Lease
dated as of
July 15, 1994 between
The Xxxxxx, Church-Wardens, and Vestrymen
of Trinity Church
in the City of New-York, Landlord
and
Girgenti, Hughes, Xxxxxx
& XxXxxxxx, Inc., Tenant
--------------------------
100 Avenue of the Americas
--------------------------
TABLE OF CONTENTS
Page
FIRST: Use ................................................... 2
SECOND: Rent .................................................. 2
THIRD: Repairs ............................................... 2
FOURTH: Alterations and Fixtures .............................. 3
FIFTH: Compliance with Governmental
Rules and Regulations ................................. 5
SIXTH: Compliance with Landlord's Rules ...................... 5
SEVENTH: Landlord's Access to the
Premises .............................................. 6
EIGHTH: Electric Current ...................................... 6
NINTH: Condemnation .......................................... 7
TENTH: Mechanic's Liens ...................................... 8
ELEVENTH: Subordination ......................................... 9
TWELFTH: Liquors ............................................... 10
THIRTEENTH: Fire and Fire Insurance ............................... 10
FOURTEENTH: Change in Use of Premises, Subletting
and Assignment ........................................ 11
FIFTEENTH: Waiver and Surrender; Remedies
Cumulative ............................................ 16
SIXTEENTH: Representations as to Premises,
Certificate of Occupancy and Use ...................... 17
SEVENTEENTH: Limitation of Landlord's
Liability ............................................. 18
EIGHTEENTH: Indemnity by Tenant ................................... 19
NINETEENTH: Insolvency ............................................ 19
TWENTIETH: Remedies of the Landlord on Default;
Performance by the Landlord ........................... 20
(a) Remedies of the Landlord
on Default; Performance
by the Landlord .................................. 20
(b) Performance by the Land-
lord Not an Exclusive
Remedy ........................................... 20
(c) Dispossess Termination
of Lease ......................................... 20
TWENTY-FIRST: Surrender at Expiration ............................... 22
TWENTY-SECOND: Tenant's Deposit ...................................... 22
TWENTY-THIRD: Building Services ..................................... 00
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XXXXXX-XXXXXX: Xxxxx; HVAC ........................................... 25
TWENTY-FIFTH: Work to be Done by Landlord ........................... 26
TWENTY-SIXTH: Real Estate Tax, Operating Expense and
Fuel Oil Escalation ................................... 26
TWENTY-SEVENTH: Construction of Office
Improvements .......................................... 29
TWENTY-EIGHTH: Broker ................................................ 33
TWENTY-NINTH: Notices; Miscellaneous ................................ 33
THIRTIETH: Quiet Enjoyment ....................................... 33
THIRTY-FIRST: Headings .............................................. 34
THIRTY-SECOND: Additional Fourth Floor Premises ...................... 34
THIRTY-THIRD: Free Rent ............................................. 34
THIRTY-FOURTH: Termination of Existing Lease ......................... 35
THIRTY-FIFTH: Option Space .......................................... 35
THIRTY-SIXTH: Additional Space ...................................... 37
THIRTY-SEVENTH: Successors ............................................ 39
EXHIBIT A: Portion of Fourth Floor Premises Constituting
Initial Fourth Floor Premises
EXHIBIT B: Portion of Fourth Floor Premises Constitutlng
Additional Fourth Floor Premises
EXHIBIT C: 0xx Xxxxx Premises
EXHIBIT D: Basement Premises
EXHIBIT E: Additional Space on Seventh Floor (Option
Space)
EXHIBIT F: Operating Expense Increase Schedule
EXHIBIT G: Written Request for Payment
EXHIBIT H: Work Letter
SCHEDULE A: Cleaning Specifications
SCHEDULE B: Rules and Regulations
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THIS LEASE made as of the 15th day of July, 1994, between THE XXXXXX,
CHURCH-WARDENS AND VESTRYMEN OF TRINITY CHURCH IN THE CITY OF NEW-YORK, a
religious corporation (hereafter referred to as the "Landlord"), having its
offices at 00 Xxxxxxx Xxxxx, Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and State of New
York, and GIRGENTI, HUGHES, XXXXXX & XxXXXXXX, INC. (hereinafter referred to as
the "Tenant"), a New York corporation, having its place of business at 000
Xxxxxx xx xxx Xxxxxxxx, Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and State of New
York.
W I T N E S S E T H :
That the Landlord hereby lets and leases to the Tenant, and the Tenant
hereby takes and hires from the Landlord, the following described space
(hereafter referred to as the "premises"):
Commencing on December 1, 1994:
(i) a portion of the 4th floor as indicated by the cross-hatching on
the diagram attached hereto as Exhibit "A";
(ii) the entire 8th floor as indicated by the cross-hatching on the
diagram attached hereto as Exhibit "C"; and
(iii) a portion of the basement as indicated by the cross-hatching on
the diagram attached hereto as Exhibit "D";
Commencing on December 1, 1997 (or sooner as contemplated by the provisions of
Article Thirty-Second hereof):
(i) a portion of the 4th floor as indicated by the cross-hatching on
the diagram attached hereto as Exhibit "B";
in the building of the Landlord known by street number as 100 Avenue of the
Americas, in the Borough of Manhattan, City, County and State of New York
(hereafter referred to as the "building") and the Tenant is hereby granted the
nonexclusive right to use all common areas of the building and the necessary
entrances and appurtenances to the premises (subject to the rules and
regulations annexed hereto and such further rules and regulations of which
Tenant is given notice as the Landlord shall from time to time prescribe),
reserving to the Landlord all other portions of the building not herein
specifically demised, for a term to commence at noon, Standard Time, on December
1, 1994 and to expire at noon Standard Time on December 31, 2009 or until such
term shall sooner cease and expire or be terminated as hereafter provided at the
rent at the annual rate or rates as follows:
During the period commencing on December 1, 1994 and ending on
November 30, 1997, the annual rent shall be Five Hundred Seventy-Five
Thousand Ten Dollars ($575,010.00);
During the period commencing on December 1, 1997 and ending on
November 30, 1998, the annual rent shall be Six Hundred Sixty-One Thousand
Eight Hundred Dollars ($661,800.00);
During the period commencing on December 1, 1998 and ending on
November 30, 2003, the annual rent shall be Seven Hundred Forty-Nine
Thousand Eight Hundred Dollars ($749,800.00); and
During the period commencing on December 1, 2003 and ending on
December 31, 2009, the annual rent shall be Nine Hundred Sixty-Nine
Thousand Eight Hundred Dollars ($969,800.00);
payable at the offices of the Landlord in equal monthly payments equal to
1/12th of the rent at the annual rates as above prescribed for the
respective periods in which they are payable, in advance without demand
therefor and an installment equal to the amount of the rent payable under
this lease for the first month of the term for which rent is payable shall
be paid upon the execution of this Lease, and thereafter, on the first day
of each month during said term, in lawful money of the United States, plus,
when due or demanded, such items as shall be provided hereafter are payable
by the Tenant as additional rent.
THE ABOVE LETTING IS UPON THE FOLLOWING COVENANTS, TERMS AND
CONDITIONS, each and every one of which the Tenant covenants and agrees
with the Landlord to keep and perform, and the Tenant agrees that the
covenants herein contained on the part of the Tenant to be performed, shall
be deemed conditional limitations, as well as covenants and conditions:
FIRST: Use. The Tenant shall use the premises only for general and
executive offices in connection with Tenant's advertising business and
other uses generally ancillary to the advertising business (including art
departments, public relations, media editing and similar uses), except that
the basement space shall be used for storage purposes only.
SECOND: Rent. (a) The Tenant shall pay the rent and additional rent as
provided in this lease.
(b) If any installment or installments of rent or additional rent or
any service charge shall not be paid within fifteen (15) days following the
date on which the same shall be due and payable pursuant to this lease
then, in addition to, and without waiving or releasing, any other rights
and remedies of the Landlord, the Tenant shall pay to the Landlord a late
charge of one and one-half (1-1/2%) percent per month computed (on the
basis of a 30-day month) from the date on which each such installment
became due and payable to the date of payment of the installment on the
amount of each such installment or installments, as liquidated damages for
Tenant's failure to make prompt payment, and the same may be collected on
demand or as additional rent in accordance with the provisions of Article
TWENTY-FIRST of this lease.
THIRD: Repairs. (a) The Tenant shall take good care of the premises
and the fixtures, appurtenances, equipment and facilities therein and shall
make, as and when needed, all repairs in and about the premises required to
keep them in good order and condition; such repairs to be equal in quality
to the original work; provided, that the Tenant shall not be obligated for
structural or exterior repairs to the building or for repairs to the
systems and facilities of the building for the use or service of tenants
generally (including the plumbing, heating and electrical systems), other
than fixtures, appurtenances, equipment and facilities in the premises,
except where structural or exterior repairs or repairs to such systems and
facilities are made necessary by reason of one or more of the occurrences
described below in clauses (i) through (iv) of this Article THIRD (a).
Should the Tenant fail to repair any condition in or about the premises or
the fixtures, appurtenances, equipment and facilities therein which is of
such a nature that its neglect would be reasonably likely to result in
damage or danger to the building, its fixtures, appurtenances, facilities
and equipment, or to its occupants (of which nature the Landlord shall be
the sole judge) or, in the case of repairs of any other nature, should the
Tenant have failed to make the required repairs or to have begun, in good
faith, the work necessary to make them within five (5) days after notice
from the Landlord of the condition requiring repair, then in either case,
the Landlord may (but shall have no obligation to) immediately enter the
premises and make the required repairs at the expense of the Tenant. The
Landlord may (but shall have no obligation to) make, at the expense of the
Tenant, any repairs to
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the building or to its fixtures, appurtenances, facilities or equipment,
whether of a structural or any other nature, which are required by reason
of damage or injury due (i) to the negligence or the wilful acts of the
Tenant or Tenant's employees, agents, contractors, licensees or visitors;
(ii) to the moving, into or out of the building, of property being
delivered to or taken from the premises by Tenant, Tenant's agents,
employees, contractors, licensees or visitors; (iii) to the installation,
repair or removal of the property of the Tenant in the premises by Tenant
or Tenant's agents, employees, contractors, licensees or visitors; or (iv)
to the negligent or willfully incorrect operation of any machinery
equipment, or facility installed in the premises by or for the Tenant. The
Tenant will pay the actual and reasonable cost of any repairs made by the
Landlord pursuant to this paragraph upon presentation of bills therefor, or
the Landlord may, at its option, add such amounts to any installment or
installments of rent due under this lease and collect the same as
additional rent. The liability of the Tenant under this Article THIRD shall
survive the expiration or other termination of this lease. Except for the
repairs which are the Tenant's obligations under the first sentence of this
Article THIRD (a), the Landlord, at Landlord's cost and expense, will, upon
notice of the need therefor, make the repairs required and perform all
maintenance necessary to keep the building and its fixtures, appurtenances,
facilities, equipment and systems (including the plumbing, heating and
electrical systems) in good working order.
(b) Machinery. If the Tenant shall install or maintain any business
machinery or other apparatus of any description in the premises (other than
personal computers, photocopying machines, paper collating machines,
telephones and telephone systems generally used in offices), the operation
of which produces noise or vibration which is transmitted beyond the
premises and the Landlord deems it necessary that the noise or vibration of
such machinery or apparatus be diminished, eliminated, prevented or
confined to the premises, the Landlord may give written notice to the
Tenant, requiring that the Tenant provide and install rubber or other
approved settings for absorbing, preventing or decreasing the noise or
vibration of such machinery or apparatus within fifteen (15) days. The
judgment of the Landlord of the necessity of such installation shall be
conclusive, and the installation shall be made in such manner and of such
material as the Landlord may direct. Should the Tenant fail to comply with
such request within fifteen (15) days, the Landlord may do the work
necessary to absorb, prevent or decrease the noise or vibration of such
machinery or equipment and the Tenant will pay to the Landlord the cost of
such work upon demand or such cost may, at the option of the Landlord, be
added to any installment or installments of rent under this lease and shall
be payable by the Tenant as additional rent.
(c) Maintenance. Landlord shall at all times maintain the building in
the manner in which buildings of similar quality and character are
maintained.
FOURTH: Alterations and Fixtures. (a) The Tenant shall not make any
alteration, addition or improvement in or upon the premises, nor incur any
expense therefor, without having first obtained the written consent of the
Landlord therefor. If the Tenant shall desire to make alterations,
additions or improvements to the premises which will not adversely affect
the structure of the building or the operation of any of the systems or
facilities of the building for the use of all tenants or violate the
requirements of government hereafter referred to and if the Tenant shall
furnish the Landlord with the Tenant's plans and specifications for the
proposed alteration, addition or improvement in sufficient detail to permit
the Landlord to determine that the same will comply with the requirements
of this subdivision (a), the Landlord's approval will not be unreasonably
withheld or delayed. (The Tenant agrees to reimburse the Landlord for its
reasonable fees, expenses and charges for reviewing any such plans or
specifica-
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tions.) Notwithstanding the foregoing, Tenant shall have no obligation to
submit such plans and specifications in connection with the mere painting
of the premises or the performance of any non-structural alteration,
addition or improvement, provided such have no effect on the building's
systems and the cost thereof, in the Tenant's reasonable estimate, will not
exceed $50,000, either individually or in the aggregate with other
alterations, additions or improvements in the twelve (12) month period
immediately preceding, and provided that (i) Tenant gives Landlord at least
ten (10) days' prior notice describing such work in reasonable detail
(including Tenant's reasonably detailed estimate of the cost thereof) and
setting forth the name(s) and address(es) of the contractor(s) whom Tenant
desires to perform such work, and (ii) Tenant shall obtain all building or
other governmental permits required for such work and Landlord will not be
required to execute any documents in connection with such work or such
permits. Whenever any alterations, decorations, additions or improvements
of the premises are made by the Tenant, the Tenant shall not knowingly,
employ or permit to be employed therein any labor which will cause strikes
or labor troubles with other employees in the building employed by the
Landlord or its contractors. All alterations, decorations, additions or
improvements shall be made and installed in a good and workmanlike manner
and shall comply with all requirements, by law, regulation or rule, of the
Federal, State and City Governments and all subdivisions and agencies
thereof, and with the requirements of the New York Fire Insurance Exchange,
New York Board of Fire Underwriters and all other bodies exercising similar
functions, and shall conform to any particular requirements of the Landlord
expressed in its consent for the making of any such alterations,
decorations, additions, and improvements. Any such work once begun shall be
completed with all reasonable dispatch, but shall be done at such time and
in such manner as not to interfere with the occupancy of any other tenant
or the progress of any work being performed by or on account of the
Landlord. At Tenant's request, within ten (10) days of receipt of Tenant's
request for Landlord's approval of any alteration, addition or improvement,
the Landlord will notify the Tenant whether the alteration, addition or
improvement will be required to be removed by the Tenant at the expiration
or earlier termination of this lease or may remain upon the premises to
become the property of the Landlord. If such request is made by Tenant but
no such notice is given by the Landlord, the provisions of subdivision (b)
of this Article shall apply.
(b) All alterations, additions or improvements, which may be made or
installed in or upon the premises (whether made during or prior to the term
of this lease or during the term of any prior lease of the premises by the
Landlord, the Tenant or any previous tenant), except the furniture and
trade fixtures of the Tenant shall be conclusively deemed to be part of the
freehold and the property of the Landlord, and shall remain upon the
premises, and upon any termination of this lease, be surrendered therewith
as part thereof; Tenant shall remove all of Tenant's personal property, at
its own cost and expense, at or prior to the expiration of the term and
shall restore and repair, at its own cost and expense, any damage or
disfigurement of the premises occasioned by such removal or remaining after
such removal so as to leave the premises in as good order and condition as
they were at the time of the making of this lease or, the Landlord at its
option, may make such restoration and repair and the Tenant will pay the
cost thereof upon demand. If any furniture or trade fixtures and other
personal property of the Tenant shall not be removed at the expiration or
any other termination of this lease, they shall, at the Landlord's option,
be deemed to have been irrevocably abandoned to the Landlord, and the
Tenant shall have no further right, title or interest therein, and the
Landlord may remove the same from the premises, disposing of them in any
way which the Landlord sees fit to do, and the Tenant shall, on demand, pay
to the Landlord the expense incurred by the Landlord for the removal
thereof, as well as the cost of any restoration of the premises above
provided. The
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Tenant's obligations under this subdivision (b) of this Article FOURTH
shall survive the expiration of this lease.
