Exhibit 10.14
LEASE
between
1325 LIMITED PARTNERSHIP,
Landlord
and
PRINCETON VIDEO IMAGE, INC.,
Tenant
Premises
--------
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
TABLE OF CONTENTS
-----------------
1. Demise, Rent and Definitions........................................ 1
2. Use, Compliance and Signs........................................... 9
3. No Representations by Landlord...................................... 10
4. Tax Payments........................................................ 11
5. Operating Expense Payments.......................................... 15
6. Subordination to Mortgages and Superior Leases...................... 24
7. Quiet Enjoyment..................................................... 27
8. Assignment, Subletting and Mortgaging............................... 27
9. Compliance With Legal and Insurance Requirements.................... 35
10. Insurance.......................................................... 38
11. Rules and Regulations.............................................. 41
12. Alterations........................................................ 42
13. Landlord's and Tenant's Property................................... 46
14. Repairs and Maintenance............................................ 47
15. Electric Energy.................................................... 49
16. Heat, Ventilation and Air-Conditioning............................. 51
17. Other Services, Service Interruption and Building Directory........ 53
18. Access, Notice of Occurrences, Windows, Name of Building and No
Dedication........................................................ 56
19. Non-Liability and Indemnification.................................. 59
20. Damage or Destruction.............................................. 62
21. Eminent Domain..................................................... 65
22. Surrender and Holding Over......................................... 67
23. Default............................................................ 68
24. Re-entry by Landlord............................................... 70
25. Damages............................................................ 71
26. Waivers............................................................ 75
27. Curing Tenant's Defaults and Costs of Enforcement.................. 76
28. Broker............................................................. 77
29. Notices............................................................ 78
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30. Estoppel Certificates, Financial Statements, and Memorandum of
Lease............................................................. 79
31. Force Majeure...................................................... 80
32. Consents........................................................... 81
33. Rent Control....................................................... 81
34. Partnership or Multi-Person Tenant................................. 82
35. Special Bankruptcy-Related Provisions.............................. 83
36. Miscellaneous...................................................... 85
37. Security Deposit................................................... 87
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EXHIBITS
--------
Exhibit A - Floor Plan of Premises
Exhibit B - Description of Land
Exhibit C - Schedule of Fixed Rent
Exhibit D - Rules and Regulations
Exhibit E - Cleaning Specifications
Exhibit F - Landlord's Work
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LEASE, dated as of April __, 1997, between 1325 LIMITED
PARTNERSHIP, a Delaware limited partnership having an address c/o Xxxxxx X.
Xxxxxxxx Equities, Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Landlord"), and PRINCETON VIDEO IMAGE, INC., a __________
corporation company having an address at 00 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx
Xxxxxx 00000.
W I T N E S S E T H:
ARTICLE 1. Demise, Rent and Definitions
1.1. Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, upon and subject to all of the terms and conditions of this
Lease, that portion of the rentable area of the 8th floor consisting of
approximately 4,300 rentable square feet substantially as shown (by
diagonal lines or shading) on the floor plan(s) attached hereto as Exhibit
A (the "Premises") in the building (which building, including the
equipment, facilities and systems now or hereafter located therein other
than property of tenants, is herein called the "Building") erected on the
land described in Exhibit B ("Land"). Tenant shall have, as appurtenant to
the Premises, the nonexclusive right to use (i) the Common Areas of the
Building and (ii) the common toilets, corridors and elevator lobbies of
such floor, in common with others, subject to the terms and conditions of
this Lease and the Rules and Regulations. For purposes of this Lease,
"Common Areas" shall mean, collectively: the sidewalks, driveways, if any,
entrances, passages, courts, if any, esplanade areas, if any, vestibules,
if any, lobbies, halls, corridors, elevators, public stairways and other
portions of the Building and/or the Land that Landlord makes available from
time to time for the common use of the tenants of the Building. The
Building and the Land are collectively called the "Property."
1.2. The term of this Lease ("Term") shall commence on May 1,
1997 (the "Commencement Date") and shall end at 11:59 p.m. on May 31, 2000
(the "Expiration Date") or on such earlier date upon which this Lease shall
terminate pursuant to the provisions hereof or law.
1.3. The rents under this Lease shall consist of (a) fixed rent
("Fixed Rent") in the amounts per annum set forth in Exhibit C, and
(b) additional rent ("Additional Charges") consisting of all other sums of
money that become due from Tenant and payable to Landlord hereunder. Fixed
Rent shall be payable in equal monthly installments in advance on the first
day of each and every calendar month during the Term, except that, no Fixed
Rent shall be payable with respect to the period from the Commencement Date
until June 1, 1997 (the "Rent Commencement Date"), subject to any extension
thereof pursuant to the provisions of Section 3.1. Regularly Occurring
Additional Charges (hereinafter defined) shall be due and payable on the
first day of each month with respect to which the same are payable. Except
as otherwise expressly provided herein, all Additional Charges other than
Regularly Occurring Additional Charges (hereinafter defined) shall be due
and payable by Tenant within 30 days after Landlord gives Tenant a
statement therefor. All Fixed Rent and Additional Charges shall be paid in
lawful money of the United States to Landlord at its office c/o Xxxxxx X.
Xxxxxxxx Equities, Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Comptroller, or such other place, or to Landlord's agent
and at such other place, as Landlord designates by Notice to Tenant.
Tenant shall pay Fixed Rent and Additional Charges by good and sufficient
check (subject to collection) drawn on a New York City bank which is a
member of the New York Clearing House or a successor thereto or other bank
reasonably approved by Landlord.
