
agents during the Term shall be deemed an acceptance of a surrender of the
Premises, and no agreement to accept such surrender shall be valid unless in
writing and signed by Landlord. No employee of Landlord or of Landlord's agents
shall have any power to accept the keys of the Premises prior to the termination
of this Lease. The delivery of keys to any employee of Landlord or of Landlord's
agents shall not operate as a termination of this Lease or a surrender of the
Premises. Any Building employee to whom any property shall be entrusted by or on
behalf of Tenant shall be deemed to be acting as Tenant's agent with respect to
such property and neither Landlord nor its agents shall be liable for any damage
to property of Tenant or of others entrusted to employees of the Building, nor
for the loss of or damage to any property of Tenant by theft or otherwise.
SECTION 22.2 The failure of Landlord to seek redress for
violation of, or to insist upon the strict performance of, any covenant or
condition of this Lease, or any of the Rules and Regulations set forth or
hereafter adopted by Landlord, shall not prevent a subsequent act, which would
have originally constituted a violation, from having all of the force and effect
of an original violation. The receipt by Landlord of Fixed Rent and/or
Additional 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, or hereafter adopted, against Tenant or any
other tenant in the Building shall not be deemed a waiver of any such Rules and
Regulations. Landlord shall not enforce the Rules and Regulations against Tenant
in a discriminatory manner. No provision of this Lease shall be deemed to have
been waived by Landlord, unless such waiver be in writing signed by Landlord. No
payment by Tenant or receipt by Landlord of a lesser amount than the monthly
Fixed Rent or any Additional Rent shall be deemed to be other than on account of
the next installment of Fixed Rent or Additional Rent, as the case may be, or as
Landlord may elect to apply same, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as Fixed Rent or
Additional 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 Fixed Rent or Additional Rent or pursue any other remedy in this
Lease provided. Any executory agreement hereafter made shall be ineffective to
change, modify, discharge or effect an abandonment of this Lease in whole or in
part unless such executory agreement is in writing and
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signed by the party against whom enforcement of the change, modification,
discharge or abandonment is sought. All references in this Lease to the consent
or approval of Landlord shall be deemed to mean the written consent or approval
of Landlord and no consent or approval of Landlord shall be effective for any
purpose unless such consent or approval is set forth in a written instrument
executed by Landlord.
SECTION 22.3 (a) Neither Landlord nor its agents shall be liable
for any injury or damage to persons or property or interruption of Tenant's
business 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; nor shall Landlord or its agents be liable for any such damage caused by
other tenants or persons in the Building or caused by construction of any
private, public or quasi-public work; nor shall Landlord be liable for any
latent defect in the Premises or in the Building (except that Landlord shall be
required to repair the same to the extent provided in Article 5). Nothing in the
foregoing shall affect any right of Landlord to the indemnity from Tenant to
which Landlord may be entitled under Article 28 in order to recoup for payments
made to compensate for losses of third parties.
(b) If, at any time or from time to time, any windows of the
Premises are temporarily closed, darkened or bricked-up for any reason
whatsoever, or any of such windows are permanently closed, darkened or
bricked-up if required by any Legal Requirement or related to any construction
upon property adjacent to the Real Property by parties other than Landlord,
Landlord shall not be liable for any damage Tenant may sustain thereby and
Tenant shall not be entitled to any compensation therefor nor abatement of Fixed
Rent or Additional Rent nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction or constructive eviction of Tenant from the
Premises.
ARTICLE 23. WAIVER OF TRIAL BY JURY
The respective parties hereto shall and they hereby do waive
trial by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other (except for personal injury or property damage)
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
Premises, or for the enforcement of any remedy under any statute, emergency or
otherwise. If Landlord commences any summary proceeding against Tenant, Tenant
will not interpose any counterclaim of whatever nature or description in any
such proceeding (unless failure to impose such counterclaim would preclude
Tenant from asserting in a separate action the claim which is the subject of
such counterclaim), and will not seek to consolidate such proceeding with any
other action which may have been or will be brought in any other court by
Tenant.
ARTICLE 24. INABILITY TO PERFORM
This Lease and the obligation of Tenant to pay Fixed Rent and
Additional Rent hereunder and perform all of the other covenants and agreements
hereunder on the part of Tenant to be performed will not be affected, impaired
or excused because Landlord is unable to fulfill any of its obligations under
this Lease expressly or impliedly to be performed by Landlord
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or because Landlord is unable to make, or is delayed in making any repairs,
additions, alterations, improvements or decorations or is unable to supply or is
delayed in supplying any equipment or fixtures, if Landlord is prevented or
delayed from so doing by reason of strikes or labor troubles or by accident, or
by any cause whatsoever reasonably beyond Landlord's control, including laws,
governmental preemption in connection with a national emergency or by reason of
any Legal Requirements or by reason of the conditions of supply and demand which
have been or are affected by war or other emergency ("Unavoidable Delays").
ARTICLE 25. BILLS AND NOTICES
Except as otherwise expressly provided in this Lease, any bills,
statements, consents, notices, demands, requests or other communications given
or required to be given under this Lease shall be in writing and shall be deemed
sufficiently given or rendered if delivered by hand (against a signed receipt),
sent by a nationally recognized overnight courier service, or sent by registered
or certified mail (return receipt requested) and addressed:
if to Tenant, (a) at Tenant's address set forth on page 1 of
this Lease, or (b) at any place where Tenant or any agent or employee or
Tenant may be found if mailed subsequent to Tenant's abandoning or
surrendering the Premises, with a copies to (i) Tenant at the Premises,
and (ii) McPharlin, Sprinkles & Xxxxxx LLP, Xxx Xxxxxxx Xxxxxxxxx, Xxxxx
0000 Xxx Xxxx, Xxxxxxxxxx 00000, Attention: N. Xxxx Xxxxxx, Esq.; or
if to Landlord, as follows: 000 Xxxxxx Xxxxxx LLC, c/o Taconic
Investment Partners LLC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xx. Xxxx Xxxxxxx, with a copy to: Xxxxxxx Xxxx & Xxxxx LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxx,
Esq.
Any such xxxx, statement, consent, notice, demand, request or other
communication given as provided in this Article 25 shall be deemed to have been
rendered or given (i) on the date when it shall have been hand delivered, (ii)
three (3) Business Days from the date when it shall have been mailed, or (iii)
one (1) Business Day from the date when it shall have been sent by overnight
courier service.
ARTICLE 26. RULES AND REGULATIONS
Landlord reserves the right, from time to time, to adopt
additional reasonable and non-discriminatory Rules and Regulations and to amend
the Rules and Regulations then in effect. Tenant and Tenant's contractors,
employees, agents, and licensees shall comply with the Rules and Regulations, as
so supplemented or amended. Nothing contained in this Lease shall be construed
to impose upon Landlord any duty or obligation to enforce the Rules and
Regulations or terms, covenants or conditions in any other lease against any
other tenant, and Landlord shall not be liable to Tenant for violation of the
same by any other tenant, its employees, agents, visitors or licensees. If there
shall be any inconsistencies between this Lease and the Rules and Regulations,
the provisions of this Lease shall prevail.