(c) Notwithstanding anything to the contrary in paragraph (b) above,
it is understood and agreed that upon the expiration or early termination
of this lease, the Tenant shall be under no obligation to remove the
Improvements to be made to the premises pursuant to Article TWENTY-SEVENTH
hereof.
(d) The Landlord may at any time during the term of this lease change
the arrangement or location of the entrances or passageways, doors and
doorways, and the corridors, elevators, stairs, toilets or other parts of
the building used by the public or in common by the Tenant and other
Tenants (including, without limitation, the conversion of elevators from a
manually operated to an automatic self-service basis). In the event that,
after the construction of the Improvements, the Landlord changes the
location of the passenger or service elevators or makes any change to any
lobby or public area on the 4th floor and the 8th floor of the building
which (in either case) materially adversely affects the Tenant's
utilization of the premises, then the Landlord will reimburse Tenant for
the reasonable costs incurred by Tenant to rectify or minimize the
consequences of such change. The Landlord agrees that in performing any
work permitted by this paragraph, it will, to the extent practicable,
attempt to minimize any interference or disruption of the Tenant's business
and operation. The Landlord may alter the staffing of the building and the
scale and manner of the operation thereof, provided that the services to
which the Tenant is entitled as specified in this lease are not diminished,
and may alter the facilities, fixtures, appurtenances and equipment of the
building as it may deem the same advisable, or as it may be required so to
do by any governmental authority, law, rule or regulation. The Landlord
may, after reasonable notice, change the name, street number or designation
by which the building is commonly known.
FIFTH: Compliance with Governmental Rules and Regulations. The Tenant
shall promptly comply, at the Tenant's own expense, with all laws,
ordinances, regulations and requirements of the City, State and Federal
Governments, and all subdivisions and agencies thereof, and of the New York
Fire Insurance Exchange, the New York Board of Fire Underwriters, and of
any fire insurance rating organization, and of all other departments,
bureaus, officials, boards and commissions with regard to the premises, or
the use thereof by the Tenant, provided that the Tenant shall not be
required to make any structural alterations to the premises (which shall be
the responsibility of the Landlord), except where the same are required by
reason of the Tenant's negligence or the negligence of Tenant's employees,
agents, contractors, visitors or licensees. The Tenant will not permit the
maintenance of any nuisance upon the premises or permit its employees,
agents, contractors, licensees or visitors to do any illegal act therein,
or in and about the building after notice thereof from the Landlord. If any
such law, ordinance, regulation or requirement shall not be promptly
complied with by the Tenant within a reasonable time after notice thereof
from the Landlord, then the Landlord may, at its option, enter upon the
premises to comply therewith, and should any fine or penalty be imposed for
failure to comply therewith or by reason of any such illegal act, the
Tenant agrees that the Landlord may, at its option, pay such fine or
penalty, which the Tenant agrees to repay to the Landlord, with interest
from the date of payment, as additional rent. Landlord will not
discriminate against Tenant in enforcing the rules and regulations
promulgated by Landlord for the building.
SIXTH: Compliance with Landlord's Rules. The Tenant and the Tenant's
employees, and any other persons subject to the control of the Tenant,
shall well and faithfully observe all the rules and regulations annexed
hereto, and also any and all reasonable rules and regulations affecting the
premises, the building or the equipment, appurtenances, facilities and
services
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thereof, hereafter promulgated by the Landlord, all of which shall be
applied and enforced by the Landlord without discrimination. The Landlord
may at any time, and from time to time, prescribe and regulate the placing
of safes, machinery, quantities of supplies and other things, and, subject
to the provisions of Article 4(d) hereof, may reasonably regulate which
elevator and entrance shall be used for the Tenant's shipping and
receiving; and may make such other and further rules and regulations as in
its judgment may, from time to time, be needed or desirable for the safety,
care or cleanliness of the building and for the preservation of good order
therein.
SEVENTH: Landlord's Access to the Premises. (a) The Tenant shall,
without in any way affecting the Tenant's obligations hereunder, and
without constituting any eviction, permit the Landlord and its agents: (i)
at all reasonable hours and upon reasonable notice, to enter the premises
and have access thereto, for the purpose of inspecting or examining them
and to show them to other persons; and (ii) to enter the premises to make
repairs (including specifically access to the air conditioning equipment
rooms), and to do any work on the premises and any work in connection with
excavation or construction on any adjoining premises or property
(including, but not limited to, the shoring up of the building) and to take
in any of the foregoing instances, any space needed therefor. The Tenant
shall permit the Landlord to erect and maintain ducts, pipes and conduits
in and through the premises. In the exercise of the rights of the Landlord
reserved under clause (ii) or under the sentence of this subdivision (a) of
Article SEVENTH immediately preceding this one, the Landlord will do so in
a manner which minimizes the interference with the Tenant's use of the
premises so far as practicable and where ducts, pipes or conduits are to be
erected through the premises will locate them along walls or ceilings
wherever practicable and in locations which will not materially adversely
affect Tenant's use of the premises.
(b) In the event that the premises shall, in the Landlord's judgment,
become substantially vacated before the expiration of this lease, or in the
event that the Tenant shall be removed by summary proceedings, or in the
event that, during the last month of the term, the Tenant shall have
removed all or substantially all of the Tenant's property therefrom, the
Landlord, upon not less than twenty (20) days prior notice to Tenant, may
enter into and upon said premises for the purpose of decorating, renovating
or otherwise preparing the same for a new tenant, without thereby causing
any abatement of rent or liability on the Landlord's part for other
compensation, and such acts shall have no effect upon this lease.
(c) In the event of an emergency or if the Tenant shall not permit the
Landlord to have access to the premises as required by paragraph (a) above,
then when for any reason access shall be necessary or permissible
hereunder, the Landlord or the Landlord's agents, may enter the same by a
master key, or, in the case of an emergency, may forcibly enter the same
without rendering the Landlord or such agents liable therefor (if during
such entry the Landlord shall accord reasonable care to the Tenant's
property) and without in any manner affecting the obligations and covenants
of this lease, and in no event shall any such entry by the Landlord or its
agents be deemed an acceptance of a surrender of this lease, either
expressed or implied, nor a waiver by the Landlord of any covenant of this
lease on the part of the Tenant to be performed.
EIGHTH: Electric Current. (a) Electric current is initially to be
supplied by the Landlord and measured by one or more submeters solely
serving the premises. The Tenant covenants and agrees to purchase the
Tenant's requirements therefor at the premises from the Landlord or the
Landlord's designated agent at 110% of the rates set forth in the rate
schedule of Consolidated Edison Company of New York, Inc. then applicable
to the building, plus any sales or use tax or other governmental charge or
levy;
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provided, however, that if such rate schedule includes any adjustment for
time-of-day for either demand or consumption, the rate applicable to the
Tenant's demand for and consumption of electricity, shall be that specified
for the peak period. The calculation of the rate shall include the effect
of all direct and indirect charges which affect the cost of the
electricity, including without limitation, consumption charges, demand
charges and fuel cost escalation charges.
(b) Should the Landlord at any time, be prevented from furnishing the
foregoing service due to a change of rate or a regulation of the Public
Service Commission or due to any rate or regulation of the public utility
corporation serving the building, or if the Landlord for any other reason
determines to discontinue the service, the Landlord may do so, and will
give the Tenant not less than ninety (90) days' notice of the date on which
the service will be discontinued. Beginning with the date on which such
service by the Landlord is discontinued, the Tenant shall purchase its
requirements for electric current from the public utility serving the area
directly. The Landlord shall permit the Landlord's wires and conduits, to
the extent to which they are safely available for such use and the extent
to which they may be so used under any applicable regulations (including
those of such public utility) to be used for the purpose. Should any
additional or other wiring, conduits, meters or distribution equipment be
required in order to permit the Tenant to receive such direct service, the
same will be installed by the Landlord at the sole cost and expense of the
Tenant in respect to the wiring, conduits, meters and distribution
equipment. Landlord may, at its sole option, determine that a single meter
will be utilized for the premises for electric billing purposes. In the
event the Landlord uses two meters for the premises, the electric charges
will be calculated on a conjunctional billing basis. Tenant's electric
current charges will be billed separately from other charges due under this
lease.
NINTH: Condemnation. (a) If the whole of the building or of the
premises shall be taken by condemnation or in any other manner for any
public or quasi-public use or purpose (other than for temporary use or
occupancy), the term of this Lease ("Lease Term") shall forthwith cease and
terminate as of the date of vesting of title by reason of such taking
(which date is hereinafter referred to as the "date of the taking"), and
the rent shall be apportioned as of such date. If a portion of the building
shall be so taken so that substantial structural alterations or
reconstruction of the building (as reasonably determined by Landlord) shall
be necessary as a result of such taking (whether or not the premises be
affected), which alterations or reconstruction Landlord reasonably
determines will take at least 120 days to complete, or if 50% or more of
the common areas of the building are taken, Landlord or the Tenant by
notifying the other party in writing of such termination within sixty (60)
days following the date of the taking may, at its option, terminate this
Lease and the Lease Term and estate hereby granted will terminate sixty
(60) days after receipt of such termination notice.
(b) If any part, but less than all, of the premises shall be so taken
and this Lease shall not be terminated pursuant to Paragraph (a) of this
Article NINTH, then the part so taken shall no longer constitute part of
the premises but this Lease shall otherwise remain unaffected by such
taking; provided, however, that Tenant may elect to terminate the Lease
Term in the event of:
(i) a taking of more than 30% of the rentable area of the total
premises then actually leased hereunder, or
(ii) a taking that has a material adverse effect on Tenant's
access to the building or the premises, if Landlord determines that it
will be unable to provide or in fact fails
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to provide adequate alternative access to the building and the
premises within 120 days thereafter,
by giving notice of such election to Landlord not later than sixty (60)
days after Tenant's receipt from Landlord of notice of such taking or the
date of such taking (such notice to provide Tenant with all information
reasonably necessary to determine the extent of the taking and effect on,
in and to the premises), whichever first occurs, or not later than thirty
(30) days after such one hundred twentieth day, as the case may be. If
notice of termination of this Lease shall be given pursuant to this
Section, then upon such date as may be specified by Tenant by notice to
Landlord, which date shall be not earlier than thirty (30) and not later
than sixty (60) days after the date of Tenant's notice, the Lease Term
shall terminate as of the date specified in such notice and the rent shall
be apportioned as of such date of termination. Upon a partial taking and
this Lease continuing in force as to any part of the premises:
(x) the fixed rent and additional rent shall be equitably reduced
for the remainder of the Lease Term, according to the nature and
extent of the loss of use of the premises suffered by Tenant; and
(y) Landlord shall, at its expense, restore with reasonable
diligence the remaining portions of the premises as nearly as
practicable to the same condition as it was in prior to such
condemnation or taking.
(c) In the event of any condemnation or taking hereinabove mentioned
of all or a part of the building (whether or not the premises be affected),
Landlord shall be entitled to receive the entire award in the condemnation
proceeding, Tenant shall have no claim for the value of any unexpired term
of the Lease, and Tenant hereby expressly assigns to Landlord any and all
right, title and interest of Tenant now or hereafter arising in or to any
such award or any part thereof, and Tenant shall be entitled to receive no
part of such award. The foregoing, however, shall not be deemed to preclude
Tenant from seeking to recover a separate award for Tenant's moving
expenses and Tenant's personal property (including the Improvements and any
additional improvements made to premises leased to Tenant pursuant to
Article THIRTY-FOURTH hereof), but only provided that such award does not
reduce and is not payable out of the amount for the land and the building.
TENTH: Mechanic's Liens. The Tenant will not permit, during the term
hereby granted, any mechanic's or other lien or order for payment of work,
labor, services, or materials furnished or to be furnished to attach to or
affect the premises or any portion thereof, and agrees that it will not
cause or permit any such lien or order to attach to or affect the fee,
leasehold or other estate of the Landlord herein, or the building. The
Tenant's obligation to keep the premises in repair, and its right to make
alterations therein, if any, shall not be construed as the consent of the
Landlord to the furnishing of any such work, labor or materials within the
meaning of any present or future lien law. Notice is hereby given that the
Tenant has no power, authority or right to do any act or to make any
contract which may create, or be the foundation for, any lien upon the fee
or leasehold estate of the Landlord in the premises or upon the land or
buildings of which they are a part or the improvements now erected or
hereafter to be erected upon the premises or the land or building of which
the premises are a part; and if any such mechanic's or other lien or order
shall be filed against the premises or the land or building of which the
premises are a part, the Tenant shall, within thirty (30) days after the
Tenant has notice thereof, discharge said lien or order by payment, deposit
or by bond fixed in a proper proceeding according to law. If the Tenant
shall fail to take such action, or shall not cause such lien or order to be
discharged within forty-five (45) days after the filing thereof, the
Landlord may pay the amount of such lien or discharge the same by deposit
or
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by bond or in any other manner according to law, and pay any judgment
recovered in any action to establish or foreclose such lien or order, and
any amount so paid, together with the expenses incurred by the Landlord,
including all attorneys, fees and disbursements incurred in any defense of
any such action, bonding or other proceeding, shall be deemed additional
rent. Any reasonable expenses incurred by Landlord in connection with the
examination of title to the premises in order to ascertain the existence of
any lien or encumbrance and the discharge of record thereof, shall be
payable by Tenant to Landlord on demand, together with interest as
aforesaid, as additional rent.
ELEVENTH: Subordination. (a) Subject to the Landlord's causing the
delivery, if appropriate, of the agreements required by paragraph (b)
below, this lease, and all the rights of the Tenant hereunder, are and
shall be subject and subordinate to any and all mortgages now or hereafter
liens either in whole or in part on the building, or the land on which it
stands, and also to any and all other mortgages covering other lands or
lands and buildings, which may now or hereafter be consolidated with any
mortgage or mortgages upon the buildings and the land on which it stands or
which may be consolidated and spread to cover the building and such land
and any such other land or lands and buildings, and any extension, renewal
or modification of any such mortgages, and to any and all underlying leases
on record, or hereafter to be recorded, against the building or the land on
which it stands, and any extensions, renewals or modifications thereof. The
Tenant hereby constitutes and irrevocably appoints the Landlord the
Tenant's attorney in fact to execute any instrument or certificate
evidencing such subordination for and on behalf of the Tenant.
(b) The Tenant hereby agrees that, in the event that any mortgagee
shall succeed to the rights of the Landlord herein named, or if any
landlord of any underlying lease shall succeed to the position of the
Landlord under this lease, then the Tenant will recognize such successor
Landlord as the Landlord of this lease and pay the rent and attorn to and
perform the provisions of this lease for the benefit of any such successor
Landlord. No documentation other than this lease shall be necessary to
evidence such attornment but Tenant nevertheless agrees to execute any
documentation reasonably requested by the successor Landlord to confirm
such attornment or to otherwise carry out the intent and purposes of the
provisions of this Article ELEVENTH but the Landlord will pay all of
Tenant's reasonable counsel fees and expenses incurred in connection with
the review and execution of such documentation.
(c) Anything herein to the contrary notwithstanding, the Landlord
represents and warrants to Tenant that as of the date of this lease there
is no mortgage or superior lease encumbering the premises.
(d) If, in connection with obtaining temporary or permanent financing
for the land and/or building, or any underlying lease, any lender shall
request reasonable modifications of this lease as a condition to such
financing, Tenant will not unreasonably withhold, delay or defer the
execution of an agreement of modification of this Lease provided such
modifications do not increase the monetary obligations of Tenant hereunder
or adversely affect (in the Tenant's reasonable judgment) the leasehold
interest hereby created, or Tenant's rights hereunder.