1.4. Tenant shall pay Fixed Rent and Additional Charges promptly
when due without notice (other than as specifically set forth herein) or
demand therefor and without any abatement, deduction or setoff for any
reason whatsoever, except as otherwise provided herein. Landlord shall
have the same remedies for default in payment of Additional Charges as
Landlord has for default in payment of Fixed Rent. If the first day for
which Fixed Rent is payable hereunder occurs on a day other than the first
day of a calendar month, or if this Lease terminates on a day other than
the last day of a
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calendar month, Fixed Rent for such partial calendar month(s) shall be
prorated.
1.5. No payment by Tenant or receipt or acceptance by Landlord of
a lesser amount than the correct Fixed Rent or Additional Charges shall be
deemed to be other than a payment on account, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment be
deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance or
pursue any other remedy provided in this Lease or at law.
1.6. If Tenant fails to make any payment of Fixed Rent or
Regularly Occurring Additional Charges (hereinafter defined) by the fifth
Business Day (hereinafter defined) following the date such amount became
due and payable, or if Tenant fails to make any payment of any other
Additional Charges by the date such amount became due and payable, such
unpaid amount shall bear interest at a rate per annum (the "Lease Interest
Rate") equal to the lesser of (a) the rate announced by Citibank, N.A. or
its successor from time to time as its prime or base rate (the "Prime
Rate"), plus 2%, or (b) the maximum applicable rate allowed by law, from
the sixth Business Day (hereinafter defined) following the date such Fixed
Rent or Regularly Occurring Additional Charges (hereinafter defined) became
due and payable or from the date such other Additional Charges became due
and payable, as the case may be, to the date of payment thereof by Tenant.
Such interest shall be due and payable on demand.
1.7. The following terms, whenever used in this Lease (including
all Exhibits attached hereto, all of which are and shall be construed to be
an integral part of this Lease), shall have the meanings indicated:
(a) The term "affiliate" shall mean a person which controls, is
controlled by or is under common control with the person in question.
For purposes of this definition, a person shall be deemed "controlled
by" or "under common control with" the person in question if such
person
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possesses, directly or indirectly, 25% or more of the person being
controlled.
(b) The term "and/or" when applied to two or more matters or
things shall be construed to apply to any one or more or all such
matters or things as the circumstances warrant.
(c) The term "Business Days" shall mean such Mondays, Tuesdays,
Wednesdays, Thursdays and Fridays that do not fall on Holidays. The
term "Holidays" shall mean New Year's Day, Xxxxxx Xxxxxx Xxxx Day,
Presidents' Day, Memorial Day, Independence Day, Labor Day, Columbus
Day, Veterans Day, Thanksgiving Day and Christmas, and any other days
as may now or hereafter be celebrated as holidays under the contract
from time to time in effect between Locals 32B and 32J of the Building
Service Employees Union AFL-CIO (or any successor thereto) and the
Real Estate Advisory Board of New York, Inc. (or any successor
thereto) or on which there is no regular United States postal service
and the New York Stock Exchange (or any successor thereto) is closed.
(d) The term "Business Hours" shall mean 8:00 a.m. to 6:00 p.m.
but only on Business Days.
(e) The term "calendar year" shall mean any 12-month period
commencing on a January 1st.
(f) The term "Consumer Price Index" shall mean the Consumer
Price Index for Urban Wage Earners and Clerical Workers published by
the Bureau of Labor Statistics of the United States Department of
Labor, New York-Northern New Jersey-Long Island, NY-NJ-CT Area, All
Items (1982-84=100), or any successor index thereto, appropriately
adjusted; provided that if there shall be no successor index and the
parties shall fail to agree upon a substitute index within 30 days
after request by either party for such determination, or if the
parties shall fail to agree upon the appropriate adjustment of such
successor or substitute index within 30 days, a substitute index or
the appropriate adjustment of such successor or substitute index, as
the case may be, shall be
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determined by arbitration pursuant to the then rules of the American
Arbitration Association, New York City Chapter (or successor
organization).
(g) The term "CPI Adjustment" shall mean that the amount in
question shall be increased or decreased in the same proportion that
the Consumer Price Index shall increase or decrease from the Consumer
Price Index last published before the Commencement Date to the
Consumer Price Index last published before the date in question.
(h) The term "emergency" shall mean a condition presenting
imminent danger or damage, as the case may be, to health or safety of
persons or property in or about the Property.
(i) The terms "herein" and "hereunder" and words of similar
import shall be construed to refer to this Lease as a whole and not to
any particular Article or Section unless expressly so stated.
(j) The term "including" shall mean "including, without
limitation."
(k) The term "Insolvency Laws" shall mean the United States
Bankruptcy Code, as the same may hereafter be amended or replaced, and
any federal, state or foreign law covering all or part of the same or
similar subject matter as is covered by the United States Bankruptcy
Code.
(l) The term "Insurance Requirements" shall mean rules,
regulations, orders and requirements which are then applicable to the
Property and/or the Premises, of the New York Fire Insurance Rating
Organization and any other similar body performing the same or similar
functions, whether now or hereafter in force, and requirements of any
insurance policy maintained by Landlord or Tenant at any time.
(m) The term "Landlord" shall mean only the owner at the time in
question of the Building or of a lease of the Building, so that in the
event of any transfer or transfers of title to the Building or of
Landlord's interest in a lease of the Building (as tenant thereunder),
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the transferor shall be relieved and freed of all obligations of
Landlord under this Lease accruing after such transfer, and such
transferee shall be deemed to have assumed and agreed to perform and
observe all obligations of Landlord under this Lease during the period
it is the holder of Landlord's interest under this Lease, subject to
the provisions, terms and conditions of this Lease.