ARTICLE 27. BROKER
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SECTION 27.1 Each of Landlord and Tenant represents and warrants
to the other that it has not dealt with any broker in connection with this Lease
other than Insignia/Xxxxxx X. Xxxxxx Company, Inc., as Landlord's agent, and
Xxxxxxx Xxxxxxx Partners, as Tenant's broker (collectively, "Broker") and that
to the best of its knowledge and belief, no other broker, finder or similar
Person procured or negotiated this Lease or is entitled to any fee or commission
in connection herewith.
SECTION 27.2 Each of Landlord and Tenant shall indemnify, defend,
protect and hold the other party harmless from and against any and all losses,
liabilities, damages, claims, judgments, fines, suits, demands, costs, interest
and expenses of any kind or nature (including reasonable attorneys' fees and
disbursements) which the indemnified party may incur by reason of any claim of
or liability to any broker, finder or like agent (other than Broker) arising out
of any dealings claimed to have occurred between the indemnifying party and the
claimant in connection with this Lease, or the above representation being false.
The provisions of this Article 27 shall survive the expiration or earlier
termination of the Term of this Lease.
ARTICLE 28. INDEMNITY
SECTION 28.1 (a) Tenant shall not do or permit any act or thing
to be done upon the Premises which may subject Landlord to any liability or
responsibility for injury, damages to persons or property or to any liability by
reason of any violation of law or of any Legal Requirement, but shall exercise
such control over the Premises as to fully protect Landlord against any such
liability. Tenant shall defend, indemnify and save harmless Landlord from and
against (i) all claims of whatever nature against Landlord arising from any act,
omission or negligence of Tenant, its contractors, licensees, agents, servants,
employees, invitees or visitors, (ii) all claims against Landlord arising from
any accident, injury or damage whatsoever caused to any person or to the
property of any person and occurring during the Term in the Premises, (iii) all
claims against Landlord arising from any accident, injury or damage occurring
outside of the Premises but anywhere within or about the Real Property, where
such accident, injury or damage results or is claimed to have resulted from an
act, omission or negligence of Tenant or Tenant's agents, employees, and (iv)
any breach, violation or nonperformance of any covenant, condition or agreement
in this Lease set forth and contained on the part of Tenant to be fulfilled,
kept, observed and performed. This indemnity and hold harmless agreement shall
include indemnity from and against any and all liability, fines, suits, demands,
costs and expenses of any kind or nature (including attorneys' fees and
disbursements) incurred in or in connection with any such claim or proceeding
brought thereon, and the defense thereof.
(b) Subject to Section 10.2, Landlord shall indemnify, defend
and hold harmless Tenant and all Tenant Parties from and against all claims
against Tenant or any Tenant Party arising from any accident, injury or damage
whatsoever caused to any person or the property of any person in or about the
common or public areas of the Building for which Tenant shall not be liable in
accordance with Section 28.1(a) above (specifically excluding the Premises).
This indemnity and hold harmless agreement shall include indemnity from and
against any and all liability, fines, suits, demands, costs and expenses of any
kind or nature (including attorneys' fees and disbursements) incurred in or in
connection with any such claim or proceeding brought thereon, and the defense
thereof.
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SECTION 28.2 Tenant agrees to defend, indemnify and hold harmless
Landlord and any partner, shareholder, director, officer, principal, employee or
agent, directly and indirectly, of Landlord, from and against all obligations
(including removal and remedial actions), losses, claims, suits, judgments,
liabilities, penalties, damages (including consequential and punitive damages),
costs and expenses (including attorneys' and consultants' fees and expenses) of
any kind or nature whatsoever that may at any time be incurred by, imposed on or
asserted against Landlord or any such party directly or indirectly based on, or
arising or resulting from (a) the actual or alleged presence of Hazardous
Materials on the Premises or in the Building which is caused or permitted by
Tenant, and (b) any Environmental Claim arising from Tenant's operation or use
of the Premises or the Building. The provisions of this Section 28.2 shall
survive the expiration or sooner termination of this Lease.
ARTICLE 29. SECURITY DEPOSIT
SECTION 29.1 Tenant has deposited with Landlord the sum of One
Million and 00/100 Dollars ($1,000,000.00) as security for the full and faithful
performance of every provision of this Lease to be performed by Tenant (all or
any part of such amount, the "Security Deposit"). If an Event of Default shall
have occurred with respect to any provision of this Lease, including but not
limited to the provisions relating to the payment of Fixed Rent and Additional
Rent, Landlord may use, apply or retain all or any part of this Security Deposit
for the payment of any Fixed or Additional Rent or any other sum in default or
for the payment of any other amount which Landlord may spend or become obligated
to spend by reason of such Event of Default, or to compensate Landlord for any
other loss, cost or damage which Landlord may suffer by reason of such Event of
Default. Landlord shall give Tenant notice contemporaneously with such use or
application of any portion of the Security Deposit. Tenant shall, within five
(5) days after the giving of such notice, deposit with Landlord cash in an
amount sufficient to restore the Security Deposit to the amount then required
pursuant to the terms of this Article 29 (Tenant's obligation to make such
payment shall be deemed a requirement that Tenant pay an item of Additional
Rent) and Tenant's failure to do so shall be a breach of this Lease. Landlord
shall not, unless otherwise required by Legal Requirements, pay interest to
Tenant on the Security Deposit, and if Landlord is required to maintain the
Security Deposit in an interest bearing account, Landlord will retain the
maximum amount permitted under Legal Requirements as a bookkeeping and
administrative charge. Tenant shall not assign or encumber any part of the
Security Deposit, and no assignment or encumbrance by Tenant of all of any part
of the Security Deposit shall be binding upon Landlord, whether made prior to,
during, or after the Term. Landlord shall not be required to exhaust its
remedies against Tenant or against the Security Deposit before having recourse
to any other form of security held by Landlord and recourse by Landlord to any
Security Deposit shall not affect any remedies of Landlord which are provided in
this Lease or which are available to Landlord in law or in equity. If Tenant
shall fully and faithfully perform every covenant and provision of this Lease to
be performed and observed by Tenant, the Security Deposit or any balance thereof
shall be returned to Tenant reasonably promptly after the expiration or sooner
termination (other than a termination pursuant to Article 16) of the Term and
Tenant's surrender to Landlord of the Premises. In the event the Building is
sold, Landlord shall transfer the Security Deposit to the new owner and Landlord
shall thereupon be released by Tenant from all liability for the return of said
Security Deposit; and Tenant agrees to look to the new owner solely for the
return of the Security Deposit. A lease of the entire Building shall be
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deemed a transfer within the meaning of the foregoing sentence. Landlord shall
use reasonable efforts to notify or cause Tenant to be notified in the event of
any transfer of the Building.