TWELFTH: Liquors. Neither the Tenant nor any occupant of the premises,
or of any part thereof, shall at any time during the continuance of the
term, sell, traffic in, expose for sale, dispense or give away, upon any
part of the premises, any strong or spirituous liquor, wine, ale or beer,
or take or have a license for such sale, except that it is understood that
as a part of the Tenant's customer relations in its business, the Tenant
may from time to time serve alcoholic beverages to customers at the
premises. No charge will be made for such dispensation or service. Such
service of alcoholic beverages will not be deemed a default or
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violation under paragraph TWELFTH hereof. In no event shall Tenant dispense
or give away any alcoholic beverage to any employee of the Landlord.
THIRTEENTH: Fire and Fire Insurance. (a) If the premises shall be
damaged by fire, action of the elements or other casualty or cause which is
within the risks or the insurance carried by the Landlord, the Tenant shall
give immediate notice thereof to the Landlord, and said damage (unless the
same shall be due to the negligence or other willful acts of the Tenant or
its employees) shall be repaired by the Landlord, to a condition as close
as possible as existed prior to such fire or casualty, at the Landlord's
expense, with all reasonable speed, making due allowance for delay due to
labor troubles, settlement of loss and other causes beyond the control of
the Landlord, and the Tenant shall, in every reasonable way, facilitate the
making of such repairs, and (unless the same shall be due to the negligence
or other fault of the Tenant or its employees) the rent shall be suspended
during such period as the premises shall have been rendered wholly
untenantable. In the event that the premises are rendered partially
untenantable, the rent shall be abated during such period, in the
proportion which the area of the premises which is rendered untenantable
bears to the area of the whole premises, but no damage to the premises or
the building by fire, or other cause, however extensive, shall terminate
this lease, or give the Tenant the right to quit and surrender the
premises, or impair any obligation of the Tenant hereunder, (except, to the
extent permitted in the preceding sentence, with respect to the payment of
rent). Notwithstanding the preceding (i) if the damage shall be so
extensive that the Landlord shall determine to demolish or substantially
alter the building, the Landlord may at any time within sixty (60) days
following the occurrence of the damage give to the Tenant thirty (30) days'
notice of intention to terminate this lease; (ii) if the damage to the
premises is substantial so that in excess of 30% of the rentable area of
the total premises then actually leased hereunder is rendered untenantable
or if 50% or more of the common areas of the building are destroyed or
substantially damaged and the Landlord does not within sixty (60) days
following the occurrence of the damage notify the Tenant of the Landlord's
intention to repair the damage to the premises so that the premises are
again useable by the Tenant, or if the premises are not, in fact, usable
within a period of not more than 120 days following the occurrence of the
damage (subject to unavoidable delays), the Tenant may cancel this lease by
notice given within thirty (30) days following the expiration of the said
60-day period for the Landlord's notice of election to repair or sixty (60)
days after the expiration of the 120 day period, as the case may be; and
(iii) in the event of the occurrence of damage to the premises of the
degree described above in clause (ii) of this paragraph (a), the Landlord
may also elect to terminate this lease by notice of election to do so given
within sixty (60) days following the occurrence of the damage. If notice of
election to terminate this lease shall be given as above provided, then,
upon the date for termination designated in any such notice this lease and
the term hereby granted shall terminate and the rent shall be apportioned
as of the date of the damage or as of such later date as the Tenant may
actually surrender possession. Nothing herein contained shall be deemed to
obligate the Landlord to restore the Tenant's trade fixtures, stocks,
furnishings or other personal property of the Tenant.
(b) The Tenant shall conduct its business and use the premises in such
a manner so as not to increase the rate of insurance applicable to the
building or the property of other tenants, and the Tenant shall install and
maintain all its furniture, fixtures, equipment, stocks and materials in
such a manner as to accomplish the foregoing purposes. The Tenant further
agrees not to permit any act to be done or anything brought into or kept
upon the premises which will void or avoid the insurer's liability under
any contract of fire insurance on the building or its contents (containing
normal and usual exemptions) or any
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actions which will substantially increase the Landlord's cost of such
insurance and in the event of such increase due to any action of the
Tenant, Tenant's employees, agents, contractors, visitors or licensees, the
Tenant agrees to pay to the Landlord, on demand, the additional cost of
such insurance, or, at the option of the Landlord, the same may be added to
any installment of rent and be payable as additional rent. The schedule of
the makeup of a rate issued by an authorized rating organization shall be
conclusive evidence of the facts therein stated and of the items in the
rate applicable to the premises. During the term of this Lease Landlord
will carry insurance against such risks and in amounts as it, in its
reasonable business judgment, deems necessary.
(c) The Landlord, as to the premises, and the Tenant as to the
improvements made therein at the Tenant's expense and all of the Tenant's
stock, trade fixtures and other property in the premises, hereby release
one another from all liability for any loss or damage caused by fire or any
of the risks enumerated in standard extended coverage insurance. This
release is conditioned upon the inclusion in their respective policies of
insurance, if any, of a provision stating that such release shall not
adversely affect said policies or prejudice any right of the insured to
recover thereunder. The Landlord and Tenant agree that their respective
insurance policies will include a waiver of subrogation provision so long
as the same is obtainable without extra cost or if extra cost be charged,
so long as the party for whose benefit the clause is obtained shall pay
such extra cost. If extra cost shall be chargeable therefor the party so
affected shall advise the other of the amount or the extra cost and the
other party at its election may pay the same or decline to so pay in which
event the release from liability given to said party by this Article
THIRTEENTH (c) shall be deemed to be withdrawn and of no force and effect.
FOURTEENTH: Change in Use of Premises: Subletting and Assignment. (a)
The use to be made of the premises by the Tenant and the identity of the
Tenant being among the inducements to the making of this lease by the
Landlord, the Tenant shall not, except in accordance with the terms of this
Article, (i) use or permit the premises or any part thereof to be used for
any purposes other than those specified in the lease, (ii) sublet or
underlet the premises or any part thereof, (iii) permit the premises or any
part thereof to be occupied by anyone other than the Tenant or its officers
or employees, (iv) mortgage or encumber this lease or any interest therein,
(v) assign or transfer, by operation of law or otherwise, this lease or any
interest therein.
(b) The Tenant shall not, without having first obtained the Landlord's
prior written consent thereto, (i) use or permit the premises or any part
thereof to be used for any purposes other than those specified in the lease
and, solely in connection with a sublease executed in accordance with the
terms of this Article FOURTEENTH, for such other general office use as is
reasonably acceptable to Landlord (giving consideration to the fact that
Landlord is a religious institution), or (ii) mortgage or encumber this
lease or any interest therein.
(c) The Tenant shall not, except in accordance with the provisions of
paragraphs (d) through (n) and paragraph (r) of this Article FOURTEENTH,
(i) assign or transfer, by operation of law or otherwise, this lease or any
part therein, (ii) sublet or underlet the premises or any part thereof, or
(iii) permit the premises or any part thereof to be occupied by anyone
other than the Tenant or its officers or employees.
(d) If the Tenant shall desire to assign this lease or to sublet the
whole or any part of the premises or to permit the premises to be occupied
by any person other than the Tenant, the Tenant will notify the Landlord as
to (i) the action which the Tenant proposes; (ii) the portion of the
premises with respect to which the tenant proposes to take such action
(the "Affected
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Premises"); (iii) the name and business address of the proposed assignee,
sublessee or occupant (the "Proposed Undertenant"), (iv) the name and
residence address of the officers and principal stockholders of the
Proposed Undertenant, if a corporation is involved or the names and
residence addresses of the partners thereof if a partnership or joint
venture is involved; (v) the information, in reasonable detail, as to the
Proposed Undertenant which is required to permit the Landlord to make the
determinations described in paragraphs (f), (g) or (h) below; (vi) the
terms upon which the Tenant proposes to assign this lease or sublet the
premises or permit the premises to be occupied by the Proposed Undertenant
(including the terms under which any additions, alterations or decorations
are to be made to the Affected Premises and the terms on which the Proposed
Undertenant is to buy or lease any fixtures, leasehold improvements,
equipment, furniture, furnishings or other personal property from the
Tenant; and (vii) the name and address of any real estate broker or other
person to whom a commission may be owed by any person in connection with
such assignment, subleasing or occupation. (The Tenant's notice of desire
to assign, sublease or permit the occupancy of the Affected Premises by
others, with the information prescribed above is hereafter referred to as a
"Tenant's Subleasing Notice")
(e) By written notice executed by the Landlord and delivered to the
Tenant within thirty (30) days following receipt of the Tenant's Subleasing
Notice (for the purposes hereof such notice shall not be deemed to have
been received by the Landlord until all of the information required by
paragraph (d) above shall have been furnished to the Landlord), the
Landlord shall have the absolute right to select one of the alternatives
set forth in paragraphs (f), (g) or (h) below.
(f) In the event of a proposed assignment of this lease or the
subleasing or occupation of the entire premises subject to this lease and
such sublease or occupation is for a term which will expire at any time
during the last three (3) years of the term of this lease, (i) the Landlord
may elect to require the Tenant to surrender the premises to the Landlord
and terminate this lease with respect to the premises on the last day of
the second complete calendar month following the Tenant's Subleasing Notice
and comply with the provisions of this lease respecting surrender at the
end of the term not later than such date or (ii) the Landlord may give its
consent to any such assignment, sublease or occupation. Any subletting or
occupancy by a third party as a consequence of which 25% or less in an area
of the Premises shall remain in occupancy by the Tenant herein named may,
at the Landlord's option, be considered a subleasing of the whole of the
Premises.
(g) In the event of a proposed subleasing or occupation of less than
the entire premises subject to this lease or the entire premises for less
than the then remaining balance term of this lease, (i) the Landlord may
elect to require the Tenant to surrender to the Landlord and vacate the
Affected Premises not later than the date upon which the proposed
subleasing or occupation is proposed to commence and comply on such date
with the provisions of this lease as to surrender on the Expiration Date
with respect to the Affected Premises, and the Tenant shall, at its
expense, erect the partitioning required to separate the Affected Premises
from the remainder of the premises, create any doors required to provide an
independent means of access to the affected Premises from elevators and
lavatories and to segregate the wiring and meters and electric current
facilities, so that the Affected Premises may be used as a unit for
commercial purposes, separate from the remainder of the premises remaining
in occupation of the tenant; in which event the rent and all additional
rent payable under this lease shall be reduced proportionately with the
diminution in the area of the premises upon surrender of the Affected
Premises; of (ii) the Landlord may give its consent to any such sublease or
occupation and thereupon the provision of paragraphs (1), (p) and (q)
below, will be implemented.
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(h) Notwithstanding any other provision herein, in the event that
Landlord does not select one or more of the alternatives set forth in
paragraphs (f) or (g) of this Article following receipt of Tenant's
Subleasing Notice, then Landlord agrees not to unreasonably withhold or
delay its consent to any proposed subleasing or assignment, provided,
however, that the Landlord shall have the right to condition its consent to
any proposed sublease of all or a portion of the premises on the following:
(i) The Tenant shall not be in default in the payment of rent or
in the performance of any other of its obligations under this lease,
the time to cure having expired.
(ii) The Tenant shall have delivered to the Landlord a Tenant's
Subleasing Notice as required by subparagraph (d) above.
(iii) The Tenant shall assign to the Landlord, and grant the
Landlord a security interest in, the sublease and the rents payable
thereunder and shall take all necessary steps required to perfect such
assignment and security interest.
(iv) The sublease shall include provisions to the effect that (x)
if the Landlord shall notify the sublessee that the Tenant is in
default in the payment of rent or in the performance of its other
obligations under this lease, the sublessee shall, if so requested by
the Landlord, pay all rent and other amounts due under the sublease
directly to the landlord, (y) notwithstanding any such payment by the
sublessee directly to the Landlord, the term of the sublease shall
terminate simultaneously with the termination of the term of this
lease and the sublessee shall surrender the subleased premises upon
such termination, and (z) it is subject and subordinate to this lease
and to all matters to which this lease is or shall be subordinate.
(v) The proposed subtenant shall have a financial standing, be of
a character, be engaged in a business, and propose to use the premises
or portion thereof to be sublet in a manner, which in the Landlord's
reasonable judgment, is in keeping with the Landlord's standards in
such respect of the other office tenancies in the building
(vi) The proposed subtenant shall not then be a tenant, subtenant
or assignee of any space in the building, nor shall the proposed
subtenant be a person or entity with whom the Landlord is then
actively negotiating to lease space in the building.
(vii) The character of the business to be conducted or the
proposed use of the premises by the proposed subtenant shall not (x)
be likely to increase the Landlord's operating expenses beyond that
which would be incurred for use by the Tenant or for use in accordance
with the standards of use of other tenancies in the building, (y)
increase the burden on elevators over the burden prior to such
proposed subletting, or (z) violate or be likely to violate any
provisions or restrictions contained herein relating to the use or
occupancy of this lease.
(viii) Any proposed sublease shall provide that it is subject and
subordinate to this lease and in the event of the termination of this
lease, or the re-entry or dispossession of the Tenant by the Landlord
under this lease, such subtenant shall, at the Landlord's option,
attorn to the Landlord as its sublessor pursuant to the then
applicable terms of such sublease for the remaining term thereof,
except that the Landlord shall not be (x) liable for any previous act
or omission of Tenant as sublessor under such sublease, (y) subject to
any offset which theretofore accrued to such subtenant against the
Tenant, or (z) bound by any previous
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modification of such sublease nor consented to in writing by the
Landlord or by any previous prepayment of rent more than one month in
advance.
(ix) Tenant shall pay all of Landlord's reasonable costs
(including attorneys fees and expenses) related to Landlord's review
of proposed sublease or assignment and the preparation, review and
approval of any assignment of rents, financing statement and other
documents related to such sublease or assignment. Tenant shall also
pay the cost of recording or filing any assignment of rents and
financing statements.
(j) if the Landlord's Subleasing Notice shall be to the effect that
the Landlord elects that the Affected Premises be surrendered, then the
Affected Premises shall be surrendered in accordance with clause (i) of
paragraph (f) or (g) above, as the case may be, and any work required to be
done to separate the Affected Premises from the remainder shall be
commenced promptly following the Tenant's receipt of the Landlord's
Subleasing Notice and carried on with diligence and conformity.
(k) Provided Tenant is in compliance with all other provisions of this
lease, the Tenant is authorized to sublease portions of the premises to a
subsidiary corporation or corporations or to a corporation affiliated with
the Tenant, and the provisions of paragraph (e) through (j) of this Article
and the provisions of paragraph (1) of this Article shall not apply to such
subleasing. A subsidiary corporation means a corporation of which the
Tenant owns and holds at least a majority of each class of stock which is
authorized to vote at the time when the sublease is executed. An affiliated
corporation shall mean a corporation which is owned and controlled by the
corporation which owns and controls the Tenant by ownership of at least a
majority of each such class of stock. Before making any sublease to any
such subsidiary or affiliated corporation, the Tenant shall certify to the
Landlord the manner in which such subsidiary or affiliated corporation is
related to and controlled by the Tenant and the purposes for which the
subleased premises will be used.
(1) In the event the Landlord, in its sole discretion, authorizes
Tenant to sublet (other than the subleasing authorized by paragraph (k)
above) or assign all or a portion of the premises, the Tenant shall pay to
the Landlord, monthly, as additional rent, fifty (50%) percent of all
Subleasing Profit. "Subleasing Profit" shall mean all consideration
received by the Tenant (other than rental received by Tenant under a
sublease entered into pursuant to paragraph (k) of this Article), less (i)
the rent, additional rent payable by the Tenant under this lease for the
period in question (exclusive of any amount payable by the Tenant under
this subparagraph (1)), (ii) the unamortized cost of improving the premises
for subtenant, (iii) any amounts paid by Tenant to subtenant as a cash or
rental concession and (iv) reasonable advertising and legal fees related to
the subleasing of the space to subtenant (but not brokerage fees).