(n) The term "Lease Year" shall mean the 12-month period
beginning on the Commencement Date and on each anniversary of the
Commencement Date during the Term.
(o) The term "Legal Requirements" shall mean laws and ordinances
of federal, state, city, town, county, borough and village governments
having jurisdiction over the Premises and rules, regulations, orders,
directives and requirements of all departments, subdivisions, bureaus,
agencies or offices thereof, and of any other governmental, public or
quasi-public authorities having jurisdiction over the Premises, and
the directions of any public officers pursuant thereto, whether now or
hereafter in force.
(p) The term "person" shall mean a natural person, a
partnership, a corporation, or any other form of business or legal
association or entity.
(q) The term "Regularly Occurring Additional Charges" shall mean
Operating Payments and any other Additional Charges payable by Tenant
to Landlord on a regular monthly basis in a fixed amount (whether or
not subject to adjustment as provided herein) with respect to services
requested by Tenant or expressly provided for in this Lease.
(r) The term "rentable square feet" shall mean with respect to
the Premises 4,300 square feet.
(s) The term "Tenant" shall mean the original Tenant herein
named or any permitted assignee or other successor in interest
(immediate or remote) of the original Tenant herein named that at the
time in question is the owner of Tenant's interest in this Lease.
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(t) The words "Tenant indemnifies Landlord against liability" or
"Tenant shall indemnify Landlord against liability" and words of
similar import shall mean that Tenant agrees to indemnify, hold and
save harmless Landlord, each Superior Lessor and Superior Mortgagee,
and their respective partners, directors, officers, agents and
employees from and against all loss, reasonable cost, liability,
claim, damage, fine, penalty and reasonable expense, including
reasonable attorneys' fees and disbursements (whether incurred in
resisting and defending any action or proceeding or incurred in
enforcing the indemnification rights of Landlord against Tenant), and
that in case any action or proceeding is brought against any
indemnified person, Tenant shall resist and defend such action or
proceeding by attorneys reasonably satisfactory to Landlord.
Notwithstanding the foregoing, Tenant shall not be required to
indemnify Landlord against liability for any loss, reasonable cost,
liability, claim, damage, fine, penalty or reasonable expense finally
determined by a court of competent jurisdiction to have resulted from
the negligence or willful misconduct of Landlord or its contractors,
agents or employees or for any matter which should have been covered
by Landlord's insurance. Tenant shall pay to Landlord within thirty
(30) days of rendition by Landlord to Tenant of bills or statements
therefor, an amount equal to all losses, reasonable costs,
liabilities, claims, damages, fines, penalties and reasonable expenses
(i) incurred by Landlord or any Superior Lessor or Superior Mortgagee
or other indemnified person, and (ii) for which Tenant has indemnified
Landlord or any Superior Lessor or Superior Mortgagee or other
indemnified person hereunder. Tenant shall not be required to pay any
amounts incurred by Landlord, any Superior Lessor or Superior
Mortgagee if it is finally determined in such action or proceeding
that Landlord, any Superior Lessor or Superior Mortgagee was not
entitled to be indemnified by Tenant. Landlord shall give notice to
Tenant of each matter which arises for which Tenant has indemnified
Landlord against liability as
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soon as is reasonably practicable after Landlord obtains knowledge of such
matter. Landlord shall cooperate with Tenant in resisting and defending
any action or proceeding which arises with respect to a matter for which
Landlord has been indemnified provided Landlord does not incur thereby
any liabilities or costs or expenses, unless Tenant agrees to reimburse
Landlord for same, including, without limitation, reasonable attorneys'
fees and disbursements, in which event such reimbursement shall be deemed
rent for all purposes of this Lease. Notwithstanding the foregoing, Tenant
shall be permitted to settle actions and claims for which Tenant must
indemnify Landlord, a Superior Lessor, Superior Mortgagee, and their
respective partners, directors, officers, agents and employees
provided Tenant obtains the prior written consent of all the parties
to be indemnified, such consent not to be unreasonably withheld.
(u) The term "untenantable" shall mean a condition or event
resulting in Tenant being unable to use all or a portion of the
Premises for the normal conduct of Tenant's business.