SECTION 29.2 In lieu of a cash deposit, Tenant may deliver to
Landlord a clean, irrevocable, non-documentary and unconditional Letter of
Credit issued by and drawn upon any commercial bank, trust company, national
banking association or savings and loan association having offices for banking
purposes in the City of New York and which is a member of the New York
Clearinghouse Association (the "Issuing Bank") and which (or the parent company
of which) shall have outstanding unsecured, uninsured and unguaranteed
indebtedness, or shall have issued a letter of credit or other credit facility
that constitutes the primary security for any outstanding indebtedness (which is
otherwise uninsured and unguaranteed), that is then rated, without regard to
qualification of such rating by symbols such as "+" or "-" or numerical
notation, "Aa" or better by Xxxxx'x Investors Service and "AA" or better by
Standard & Poor's Corporation, and has combined capital, surplus and undivided
profits of not less than $500,000,000.00, which Letter of Credit shall have a
term of not less than one year, be in form and content satisfactory to Landlord
(and substantially as shown on Exhibit D attached hereto and made a part
hereof), be for the account of Landlord, be in the amount of the Security
Deposit then required to be deposited hereunder, and be fully transferable by
Landlord to successor owners of the Building without the payment of any fees or
charges, it being agreed that if any such fees or charges shall be so imposed,
then such fees or charges, shall be paid by Tenant. The Letter of Credit shall
provide that it shall be deemed automatically renewed, without amendment, for
consecutive periods of one year each thereafter during the term of this Lease,
unless the Issuing Bank sends notice (the "Non-Renewal Notice") to Landlord by
certified mail, return receipt requested, not less than thirty (30) days next
preceding the then expiration date of the Letter of Credit that it elects not to
have such Letter of Credit renewed. Additionally, the Letter of Credit shall
provide that Landlord shall have the right, exercisable within twenty (20) days
of its receipt of the Non-Renewal Notice, by sight draft on the Issuing Bank, to
receive the monies represented by the existing Letter of Credit and to hold such
proceeds pursuant to the terms of this Section 29.2 as a cash security pending
the replacement of such Letter of Credit. If an Event of Default shall have
occurred and be continuing with respect to any provision of this Lease,
including but not limited to the provisions relating to the payment of Fixed
Rent and Additional Rent, Landlord may apply or retain the whole or any part of
the cash security so deposited or may notify the Issuing Bank and thereupon
receive all the monies represented by the Letter of Credit and use, apply, or
retain the whole or any part of such proceeds, as provided in this Section 29.2.
Any portion of the cash proceeds of the Letter of Credit not so used or applied
by Landlord in satisfaction of the obligations of Tenant as to which such Event
of Default shall have occurred shall be deposited by Landlord and retained in an
interest-bearing account as provided in Section 29.1. If Landlord applies or
retains any part of the cash security or proceeds of the Letter of Credit, as
the case may be, Tenant shall, within five (5) days after written demand
therefor, deposit with Landlord the amount so applied or retained so that
Landlord shall have the full Security Deposit required pursuant to Section 29.1
on hand at all times during the Term. If Tenant shall fully and faithfully
comply with all of the terms, provisions, covenants and conditions of this
Lease, the Letter of Credit shall be returned to Tenant after the Expiration
Date and after delivery of possession of the Premises to Landlord. In the event
of a sale of Landlord's interest in the Premises, within thirty (30) days of
notice of such sale or leasing, Tenant, at Tenant's sole cost and expense, shall
arrange for the transfer of the Letter of Credit to the new
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landlord, as designated by Landlord, or have the Letter of Credit reissued in
the name of the new landlord and Landlord shall thereupon be released by Tenant
from all liability for the return of the Letter of Credit; provided, however,
that if the Letter of Credit is reissued, Landlord shall return the original
Letter of Credit issued in Landlord's name to Tenant.
SECTION 29.3 Notwithstanding anything set forth in this Article
29 to the contrary, if at any time during the Term Tenant shall provide
reasonable evidence to Landlord that Tenant's audited net worth, computed in
accordance with generally accepted accounting principles, shall then exceed (and
shall have exceeded, for a period of twelve (12) consecutive months prior to
such date) Fifty Million Dollars ($50,000,000), then Landlord shall refund the
Security Deposit or return the Letter of Credit to Tenant, as applicable.
ARTICLE 30. RENEWAL OPTION
SECTION 30.1 Tenant shall have the right, at its option (the
"Renewal Option"), to renew the initial term of this Lease, for the entire
Premises, for a renewal term (the "Renewal Term") commencing on the day
following the Expiration Date (the "Renewal Term Commencement Date") and
expiring on the fifth (5th) anniversary of the Expiration Date (the "Extended
Expiration Date"). Tenant shall have no right to exercise the Renewal Option
unless all of the following conditions have been satisfied on the date of the
Renewal Notice (as defined below) and on the Renewal Term Commencement Date:
(a) No Event of Default shall have occurred and be continuing
under this Lease; and
(b) The named Tenant hereunder (or a permitted assignee,
sublessee, successor or transferee pursuant to Section 13.11, but not
any other assignee or successor tenant), its subsidiaries or affiliates
shall occupy not less than seventy-five percent (75%) of the
then-existing Premises Area.
SECTION 30.2 If Tenant elects to renew this Lease for the Renewal
Term, Tenant shall exercise such option by sending to Landlord written notice
thereof (the "Renewal Notice"), by certified mail, return receipt requested, not
less than twelve (12) months prior to the Expiration Date, and time shall be of
the essence with respect to the giving of the Renewal Notice. If Tenant shall
send the Renewal Notice within the time and in the manner herein provided, this
Lease shall be deemed renewed for the Renewal Term upon the terms, covenants and
conditions contained in this Lease, with the exception of Fixed Rent.
SECTION 30.3 Fixed Rent for the Renewal Term shall be determined
as of the date of the Renewal Notice and shall be ninety-five percent (95%) of
the annual fair market value of the Premises for the Renewal Term (the "FMV"),
determined in accordance with Section 30.4 of this Lease. During the Renewal
Term, Tenant shall pay Tenant's Tax Payment and Tenant's Labor Rate Payment in
accordance with the provisions of Article 6, except that (i) the Base Tax Year
shall be the Tax Year commencing on the July 1st immediately preceding the
Renewal Term Commencement Date, (ii) the Base Labor Year shall be the Comparison
Year commencing on the January 1st immediately preceding the Renewal Term
Commencement Date.
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SECTION 30.4 Within twenty (20) days after the giving by Tenant
of a Renewal Notice, Landlord will notify Tenant of the amount of the Fixed Rent
for the Renewal Term (the "Rental Notice"), which Rental Notice shall set forth
Landlord's calculation of 95% of the FMV for the Premises.
SECTION 30.5 (a) If Tenant shall dispute Landlord's calculation
of the FMV as set forth in the Rental Notice, such dispute shall be submitted to
arbitration and shall be determined by a single arbitrator appointed in
accordance with the American Arbitration Association Real Estate Valuation
Arbitration Proceeding Rules. Such arbitrator shall be impartial and shall have
not less than ten (10) years' experience in the New York metropolitan area in a
calling related to the leasing of commercial space in buildings comparable to
the Building, and the fees of such arbitrator shall be shared by Landlord and
Tenant.
(b) Within fifteen (15) days following the appointment of such
arbitrator, each party shall attend a hearing before such arbitrator wherein
each party shall submit a report setting forth its determination of the FMV,
together with such information on comparable rentals, or such other evidence, as
such party shall deem relevant.
(c) The arbitrator shall, within fifteen (15) days following such
hearing and submission of evidence, render his or her decision by selecting the
determination of FMV submitted by either Landlord or Tenant which, in the
judgment of the arbitrator, most nearly reflects the FMV of the Premises for the
Renewal Term. It is expressly understood that the decision of such arbitrator
shall be final and binding upon the parties hereto.