(m) No consent given by the Landlord shall be deemed to permit any act
except the act to which it specifically refers, or to render unnecessary
any subsequent consent, and any assignment or subletting of the premises
shall not relieve the Tenant or any mesne assignee from any obligations,
duty or covenant under this lease, and in all cases a violation of any of
the covenants or duties or obligations under this lease by a subtenant or
assignee shall, in addition, be deemed to be the act of the Tenant herein.
No assignment, transfer, mortgage, encumbrance, subletting or arrangement
in respect of the occupancy of the premises shall create any right in the
assignee, transferee, mortgagee, subtenant or occupant, unless the consent
of the Landlord shall first have been obtained, and unless, if an
assignment is involved, the transferee or assignee shall have delivered an
agreement duly executed by the assignee or transferee wherein the assignee
or transferee assumes and agrees to pay or otherwise keep and perform
-14-
the obligations of the Tenant in this lease or, if a sublease is involved
wherein the sublessee agrees that any act or omission by the sublessee
which, if performed or omitted by the Tenant under this lease would be a
default thereunder, shall also be a default under the provisions of the
sublease. Any assignee by accepting an assignment shall nevertheless be
conclusively deemed to have assumed this lease and all obligations already
accrued or to accrue thereunder and further to have agreed to fully and
duly perform all the Tenant's covenants herein contained. If the Tenant
shall, at any time, be in default in the payment of rent, the Landlord
shall have the right to collect rent from any assignee, undertenant or
occupant, and credit the same to the account of the Tenant, and no such
collection shall constitute a waiver of the foregoing covenant or the
acceptance of anyone other than the Tenant, as Tenant, or shall otherwise
release, impair or otherwise affect any obligation of the Tenant under this
lease. Immediately following the execution and delivery of any assignment
of this lease or any subleasing of the premises or an agreement as to the
occupancy thereof, the Tenant will furnish a duplicate of the instrument in
question to the Landlord.
(n) Anything herein to the contrary notwithstanding, the Tenant may
not assign this lease or sublet or permit the occupancy by any other party
of all or any part of the demised premises at any time when the Tenant has
not paid any rent and additional rent when it is payable. The Tenant shall
furnish Landlord with an original counterpart of each sublease, assignment
or agreement of occupancy made hereunder within ten (10) days after the
date of its execution. Tenant shall remain fully liable for the performance
of all of Tenant's obligations hereunder notwithstanding anything provided
for herein, and without limiting the generality of the foregoing, shall
remain fully responsible and liable to Landlord for all acts and omissions
of any subtenant, assignee or occupant or anyone claiming under or through
any such person 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. Tenant shall pay Landlord on demand any cost or expense (including
attorneys' fees and expenses) which Landlord may be required to incur in
acting upon any request for consent pursuant to this Article.
(o) At the request of the Landlord, the Tenant will furnish to the
Landlord, within ten (10) days of a receipt of a request therefor, a
certificate executed in the name and on behalf of the Tenant, confirming
that, except as previously consented to in writing by the Landlord or as
otherwise specifically set forth in such certificate or permitted herein,
the Tenant has not (i) used or permitted the premises or any part hereof to
be used for any purposes other than those specified in this lease, (ii)
mortgaged or encumbered this lease or any interest therein, (iii) assigned
or transferred, by operation of law or otherwise, this lease or any
interest, therein, (iv) sublet or underlet the premises or any part
thereof, or (v) permitted the premises or any part thereof to be occupied
by anyone other than the Tenant or its officers or employees. With respect
to any exception to clauses (i) through (v) above to which the Landlord has
not previously consented in writing, the Landlord, in its sole discretion,
may either consent thereto (which consent may be subject to any conditions
specified by the Landlord) or exercise the rights and remedies available to
the Landlord under the terms of this lease.
(p) Tenant assumes and shall be responsible for and liable to
Landlord, for all acts and omissions on the part of any present or future
subtenant, and any violation of any of the terms, provisions or conditions
of this Lease, whether by act or omission by any subtenant, shall
constitute a violation by Tenant. Upon any termination of this lease, it is
expressly agreed that Tenant shall deliver to Landlord all subleases,
security deposits (including interest), contracts, documents, rent rolls
and other records used in the operation of the premises and, unless the
sublease shall have previously terminated and the security deposit returned
to
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subtenant or applied as provided by the sublease, all security deposits
held by Tenant.
(q) With respect to any present or future subleases Tenant shall not
accept prepayment of rent prior to its due date in excess of one month (but
the provisions of the foregoing shall not prohibit Tenant from collecting
from any subtenant a security deposit provided such security deposit is
delineated in the sublease as being not advance rent, but security,
returnable to the subtenant after the termination of the term of the
sublease). Tenant agrees to indemnify and save Landlord harmless from and
against any claim or lien against Landlord or the demised premises for the
return of any securities under any leases with subtenants which were not
previously delivered to Landlord and agrees further that all leases
hereafter made with subtenants shall provide that the lease security
deposited by the subtenant shall not be a lien or claim against the
interest of the Landlord.
(r) Provided Tenant is in compliance with all other provisions of this
lease, the Landlord shall consent to sublease of space within the premises,
to one or more unaffiliated third party, which space may not exceed, in the
aggregate, 10% of the premises, and the provisions of paragraph (e), (f),
(g) and (j) of this Article and the provisions of paragraph (l) of this
Article shall not apply to such subleasing but Tenant shall provide to
Landlord all information detailed in (i), (ii), (iii) and (iv) of paragraph
(d) hereof, together with an original counterpart of the sublease or
occupancy agreement which satisfies the provisions of subsections (iv),
(vii) and (viii) of paragraph (h) hereof.
(s) Provided Tenant is in compliance with all other provisions of this
lease, the Landlord shall consent to the assignment by the Tenant of its
interest in this Lease in connection with sale of all or substantially all
of the assets and business operations as a going concern and the provisions
of paragraph (e), (f), (g) and (j) of this Article and the provisions of
paragraph (l) of this Article shall not apply to such assignment but Tenant
shall provide to Landlord all information detailed in paragraph (d) hereof,
together with an original counterpart of the assignment and assumption
agreement. The rights of the Tenant and obligations of the Landlord
pursuant to this paragraph shall be subject to the following conditions and
limitations: (i) the assignee of the Tenant's rights in this Lease shall be
the purchaser, transferee and operator of all or substantially all the
assets and business operations of the Tenant; (ii) the net worth of such
assignee/transferee shall be no less than the net worth of the Lessee
immediately preceding such sale of assets and assignment; and (iii) the
Lessee (or any successor or transferee of the Lessee) may assign its rights
in this Lease pursuant to this paragraph once (and only once).
FIFTEENTH: Waiver and Surrender: Remedies Cumulative. No consent or
waiver of any provision hereof or acceptance of any surrender shall be
implied from any act or forbearance by the Landlord. No agreement
purporting to accept a surrender of this lease, or to modify, alter, amend
or waive any term or provision thereof, shall have any effect or validity
whatever, unless the same shall be in writing, and executed by the Landlord
and by the Tenant, and be duly delivered, nor shall the delivery of any
keys to anyone have any legal effect, any rule or provision of law to the
contrary notwithstanding. Any consent, waiver or acceptance of surrender,
in writing, and properly executed and delivered as aforesaid, shall be
limited to the special instance for which it is given, and no
superintendent or employee, other than an officer of the Landlord or of its
managing agent, and no renting representative shall have any authority to
accept a surrender of the premises, or to make any agreement or
modification of this lease, or any of the terms and provisions hereof. No
provision of any lease made by the Landlord to any other tenant of the
building shall be taken into consideration in any manner whatever in
determining the rights of the Tenant herein. No payment by the
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Tenant or receipt by the Landlord of a lesser amount than the monthly rent
herein stipulated shall be deemed to be other than on account of the
stipulated rent, nor shall any endorsement on any check, nor any letter
accompanying any such payment of rent be deemed an accord and satisfaction
(unless an agreement to accept a lesser amount be signed by the Landlord),
but the Landlord may accept such payment without prejudice to the
Landlord's full right to recover the balance of such rent and to institute
summary proceedings therefor. The receipt by the Landlord of any rent, or
additional rent or of any other sum of money which may be payable under
this lease, or of any portion thereof, shall not be deemed a waiver of the
right of the Landlord to enforce the payment of any sum of any kind
previously due or which may thereafter become due under this lease, or of
the right to forfeit this lease by such remedies as may be appropriate, or
to terminate this lease or to exercise any of the rights and remedies
reserved to the Landlord hereunder, and the failure of the Landlord to
enforce any covenant or condition (although the Tenant shall have
repeatedly or continuously broken the same without objection from the
Landlord) shall not estop the Landlord at any time from taking any action
with respect to such breach which may be authorized by this lease, or by
law, or from enforcing said covenant or any other covenant or condition on
the occasion of any subsequent breach or default. In the event of any
continuing or threatened breach by the Tenant, the Landlord shall have the
right of injunction. The various rights, remedies, powers and elections of
the Landlord, as provided in this lease or created by law, are cumulative,
and none of them shall be deemed to be exclusive of the others, or of such
other rights, remedies, powers or elections as are now or may hereafter be
conferred upon the Landlord by law.
SIXTEENTH: Representations as to Premises. Certificate of Occupancy
and Use. (a) The Tenant represents to the Landlord that the Tenant has
made, or caused to be made, a careful inspection of the premises and that
the Tenant has made an examination of the building and that the area and
present condition of the premises are in all respects satisfactory to the
Tenant, except as may herein otherwise be expressly stated in the Work
Letter attached to this lease and in Article TWENTY-SEVENTH hereof. The
Tenant acknowledges that no representations or promises have been made by
the Landlord or the Landlord's agents with respect to the premises or the
building or the certificate of occupancy thereof, except as in this lease
set forth. The statements contained in this lease regarding the use of the
premises by the Tenant shall not be deemed a representation or warranty by
the Landlord that such use is lawful or permitted by the certificate of
occupancy of the building.
(b) The Tenant shall immediately discontinue any use of the demised
premises, which may, at any time, be claimed or declared by the City or
State of New York or other governmental authority to be in violation of or
contrary to the certificate of occupancy of the building, or by reason of
which any attempts may be made to penalize the Landlord or require the
Landlord to secure any certificate of occupancy other than the one now
issued for the building.
(c) The Landlord has applied for an amendment to the existing
Certificate of Occupancy for the building (the "Certificate of Occupancy")
covering the premises and agrees to use all reasonable commercial efforts
to obtain an amendment to the Certificate of Occupancy applicable to the
premises to permit the premises to be used for office purposes. It is
understood and agreed that in the event that the Landlord fails to obtain
an amendment to the Certificate of Occupancy providing that the premises
may be used for offices, then the Tenant shall have the right, in the
circumstances set forth below (but in no other circumstances), to terminate
and cancel this lease upon not less than thirty (30) days prior written
notice:
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(i) if the City of New York or an agency thereof either
commences, or notifies the Tenant in writing that it intends to
commence, a court proceeding seeking to impose criminal sanctions
against the Tenant because of its occupancy of the premises;
(ii) if the City of New York or any agency thereof either
commences, or notifies the Tenant in writing that it intends to
commence, a court proceeding seeking to fine or assess a monetary
penalty against a Tenant because of its occupancy of the premises,
unless the Landlord agrees in writing to indemnify and hold the Tenant
harmless from and against any such fine or penalty; or
(iii) if the City of New York or any agency thereof obtains a
judgment in the Supreme Court of the State of New York (or in any
other court with jurisdiction) preventing (or takes other action
actually preventing) the Tenant from utilizing the premises for
offices or evicting the Tenant from the premises.
SEVENTEENTH: Limitation of Landlord's Liability. (a) The Tenant shall
make no claim upon the Landlord for abatement of rent, constructive
eviction, rescission, or otherwise, and the Landlord shall be exempt from
all liability, except for injuries to the Tenant's person or property which
are due to the negligence of the Landlord, its agents, servants or
employees in the management of the premises or the real property of which
the demised premises are a part, for or on account of any annoyance,
inconvenience, interference with business, or other damage, caused by: (i)
any interruption, malfunction or curtailment of the operation of the
elevator service, heating plant, sprinkler system, gas, water, sewer or
steam supply, plumbing, machinery, electric equipment or other
appurtenances, facilities, equipment and conveniences in the building,
whether such interruption, malfunction or curtailment be due to breakdowns,
or repairs, or strikes or inability to obtain electricity, fuel or water
due to any such cause or any other cause beyond the Landlord's control;
(ii) any work of repair or restoration done by or on behalf of the Landlord
or the Tenant, pursuant to the provisions of this lease; (iii) any water,
rain, snow, steam, gas, electricity or other element, which may enter, flow
from or into the premises or any part of the building, or any noise or
vibration audible in, or transmitted to the premises; (iv) any vermin; (v)
any falling paint, plaster or cement; (vi) any interference with light or
with other easements or incorporeal hereditaments; (vii) any latent defect
or deterioration in the building or the appurtenances thereof, whether or
not the Landlord shall have been notified of any condition allegedly
causing same; (viii) any zoning ordinance or other acts of governmental or
public authority now or hereafter in force; and (ix) any act or omission of
any other occupant of the building or other person temporarily therein. The
Tenant will not hold the Landlord liable for any loss or theft of, or
damage to, any property in the premises done or caused by any employee,
servant, or agent of the Landlord who is invited into the premises by the
Tenant, nor for the loss, damage or theft of any property stored or left in
the basement or in any other part of the building, which is not enclosed
within the premises or of any property left with any employee of the
Landlord, notwithstanding such theft, loss or damage may occur through
carelessness or negligence of the Landlord's employees; and the Tenant
agrees that any employee in entering the premises at the invitation of the
Tenant or accepting custody of property shall be then deemed agent of the
Tenant or other person at whose instance he may be acting, and not agent of
the Landlord. Employees are not permitted to receive or accept packages or
property for account of Tenants. Storerooms or storage space for personal
property (if provided) are provided gratuitously by the Landlord, and the
use of same shall be at the Tenant's risk and the Tenant will not hold the
Landlord liable for any loss of or damage to person or property therein or
thereby. Nothing in this lease contained shall impose any obligation upon
the Landlord with respect to any real property
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other than the building, whether said other real property be owned by the
Landlord or otherwise, or shall in any way limit the Landlord's right to
build upon or otherwise use said other real property in such manner as the
Landlord may see fit. The Tenant shall make no claim upon the Landlord for
abatement of rent, constructive eviction or rescission, and the Landlord
shall have no liability by reason of the Landlord's failure to enforce the
provisions of the lease to any other tenant against such other tenant.
Notwithstanding anything herein to the contrary, no partner, officer, agent
or employee of Landlord shall be liable for Landlord's obligations under
this lease and Tenant shall not look to any other property or assets of the
Landlord or the property or assets of any partner, officer, agent or
employee of Landlord in seeking to enforce landlord's obligations under
this lease or to satisfy a judgment for Landlord's failure to perform such
obligations.
(b) Any right and authority reserved by and granted to the Landlord
under this lease, to enter upon and make repairs in the premises shall not
be taken as obligating the Landlord to inspect and to repair the premises
and the Landlord hereby assumes no responsibility or liability for the
care, inspection, maintenance, supervision, alteration or repair of the
premises, except as herein specifically provided. The Tenant assumes
possession and control of the premises and exclusively the whole duty of
care and repair thereof, except as herein specifically provided, and the
duty of care, if any, owed by the Tenant to persons on the sidewalk and in
the corridors of the building.
EIGHTEENTH: Indemnity by Tenant. The Tenant hereby indemnifies and
agrees forever to save harmless the Landlord against any and all
liabilities, penalties, claims, damages, expenses (including attorneys, and
counsel fees and disbursements) or judgments, arising from injury to person
or property of any kind, to the extent occasioned by the Tenant's failure
to perform or abide by any of the covenants of this lease or the negligent
or wilful misconduct of the Tenant or Tenant's employees, customers,
agents, contractors, licensees, visitors, assigns or under-tenants of the
Tenant, or to the extent based on any matter or thing growing out of the
Tenant's use or occupation of the premises or any part of the building.