1.8. The following additional terms, whenever used in this Lease, shall
have the meanings specified in the Sections of this Lease as set forth below
after such terms:
"Additional Charges"Section. . . . . . . . . . . Section 1.3
"Alterations". . . . . . . . . . . . . . . . . . Section 12.1
"Broker" . . . . . . . . . . . . . . . . . . . . Section 28.1
"Building" . . . . . . . . . . . . . . . . . . . Section 1.1
"Commencement Date". . . . . . . . . . . . . . . Section 1.2
"Common Areas" . . . . . . . . . . . . . . . . . Section 1.1
"Date of Taking" . . . . . . . . . . . . . . . . Section 21.1
"Expiration Date". . . . . . . . . . . . . . . . Section 1.2
"Fixed Rent" . . . . . . . . . . . . . . . . . . Section 1.3
"Force Majeure Events" . . . . . . . . . . . . . Section 31.1
"HVAC Charge". . . . . . . . . . . . . . . . . . Section 15.3
"HVAC Units" . . . . . . . . . . . . . . . . . . Section 15.1
"Land" . . . . . . . . . . . . . . . . . . . . . Section 1.1
"Lease Interest Rate". . . . . . . . . . . . . . Section 1.6
"Notice" . . . . . . . . . . . . . . . . . . . . Section 29.1
"Operating Expenses" . . . . . . . . . . . . . . Section 5.1(a)
"Operating Payment" . . . . . . . . . . . . . . Section 5.2
"Operating Statement". . . . . . . . . . . . . . Section 5.4
"Operating Year" . . . . . . . . . . . . . . . . Section 5.1(b)
"Premises" . . . . . . . . . . . . . . . . . . . Section 1.1
"Prime Rate" . . . . . . . . . . . . . . . . . . Section 1.6
"Property" . . . . . . . . . . . . . . . . . . . Section 1.1
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"Proposed Transaction" . . . . . . . . . . . . . Section 8.7
"Rent Commencement Date" . . . . . . . . . . . . Section 1.3
"Rules and Regulations". . . . . . . . . . . . . Section 11.1
"Sale or Rental Payments". . . . . . . . . . . . Section 8.14
"Sublease Rent". . . . . . . . . . . . . . . . . Section 8.14
"Successor Landlord" . . . . . . . . . . . . . . Section 6.3
"Superior Lease" . . . . . . . . . . . . . . . . Section 6.1
"Superior Lessor". . . . . . . . . . . . . . . . Section 6.1
"Superior Mortgage". . . . . . . . . . . . . . . Section 6.1
"Superior Mortgagee" . . . . . . . . . . . . . . Section 6.1
"Taxes". . . . . . . . . . . . . . . . . . . . . Section 4.1(a)
"Tax Expenses" . . . . . . . . . . . . . . . . . Section 4.1(c)
"Tax Payment". . . . . . . . . . . . . . . . . . Section 4.2
"Tax Year" . . . . . . . . . . . . . . . . . . . Section 4.1(b)
"Tenant's Operating Percentage". . . . . . . . . Section 5.1(c)
"Tenant's Operating Statement" . . . . . . . . . Section 5.5
"Tenant's Property". . . . . . . . . . . . . . . Section 13.2
"Tenant's Tax Percentage". . . . . . . . . . . . Section 4.1(d)
"Term" . . . . . . . . . . . . . . . . . . . . . Section 1.2
ARTICLE 2. Use, Compliance and Signs
2.1. Tenant shall use and occupy the Premises for general office
purposes and for no other purpose.
2.2. If any governmental licenses and permits are required for
the proper and lawful conduct of Tenant's businesses in the Premises,
Tenant, at its expense, shall procure and maintain such licenses and
permits and submit the same to Landlord for inspection upon Landlord's
request. Tenant shall at all times comply with the terms and conditions of
each such license or permit. Tenant shall not use, or suffer or permit any
person to use, the Premises, or any part thereof, in any manner which
(a) violates the certificate of occupancy for the Premises or for the
Building or any other permit or license issued pursuant to any Legal
Requirements, (b) causes injury to the Building, (c) constitutes a
violation of the Legal Requirements or Insurance Requirements, (d) impairs
the character, reputation or appearance of the Building as a first-class
office building, or (e) increases (in any material respect) the cost of
maintenance, operation and repair of the Building (unless Tenant agrees to
pay for such increased cost).
2.3. In addition to the limitations set forth in Section 2.2,
Tenant shall not use, suffer or permit any person to use the Premises or
any part thereof (which predominantly involves direct patronage of the
general
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public) for: sale or rental of any products (other than financial products) or
materials; financial services to the public provided by a commercial bank,
savings bank, safe deposit or savings and loan association or other lender;
issuance or sale of traveller's checks, foreign drafts, letters of credit,
foreign exchange or domestic money orders; receipt of money for transmission;
data processing services rendered primarily to others than Tenant and which are
not strictly ancillary to Tenant's business; school; broadcasting center for
communications firms; reservation center for airlines or for travel agencies;
public auction; or as an office for any of the following: (a) employment
agency, (b) foreign government or political subdivision thereof,
(c) governmental bureau or agency of the United States or any state or
political subdivision thereof, (d) health care professional, (e) clerical
support business, (f) charitable or religious or other not-for-profit
organization, or (g) union; nor shall Tenant use, suffer or permit any person
to use the Premises or any part thereof for any other use or purpose that
(i) in the reasonable judgment of Landlord is not in keeping with the character
and dignity of the Building or (ii) predominantly involves direct patronage
of the general public.
2.4. Tenant shall have the right to place signs within the
Premises provided such signs are not visible from outside the Premises.
Except as permitted under this Section 2.4, Tenant may not place signs
anywhere in the Property, including on the exterior of the Building.
Notwithstanding anything to the contrary contained in this Section 2.4,
Tenant may place a plaque bearing its name and/or logo, of material, size
and design subject to Landlord's reasonable approval in (i) the lobby of
the 8th Floor (in a location to be designated by Landlord) and (ii) on the
exterior of Tenant's doorway to the Premises. Such plaques shall be
installed, cleaned and maintained by Tenant at its sole cost and expense.
ARTICLE 3. No Representations by Landlord
3.1. Landlord and Landlord's agents and representatives have made
no representations or promises with respect to the Building, the real property
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or the Premises except as herein expressly set forth, and no rights,
easements or licenses are acquired by Tenant by implication or otherwise
except as expressly set forth herein. Tenant shall accept possession of the
Premises in the condition which shall exist on the Commencement Date "as is",
and Landlord shall have no obligation to perform any work or make any
installations in order to prepare the Premises for Tenant's occupancy except
as set forth on Exhibit F attached hereto and made a part hereof ("Landlord's
Work"). If Landlord is delayed in completing Landlord's Work by May 1, 1997,
other than as a result of Tenant's actions or Force Majeure Events, the Rent
Commencement Date shall be extended for one day for each day of such delay.