(d) For purposes of the determination of the FMV, the Premises
shall be considered in their "as is" condition, but Landlord or the arbitrator
shall take into account the availability of all Building services then serving
or available to serve the Premises. Additionally, Landlord or such arbitrator
shall take into account the then current rentals or occupancy fees which
Landlord shall then be receiving for the renting of or granting of use or
occupancy rights for comparable office space in the Building for the Permitted
Use, taking into account rent concessions, abatement periods and construction
allowances then being granted for comparable space. The determination of the FMV
for the Renewal Term shall be based on the assumptions and criteria stated in
this Article 30, and the arbitrator shall not have the power to add to, modify
or change any of the provisions of this Lease.
(e) After a determination has been made of the FMV for the
Renewal Term, the parties shall execute and deliver to each other an agreement
setting forth the Fixed Rent therefor as hereinabove determined.
(f) If the final determination of Fixed Rent for the Renewal
Term shall not be made on or before the Renewal Term Commencement Date in
accordance with the provisions of this Article 30, then pending such final
determination, Tenant shall pay as the Fixed Rent for the Premises the amount of
Fixed Rent as set forth by Landlord in the Rental Notice. If, based upon the
final determination of Fixed Rent as provided herein, the payments made by
Tenant on account of Fixed Rent were (i) less than the Fixed Rent as finally
determined in accordance with the provisions hereof, Tenant shall pay to
Landlord the amount of such deficiency within ten (10) days after demand
therefor, or (ii) greater than the Fixed Rent as finally determined in
accordance
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with the provisions hereof, Landlord shall, at Landlord's option, either credit
the amount of such excess against the next installments of Fixed Rent due under
this Lease, or refund the amount of such excess to Tenant.
ARTICLE 31. [INTENTIONALLY OMITTED].
ARTICLE 32. MISCELLANEOUS
SECTION 32.1 (a) The obligations of Landlord under this Lease
shall not be binding upon Landlord named herein after the sale, conveyance,
assignment or transfer by such Landlord (or upon any subsequent landlord after
the sale, conveyance, assignment or transfer by such subsequent landlord) of its
interest in the Building or the Real Property, as the case may be, and in the
event of any such sale, conveyance, assignment or transfer, Landlord shall be
and hereby is entirely freed and relieved of all covenants and obligations of
Landlord hereunder, and the transferee of Landlord's interest in the Building or
the Real Property, as the case may be, shall be deemed to have assumed all
obligations under this Lease, including claims accrued prior to such sale,
conveyance, assignment or transfer. Prior to any such sale, conveyance,
assignment or transfer, the liability of Landlord for Landlord's obligations
under this Lease shall be limited to Landlord's interest in the Real Property
and Tenant shall not look to any other property or assets of Landlord or the
property or assets of any of the Exculpated Parties (defined below) in seeking
either to enforce Landlord's obligations under this Lease or to satisfy a
judgment for Landlord's failure to perform such obligations.
(b) Notwithstanding anything contained herein to the contrary,
Tenant shall look solely to Landlord to enforce Landlord's obligations hereunder
and no partner, shareholder, director, officer, principal, employee or agent,
directly and indirectly, of Landlord (collectively, the "Exculpated Parties")
shall be personally liable for the performance of Landlord's obligations under
this Lease. Tenant shall not seek any damages against any of the Exculpated
Parties.
SECTION 32.2 Tenant may, upon notice to, without the prior
written consent of Landlord, subject Tenant's Property and all of Tenant's other
personal property, equipment and trade fixtures, to a security agreement (but
not a leasehold mortgage) to secure financing or other obligations which Tenant
may obtain or incur. Following an Event of Default hereunder, Landlord shall
exercise its remedies under this Lease, and shall provide Tenant's lender(s)
with a reasonable opportunity to enter upon the Premises for the purpose of
removing any property of Tenant which has been pledged as collateral to Tenant's
lender(s) or which has been subjected to any such security agreement, provided,
however that such lender shall be subject to the terms and provisions of this
Lease and the Rules and Regulations which apply to Tenant with respect to the
removal of Tenant's Property.
SECTION 32.3 Wherever in this Lease Landlord's consent or
approval is required, if Landlord shall refuse such consent or approval, Tenant
in no event shall be entitled to make, nor shall Tenant make, any claim, and
Tenant hereby waives any claim, for money damages (nor shall Tenant claim any
money damages by way of set-off, counterclaim or defense) based upon any claim
or assertion by Tenant that Landlord unreasonably withheld or unreasonably
delayed its consent or approval. Tenant's sole remedy shall be an action or
proceeding to enforce any such provision, for specific performance, injunction
or declaratory judgment.
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SECTION 32.4 (a) All of the Exhibits attached to this Lease are
incorporated in and made a part of this Lease, but, in the event of any
inconsistency between the terms and provisions of this Lease and the terms and
provisions of the Exhibits hereto, the terms and provisions of this Lease shall
control. This Lease may not be changed, modified, terminated or discharged, in
whole or in part, except by a writing, executed by the party against whom
enforcement of the change, modification, termination or discharge is to be
sought. Wherever appropriate in this Lease, personal pronouns shall be deemed to
include the other genders and the singular to include the plural. The captions
hereof 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. All Article and Section references set forth herein shall,
unless the context otherwise specifically requires, be deemed references to the
Articles and Sections of this Lease. Whenever the words "include", "includes",
or "including" are used in this Lease, they shall be deemed to be followed by
the words "without limitation".
(b) This Lease shall be governed in all respects by the laws of
the State of New York applicable to agreements executed in and to be performed
wholly within said State.
(c) If any term, covenant, condition or provision of this Lease,
or the application thereof to any person or circumstance, shall ever be held to
be invalid or unenforceable, then in each such event the remainder of this Lease
or the application of such term, covenant, condition or provision to any other
person or any other circumstance (other than those as to which it shall be
invalid or unenforceable) shall not be thereby affected, and each term,
covenant, condition and provision hereof shall remain valid and enforceable to
the fullest extent permitted by law.
(d) If at the commencement of, or at any time or times during the
Term of this Lease, the Fixed Rent and Additional Rent reserved in this Lease
shall not be fully collectible by reason of any Legal Requirement, Tenant shall
enter into such agreements and take such other steps (without additional expense
to Tenant) as Landlord may request and as may be legally permissible to permit
Landlord to collect the maximum rents which may from time to time during the
continuance of such legal rent restriction be legally permissible (and not in
excess of the amounts reserved therefor under this Lease). Upon the termination
of such legal rent restriction prior to the expiration of the Term, (i) Fixed
Rent and Additional Rent shall become and thereafter be payable hereunder in
accordance with the amounts reserved in this Lease for the periods following
such termination, and (ii) Tenant shall pay to Landlord, if legally permissible,
an amount equal to (A) the items of Fixed Rent and Additional Rent which would
have been paid pursuant to this Lease but for such legal rent restriction less
(B) the rents paid by Tenant to Landlord during the period or periods such legal
rent restriction was in effect.
(e) The covenants, conditions and agreements contained in this
Lease shall bind and inure to the benefit of Landlord and Tenant and their
respective legal representatives, successors, and, except as otherwise provided
in this Lease, their assigns.
SECTION 32.5 Except as expressly provided to the contrary in
this Lease, Tenant agrees that all disputes arising, directly or indirectly, out
of or relating to this Lease, and all actions to enforce this Lease, shall be
dealt with and adjudicated in the state courts of New York or the Federal courts
sitting in New York City; and for that purpose hereby expressly and
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irrevocably submits itself to the jurisdiction of such courts. Tenant hereby
irrevocably appoints the Secretary of the State of New York as its authorized
agent upon which process may be served in any such action or proceeding.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Landlord and Tenant have respectively
executed this Lease as of the day and year first above written.