NINETEENTH: Insolvency. If, at any time after the execution and
delivery of this lease, the Tenant shall be adjudicated a bankrupt, or if
the Tenant shall make any assignment for the benefit of creditors, or
attempt to take the benefit of any insolvency law, or if a petition or
answer to reorganize the Tenant shall be approved by any court or judge, or
if a petition or answer for a composition or extension shall be filed by
the Tenant, or if a receiver or trustee shall be appointed for the Tenant's
property, or if the Tenant's interest in this lease shall be attached or
levied upon or shall devolve upon or pass to any party other than the
Tenant (whether such event occurs prior or subsequent to the commencement
of the term or Tenant's entry into possession) such event shall be
conclusively deemed a default hereunder, and the Landlord shall have the
right to terminate this lease in the manner hereinafter provided, as if
such event were a breach by the Tenant of one of the covenants of this
lease. In the event of such termination, the Tenant or any person claiming
under, by or through the Tenant, by virtue of any statute or of any order
of any court, shall not be entitled to possession or to remain in
possession of the demised premises but shall forthwith quit and surrender
same. Exclusive of and in addition to any other rights or remedies the
Landlord may have through any other portion or provision of this lease or
by virtue of any rule of law or statute, said Landlord may keep and retain,
as liquidated damages, any rent, security, deposit or other moneys or
consideration received by the Landlord from the Tenant, or others on behalf
of the Tenant. Also, in the event of termination of this lease as
aforesaid, the Landlord shall be entitled, as and for liquidated damages
from the Tenant for breach of the unexpired term of this lease, to an
amount equal to the
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difference between the rental value of the remainder of the term at the
time of termination and the actual rent reserved, both discounted to
present worth at the rate of twelve percent (12%) per annum. If at any time
within a reasonable period following the date of the termination of the
lease, as aforesaid, the premises should be re-rented by the Landlord, the
rent realized by any reletting shall be deemed prima facie evidence of the
rental value. In the event of the occurrence of any of the above-mentioned
events of default occasioned solely through the invocation by the Tenant or
by third parties of the laws of the State of New York, judicial or
statutory, as distinguished from the invocation of Federal laws relating to
bankruptcy, reorganization, or otherwise, the Landlord, in addition to the
foregoing, may accelerate the full amount of rent reserved for the
remainder of the lease, and the same shall forthwith become due and payable
to the Landlord. Nothing herein provided shall be deemed to prevent or
restrict the Landlord from proving and receiving as liquidated damages
herein the maximum permitted by any rule of law or statute prevailing when
such damages are to be proved, whether they be greater or less than those
referred to above.
TWENTIETH: (a) Remedies of the Landlord on Default: Performance by the
Landlord. If the Tenant shall default in the full and due performance of
any covenant of this lease, the Landlord shall have the right, upon thirty
(30) days' notice to the Tenant (unless a shorter period of notice or
provision for the performance of such work without notice is elsewhere
established in this lease), to perform the same for the account of the
Tenant, and in such event all workmen employed by the Landlord shall be
deemed the agents of the Tenant, and any reasonable payment made, and
expense incurred, by the Landlord in this connection, shall forthwith
become due and payable by the Tenant to the Landlord with interest thereon
at a rate of twelve per centum (12%) per annum. If the Landlord incurs any
expenses, including reasonable attorneys, fees and disbursements in
instituting, prosecuting or defending any action or proceeding instituted
by reason of any default of the Tenant hereunder, the sum or sums so
incurred by the Landlord with all interest, costs and damages, shall be
deemed immediately due to the Landlord upon demand. Any and all sums
payable by the Tenant to the Landlord shall bear interest at the rate of
twelve per centum (12%) per annum from the due date to the date of actual
payment, and any and all such sums (except the rent hereinabove expressly
reserved) shall be deemed to be additional rent for the period prior to
such due date, and the Landlord shall have the same remedies for default in
the payment of such additional rent as for default in the payment of the
rent expressly reserved.
(b) Performance by the Landlord Not an Exclusive RemedY. In the event
that under the provisions of this lease the Landlord shall have the
privilege of performing any covenant in respect of which the Tenant may be
in default and of recovering the expenses so involved from the Tenant as
additional rent or otherwise, such remedy shall not be the exclusive remedy
of the Landlord but the Landlord may, at its option, treat such default as
a breach of a substantial obligation of this lease and shall have all the
other remedies in respect thereof provided in this or any other Article of
this lease.
(c) Dispossess Termination of Lease. If at any time prior to or during
the term of this lease, one or more of the following events occurs:
(i) if Tenant shall default in the payment of fixed rent or in
the payment of any additional rent, as and when due, and such default
shall continue for a period of five (5) days after notice by Landlord
to Tenant of such default; or
(ii) if Tenant shall default in the observance or performance of
its obligations under any term, covenant or provision of this lease
(other than the covenants for the
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payment of fixed rent and additional rent) and Tenant shall fail 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 and Tenant shall not commence within said period of thirty (30)
days, or shall not thereafter diligently prosecute to completion, all
steps necessary to remedy such default; or
(iii) if any of the events specified in the Article of this lease
numbered NINETEENTH and headed "Insolvency" shall occur; or
(iv) if Tenant shall desert or abandon the premises; or
(v) if Tenant shall default in its obligations (after expiration
of all applicable grace periods) under that certain loan agreement,
dated as of the date hereof, between Tenant, as borrower, and Landlord
(the "Loan Agreement") or any note evidencing any amounts payable by
Tenant to Landlord pursuant to the Loan Agreement or other agreements
between the parties (individually, a "Note" and collectively, the
"Notes"),
then, upon such occurrence, Landlord, at any time thereafter, at Landlord's
option, may give to Tenant ten (10) days' notice of its intention to
terminate this lease, and, in such event, on the tenth day following the
giving of such notice this lease and the term hereby granted shall
terminate and expire as fully and completely as if that day were the date
herein expressly fixed for the expiration of the term, and the Tenant shall
thereupon quit and surrender the premises into the possession of the
Landlord, but the Tenant shall nevertheless remain liable for deficiency in
future rent and for any other defaults hereunder, as hereinafter provided.
Notwithstanding any other provisions herein, if the Tenant shall
default in the payment of the rent, or any additional rent herein
mentioned, or of any part of either, or if this lease shall be terminated
by the ten (10) day notice above provided for, the Landlord may
immediately, or at any time thereafter, re-enter the premises and remove
all persons and property therefrom, either by summary dispossess
proceeding, or by any suitable action or proceeding at law, or by force, or
otherwise, without being liable to indictment, prosecution or damages
therefor, and re-possess and enjoy the premises, together with all
additions, alterations, installations and improvements, and no entry by the
Landlord shall be deemed an acceptance of surrender. Upon any such
re-entry, the Landlord may re-let the premises or any part or parts
thereof, and for such term or terms as to the Landlord may seem wise, even
though the same extend beyond the date herein expressly fixed for the
expiration of the term. Any such re-letting shall, at the Landlord's
option, be either for the Landlord's own account, or as the agent for the
Tenant. If the Landlord shall re-let as the agent of the Tenant, the
Landlord shall receive the rents and apply the same, first, to the payment
of all expenses which the Landlord shall have incurred by reason of the
Tenant's default and in connection with such re-entry and re-letting,
including, but not by way of limitation, legal expenses, brokers'
commissions, and the cost of reasonable repairs, redecoration and
alterations, and, secondly, to the fulfillment of the covenants of the
Tenant herein contained, and the surplus, if any, existing at the date
herein expressly fixed for the expiration of the term, shall be paid to the
Tenant, but the Tenant shall be entitled to no such payment until said
date. So long as the premises, or any part thereof, shall not be re-let, or
shall be re-let by the Landlord as the agent of the Tenant, the Tenant
shall remain liable for the full and due performance of all the covenants
of this lease, and the Tenant hereby agrees to pay to the Landlord, as
damages for any default hereunder, until the date herein expressly fixed
for the expiration of the term, the equivalent of the amount of all the
rent and additional rent reserved herein, less the net avails of
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re-letting, as hereinbefore defined, if any, and the same shall be due and
payable by the Tenant to the Landlord on the several rent days above
specified, that is, upon each of the said rent days the Tenant shall pay to
the Landlord the amount of deficiency then existing, and shall not be
entitled to withhold any such payment until the date herein expressly fixed
for the expiration of the term. The liability of the Tenant shall survive
the issuance of a final order and warrant of dispossess, and re-entry by
the Landlord, and any other termination of this lease for default of the
Tenant, and the granting by the Landlord of a new lease of the premises to
another tenant, and the Tenant hereby waives any defense which might be
predicated upon any of said acts or events.
The Tenant hereby expressly waives (i) any and all right co regain
possession of said premises or to reinstate or redeem this lease as
provided by the Real Property Actions & Proceedings Law (and as said law
may be amended), or any such right which is or may be given by any other
statute, law or decision now or hereafter in force; (ii) the service of any
notice demanding rent or stating an intention to re-enter; or any similar
right which is or may be given by any statute, law or decision now or
hereafter in force; (iii) any and all rights of redemption and all other
rights to regain possession or to reinstate this lease (in case the Tenant
shall be dispossessed or ejected by, or pursuant to judgment, order,
execution or warrant of any court or judge). Except as provided in Section
259-c of the Real Property Law with respect to an action for personal
injury or property damage between the parties hereto, the Tenant waives and
will waive all right to trial by jury in any summary proceedings and in any
other proceeding or action at law hereafter instituted by the Landlord
against the Tenant in respect of this lease, and also in any action or
proceeding between the parties hereto for any cause; and it is hereby
agreed, that in any of such events, the matter in dispute shall be tried
before a judge without a jury. In the event the Landlord shall commence any
action or summary proceeding for nonpayment of rent or other breach of
covenant or condition, the Tenant hereby agrees not to interpose any
counterclaim for whatever nature or description in any such action or
proceeding. The words "re-enter" and "re-entry" as used in this lease are
not restricted to their technical legal meaning.
TWENTY-FIRST: Surrender at Expiration. Upon the expiration of the term
of this lease or in the event of termination by reason of casualty or
condemnation, the Tenant shall quit and surrender the demised premises,
together with any fixtures, equipment or appurtenances installed in the
premises at the commencement of this lease, and any alterations,
decorations, additions and improvements which are not to be removed in
compliance with the provisions of Article FOURTH hereof, to the Landlord,
broom clean, in good order and condition, ordinary wear excepted. If the
last day of the term of this lease falls on Sunday, this lease shall expire
on the business day immediately preceding. The Tenant's obligation to
observe and perform this covenant shall survive the expiration or other
termination of the term of this lease.
TWENTY-SECOND: Tenant's Deposit. (a) Upon execution of this Lease, the
Tenant shall deposit with the Landlord the sum of Three Hundred Thousand
Dollars ($300,000) to secure the faithful performance by the Tenant of all
the terms, conditions, covenants and agreements of this lease, and to make
good to the Landlord any damage which it may sustain by reason of any act
or omission of the Tenant (such $300,000 or other amount from time to time
on hand with the Landlord, hereafter the "Deposit"). If, during the term of
this lease, the Landlord shall sell, exchange or lease the entire building,
subject to this lease, or, being the lessee thereof, shall assign its
Lease, the Landlord shall have the right to pay or transfer the said
Deposit to such grantee, lessee, or assignee, as the case may be, and, in
such event, upon notice of such transfer to Tenant, the Landlord shall be
released from all responsibility and liability in connection therewith, and
the
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Tenant will look solely to said grantee, lessee, or assignee for its
return. If the Deposit is in cash, it shall be deposited with a bank or
trust company, savings bank or savings and loan association and the
Landlord shall advise the Tenant of the name and address thereof. The
Tenant shall not be entitled to the payment of any interest earned upon
such Deposit unless earned and any interest earned shall be added to the
Deposit and Landlord shall have the right to deduct from such Deposit an
amount equal to 1% of the Deposit, which 1% shall be payable to Landlord to
defray the cost of administering such Deposit. The Tenant's interest in
said Deposit shall not be assigned or encumbered without the written
consent of the Landlord, and within thirty (30) days after the expiration
(or termination pursuant to paragraph (c) of Article SIXTEENTH) of the
term, the amount of said Deposit shall be repaid to the Tenant, less any
proper charges against the same, as hereinabove or hereinafter provided. If
the Tenant shall fail to make any payment of rent or of additional rent or
of any other payment due from the Tenant to the Landlord under this lease
beyond all applicable grace periods, or if the Landlord shall be damaged by
any act or omission of the Tenant which is a default hereunder for
something other than the non-payment of rent, additional rent or other
amounts and such default is not cured (or diligent efforts to cure such
default not begun) within thirty (30) days, the Landlord may, at its
option, apply such portion of the Deposit as may be adequate to cure such
default or to make good such damage, including, but not by way of
limitation, interest, reasonable costs, fees and other expenses, paid or
incurred by the Landlord, but excluding any amount which might be due as
the result of the acceleration of future rent payable hereunder or the
acceleration of the Notes and thereafter such portion so applied shall be
free from any claim by the Tenant for its return. If the Landlord shall
re-enter, pursuant to the provisions of this lease (other than in the event
of insolvency in which event the provisions of Article NINETEENTH of the
lease shall apply), and shall re-let the premises for its own account, the
entire Deposit shall immediately be and become the absolute property of the
Landlord, as fixed, liquidated and agreed damages, and not as a penalty, it
being impossible in such event to ascertain the exact amount of the damage
which the Landlord may thus sustain, but unless the Landlord shall so
re-let the premises for its own account, the Landlord shall continue to
hold the Deposit, as security for the performance of the Tenant's
obligations, until the date herein expressly fixed for the expiration of
the term, and apply the same from time to time to the unpaid obligations of
the Tenant, under the same terms and conditions as if the said lease were
still in full force and effect. No termination of this lease or re-entry by
the Landlord for default of the Tenant shall entitle the Tenant to the
return of any part of the Deposit, nor shall the retention of such Deposit,
after such re-entry, impair or otherwise affect the Tenant's liability to
the Landlord during the balance of the term originally provided for. If, at
any time, the Deposit shall be diminished below the amounts required by
this paragraph (a) or paragraph (c) of this Article TWENTY-SECOND, as
applicable, by reason of the Landlord's having applied any part thereof in
accordance with the provisions of this paragraph, the Tenant shall pay over
to the Landlord, upon demand, the equivalent of such decrease, to be added
to the Deposit and to be held and applied in accordance with the provisions
of this paragraph.
(b) In lieu of delivering cash as the Deposit, the Tenant may deliver
to Landlord an unconditional, irrevocable, letter of credit (the "Letter of
Credit") issued by a New York Clearing House bank and having a term
expiring no earlier than October 31, 1997 and in substance satisfactory to
the Landlord, which Letter of Credit is to be held by Landlord in
accordance with the terms described in paragraph (a) above. In the event
that the Landlord receives notice from the Bank or Tenant that the Letter
of Credit is not being renewed or in the event that Tenant has not
delivered a replacement Deposit or a similar Letter of Credit to Landlord
by ten (10) days before the expiration of the Letter of Credit, then
Landlord shall be entitled to present the Letter of
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Credit for immediate payment of the then potential amount available
pursuant to the Letter of Credit, and such amount of the Letter of Credit
shall become the Deposit hereunder and shall be held, applied and returned
by Landlord in accordance with the terms provided by the Lease for the
holding, application and return of the Deposit. If the Letter of Credit is
not being renewed but Tenant does deliver a replacement Deposit or a
similar Letter of Credit by ten (10) days before expiration of the Letter
of Credit, then Landlord shall not thereafter be entitled to present the
expiring Letter of Credit for payment of any amounts.