ARTICLE 4. Tax Payments
4.1. For the purposes of this Article and other provisions of
this Lease:
(a) (1) The term "Taxes" shall mean the aggregate amount of all
real estate taxes, personal property taxes (except personal property
taxes related specifically to other tenants) and any general or
special assessments (excluding penalties thereon but including
interest incurred on assessments payable in installments, except to
the extent such interest is payable by reason of the delinquent
payment by Landlord to the taxing authority of such installments)
assessed or imposed upon or in respect of the Property, including
(i) taxes and assessments in respect of any air rights or development
rights now appurtenant to and used in connection with the Building,
(ii) fees, taxes and charges in respect of any vaults, vault space or
other space within or outside the boundaries of the Land,
(iii) assessments for public improvements or benefits to the Building,
the Land, or the locality in which the Land is situated, and
(iv) taxes, assessments and charges in respect of any fixtures,
equipment, facilities, systems or personal property of Landlord
(except in its capacity as a tenant only if Landlord is a tenant in
the Building) serving or used in connection with the Building or the
Land.
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(2) All income, estate, succession, inheritance, transfer
and franchise taxes shall be excluded from Taxes; provided, however,
that if the method of taxation of real estate is changed and as a
result thereof any other tax or assessment, however denominated and
including any franchise, income, profit, use, occupancy, gross
receipts or rental tax, shall be imposed upon Landlord or the owner of
the Property or the rents or income therefrom, in substitution for or
as an addition to, in whole or in part, any of the taxes or
assessments listed in the preceding paragraph, such other tax or
assessment shall be included in and deemed part of Taxes, but
calculated for this purpose as if the Property and all appurtenances
thereto (including development rights) were the only property of
Landlord and the income therefrom were the only income of Landlord.
(3) The amount of any special assessments for public
improvements or benefits to be included in Taxes for any year, in the
case where the same may at the option of the taxpayer be paid in
installments, shall be limited to the amount of the installment due in
respect of such year, together with any interest payable in connection
therewith (other than interest payable by reason of the delinquent
payment of such installments).
(4) During one or more Tax Years during the Term, the Taxes
payable with respect to the Land and/or the Building may be reduced or
increased by reason of the New York City Industrial and Commercial
Incentive Program (as now or hereafter amended, the "ICIP Program").
For purposes of computing the Tax Payment, Taxes shall be calculated
as if such reduction or increase were not applicable (i.e., Taxes will
be deemed to be the amount which would be payable in respect thereof
if the Property had never participated in the ICIP Program).
(b) The term "Tax Year" shall mean each period from July 1
through June 30 (or such other fiscal period as may hereafter be adopted
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by the City of New York as the fiscal year for any tax, levy or charge
included in Taxes).
(c) The term "Tax Expenses" shall mean all reasonable expenses,
including, without limitation, reasonable attorneys' and accountants'
fees and disbursements and experts' and other witnesses' reasonable
fees and disbursements, incurred and paid (excluding any form of
contingent fees or disbursements) by Landlord in seeking to reduce the
amount of any assessed valuation of the Land and/or the Building, in
directly contesting the amount or validity of any Taxes, or in seeking
a refund of any Taxes.
(d) The term "Tenant's Tax Percentage" shall mean 0.590%.
(e) If any Taxes or assessments assessed or imposed upon or in
respect of the Property also cover any other properties, only such
amounts thereof as are equitably allocable to the Property shall be
included in Taxes.
(f) The term "Base Tax Amount" means the product of (i) the tax
rate in effect with respect to the Property for the July 1, 1997-
June 30, 1998 Tax Year (the "Base Tax Rate") and (ii) the assessed
valuation of the Property for the July 1, 1997- June 30, 1998 Tax Year
(the "Base Assessed Valuation").
4.2. From and after the Rent Commencement Date, for each Tax Year
any part of which occurs during the Term, Tenant shall pay to Landlord an
amount ("Tax Payment") equal to Tenant's Tax Percentage of the sum of (a)
the amount by which Taxes for such Tax Year exceed the Base Tax Amount and
(b) the Tax Expenses paid in such Tax Year relating to such Tax Year or any
Tax Year within the term of this Lease. Said payments shall be made as
provided in Section 4.3.
4.3. Landlord shall give Tenant, prior to or after commencement
of each Tax Year, a notice setting forth Landlord's estimate of the Tax
Payments on account of Taxes and Tax Expenses for such Tax Year. Tenant
shall make such Tax Payments for any item of Taxes within 30 days after
Landlord
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gives Tenant a statement therefor; provided, however, Tenant shall
not be required to make any such Tax Payment earlier than 30 days before
the last day such item or installment may be paid to the taxing authority
or its collection agent without incurring interest or penalty for late
payment. The Tax Payment for any item constituting Tax Expenses shall be
made within 30 days after Landlord gives to Tenant a statement therefor.