000 XXXXXX XXXXXX XXX, Xxxxxxxx
By: Taconic Investment Partners LLC,
Authorized Signatory
By: ________________________________
Name:
Title:
ABOVENET COMMUNICATIONS, INC., Tenant
By: ________________________________
Name:
Title:
Tenant's Federal Tax Identification Number:
--------------------------
62
EXHIBIT A
FLOOR PLANS OF THE PREMISES
The floor plans which follow are intended solely to identify the general outline
of the Premises, and should not be used for any other purpose. All areas,
dimensions and locations are approximate, and any physical conditions indicated
may not exist as shown.
63
EXHIBIT B
RULES AND REGULATIONS
1. The sidewalks, entrances, 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 Premises.
2. No awnings, air-conditioning units, fans or other projections
shall be attached to the outside walls of the Building. No curtains, blinds,
shades, or screens shall be attached to or hung in, or used in connection with,
any exterior window or entry door of the Premises, without the prior written
consent of Landlord. Such awnings, projections, curtains, blinds, shades,
screens or other fixtures must be of a quality, type, design and color, and
attached in the manner approved by Landlord. All electrical fixtures hung in
offices or spaces along the perimeter of the demised premises must be
fluorescent, of a quality, type, design and bulb color approved 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
Building without the prior written consent of Landlord except that the name of
Tenant may appear on the entrance door of the Premises. In the event of the
violation of the foregoing by 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. Interior signs on doors and directory tablets shall
be inscribed, painted or affixed for each Tenant by Landlord at the expense of
such Tenant, and shall be of a size, color and style acceptable to Landlord.
Landlord will provide directory listings in the directory maintained by Landlord
in the lobby of the Building for Tenant and each partner and professional
employee of Tenant, not to exceed six (6) such listings.
4. The sashes, sash doors, skylights, windows, 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 windowsills.
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 halls,
corridors or vestibules without the prior written consent of Landlord.
6. 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, acids or other substances shall be deposited
therein. All damages resulting from any misuse of the fixtures shall be borne by
the Tenant who, or whose servants, employees, agents, visitors or licensees,
shall have caused the same.
7. No space in the Building shall be used for manufacturing, for
the storage of merchandise, or for the storage of merchandise, or for the sale
of merchandise, goods or property of any kind at auction or otherwise.
8. No Tenant shall make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them whether by the use of
any musical instrument, radio, television, stereo system, 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.
9. No Tenant, or any of Tenant's servants, employees, agents,
visitors or licensees, shall at any time bring or keep upon the Premises any
inflammable, combustible or explosive fluid, chemical or substance.
10. Each Tenant must, upon the termination of its tenancy, return
to 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.
11. All removals, or the carrying in or out of any safes,
freight, furniture or bulky matter of any description must take place in the
manner and during the hours which Landlord or its agent may determine from
64
time to time. Landlord reserves the right to inspect all safes, freight or other
bulky articles to be brought into the Building and to exclude from the Building
all safes, freight or other bulky articles which violate any of these Rules and
Regulations or the lease of which these Rules and Regulations are a part.
Landlord shall have the exclusive right to prescribe the hours of operation of
the freight elevator and Tenant shall pay, as Additional Rent Landlord's
standard fee for operating the freight elevator after normal hours. No bicycles,
vehicles, animals, birds or fish of any kind shall be brought into or kept by
any Tenant in or about the Premises or the Building.
12. 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 public
typist, or for the possession, storage, manufacture, or sale of narcotics, dope,
tobacco in any form, or as a xxxxxx or manicure shop, or as an employment
bureau. No Tenant shall engage or pay any employees on the Premises, except
those actually working for such Tenant on the Premises, nor advertise for labor
giving an address at the Premises.
13. No Tenant shall purchase spring water, ice, towels or other
like service from any company or persons not approved by Landlord.
14. Landlord shall have the right to prohibit any advertising by
any Tenant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as a building for offices, and upon written notice
from Landlord, Tenant shall refrain from or discontinue such advertising.
15. Landlord reserves the right to exclude from the Building
between the hours of 6 P.M. and 8 A.M. and at all hours on Sundays and legal
holidays all persons who do not present a pass to the Building signed by
Landlord. Landlord will furnish passes to persons for whom any Tenant requests
the same in writing. Each Tenant shall be responsible for all persons for whom
it requests such pass and shall be liable to Landlord for all acts of such
persons.
16. Each Tenant shall, at its expense, provide artificial light
for the employees of Landlord while doing janitor service or other cleaning, and
in making repairs or alterations in the Premises.
17. The requirements of Tenants will be attended to only upon
written application at the office of the Building. Employees shall not perform
any work or do anything outside of the regular duties, unless under special
instructions from the office of Landlord.
18. Canvassing, soliciting and peddling in the Building is
prohibited and each Tenant shall co-operate to prevent the same.
19. There shall not be used in any space, or in the public halls
of the Building, either by any Tenant or by jobbers or others, in the delivery
or receipt of merchandise, any hand trucks, except those equipped with rubber
tires and side guards.
20. Tenant shall not do any cooking, conduct any restaurant,
luncheonette or cafeteria for the sale or service of food or beverages to its
employees or to others, or cause or permit any orders of cooking or other
processes or any unusual or objectionable odors to emanate from the demised
premises. Tenant shall not install or permit the installation or use of any
food, beverage, cigarette, cigar or stamp dispensing machine; or permit the
delivery of any food or beverage to the Premises, except by such persons
delivering the same as shall be approved by Landlord.
21. If there shall be any inconsistencies between the text of
this Lease and these Rules and Regulations, the provisions of the Lease shall
prevail.
65
EXHIBIT C
APPROVED CONTRACTORS
-------------------------------------------------------------------------------
CONSTRUCTION VENDOR LIST
-------------------------------------------------------------------------------
Xx. Xxxxx Xxxxxx Mr. Al Hot
President President
X.X. XXXXXX CONSTRUCTION CO., INC. FAST TRACK CONSTRUCTION
00 Xxxxx Xxxxxx 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000 New York, N.Y. 10001
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Xx. Xxxxxxx Xxxxxxxx Xxxxxxxxxxx X. Xxxxxx
Executive Vice President XXXX XXXXXX & SONS, INC.
HRH CONSTRUCTION INTERIORS, INC. 00 Xxxx Xxxxxx
Xxx Xxxx Xxxxxx Xxx Xxxx, X.X. 00000
New York, N.Y. 10016 Tel: (000) 000-0000
Tel: (000) 000-0000 Fax: (000) 000-0000
Fax: (000) 000-0000
Xx. Xxxxxx Xxxxx Xx. Xxxxx Xxxx
AMBASSADOR CONSTRUCTION CO., INC. DOMINANT CONSTRUCTION
00 Xxxx 00xx Xxxxxx 523 Rout 00
Xxx Xxxx, X.X. 00000 Xxxxxxxxxx, N.Y. 10962
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Xx. Xxxxx Xxxxxxx Xx. Xxxxxxx X. Xxxxxxx
Vice President XXXXXXX CONSTRUCTION CO., INC.