(c) In the event that (i) Tenant delivers to the Landlord a financial
statement (signed by the Tenant's President and Chief Financial Officer)
which shows that the Tenant's net worth as of the date in question is not
less than One Million Two Hundred Thousand ($1,200,000.00) Dollars, and
(ii) the Landlord has not previously drawn on any Letter of Credit in
connection with a failure by the Tenant to pay rent hereunder or pay any
amounts due on the Notes, then the aggregate amount of the Deposit and
Letter of Credit may be reduced on November 1, 1997 to $200,000 and further
reduced on November 1, 1998 to $132,000. In such event, the Tenant shall be
entitled to deliver to the bank issuing the Letter of Credit (if any) a
document, certified by Tenant's President and Chief Financial Officer,
which states that (x) Tenant's net worth as of the date in question is no
less than One Million Two Hundred Thousand ($1,200,000.00) Dollars and (y)
the Landlord has not previously drawn on the Letter of Credit in connection
with a failure by the Tenant to pay rent hereunder or pay any amounts due
on the Notes, and the amount of any Letter of Credit shall thereupon
automatically be reduced to $200,000 on November 1, 1997 and $132,000 on
November 1, 1998.
(d) At Tenant's request, any cash or cash equivalent held by Landlord
as part of the Deposit, which is in excess of that required to be held by
Landlord pursuant to paragraph (c) or this paragraph (d) and which has not
been or is not in the process of being applied pursuant to the provisions
of paragraph (a) of this Article TWENTY-SECOND, shall be returned promptly
to Tenant. If Landlord is holding a letter of credit as part of the Deposit
and provided Landlord has not presented for payment such letter of credit,
upon delivery of a substitute letter of credit in the appropriate amount
and which otherwise satisfies the requirements of paragraph (b) of this
Article, the Landlord shall deliver to Tenant the letter of credit being
replaced.
TWENTY-THIRD: Building Services. (a) Except on Saturdays and Sundays,
and on holidays recognized as legal holidays by State or Federal
Government, the Landlord shall furnish, between the hours of eight a.m. and
six p.m., elevator service with elevators now in the building, and during
the cold season (October 15th through April 15th), sufficient heat to heat
the premises. The Landlord may suspend any such services, if it should
become necessary so to do, at any time. The Landlord shall restore such
suspended service promptly, making due allowance for labor troubles, acts
of God, or any cause beyond the Landlord's control.
(b) In addition to the elevator service described in (a) above, the
Landlord will maintain in service and available for the use of the Tenant,
one passenger elevator at all times on all days of the week, including
Saturdays, Sundays and the legal holidays referred to in paragraph (a)
above. In the event that the Tenant requires freight elevator service, or
heat on Saturdays, Sundays or any legal holiday referred to in paragraph
(a) above, or during hours in addition to those prescribed under (a) above,
the Landlord will furnish the additional elevator service or heat or both,
as the case may be, upon notice of the Tenant's need therefor. Such notice
may be written or oral and shall be given as long a time as practicable
prior to the time when the additional heat or freight elevator service is
required. The Tenant will pay for any additional freight elevator service
and heat furnished after the hours prescribed in (a) above at the
respective prevailing rates
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per hour as established from time to time by the Landlord for such services
at the building or in the buildings of the Landlord generally, for each
hour during which the additional service is supplied. All charges for
additional freight elevator service and heat shall be payable when billed
and in the event of default of payment therefor, Landlord may refuse
further service and the amount unpaid (plus interest thereon at the rate of
twelve per centum (12%) per annum) shall be deemed additional rent for
which the Landlord shall have all the remedies for collection herein
specified with respect to rent. The failure on the part of the Landlord to
furnish such additional elevator service or heat, if due to breakdowns,
repairs, maintenance, strikes, or other causes beyond the control of the
Landlord, shall involve no liability on the part of the Landlord nor shall
it constitute an eviction. Notwithstanding any other provision in this
Article TWENTY-THIRD, during the construction of the Improvements pursuant
to Article TWENTY-SEVENTH of this lease and during the period that Tenant
is moving into the demised premises, Landlord shall furnish freight
elevator service to Tenant between the hours of eight a.m. and six p.m.,
without charge; in the event Tenant requires such freight elevator service
at other times, Tenant shall give Landlord notice of such requirement as
above provided and Tenant will pay for such additional freight elevator
service at the prevailing rates per hour, as established from time to time
by the Landlord, for each hour during which the additional service is
provided during such period.
(c) The Landlord shall furnish the cleaning services referred to in
Schedule A to this lease, such cleaning to be done after five-thirty p.m.
and prior to eight a.m. Tenant shall keep all windows on the premises clean
in accordance with all of Landlord's Rules and Regulations, and Landlord
shall have no obligation to keep the interior or exterior of such windows
clean.
(d) The main entry to the building shall be open and staffed by a
doorman, security guard or other employee or agent of the Landlord from
8:00 a.m. to 7:30 p.m. on business days. At all other times the Tenant and
its employees and their invitees shall have access to the building at any
time and without notice to the Landlord by ringing a security xxxx provided
for after hours service and properly identifying themselves (by building
passes or such other security arrangement as the Landlord shall institute)
to the building staff at that time.
TWENTY-FOURTH: Water; HVAC. (a) The Landlord shall furnish cold water
for ordinary lavatory use so long as the premises are used only for office
uses. The Tenant will, at its own expense, heat the cold water supplied by
the Landlord in order to furnish hot water for lavatory or office uses. In
order to permit the Tenant to heat water for lavatory or office use, the
Landlord will provide, at Landlord's expense, one electric "instantaneous"
water heater, which shall be repaired and, if necessary, replaced by the
Landlord. The Tenant will pay the cost of any electricity utilized in
heating water. In the event that the Tenant shall use water for any
industrial purpose or any purpose other than usual lavatory purposes, the
Tenant shall, at its own expense, install a meter or meters for the
measurement of the quantity of water thus consumed and keep the same in
good working order and the Tenant will pay for the water so shown to have
been used. All payments for water shall be due when billed to the Tenant.
In the event that the Tenant defaults in the payment for any water, the
amount not paid shall forthwith be payable as additional rent and the
Landlord may also, without incurring any liability or disability thereby or
constituting a constructive eviction, discontinue the Tenant's supply of
water.
(b) The Tenant shall pay all electric costs incurred in the operation
of all air conditioning equipment in the premises, in accordance with
Article EIGHTH of this Lease; furthermore, Tenant, at its cost and expense,
shall be responsible for maintaining all service contracts on such
equipment and for the maintenance and
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repair of the air conditioning system, including without limitation, all
duct work and dampers; provided, however, repair is covered by warranty
held by the Landlord, the Landlord will make the benefits of such warranty
available to the Tenant.
TWENTY-FIFTH: Work to be Done by Landlord. The Landlord shall not be
required to furnish any work or materials to the premises, except as
expressly provided in (i) paragraph (a) of Article THIRD and (ii) the Work
Sheet attached as Exhibit "H" to this Lease. In case the Landlord is
prevented from making any repairs, improvements, decorations or
alterations, installing any fixtures or articles of equipment, furnishing
any services or performing any other covenant herein contained to be
performed on the Landlord's part, due to the Landlord's inability to
obtain, or difficulty in obtaining, labor or materials necessary therefor,
or due to any governmental rules and regulations relating to the priority
of national defense requirements, or due to labor troubles, or due to any
other cause beyond the Landlord's control, the Landlord shall not be liable
to the Tenant for damages resulting therefrom, nor except as expressly
otherwise provided in Article FOURTEENTH hereof (in respect of damage to
the premises due to fire), shall the Tenant be entitled to any abatement or
reduction of rent by reason thereof, nor shall the same give rise to a
claim in the Tenant's favor that such failure constitutes actual or
constructive, total or partial, eviction from the premises. Upon
substantial completion of the Landlord's work, Landlord shall tender
possession of the premises to Tenant.
TWENTY-SIXTH: Real Estate Taxes. Operating Expense and Fuel Oil
Escalations.
(a) Real Estate Taxes Escalation. In order to adjust, during the term
of this lease, for increases in the expenses of the Landlord for Real
Estate Taxes, the Tenant, commencing on (i) December 1, 1995 with respect
to the Initial Premises (as defined in paragraph (c)(9) of this Article)
and (ii) December 1, 1998 with respect to the Additional Fourth Floor
Premises, and in each year thereafter, shall pay to the Landlord, as
additional rent, the Tenant's Proportionate Share of any Increase in such
Real Estate Taxes, all in accordance with paragraphs (c) through (g) below.
(b) Operating Expenses Escalation. In order to adjust, during the term
of this lease, for increases in the expenses of the Landlord in operating
the building, the Tenant shall pay to Landlord, as additional rent,
commencing on (i) December 1, 1995 with respect to the Initial Premises and
(ii) December 1, 1998 with respect to the Additional Fourth Floor Premises,
and in each year thereafter, the amount stated opposite the appropriate
year in Exhibit F, attached hereto and made a part hereof (the "Operating
Expense Payment"), all in accordance with paragraphs (c) through (g) below.
(c) Definitions. As used in this Article the following capitalized
words or expressions shall have the meaning ascribed to them below:
1. "Real Estate Taxes" shall mean and include all expenditures of the
Landlord for taxes or assessments payable by the Landlord, as finally
determined, upon or with respect to the building and the land upon which it
is located, imposed by Federal, State or local government (plus all
expenditures for fees and expenses incurred in the course of obtaining a
reduction in any tentative assessed valuation), but shall not include
income, franchise, inheritance or capital stock or like taxes.
2. "Increase in Real Estate Taxes" shall mean the amount by which Real
Estate Taxes in any Subsequent Year, exceed Real Estate Taxes assessed for
the year commencing July 1, 1994 and ending June 30, 1995.
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3. "Projected Real Estate Taxes" shall mean the Landlord's reasonable
estimate of Real Estate Taxes for the particular subsequent year.
4. "Comparative Statement" shall mean a statement, in writing signed
by the Landlord or, on its behalf by an officer of any corporation acting
as its managing agent, showing (i) a comparison of (a) Real Estate Taxes
for the Base Year with (b) Projected Real Estate Taxes for the upcoming
Subsequent Year, (ii) if the Tenant paid additional rent pursuant to this
Article with respect to the immediately preceding Subsequent Year as a
result of Increase in Real Estate Taxes, any adjustment necessitated by a
variance between Projected Real Estate Taxes for such immediately preceding
Subsequent Year (as shown in the last Comparative Statement) and the actual
Real Estate Taxes for such immediately preceding Subsequent Year (as shown
in the current Comparative Statement), (iii) the Operating Expense Payment
for the 12-month period beginning on the November 1st in question and (iv)
the Fuel Oil Escalation for the 12-month period beginning on the November
1st in question. At the request of the Tenant, the Comparative Statement
shall be accompanied by a copy of the most recent statement for real estate
taxes for the premises received by Landlord from the City of New York.
5. "Base Year" shall mean the period of July 1, 1994 to June 30, 1995.
6. "Tenant's Proportionate Share" shall mean the percentage obtained
by dividing the number of Rentable Square Feet of Area of the premises by
the total number of Rentable Square Feet of Area in the entire building,
that is, (i) for the period December 1, 1995 through November 30, 1997,
0.1197 (as such figure may be increased to reflect the Tenant's occupancy
of any Additional Fourth Floor Premises prior to December 1, 1997, as
contemplated by Article Thirty-Second hereof), and (ii) for the period
December 1, 1997 through December 31, 2009, 0.1378.
7. "Rentable Square Feet of Area" shall mean, as to ground floor
space, the number of net square feet of the area thereof and, as to all
floors above the ground floor, shall mean the number of rentable feet of
the area thereof.
8. "Subsequent Year" shall mean each calendar year during the term of
this lease commencing with the year beginning January 1, 1995.
9. "Initial Premises" shall mean the portion of the premises indicated
on Exhibits "A", "C" and "D" hereto.
10. "Additional Fourth Floor Premises" shall mean the portion of the
premises indicated on Exhibit "B" hereto.
(d) Statements for the Tenant. Prior to November 1, 1995, and on or
before that day in each Subsequent Year, the Landlord will furnish a
Comparative Statement to the Tenant. The failure of the Landlord to furnish
a Comparative Statement shall be without prejudice to the right of the
Landlord to furnish a Comparative Statement at any time in the future.
Every Comparative Statement Furnished by the Landlord pursuant to this
Article shall be conclusive and binding upon Tenant unless (i) within
thirty (30) days after the receipt of such Comparative Statement Tenant
shall notify Landlord that it disputes the correctness thereof, specifying
the particular respects in which such Comparative Statement is claimed to
be incorrect. Pending the determination of such dispute, Tenant shall pay
additional rent in accordance with such Comparative Statement and such
payment shall be without prejudice to Tenant's position and to the Tenant's
rights to a refund of any overpayment. If the dispute shall be determined
in Tenant's favor, Landlord shall within five (5) business days after
Landlord's receipt of the notice of such
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determination, pay Tenant the amount of Tenant's overpayment of additional
rent resulting from compliance with such Comparative Statement.
(e) Computation of Increases in Rent Payable by Tenant. When the
Landlord shall furnish the Tenant with any Comparative Statement in
accordance with this Article which shall show an Increase in Projected Real
Estate Taxes and/or a Fuel Oil Escalation, if any, then commencing on
December 1, of the year in question, in addition to the increase in rent
attributable to the Operating Expense Payment for the 12-month period then
commencing, the rent payable under the lease shall be increased by the
Tenant's Proportionate Share of the increase in the Projected Real Estate
Taxes and the Fuel Oil Escalation. Such increases shall be payable (with
payment on account of such increases) as follows: on the first day for the
payment of rent under this lease following the receipt of the Comparative
Statement, the Tenant shall pay to the Landlord the sum equal to (1) the
aggregate of one-twelfth of the Tenant's Proportionate Share of the
increase in Projected Real Estate Taxes, (plus or minus, as the case may
be), (2) any adjustment necessitated by a variance between (x) the
Projected Real Estate Taxes for such immediately preceding Subsequent Year
and (y) the actual Real Estate Taxes for such immediately preceding
Subsequent Year, plus (3) one-twelfth of the Tenant's Operating Expenses
Payment for the 12-month period then commencing plus (4) one-twelfth of the
Fuel Oil Escalation for the 12-month period then ended. Until a different
Comparative Statement shall be submitted as above provided, the monthly
installments or rent payable under this lease due to an Increase in
Projected Real Estate Taxes and Fuel Oil Escalation shall continue to be
increased by such amount; however, notwithstanding any other provision
herein, the failure of the Landlord to submit a Comparative Statement in
any Subsequent Year shall not affect the amounts payable by Tenant as
Operating Expense Payment in such Subsequent Year.
With respect to the Comparative Statement furnished to the Tenant in
the Subsequent Year following the year in which the term of this lease
terminates, if such Comparative Statement shall indicate an adjustment
necessitated by a variance of the type referred to in clauses (x) and (y)
in the immediately preceding paragraph, then the Tenant shall promptly pay
to the Landlord, or the Landlord promptly shall pay to the Tenant, as the
case may be, the amount of any such adjustment as indicated in such
Comparative Statement.
(f) Inspection of Books. The Tenant or its authorized representative
shall have a right to examine the books of the Landlord showing the Real
Estate Taxes and Fuel Oil Escalations with respect to the building during
regular business hours for the purpose of verifying the information set
forth in any Comparative Statement relating to any Increase in Real Estate
Taxes and Fuel Oil Escalation shown in such Comparative Statement; provided
that a written request for such inspection is made by the Tenant within 120
days of the receipt of any such Comparative Statement.
(g) Decreases in Real Estate Taxes or Fuel Oil Costs. In no event
shall any decrease in the Real Estate Taxes or fuel oil costs in any way
reduce the fixed rent payable by the Tenant under this lease, except to the
extent to which a decrease in Real Estate Taxes shall result in a decrease
in the additional rent payable pursuant to paragraph (a) of this Article;
provided, however, that no decrease in Real Estate Taxes or fuel oil costs
shall in any way reduce any additional rent payable on account of any
Operating Expense Payment.