Such estimate on account of Taxes, as the same may be amended, shall be
based on (a) Taxes for the Tax Year with respect to which Tax Payments will
be made if the tax rate and tentative or actual assessment are then known
or (b) if such information is not then available, 105% of Taxes for the Tax
Year immediately prior to the Tax Year with respect to which Tax Payments
will be made. Landlord may amend such estimate by notice given to Tenant
from time to time to reflect additional information about Taxes and/or Tax
Expenses that comes to Landlord's attention or to correct any error made in
any prior estimate; said notice may require an increase or decrease in one
or more Tax Payments and the Tax Payments shall be adjusted or made as
provided in said notice. Promptly after receipt by Landlord of bills for
such Taxes and Tax Expenses, Landlord shall give notice to Tenant, together
with copies of such bills, of the amount thereof and the computation of the
Tax Payments on account thereof, and (i) in the event of a deficiency,
Tenant shall pay to Landlord the amount thereof within 30 days after demand
therefor, or (ii) in the event of an overpayment, Landlord shall refund to
Tenant the amount thereof within 30 days after Landlord's notice.
4.4. (a) Landlord reserves the right, in its sole discretion, to
file any application or commence any proceeding to reduce Taxes. If as a
result of any such application or proceeding by or on behalf of Landlord
the Base Assessed Valuation is reduced, or if the Base Tax Rate is for any
reason reduced, then the Base Tax Amount shall be recalculated. In such
event, Landlord may recalculate all prior Tax Payments made or owing by
Tenant and xxxx Tenant for any deficiency resulting from such
recalculation. Tenant shall pay any such xxxx within 30 days after receipt
thereof. Notwithstanding
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the foregoing, Landlord, so long as Landlord is 1325 Limited Partnership,
shall commence a tax certiorari proceeding each Tax Year.
(b) If Landlord receives a refund of Taxes for any Tax Year,
Landlord shall promptly pay Tenant's Tax Percentage of the net refund
(after deducting from such refund the reasonable costs and expenses of
obtaining same to the extent that such reasonable costs and expenses were
not included in Tax Expenses or Operating Expenses) to Tenant; provided,
however, that such payment to Tenant with respect to a Tax Year shall in no
event exceed Tenant's Tax Payment paid for such Tax Year.
4.5. If the first day for which a Tax Payment is payable
hereunder occurs other than on the first day of a Tax Year or a Tax Year
ends after the Expiration Date, any Additional Charges in respect thereof
payable under this Article shall be equitably prorated to correspond to
that portion of such Tax Year occurring within the Term. In addition, if
the first day for which a Tax Payment is payable hereunder occurs during a
Tax Year in respect of which Landlord already has paid any installments of
Taxes, Tenant shall pay to Landlord within 30 days after demand Tenant's
equitably prorated share of such installments.
ARTICLE 5. Operating Expense Payments
5.1. For the purposes of this Article and other provisions of
this Lease:
(a) (1) The term "Operating Expenses" shall mean all expenses
incurred by Landlord in respect of the repair, maintenance, operation
and cleaning of the Property, including all expenses incurred as a
result of Landlord complying with its obligations under this Lease.
Operating Expenses shall include (i) salaries, wages paid to persons
not above the grade of Building manager, medical, surgical, union and
general welfare benefits, including group life insurance and pension
and welfare payments and contributions and all other fringe benefits
paid to or in respect of all persons (whether employees of Landlord or
its managing agent) engaged in the repair, maintenance, operation or
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cleaning of the Property (which shall include a percentage of the
salary and the fringe benefits of the accountant for the Building,
such percentage being equal to the percentage of the accountant's time
spent on matters relating to the Building), (ii) payroll taxes,
workers' compensation, uniforms, dry cleaning and related expenses for
such persons, (iii) payments under service contracts in connection
with the repair, maintenance, operation and cleaning of the Property,
(iv) charges for gas, steam, electricity, heat, ventilation, air
conditioning, water and other utilities furnished to all parts of the
Building (including the Common Areas and other non-rentable areas),
other than such utilities and services furnished directly or otherwise
billed directly to individual tenants by the party providing the
utility or service in question, (v) except as set forth in clause (D)
hereof, the cost of the 12th floor and ground floor lobby decorations
and of painting and decorating the Common Areas or other non-rentable
areas (excluding the cost of decorations/works of art of the quality
and nature of "fine art" rather than decorative art work customarily
found in first-class office buildings), (vi) the cost (purchase or
rental) of tools, supplies, machinery and equipment used in the
operation, maintenance, repair or cleaning of the Building and
reasonable charges for telephone service, (vii) financial expenses of
a nature customarily incurred by owners of first-class office
buildings in midtown Manhattan in connection with the operation of the
Property, such as insurance premiums (including liability insurance,
fire and other casualty insurance, rent insurance and any other
insurance that is maintained by Landlord), reasonable attorneys' fees
and disbursements (exclusive of fees and disbursements incurred in
connection with the application for any reduction of Taxes, the
leasing of space or negotiations with tenants in the Building or the
enforcement of leases, except to the extent the default giving rise to
the enforcement is nonmonetary and could materially adversely affect
the structure, building systems or
-16-
Common Areas of the Building or disturb or annoy one or more other tenants
or occupants of the Building), auditing and other reasonable professional
fees and expenses (excluding any amounts for the accountants included in
(i) above), real estate related association dues and any other similar
financial expenses incurred in connection with the ownership,
maintenance and operation of the Property which are customary in first
class office buildings in midtown Manhattan, (viii) charges for
window, office, Common Area and other cleaning, janitorial and
security services and any other charges of independent contractors to
the extent such services are performed for the benefit of the
Property, (ix) the cost of repairs and replacements (other than those
classified as capital expenditures under generally accepted accounting
principles) made by Landlord which are reasonably necessary for the