TISHMAN CONSTRUCTION CORP. 000 Xxxxxx Xxxxxx
000 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, X.X. 00000 New York, N.Y. 10014
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
XXXXX XXXXXXXX BOVIS Xx. Xxxxxx X. Xxxxxxxxx
000 Xxxx Xxxxxx XXX XXXX XXXX BUILDERS GROUP
Xxx Xxxx, X.X. 00000 One Xxxx Xxxxxx, 0xx Xxxxx
Tel: (000) 000-0000 Xxx Xxxx, X.X. 00000
Fax: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000
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Xxxx Xxxxx
WESTSIDE INTERIORS
000 Xxxxxxx Xxxx
Xxxx Xxxxxx, X.X. 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Xxxxxx X. Xxxxx
Regional Manager
GNOME GROUP, INC.
000 0xx Xxxxxx
Xxx Xxxx, X.X. 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
STRUCTURE TONE
Tel:
Fax:
67
EXHIBIT D
FORM OF LETTER OF CREDIT
[LETTERHEAD OF ISSUING BANK]
LETTER OF CREDIT DEPARTMENT
Issue Date: _________ ___, 199_
Our Number: ________________
No.________________________________________
Irrevocable Commercial Letter of Credit
APPLICANT:
Beneficiary: ____________________________
Amount (U.S.): $______________
Expiry: ____________ ___, 19__
Gentlemen:
For the account of Applicant we hereby establish this Irrevocable Letter
of Credit No. _____________________ in your favor for an amount of up to
$_______________ effective immediately, available by your drafts at sight when
accompanied by this Irrevocable Letter of Credit and the following document:
Beneficiary's statement purportedly signed by an officer of
Beneficiary or Beneficiary's authorized managing agent, reading:
"The amount of this drawing under Irrevocable Letter of
Credit No._____________ is being drawn pursuant to Lease dated
__________________ ____ 199_, by and between
______________________, as Landlord, and _________________, as
Tenant.
All drafts must be marked "Drawn under ____________________ Bank,
Irrevocable Letter of Credit No. ____________ dated _____________, 19___."
It is a condition of this Irrevocable Letter of Credit that it shall be
fully transferable by Beneficiary without any fees or charges payable by
Beneficiary in connection therewith.
It is a condition of this Irrevocable Letter of Credit that it shall be
automatically extended for additional periods of one year from the present or
future expiration date, unless at least 30 days prior to such expiration date we
notify you in writing by certified or registered mail, return receipt requested,
at the above address, that we elect not to renew this Irrevocable Letter of
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Credit for such additional period. Upon receipt by you of such notice you may
draw drafts on us at sight for an amount not to exceed the balance remaining in
this Irrevocable Letter of Credit within the then applicable expiry date.
We hereby agree with you that drafts drawn under and in accordance with
the terms of this Irrevocable Letter of Credit will be duly honored by us on
delivery of this Irrevocable Letter of Credit and the document so specified,
when presented at this office.
This credit is subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500; provided, however, that in the event the expiration date
occurs during an interruption of our business of the type described in Article
17 of such publication, then the expiration date shall be deemed to be
automatically extended until the date which shall be five (5) days after the
resumption of our business.
------------------------------
Authorized Signature
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EXHIBIT E
FORM OF EXISTING MORTGAGEE NON-DISTURBANCE AGREEMENT
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT is made and entered into as of January __, 1999, by and
among LASALLE NATIONAL BANK, AS TRUSTEE FOR GS MORTGAGE SECURITIES CORPORATION
II COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 0000-XXXX0 ("Xxxxxx"),
000 XXXXXX XXXXXX LLC ("Landlord"), and ABOVENET COMMUNICATIONS, INC.
("Tenant").
1. RECITALS.
1.1 Mortgage. Lender is the holder of a Promissory Note
dated as of January 14, 1998, in the original principal amount of
$218,000,000.00, of Landlord, which is secured, inter alia, by a Mortgage and
Security Agreement (the "Mortgage") and Assignment of Lease and Rents (the
"Lease Assignment") of even date therewith, covering premises more particularly
described in the Mortgage and in Exhibit A attached hereto and made a part
hereof (the "Premises").
1.2 Lease. Landlord and Tenant entered into a Lease dated as
of January __, 1999 (the "Lease"), whereby Landlord demised to Tenant a portion
of the Premises (the "Demised Premises").
2. CONSIDERATION. The terms of the Lease constitute a
material inducement to Lender's consent thereto and entering into and performing
this Agreement.
3. SUBORDINATION OF THE LEASE. The Lease shall be and is
hereby made subject and subordinate to the Mortgage.
4. NON-DISTURBANCE. Lender shall not, in the exercise of
any right, remedy, or privilege granted by the Mortgage or the Lease Assignment,
or otherwise available to Lender at law or in equity, disturb Tenant's
possession under the Lease so long as:
(a) Tenant is not in default under any provision of the
Lease or this Agreement at the time Lender exercises any such right,
remedy or privilege; and
(b) The Lease at that time is in force and effect according
to its original terms, or with such amendments or modifications as
Lender shall have approved, if such approval is required by the terms of
the Mortgage or the Lease Assignment; and
(c) Tenant thereafter continues to fully and punctually
perform all of its obligations under the Lease without default
thereunder beyond any applicable cure period; and
(d) Tenant attorns to or at the direction of Lender, as
provided in Paragraph 5.
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Without limiting the foregoing, and so long as the foregoing conditions are met,
Lender agrees that (i) Tenant will not be named as a party to any foreclosure or
other proceeding instituted by Lender to enforce the terms of the Mortgage or
the Lease Assignment; (ii) any sale or other transfer of the Demised Premises or
of Landlord's interest in the Lease, pursuant to foreclosure or any voluntary
conveyance or other proceeding in lieu of foreclosure, will be subject and
subordinate to Tenant's possession under the Lease; and (iii) the Lease will
continue in force and effect according to its original terms, or with such
amendments as Lender shall have approved, if such approval is required by the
terms and conditions of the Mortgage or the Lease Assignment.
5. ATTORNMENT. (a) Tenant shall attorn to Lender, to any
receiver or similar official for the Demised Premises appointed at the instance
and request, or with the consent, of Lender and to any person who acquires the
Demised Premises, or the Landlord's interest in the Lease, or both, pursuant to
Lender's exercise of any right, remedy or privilege granted by the Mortgage, or
otherwise at law or in equity. Without limitation, Tenant shall attorn to any
person or entity that acquired the Demised Premises pursuant to foreclosure of
the Mortgage, or by any proceeding or voluntary conveyance in lieu of such
foreclosure, or from Lender, whether by sale, exchange or otherwise. Any
attornment to anyone other than Lender shall be conditioned upon Tenant
receiving a non-disturbance from such entity.
(b) Upon any attornment under this Paragraph 5, the Lease
shall continue in full force and effect as a direct lease between Tenant and the
person or entity to whom Tenant attorns, except that such person or entity shall
not be:
(i) liable for any breach, act or omission of any prior
landlord; or
(ii) subject to any offsets, claims or defenses which Tenant
might have against any prior landlord; or
(iii) bound by any rent or additional rent or other payment in
lieu of rent which Tenant might have paid to any prior landlord more
than 30 days in advance of its due date under the Lease or which such
person or entity has physical possession of; or
(iv) bound by any amendment or modification of the Lease made
without Lender's written consent, where such consent is required by the
Mortgage; or
(v) bound by any notice given by Tenant to Landlord, whether
or not such notice is given pursuant to the terms of the Lease, unless a
copy thereof was then also given to Lender; or
(vi) be liable for any security deposit or other sums held by
any prior landlord, unless actually received.