(h) Fuel Oil Escalation. In the event that in any 12 month period
commencing on October 1, and ending on September 30 (a "Fuel Oil Year") the
average tank wagon delivery price for fuel oil (expressed in cents per
gallon) of the grade utilized in the oil burners installed in the building,
as cited in the Amerada Xxxx Schedule for New York City as published in
"The Journal of
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Commerce" (or, if such schedule is no longer available, such similar
published schedule as the Landlord shall deem reasonably appropriate)
(hereinafter called the "Adjusted Fuel Cost") exceeds the Base Fuel Cost
(hereafter defined), then commencing on the next December 1, the Tenant
shall pay to the Landlord, in the manner herein provided, as additional
rent, the amount (the "Fuel Oil Escalation") obtained by multiplying (x)
the product obtained by multiplying (i) the Base Fuel Cost by (ii) the
total amount of fuel oil used for the building during the preceding Fuel
Oil Year to September 30, 1994 by (y) a fraction, the numerator of which
shall be (i) the Adjusted Fuel Cost, less (ii) the Base Fuel Cost, and the
denominator of which shall be the Base Fuel Cost, and by (z) the Tenant's
Proportionate Share. Payment of any Fuel Oil Escalation shall be made in
accordance with paragraph (e) of this Article TWENTY-SIXTH. As used in this
paragraph (h) the term "Base Fuel Cost" shall mean the average cost
(expressed in cents per gallon) for fuel oil in November, 1994, as cited in
the Amerada Xxxx Schedule for New York City as published in "The Journal of
Commerce" (or, if such schedule is no longer available, such similar
published schedule as the Landlord shall deem reasonably appropriate).
If the Landlord changes the grade or type of fuel oil presently used
in the building and such change results in an inequity to either the
Landlord or the Tenant, then the appropriate adjustment will be made to the
foregoing. Appropriate adjustments will also be made to prorate any amount
payable hereunder with respect to the first and last years of the term of
this lease.
(i) Notwithstanding any other provision herein, in no event shall the
amount payable by Tenant in any Subsequent Year for Fuel Oil Escalation and
Operating Expense Payment exceed 5% of the fixed rent payable in such
Subsequent Year.
TWENTY-SEVENTH: Construction of Office Improvements. It is agreed that
the Tenant will arrange for the modification and improvement of the
premises to make them suitable for office use, and that the Landlord will
pay the cost thereof up to a maximum of $847,000, of which $749,087 may be
utilized at any time and $97,913 may only be utilized after the earlier of
(i) November 1, 1997 or (ii) the date specified in any notice from the
Tenant pursuant to Article THIRTY-SECOND as the date on which the Tenant's
lease term with respect to the Additional Fourth Floor Premises will
commence; all in accordance with, and subject to the limitations set forth
in subparagraphs (a) through (e) below:
(a) The Tenant will select an architect to design office installation
improvements for the premises (the "Improvements"). The Improvements shall
not include any furniture, or telephone, computer or other office systems
or equipment.
(b) As soon as possible, but in all events within four weeks after the
execution and delivery of this lease, the Tenant shall submit to the
Landlord for Landlord's review and approval, complete and final plans and
specifications (including all necessary mechanical, electrical, engineering
and working drawings) (the "Final Plans") for the Improvements to the
Landlord and such plans and specifications shall be sufficient (i) to
comply with all applicable rules, regulations and requirements of any
governmental authority having jurisdiction over the building, (ii) to
permit Tenant to apply for and obtain all necessary permits, licenses and
approvals necessary in connection with the Improvements, and (iii) to
permit the contractor to commence and complete the work relating to the
Improvements. The Landlord will review and approve or comment on any plans
and specifications submitted by the Tenant within fifteen (15) days of
receipt thereof. As soon as practical following any comment by the
Landlord, the Tenant shall submit to the Landlord for approval revised
plans and specifications for the Improvements, sufficient to meet the
requirements in clauses (i) through (iii) above (such plans, as finally
approved by the Landlord, shall be initialed by the Landlord and the
Tenant, and
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are hereinafter referred to as the "Final Plans"). The Tenant agrees to
reimburse the Landlord for its reasonable fees and expenses for reviewing
any preliminary plans and specifications, as well as the Final Plans.
(c) All professional fees (including those for architectural and
design costs and appraisals) and the cost of all permits, licenses and
approvals required in connection with the construction and installation of
the Improvements shall be borne solely by the Tenant and shall not be
included in the $847,000 to be advanced by Landlord pursuant to this
Article TWENTY-SEVENTH for the construction and installation of the
Improvements. In the event that the Landlord advances any such fees or
costs, the Tenant shall reimburse the Landlord for such amount within three
(3) days of receipt of any invoice from the Landlord for such an amount. No
work shall be commenced unless and until Tenant delivers to Landlord all
necessary permits, consents, certificates, and governmental approvals
necessary or applicable for the construction and installation of the
Improvements.
(d) Within fifteen (15) days of the Landlord's approval of the Final
Plans, the Tenant will inform the Landlord of the cost of constructing and
installing the Improvements. In the event that such cost exceeds the
portion of the $847,000 then available pursuant to the provisions of this
Article (the "Available Amount"), the Tenant, will elect one of the
following options:
(x) elect to proceed with the construction and installation of
the Improvements and to pay such excess cost, in which event the
Tenant will immediately deliver to Landlord the full amount by which
such cost exceeds the Available Amount; such deposit may be in a form
of a letter of credit issued by a New York Clearinghouse bank, having
a term of one year and otherwise in form satisfactory to Landlord, the
letter of credit will be presented for payment by the Landlord once
Landlord has been presented with invoices equal to or in excess of the
Available Amount and in the event the proceeds thereof are
insufficient to pay the excess costs, the Tenant will deposit the
balance of such excess amount with the Landlord within seven (7) days
of receipt from Landlord of an invoice for such amount; if the
proceeds of such letter of credit exceed the excess costs, Landlord
will deliver any excess proceeds to Tenant promptly after payment of
all invoices related to the Improvements; or
(y) cause the Tenant's architects to revise the plans and
specifications for the Improvements so that the total cost thereof
does not exceed the Available Amount;
(z) without changing the plans and specifications for the
Improvements from those set forth in the Final Plans, either
renegotiate the bids submitted by one or more subcontractors or
vendors whose bids were utilized in calculating the total cost of
constructing and installing the Improvements, or obtain bids of
additional subcontractors or vendors with respect to particular
elements of the Improvements, in either case with a view toward
lowering the total cost of constructing and installing the
Improvements.
The Tenant agrees to exercise the foregoing election within three (3)
business days of giving Landlord the notice required by paragraph (d),
above. It is understood and agreed that notwithstanding the Tenant's
exercising either or both of the options referred to in (y) and (z) above,
in the event that the total cost of constructing and installing the
Improvements shall, nevertheless, exceed the Available Amount, the Landlord
shall be under no obligation to proceed with the funding of such
construction and installation unless and until the Tenant shall deposit
with the Landlord the full amount of such excess. The Tenant shall commence
constructing and installing the Improvements not later than the
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tenth business day following Tenant's exercise of the options set forth
above (and the deposit of funds with the Landlord, if required) (the
"Improvements Construction Date"). In the event that during the course of
the construction and installation of the Improvements, the Tenant makes any
change, addition or modification from the Improvements as detailed on the
Final Plans, Tenant shall give Landlord notice of such change addition or
modification and, if as a result of such change, addition or modification,
the cost of the Improvements shall be increased, then the Tenant shall
immediately deposit the full amount of such increase with the Landlord
which shall utilize such funds to pay such increase cost. The Tenant shall
be responsible for the cost of any change which would increase the cost of
the Improvements. In the event that during the course of constructing and
installing the Improvements, the Tenant wishes to authorize overtime work
in order to reduce the time necessary to construct and install the
Improvements, then it will so advise the Landlord and Landlord will
authorize such overtime work provided the Tenant shall undertake to pay the
additional cost resulting from the utilization of overtime work and shall
deposit with the Landlord, at the time of such request, an amount equal to
the Landlord's reasonable estimate of the additional cost of such overtime
work. All deposits for excess costs required pursuant to this paragraph (d)
may be in the form of a letter of credit satisfying the provisions of
subparagraph (x) hereof.
(e) In the event that the total cost of the Improvements is less than
$847,000 the Landlord shall pay the total cost of the Improvements;
however, no additional amount shall be payable to the Tenant or any other
person as a result of such fact, nor shall Landlord pay any of the fees or
costs referred to in paragraph (c). The Tenant shall pay any cost of the
Improvements in excess of $847,000.
(f) The Tenant warrants to the Landlord that the Improvements shall
conform to the Final Plans and shall be of good quality and workmanship.
(g) Tenant's selection of the construction manager, contractors,
subcontractors, vendors, and suppliers are subject to the approval of
Landlord. All construction contracts shall be a stipulated sum or cost plus
(with an upset price) contract or other form of contract approved by
Landlord. All contracts shall be assignable to Landlord and will provide
for the completion of the Improvements in accordance with the Final Plans.
(h) At Landlord's request, Tenant shall, from time to time, provide
Landlord with a list of all contractors, subcontractors, vendors, workers
and all other persons performing any labor or supplying any material in
connection with the construction and installation of the Improvements and
will provide Landlord evidence, satisfactory to Landlord, that Tenant's
contractors, and all subcontractors, vendors and workers have all licenses,
permits and approvals required under applicable law and carry liability,
workmen's compensation and other insurance in amounts and with insurance
carriers reasonably satisfactory to the Landlord.
(i) It is understood and agreed that the Landlord shall have no
responsibility for the performance of the contractor installing the
Improvements (including matters of quality or timeliness), and in the event
that for any reason the Improvements are not completed in a timely fashion
and/or there is any delay on the date on which the premises are ready for
occupancy by the Tenant for the purposes of conducting business by that
date, this lease shall nevertheless continue in full force and effect and
the Tenant waives any and all claims against the Landlord, including
without limitation, any claims for actual, punitive or consequential
damages.
(j) The Landlord shall only be required to pay Tenant or the
contractor, subcontractor or party providing the goods or
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services for the construction and installation of the Improvements upon the
satisfaction of the following conditions:
(i) The amount then requested when added to all amounts
previously requested would not exceed the Available Amount;
(ii) Landlord has received from Tenant the deposit required by
paragraph (d)(x) of this Article, if applicable;
(iii) The Improvements conform to the design set forth in the
Final Plans and are of good quality and workmanship; and
(iv) The Tenant submits to Landlord a written request for such
payment, substantially in the form of Exhibit "G" hereof, or in such
other form as the Landlord may reasonably required together with
(x) invoices from the vendor, supplier, or contractor
evidencing the amount to be paid, (y) a written waiver from
the contractor and all of the vendors pursuant to such
request waiving, with respect to the materials or services
delivered or performed through the date of such invoice, any
right to assert any vendor's, mechanic's or other lien on
the building, the premises or any fixtures, machinery,
equipment or other installation therein.
The Tenant shall seek payments pursuant to this paragraph (j) not more than
twice in any calendar month. No payment shall be sought for material not
yet installed or incorporated in to the premises or for work not yet
performed.
(k) Materials to be incorporated into the Improvements shall,
effective upon their payment and at all times thereafter, constitute the
property of the Landlord, and upon construction of the Improvements or the
incorporation of such materials therein, title thereto shall continue in
Landlord. However, Landlord shall not be liable in any manner for payment
or otherwise to any contractor, subcontractor, vendor, worker or supplier
of materials and all construction contracts shall so provide.
(1) The Landlord agrees that if so requested by the Tenant, and
subject to the conditions set forth below, the Landlord will permit
contractors, vendors and workmen retained by the Tenant to enter the
premises prior to the completion of the construction and installation of
the work to be performed by Landlord pursuant to the Work Letter for
purposes of constructing the Improvements on the premises, provided, in
Landlord's reasonable judgment
(i) such contractors, vendors and workmen do not substantially
delay, hinder or interfere with Landlord's completion of the work
described in the Work Letter; and
(ii) Landlord has no reason to believe that the presence of such
contractor vendor or worker may result in labor difficulties or
interfere with, hinder, delay or otherwise adversely affect the
construction or installation of the work described in the Work Letter.
The Landlord may at any time terminate such access if the Landlord
reasonably concludes that the conditions set forth in the clauses (i) and
(ii) above are not being satisfied.
(m) In the event the term of this lease shall commence prior to
Landlord's completion of the work described in the Work Letter, the Tenant
shall provide Landlord access to the premises to
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complete such Work and shall take all action necessary to ensure that
Tenant's contractors, vendors and workers do not interfere with, hinder,
delay or otherwise adversely affect the construction or installation of the
work described in the Work Letter.
TWENTY-EIGHTH: Broker. The Tenant represents and warrants to the
Landlord that all of the Tenant's negotiations respecting this lease which
were conducted with or through any person, firm or corporation, were
conducted through Xxxxxx X. Xxxxxxx, Inc., real estate brokers. The
Landlord agrees to pay the commission due to such broker pursuant to the
terms of a separate agreement. Landlord and Tenant agree to indemnify and
hold one another harmless from and against all demands, liabilities,
losses, causes of action, damages, costs and expenses (including without
limitation attorneys' fees and disbursements) suffered or incurred in
connection with any claims for a brokerage commission or consultation fees
arising out of any conversations or negotiations had by the party against
whom indemnification is claimed with any broker or finder except for Xxxxxx
X. Xxxxxxx, Inc.
TWENTY-NINTH: Notices; Miscellaneous. (a) Any notice which is to be
given by either party to the other pursuant to this lease shall be in
writing and shall be given personally as follows: (i) if such notice is to
be given by the Landlord to the Tenant such notice shall be given by mail
in the following manner: (x) notice may be given personally, by delivering
the same to the Tenant or, if the Tenant be a corporation or partnership,
to any officer of such corporation or member of the partnership, at the
premises or at any other place; or (y) notice may also be given personally
at the premises by delivering same to the Tenant or any officer or partner
of the Tenant; or (z) notice may also be given by registered or certified
mail by depositing the notice, enclosed in an envelope addressed to the
Tenant at its address given in this lease or at the premises, in any United
States Post Office, postage and registry or certification fees prepaid;
(ii) if such notice is to be given by the Tenant to the Landlord, the
notice shall be given by registered or certified mail, by depositing the
notice, enclosed in an envelope, addressed to the Landlord at 00 Xxxxxxx
Xxxxx, Xxx Xxxx, N.Y., or at such other place as the Landlord shall
hereafter designate in writing, in any United States Post Office, postage
and registry or certification fees prepaid. Any notice shall be deemed to
have been given on the date when the same is delivered as above provided
or, if given by mail, on the date when it is deposited as above provided in
the United States Post Office.
(b) If Tenant is a corporation, partnership or trust, it shall keep in
effect its existence and rights as a corporation or partnership or trust
under the law of the state of its incorporation or formation and its right
to own and lease property and transact business in the state in which the
premises are situated during the entire time that it has any interest in
the premises.
THIRTIETH: Quiet Enjoyment. The Landlord covenants that, if the Tenant
shall duly keep and perform all the terms and conditions hereof, the Tenant
shall peaceably and quietly have, hold and enjoy the premises for the term
aforesaid, subject, however, to ground leases, underlying leases and
mortgages as hereinbefore described, and to the lien, rights and estate by
virtue of unpaid taxes of any government having jurisdiction of the
premises of which the herein demised premises are a part. If the Landlord
shall hereafter sell, exchange or lease the entire building or the land and
the building wherein the premises are located, subject to this lease, or,
being the lessee thereof, shall assign its lease, the grantee, lessee, or
assignee thereof, as the case may be, shall, without further agreement by
any party, be conclusively deemed to be the Landlord of this lease and to
have assumed and undertaken to carry out all of the obligations hereof on
the part of the Landlord to be performed, and the Tenant does hereby
release the above named Landlord from any claim or liability arising or
accruing hereunder subsequent to such transfer of
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ownership, for breach of the covenant of quiet enjoyment, or otherwise.