maintenance, operation and/or repair of the Property, or to comply
with Legal Requirements or Insurance Requirements imposed on the
Property which arise out of conditions occurring after the date hereof
or with respect to changes in Legal Requirements or Insurance
Requirements which render conditions existing as of the date hereof to
be violations of such requirements, (x) the cost of governmental
licenses and permits, or renewals thereof, necessary for the operation
of the Property and not for any individual tenant's special use,
(xi) the cost of any capital improvements which are reasonably
necessary for the maintenance, operation and/or repair of the Property
or to comply with Legal Requirements or Insurance Requirements imposed
on the Property after the date hereof or which reduce Operating
Expenses, calculated as follows: the cost of any capital improvement
shall be included in Operating Expenses for the Operating Year in
which such capital improvement was paid for except that to the extent
the cost thereof is required to be (or is customarily capitalized in
first-class Manhattan office buildings) capitalized for federal income
tax purposes, such cost shall be amortized on a straight-line basis
over the useful life thereof utilized for federal income tax
-17-
purposes and only the annual amortization of such capital improvement,
together with interest on the unamortized balance of such cost at the
Lease Interest Rate, shall be included in Operating Expenses for the
Operating Year in question, (xii) the cost of removing rubbish from
the Building (excluding the portion, if any, of such cost which is
paid by other tenants as extra charges in addition to Operating
Expenses), and (xiii) all other charges incurred in connection with
the operation, maintenance, repair and cleaning of the Property,
excluding, however, (A) depreciation, (B) interest on and amortization
of any Superior Mortgage or other debt and the cost of consummating
any financing or refinancing whether consummated or not, (C) rents
under any Superior Lease or other lease and the cost of consummating
any Superior Lease or other lease whether consummated or not, (D) the
cost in connection with (t) the initial construction of the Building,
(u) the correction of any defects which occurred in or resulted from
the initial construction of the roof, curtain wall, columns, beams,
floor slabs, footings and foundations of the Building, (v) the
correction of any defects not listed in clause (u) which occurred in
or resulted from the initial construction of the Building of which
Landlord has actual knowledge within 365 days after the date hereof,
(w) the correction of any defects which occurred in or resulted from
the initial construction of the Building at any time which are covered
by enforceable warranties or guarantees, (x) any installation and
decoration (including the cost of any contributions by Landlord to
individual tenants to the cost of tenant improvements and the cost of
any work in excess of building standard work provided to such tenants)
incurred in connection with preparing space for any tenant of the
Building or preparing the Common Areas of office floors or the
Building, (y) preparing any interior or exterior signs for the
Building which are in the name of a tenant or (z) any lease or other
agreement with a tenant, in the nature of a payment or credit to or on
behalf of a tenant, in order to induce such
-18-
tenant to lease space in the Building, (E) brokerage commissions,
(F) Taxes, (G) any item of Operating Expenses to the extent Landlord
has been or is required to be reimbursed therefor from any person
other than as a contribution to Operating Expenses, (H) Landlord's
advertising and promotion costs, (I) the cost of capital improvements
not covered under Section 5.1(xi), (J) the cost of consummating any
disposition or transfer by Landlord of the Property, whether
consummated or not, (K) the cost of providing services to retail
tenants of the Building that are not generally provided to other
tenants of the Building, and (L) the amount of any judgment against
Landlord for any misrepresentation or default by Landlord. Operating
Expenses shall be calculated on the accrual basis of accounting in
accordance with generally accepted accounting principles consistently
applied. If a cost (or any portion thereof) in connection with the
correction of defects in the initial construction of the Building does
not fall under clause (D) above, is included in and paid by Tenant as
Operating Expenses and is subsequently paid to Landlord by the
contractor in question, Landlord shall pay to Tenant Tenant's
Percentage of the amount so paid to Landlord, after deducting
therefrom any reasonable expenses incurred by Landlord, including
reasonable attorneys' fees, in obtaining such payment.
(2) Any cost or expense of the nature described above shall
be included in Operating Expenses for any Operating Year no more than
once, notwithstanding that such cost or expense may fall under more
than one of the categories listed above.
(3) If during any Operating Year the tenant of any space in
the Building undertook to perform work or services therein in lieu of
having Landlord perform same and the cost thereof would have been
included in Operating Expenses if done by Landlord, then Operating
Expenses for such Operating Year shall include the amount that would
have been incurred if Landlord had performed such work or services
-19-
(excluding any operating expenses apportioned to the restaurant on the
first floor of the Building).
(4) Landlord may use related or affiliated persons to
provide services or furnish materials for the Property if the rates or
fees charged by such persons are competitive with those charged by
unrelated or unaffiliated persons in the Borough of Manhattan for the
same services or materials.
(5) If less than 95% of the rentable area of the Building
(excluding the retail space on the ground floor and excluding any
basement space) is occupied by tenants at any time during any
Operating Year, the amount of Operating Expenses used in calculating
the Operating Payment for such Operating Year shall be the amount that
Operating Expenses would normally have been expected to be had 95% of
such rentable area of the Building been fully occupied throughout such
Operating Year.
(6) If an item of Operating Expenses also covers work or
services in connection with other properties of Landlord or its
affiliates or managing agent, only such amounts thereof as are
equitably allocable to the Property shall be included in Operating
Expenses.
(7) The amounts of any item of Operating Expenses with
respect to which Landlord has discretion and which are not subject to
Legal Requirements, Insurance Requirements, union contracts or other
similar restrictions shall not be in excess of the amounts which
prudent owners or operators of first-class office buildings in
Manhattan would pay for the item in question.