The person or entity to whom Tenant attorns shall be liable to Tenant under the
Lease only during such person or entity's period of ownership, and such
liability shall not continue or survive as to the transferor after a transfer by
such person or entity of its interest in the Lease and the Demised Premises.
71
6. REPRESENTATIONS AND WARRANTIES.
6.1 Joint and Several. Landlord and Tenant hereby jointly
and severally represent and warrant to Lender as follows regarding the Lease:
(a) A true and correct copy of the Lease (inclusive of all
riders and exhibits thereto) is attached to the counterpart of this
Agreement being delivered to Lender. There are no other oral or written
agreements, understandings or the like between Landlord and Tenant
relating to the Demised Premises or the Lease transaction.
(b) The Lease has not been modified, altered or amended in
any respect.
(c) The addresses for notices to be sent to Tenant and
Landlord are as set forth in Paragraph 11.
(d) To Tenant's knowledge, Tenant has no right of first
refusal, option or other right to purchase the Premises or any part
thereof, including, without limitation, the Demised Premises.
6.2 Several. Landlord and Tenant severally represent and
warrant to Lender with respect to themselves, but not with respect to the other:
(a) The execution of the Lease was duly authorized, the
Lease was properly executed and is in full force and effect and is
valid, binding and enforceable against Tenant and Landlord and there
exists no default, nor state of facts which with notice, the passage of
time, or both, could ripen into a default, on the part of either Tenant
or Landlord.
(b) There has not been filed by or against nor, to the best
of the knowledge and belief of the representing party, is there
threatened against or contemplated by, Landlord or Tenant, a petition in
bankruptcy, voluntary or otherwise, any assignment for the benefit of
creditors, any petition seeking reorganization or arrangement under the
bankruptcy laws of the United States or of any state thereof, or any
other action brought under said bankruptcy laws.
(c) There has not been any assignment, hypothecation or
pledge of the Lease or rents accruing under the Lease, other than
pursuant to the Mortgage and the Lease Assignment. Tenant makes the
representation set forth in this subparagraph only to its best knowledge
and belief.
7. RENTS. Landlord and Tenant jointly and severally
acknowledge that the Lease Assignment provides for the direct payment to Lender
of all rents and other monies due and to become due to Landlord under the Lease
upon the occurrence of certain conditions as set forth in the Lease Assignment
without Lender's taking possession of the Demised Premises or otherwise assuming
Landlord's position or any of Landlord's obligations under the Lease. Upon
receipt from Lender of written notice to pay all such rents and other monies to
or at the direction of Lender, Landlord authorizes and directs Tenant thereafter
to make all such payments to or at the direction of Lender, releases Tenant of
any and all liability to Landlord for any and all
72
payment so made, and shall defend, indemnify and hold Tenant harmless from and
against any and all claims, demands, losses, or liabilities asserted by, through
or under Landlord (except by Lender) for any and all payments so made. Upon
receipt of such notice, Tenant thereafter shall pay all monies then due and
becoming due from Tenant under the Lease to or at the direction of Lender,
notwithstanding any provision of the Lease to the contrary. Tenant agrees that
neither Lender's demanding or receiving any such payments, nor Lender's
exercising any other right, remedy, privilege, power or immunity granted by the
Mortgage or the Lease Assignment, will operate to impose any liability upon
Lender for performance of any obligation of Landlord under the Lease unless and
until Lender elects otherwise in writing. Such payments shall continue until
Lender directs Tenant otherwise in writing.
Tenant agrees not to pay any rent under the Lease more than 30
days in advance without Lender's consent. The provisions of this Paragraph 7
will apply from time to time throughout the term of the Lease.
8. CURE. If Tenant becomes entitled to terminate the Lease
or offset, withhold or xxxxx rents because of any default by Landlord, then
Tenant shall give Lender written notice specifying Landlord's default. Lender
then shall have the right, but not the obligation, to cure the specified default
within the following time periods:
(a) Fifteen days after receipt of such notice with respect
to defaults that can be cured by the payment of money; or
(b) Thirty days after receipt of such notice with respect to
any other default; unless the cure requires Lender to obtain possession
of the Demised Premises, in which case such thirty day period shall not
commence until Lender acquires possession, so long as Lender proceeds
promptly to acquire possession of the Demised Premises with due
diligence, by foreclosure of the Mortgage or otherwise.
Nothing contained in this Paragraph 8 shall require Lender to commence or
continue any foreclosure or other proceedings, or, if Lender acquires possession
of the Demised Premises, to continue such possession, if all defaults specified
by Tenant in its notice are cured. Possession by a receiver, or other similar
official appointed at the instance, or with the consent, of Lender shall
constitute possession by Lender for all purposes under this Paragraph 8.
9. ESTOPPEL LETTERS. Whenever reasonably requested by
Lender, Landlord and Tenant from time to time shall severally execute and
deliver to or at the direction of Lender, and without charge to Lender, one or
more written certifications of all of the matters as set forth in Paragraph 6,
whether Tenant has exercised any renewal option or options and any other
information the Lender may reasonably require to confirm the current status of
the Lease, including, without limitation, a confirmation that the Lease is and
remains subordinated as provided in this Agreement.
10. CASUALTY AND EMINENT DOMAIN. Landlord and Tenant jointly
and severally agree that the Mortgage permits Lender, at its option, to apply to
the indebtedness from time to time secured by the Mortgage any and all insurance
proceeds payable with respect to any casualty loss at the Demised Premises and
any and all awards or other compensation that
73
may be payable for the condemnation of all or any portion of the Demised
Premises, or any interest therein, or by way of negotiated settlement or
conveyance in lieu of condemnation; and Landlord and Tenant jointly and
severally consent to any such application by Lender. Notwithstanding the
foregoing, Landlord and Lender agree that any and all insurance or condemnation
proceeds payable with respect to Tenant's property or the interruption or
relocation of Tenant's business (except for rental loss insurance proceeds) will
be paid to Tenant, so long as they do not reduce the proceeds otherwise payable
to Lender.
11. NOTICES. All notices, demands, and other communications
that must or may be given or made in connection with this Agreement must be in
writing and, unless receipt is expressly required, will be deemed delivered or
made 5 days after having been mailed by registered or certified mail, return
receipt requested, or by express mail, in any event with sufficient postage
affixed, and addressed to the parties as follows:
To Lender: c/o AMRESCO Services, L.P.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn.: Private Sector Servicing
To Landlord: 000 Xxxxxx Xxxxxx LLC
c/o Taconic Investment Partners LLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxx Xxxxxxx
with a copy to: Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
To Tenant: AboveNet Communications, Inc.
00 Xxxx Xxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
with a copy to McPharlin, Sprinkles & Xxxxxx LLP
Xxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: N. Xxxx Xxxxxx, Esq.
74
Such addresses may be changed by notice pursuant to this Paragraph 11; but
notice of change of address is effective only upon receipt. Landlord and Tenant
jointly and severally agree that they will furnish Lender with copies of all
notices relating to the Lease. All communications to Lender shall reference
"AMRESCO Loan No.: 400030645."