THIRTY-FIRST: Headings. The headings or titles of the various Articles
or paragraphs of this lease are for reference and index purposes only, and
none of them shall be taken into consideration or given any effect whatever
in determining the meaning or scope of the paragraph to which any of them
applies. The use of any pronoun referring to either of the parties to this
lease shall be construed to include any or no gender and any number.
THIRTY-SECOND: Additional Fourth Floor Premises. As provided on the
first page of this lease, the Tenant's leasing of the portion of the fourth
floor premises indicated on Exhibit "B" hereto (the "Additional Fourth
Floor Premises") commences on December 1, 1997; however, the Tenant shall
have the right to begin leasing the Additional Fourth Floor Premises at any
time prior to December 1, 1997 by giving the Landlord not less than thirty
(30) days prior written notice of the date on which the Tenant elects to
commence its leasing of such premises (The date on which the Tenant's
leasing of the Additional Fourth Floor Premises commences (that is,
December 1, 1997 or such earlier date as the Tenant may elect pursuant
hereto) is hereby referred to as the "Additional Fourth Floor Premises
Commencement Date"). In the event that the Additional Fourth Floor Premises
Commencement Date is prior to December 1, 1997, then, during the period
commencing with the Additional Fourth Floor Premises Commencement Date and
ending with November 30, 1997, the fixed rent indicated on the first page
of this lease shall be increased by $7,232.50 per month, so that the
aggregate fixed rent payable pursuant to this lease during such period
shall be at the rate of $55,150 per month, subject to the provisions of
Article THIRTY-THIRD of this lease.
THIRTY-THIRD: (a) The Tenant is hereby granted the privilege of
occupying the portion of the fourth floor premises indicated on Exhibit "A"
hereto (the "Initial Fourth Floor Premises"), subject to all of the terms,
covenants and conditions of this lease, including but not limited to, the
payment of any service charges for electric current, water, sprinkler
maintenance and any overtime elevator or heat service and to the payment of
any additional rent payable pursuant to the provisions of Paragraph
TWENTY-SIXTH of this lease but otherwise free of the payment of the fixed
rent applicable to the Initial Fourth Floor Premises (that is, $20,267.50
per month) during the following periods:
(i) During the period beginning with the tender of possession of
the premises by the Landlord to the Tenant at any time prior to the
commencement of the term of this lease and ending on November 30,
1994, the date prior to the commencement of the term;
(ii) During the period of the term of this lease commencing on
December 1, 1994 and ending on May 31, 1995.
(b) The Tenant is hereby granted the privilege of occupying the
Additional Fourth Floor Premises (as defined in Article THIRTY-SECOND
hereof) subject to all of the terms, covenants and conditions of this
lease, including but not limited to, the payment of any service charges for
electric current, water, sprinkler maintenance and any overtime elevator or
heat service and to the payment of any additional rent payable pursuant to
the provisions of Paragraph TWENTY-SIXTH of this lease but otherwise free
of the payment of the fixed rent applicable to the Additional Fourth Floor
Premises (that is, $7,232.50 per month) during the period commencing with
the Additional Fourth Floor Premises Commencement Date (as defined in
Article THIRTY-SECOND hereof) and ending on the earlier of (i) 270 days
after such date or (ii) the date on which the Tenant moves employees into
the Additional Fourth Floor Premises or otherwise uses any substantial
portion of the
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Additional Fourth Floor Premises in connection with the Tenant's
advertising business.
(c) The right to occupy the Initial Fourth Floor Premises and the
Additional Fourth Floor Premises free of rent during the periods set forth
in paragraphs (a) and (b) of this Article shall be subject to the condition
that the Tenant shall not default in the payment of any other fixed rent,
or any additional rent or any other charge due under this lease or in the
performance of the other terms, covenants and conditions set forth in this
lease. In the event of any such default, then fixed rent at the monthly
rate set forth in this Article shall be payable during the period in which
the Tenant would otherwise be entitled to the use of such premises free of
fixed rent. Any such payment shall be paid within ten (10) days following
demand and shall constitute additional rent under this lease.
THIRTY-FOURTH: Termination of Existing Lease. Effective at noon on
December 1, 1994, the Lease dated as of September 10, 1991 (the "Lease")
between the Landlord and the Tenant shall be modified so that the term of
the Tenant in the Premises, under the Lease, shall terminate and come to an
end, as if said date were the date originally specified for the expiration
of the term of the Lease.
THIRTY-FIFTH: Option Space. (a) The Landlord currently leases the
entire seventh floor of the building indicated by the cross-hatching on the
diagram attached hereto as Exhibit "E" (the "Option Space") to Maritz
Communications Company ("Maritz") pursuant to a lease dated as of July 1,
1992 (the "Maritz Lease") for a term to expire on September 30, 1998. The
Tenant shall, upon the expiration or termination of the Maritz Lease
(subject to the condition subsequent set forth in paragraph (b) of this
Article) have the right and option to lease the Option Space. In order to
exercise such option, the Tenant shall give the Landlord written notice of
its exercise of such option not later than (x) September 1, 1997 or (y) in
the event that the Maritz Lease is terminated prior to September 30, 1997,
30 days after written notice from the Landlord to the Tenant that the
Maritz Lease has been terminated. Promptly, upon receipt of such notice and
provided that the Tenant is not in default in the payment of rent or the
performance of its other obligations under this lease, the Landlord shall
send the Tenant a proposed lease amendment with respect to the Option
Space, pursuant to which the Landlord shall offer to lease the Option Space
to the Tenant on the terms and conditions as set forth below:
(i) the annual fixed rent payable by Tenant with respect to the
Option Space shall be as follows:
Period Annual Fixed Rent
------ -----------------
December 1, 1994 to
November 30, 1998 ............... $330,000
December 1, 1998 to
November 30, 2003 ............... $374,000
December 1, 2003 to
December 31, 2009 ............... $484,000;
(ii) the Tenant shall be obligated to pay as additional rent with
respect to the Option Space escalations with respect to real estate
taxes, operating expense and fuel oil, all on the terms set forth in
Article TWENTY-SIXTH hereof, and the dates to be utilized in the
definitions of "Increases In Real Estate Taxes", Base Year", and "Base
Fuel Cost" in such proposed lease amendment shall be the
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same dates as those contained in the definitions of such terms in this
lease;
(iii) the term of the proposed lease of the Option Space shall
end concurrently with the term of this lease;
(iv) if necessary, Tenant will arrange for the modification and
improvement of the Option Space to be leased pursuant to such proposed
lease amendment to make them suitable for office use, all in a manner
and to the extent provided in Article TWENTY-SEVENTH hereof, and the
Landlord will reimburse the Tenant for the cost thereof up to a
maximum of $220,000;
(v) the Tenant shall deposit an additional $66,000 to be held by
the Landlord as security pursuant to Article Twenty-Second of this
lease;
(vi) the Tenant will agree to indemnify and hold harmless the
Landlord against any and all claims that a real estate commission is
due in connection with the Tenant's leasing of the Option Space;
(vii) the Landlord will agree in the lease amendment to
rehabilitate the air conditioning system servicing the Option Space
and the lavatories on the seventh floor, in both cases to building
standard; and
(viii) in the case of a lease amendment pursuant to which the
Tenant's lease term for the Option Space is to commence on or after
September 1, 1998, such lease amendment shall provide that the
obligations of the landlord shall be subject to the condition
subsequent that the Landlord shall not have elected to extend or renew
the Maritz Lease or entered into a new lease with Maritz or any
successor to Maritz, including any corporation, partnership or other
entity to which the Maritz Lease has been assigned in connection with
the sale of all or substantially all the assets and business of
Maritz, all as contemplated by paragraph (b) of this Article.
The Tenant shall then have ninety (90) days to execute and return such
lease to the Landlord. If the Tenant is in default in the payment of rent
or the performance of its other obligations under this lease, or if the
Tenant does not execute and return an offered lease to the Landlord within
ninety (90) days, the Landlord may thereafter lease the Option Space to a
third-party free of any right of the Tenant to lease the Option Premises.
(b) Notwithstanding anything in this Article, the Landlord and the
Tenant understand and agree that the Tenant's option to lease the Option
Space and the obligations of the Landlord pursuant to this Article and
pursuant to any amendment of lease executed in accordance with the terms of
this Article shall be subject to the right of the Landlord to extend or
renew the Maritz Lease or to enter into a new lease with Maritz or any
successor to Maritz (including any corporation, partnership or other entity
to which the Maritz Lease has been assigned in connection with the sale of
all or substantially all assets and business of Maritz) (collectively a
"Maritz Lease Extension"); provided, however, that the Landlord shall not
enter into a new lease for the Option Space with any sublessee of Maritz,
unless and until the Tenant has elected not to exercise the option set
forth
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in this Article. The Landlord agrees that in the event that the Tenant has
exercised the option set forth in this Article and the Landlord and the
Tenant have executed an amendment of lease, as contemplated by paragraph
(a) above, and, subsequent thereto, the Landlord elects to enter into a
Maritz Lease Extension, then the Landlord will notify the Tenant of such
fact as soon as practical and upon the giving of such notice, such
amendment of lease shall be of no further force or effect, and each of the
Landlord and the Tenant shall be released from all obligations and
liabilities thereunder.
THIRTY-SIXTH: Additional Space.
(a) In the event that at any time prior to June 1, 1998, the Tenant
shall send the Landlord a Letter Requesting Additional Space (as defined in
paragraph (d) below), and, if (x) there is then Available For Lease (as
defined in paragraph (e) below), or (y) there becomes Available For Lease
within six months of the date of receipt of such letter from the Tenant, a
unit of space on a single floor of the building which shall be
substantially equal in size to, or not exceeding 120% of the size of, the
Desired Square Footage (as defined in paragraph (d) below), then the
Landlord shall offer to lease such premises to the Tenant, such offer to be
made by the Landlord sending the Tenant a proposed lease reflecting the
terms set forth in paragraph (b) below. In the event that there shall be
Available For Lease more than one unit of space which is substantially
equal in size to, or not exceeding 120% of the size of, the Desired Square
Footage, then the Landlord shall advise Tenant of such fact and Tenant
shall, within 10 days of such notice, select the unit of space to be
offered to the Tenant for lease and, within 30 days after such selection,
Landlord will forward to Tenant the proposed lease for Tenant's execution
and delivery.
(b) The proposed lease pursuant to which the Landlord shall offer to
lease to the Tenant space of the Desired Square Footage shall contain
substantially the same terms as set forth in this lease wherever possible,
except that:
(i) the term of the proposed lease shall end concurrently with
the term of this lease;
(ii) the initial fixed rent payable by Tenant pursuant to the
proposed lease shall be equal to the area of the premises subject
thereto multiplied by the following amounts per square foot:
Period Annual Fixed Rent
------ -----------------
December 1, 1994 to
November 30, 1998 ........... $15.00 per square foot
December 1, 1998 to
November 30, 2003 ........... $17.00 per square foot
December 1, 2003 to
December 31, 2009 ........... $22.00 per square foot
Such proposed lease shall also include provisions increasing the fixed
rent payable thereunder to the rates indicated above as of the dates;
(iii) the Tenant shall be obligated to pay as additional rent
escalations with respect to real estate taxes, operating expense and
fuel oil, all on the terms set forth in Article TWENTY-SIXTH hereof,
and the dates to be utilized in the definitions of "Increases In
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Xxxx Xxxxxx Xxxxx", Xxxx Year", and "Base Fuel Cost" in such proposed
lease shall be the same dates as those contained in the definitions of
such terms in this lease; and
(iv) if necessary, Tenant will arrange for the modification and
improvement of the premises to be leased pursuant to such proposed
lease to make them suitable for office use, all in a manner and to the
extent provided in Article TWENTY-SEVENTH hereof, and the Landlord
will reimburse the Tenant for the cost thereof up to an amount equal
to the Reimbursement Amount as defined in paragraph (f) below).
The Tenant shall have fifteen days after receipt of the proposed lease from
Landlord to execute and return such lease to the Landlord.
(c) In the event that at any particular time the Tenant has not sent
the Landlord a Letter Requesting Additional Space within the immediately
prior six months, the Tenant shall have no right to lease additional space
pursuant to this Article unless and until the Tenant shall thereafter send
the Landlord a Letter Requesting Additional Space. In the event that after
sending the Landlord a Letter Requesting Additional Space, the Tenant fails
to execute and return, within fifteen days of receipt thereof, a proposed
lease which complies with the requirements set forth in paragraph (b) of
this Article, then the Tenant's right to send the Landlord any future
Letter Requesting Additional Space or any other rights of the Tenant under
this Article shall cease and be of no further force or effect.
(d) For the purposes of this Article THIRTY-SIXTH, the term "Letter
Requesting Additional Space" shall mean a letter from the Tenant to the
Landlord stating that (i) the Tenant desires to lease additional space
consisting of approximately the number of square feet specified in such
letter (the "Desired Square Footage") (but in no event less than 8,000
square feet) and (ii) agreeing in principle that if premises in the
building containing the Desired Square Footage are then available (or
become available within six months of the date of such letter) the Tenant
will lease premises if offered to the Tenant pursuant to a lease meeting
the requirements set forth in paragraph (b) of this Article. Any letter
which does not satisfy the requirements set forth in both clauses (i) and
(ii) above shall not be deemed a "Letter Requesting Additional Space" and
shall be of no force or effect under this Article.
(e) For the purposes of this Article THIRTY-SIXTH, the term "Available
For Lease" shall mean space which, at the time in question satisfies the
following conditions:
(i) such space is above the ground floor and is not leased or
occupied;
(ii) no other tenant of the Landlord shall have any right or
option to lease or occupy space pursuant to a lease or other agreement
with Landlord;
(iii) the Landlord shall not then be negotiating the leasing area
or occupancy of such space with an unaffiliated third-party; and
(iv) if it would be necessary to subdivide such space in order to
be able to offer to lease to the Tenant premises containing the
Desired Square Footage, then the area of the space remaining (after
such subdivision) (that is, the portion of the space not being offered
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to the Tenant for lease pursuant to this Article) shall be no smaller
than the typical unit of space leased by the Landlord on the floor of
the building in question.
(f) For the purposes of this Article THIRTY-SIXTH, the term
"Reimbursement Amount" shall mean the amount determined by multiplying the
area of the premises to be leased pursuant to any proposed lease delivered
by the Landlord pursuant to paragraph (b) of this Article by (i) if the
proposed lease is executed and delivered on or before the first anniversary
of the Rent Commencement Date of this lease, $35 per square foot, or (ii)
if the lease is executed and delivered after the first anniversary of the
Rent Commencement Date, the sum of (x) $35 per square foot, and (y) $1.05
per square foot for each completed period of 12 months which has elapsed
since date which is the first anniversary of the Rent Commencement Date of
this lease.
THIRTY-SEVENTH: Successors. All of the terms, covenants and conditions
contained in this lease shall be binding on, and shall inure to the benefit
of the parties hereto, and their respective legal representatives,
successors, and assigns, but no assignment made or purported to be made in
violation of the provisions of this lease shall vest in such assignee any
right or title in or to this lease or in or to the estate hereby created.
IN WITNESS WHEREOF, this agreement has been signed and sealed by the
parties hereto, the day and year first above written.
Attest: THE XXXXXX, CHURCH-WARDENS AND
As to Landlord: VESTRYMEN OF TRINITY CHURCH
IN THE CITY OF NEW-YORK
/s/ Xxxxx Xxxxxxxxx By /s/ Xxxxxx Xxxx Xxxxxxxx
--------------------- ---------------------------
Xxxxxx Xxxx Xxxxxxxx,
Xxxxxx
By /s/ Xxxxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx,
Executive Vice President
of Real Estate
By /s/ Xxxxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx
Managing Director of
Commercial Real Estate
Attest: GIRGENTI, HUGHES,
As to Tenant: XXXXXX & XxXXXXXX, INC.
By /s/ Xxxxxx Xxxxxxxx
--------------------- ---------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
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