12. SUCCESSORS AND ASSIGNS. As used in this Agreement, the
word "Tenant" shall mean Tenant and any subsequent holder or holders of an
interest under the Lease, as the text may require, provided that the interest of
such holder is acquired in accordance with the terms and provisions of the Lease
and the word "Lender" shall mean Lender or any other subsequent holder or
holders of the Mortgage or any party acquiring title to the Demised Premises by
purchase at a foreclosure sale, by deed of the Lender, or otherwise. Subject to
the foregoing, this Agreement shall bind and inure to the benefit of Landlord,
Tenant and Lender, their legal representatives, successors and assigns. The
terms Lease, Mortgage and Lease Assignment shall include any and all amendments,
modifications, replacements, substitutions, extensions, renewals and supplements
thereto.
13. FURTHER ASSURANCES. Landlord and Tenant from time to
time shall execute and deliver at Lender's request all instruments that may be
necessary or appropriate to evidence their agreement hereunder provided such
instrument neither increases Tenant's obligations or decreases its rights under
the Lease.
14. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all such
counterparts shall constitute one and the same instrument.
15. SEVERABILITY. A determination that any provision of this
Agreement is unenforceable or invalid shall not affect the enforceability or
validity of any other provision, and any determination that the application of
any provision of this Agreement to any person or to any person or to particular
circumstances is illegal or unenforceable shall not affect the enforceability or
validity of such provision as it may apply to other persons or circumstances.
75
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
LENDER:
LASALLE NATIONAL BANK, AS TRUSTEE
FOR GS MORTGAGE SECURITIES
CORPORATION II COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES
1998-GSFL1
By: AMRESCO Services, L.P.,
its authorized agent
By: AMRESCO Mortgage Capital, Inc.,
its general partner
By: ____________________________
Name:
Title: Servicing Officer
LANDLORD:
000 XXXXXX XXXXXX LLC
By: Taconic Investment Partners LLC,
Authorized Signatory
By: ____________________________
Name:
Title:
TENANT:
ABOVENET COMMUNICATIONS INC.
By: ______________________________
Name:
Title:
76
STATE OF ________________ )
) ss.:
COUNTY OF ______________ )
On this ____ day of ________________, 199__, 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 Amresco
Mortgage Capital, Inc., the corporation described in and which executed the
above instrument as a general partner of Amresco Services, L.P., the limited
partnership which executed the foregoing instrument as the authorized agent of
LaSalle National Bank, as Trustee for GS Mortgage Securities Corporation II
Commercial Mortgage Pass-Through Certificates, Series 1998-GSFL1; that _he had
authority to sign the same in such capacity; and that _he executed the same by
order of the board of directors of said corporation as the act and deed of said
partnerships and trust for the uses and purposes therein mentioned.
_________________________________
Notary Public
STATE OF ________________ )
) ss.:
COUNTY OF ______________ )
On this ____ day of _______________, 199__, before me personally
came ______ _________________, to me known, who, being by me duly sworn, did
depose and say: that she resides at ________________ __________ _______; that
she is a senior vice president of AboveNet Communications Inc., the corporation
described in and which executed the foregoing instrument; that she had authority
to sign the same in such capacity; and that she executed the same by authority
of the board of directors of said corporation.
_________________________________
Notary Public
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of _______________, 199__, before me personally
came _______________________ to me known, who, being by me duly sworn, did
depose and say that he resides at ______________________, ___________, New York
_____, that he is an Authorized Signatory of Taconic Investment Partners LLC, a
Delaware limited liability company, the limited liability company described in
and which executed the above instrument as a member of 000 Xxxxxx Xxxxxx LLC,
the limited liability company which executed the foregoing instrument; that he
had authority to sign the same in such capacity; and that he executed the same
as the act and deed of said limited liability company for the uses and purposes
therein mentioned.
_________________________________
Notary Public
78
EXHIBIT A
PLOT DESCRIPTION
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York, bounded and described
as follows:
BEGINNING at the corner formed by the intersection of the northerly side of Xxxx
00xx Xxxxxx and the westerly side of Eighth Avenue;
RUNNING THENCE westerly along the northerly side of West 15th Street, 800 feet
to the easterly side of Ninth Avenue;
THENCE northerly along the easterly side of Ninth Avenue, 206 feet 6 inches to
the southerly side of Xxxx 00xx Xxxxxx;
THENCE easterly along the southerly side of West 16th Street, 800 feet to the
westerly side of Eighth Avenue; and
THENCE southerly along the westerly side of Eighth Avenue, 206 feet 6 inches to
the northerly side of West 15th Street, the point of place of BEGINNING.
79
EXHIBIT F
ALTERATIONS
80
STATE OF ______________ )
) ss.:
COUNTY OF ____________ )
On this ____ day of January, 1999, 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 ABOVENET COMMUNICATIONS, INC., the corporation described in
the foregoing instrument; and that __he signed his/her name thereto by order of
the board of directors of said corporation as the act and deed of said
corporation for the uses and purposes therein mentioned.
_________________________________
Notary Public
81
================================================================================
---------------
AGREEMENT OF LEASE
---------------
000 XXXXXX XXXXXX LLC
LANDLORD
AND
ABOVENET COMMUNICATIONS, INC.
TENANT
---------------
PREMISES: Portion of Second (2nd) Floor
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
DATED: January ___, 1999
================================================================================
82
TABLE OF CONTENTS
DEFINITIONS....................................................................1
Article 1. Demise, Premises, Term, Rent......................................4
Article 2. Use And Occupancy.................................................5
Article 3. Alterations.......................................................6
Article 4. Condition of the Premises; Landlord's Work........................9
Article 5. Repairs; Floor Load..............................................10
Article 6. Real Estate Taxes and Labor Rate Increases.......................11
Article 7. Legal Requirements...............................................17
Article 8. Subordination and Non-Disturbance; Estoppel Certificates.........18
Article 9. Services ........................................................20
Article 10. Insurance.......................................................31
Article 11. Destruction of the Premises; Property Loss or Damage............32
Article 12. Eminent Domain..................................................34
Article 13. Assignment and Subletting.......................................34
Article 14. Access to Premises..............................................42
Article 15. Certificate of Occupancy........................................43
Article 16. Default ........................................................44
Article 17. Remedies and Damages............................................46
Article 18. Fees and Expenses...............................................48
Article 19. No Representations By Landlord..................................49
Article 20. End Of Term.....................................................49
Article 21. Quiet Enjoyment.................................................50
Article 22. No Waiver; Non-Liability........................................50
Article 23. Waiver Of Trial By Jury.........................................51
Article 24. Inability To Perform............................................51
Article 25. Bills And Notices...............................................52
Article 26. Rules And Regulations...........................................52
Article 27. Broker ........................................................52
Article 28. Indemnity.......................................................53
Article 29. Security Deposit................................................54
Article 30. Renewal Option..................................................56
Article 31. [Intentionally Omitted].........................................58
Article 32. Miscellaneous...................................................58
Exhibit A:.....Floor Plan of the Premises
Exhibit B:.....Rules and Regulations
Exhibit C:.....Approved Contractors
Exhibit D:.....Form of Letter of Credit
Exhibit E:.....Form of Existing Mortgagee Non-Disturbance Agreement
Exhibit F:.....Alterations