(8) The fact that this Lease may provide for a repair,
service or other item to be provided by Landlord "at Landlord's
expense" or "without charge to Tenant" or words of similar import,
shall not preclude Landlord from including the cost of such repair,
service or item in Operating Expenses if and to the extent such cost
is expressly included as an Operating Expense pursuant to
Section 5.1(a)(1).
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(b) The term "Operating Year" shall mean the calendar year
within which the Commencement Date occurs and each succeeding calendar
year thereafter.
(c) The term "Tenant's Operating Percentage" shall mean 0.597%.
(d) The term "Base Operating Expense Amount" shall mean the
Operating Expenses for the 1997 Operating Year.
5.2. From and after the Rent Commencement Date, for each
Operating Year any part of which occurs during the Term, Tenant shall pay
to Landlord an amount ("Operating Payment") equal to Tenant's Operating
Percentage of (a) the amount by which Operating Expenses for such Operating
Year exceed the Base Operating Expense Amount, and (b) management fees for
the Property not to exceed three percent (3%) or, if no managing agent is
employed by Landlord, or if Landlord employs an affiliate of Landlord as
its managing agent, a sum in lieu thereof equal to 3% of all rents and
other income (excluding reimbursements of items other than Taxes and
Operating Expenses) derived from the operation of the Property. Said
payments shall be made as provided in Section 5.3.
5.3. Landlord shall give Tenant, prior to or after the
commencement of each Operating Year, a notice setting forth Landlord's
estimate of the Operating Payment for such Operating Year. Tenant shall
pay to Landlord on the first day of each month during such Operating Year
an amount equal to 1/12th of Landlord's estimate of the Operating Payment
for such Operating Year. Landlord may amend such estimate by notice given
to Tenant from time to time to reflect additional information about
Operating Expenses that comes to Landlord's attention or to correct any
error made in any prior estimate; said notice may require an increase or
decrease in monthly payments or a separate individual payment and Tenant's
payments shall be adjusted or made as provided in said notice. Said notice
shall summarize the information which caused the increase or decrease in
question. If Landlord gives any such estimate for an Operating Year
subsequent to the commencement thereof, then until the first day of the
month following the month in which such estimate is given to Tenant, Tenant
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shall pay to Landlord on the first day of each month in such Operating Year
an amount equal to 105% of the monthly sum payable by Tenant under this
Section for the last full month of the preceding Operating Year.
5.4. Within 120 days after the end of each Operating Year,
Landlord shall give notice to Tenant containing a reasonably detailed
statement of the Operating Expenses for such Operating Year, the correct
amount of the Operating Payment for such Operating Year and the computation
of Tenant's payment on account thereof ("Operating Statement"), and (i) in
the event of a deficiency Tenant shall pay to Landlord the amount thereof
within 30 days after demand therefor, and (ii) in the event of an
overpayment Landlord shall refund to Tenant the amount thereof within 30
days after such notice. If Landlord fails to pay any refund to Tenant
within such 30-day period, the amount of such refund shall bear interest at
the Lease Interest Rate, from the date such amount was payable to Tenant to
the date of payment thereof by Landlord.
5.5. Within 90 days after receipt of an Operating Statement,
Tenant may give notice to Landlord that Tenant elects to have Tenant's
certified public accountant (who or which may be an employee of Tenant)
examine such of Landlord's books and records as are directly relevant to
the Operating Statement in question. If Tenant does not give such notice
within such 90-day period, then the Operating Statement furnished by
Landlord shall be conclusive and binding upon Tenant. If Tenant contests
an Operating Statement, it must, within 180 days after Tenant receives such
Operating Statement, give notice thereof to Landlord containing a
reasonably detailed statement of Tenant's calculation of the Operating
Expenses for such Operating Year, the amount of the Operating Payment for
such Operating Year and the computation of Tenant's payment on account
thereof ("Tenant's Operating Statement"). If within 30 days after delivery
to Landlord of Tenant's Operating Statement the parties fail to agree on
the Operating Payment for such Operating Year, either party may submit the
matter to arbitration in
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accordance with the provisions of Section 5.7. Tenant, pending the resolution
of any contest, shall continue to pay all sums determined to be due in the
first instance by Landlord's Operating Statement. Upon a resolution of such
contest in favor of Tenant, refund shall be made by Landlord to Tenant,
together with interest thereon at the Lease Interest Rate from the date of
Tenant's payment of the amount in dispute until the date refunded by
Landlord. If it is determined in such arbitration that Landlord undercharged
Tenant, then Tenant shall pay to Landlord the amount of the undercharge,
together with interest thereon at the Lease Interest Rate from the date the
Operating Payment in dispute was due until the date the amount undercharged
is paid by Tenant.
5.6. If the first day for which an Operating Payment is payable
hereunder occurs other than on the first day of an Operating Year or an
Operating Year ends after the Expiration Date, such Operating Payment shall
be equitably prorated to correspond to that portion of the Operating Year
occurring within the Term.
5.7. If Tenant contests an Operating Statement in accordance with
the provisions of Section 5.5, either party may apply to the then Senior
Justice of the Supreme Court of New York, New York County (or the then
highest court of general jurisdiction in New York County) for the selection
of an arbitrator to resolve such dispute. Such arbitration shall be
conducted in the City, County, and State of New York in accordance with the
rules then obtaining of the American Arbitration Association (or any
successor body of comparable function) and a judgment upon the award may be
entered in any court, federal or state, having jurisdiction thereover. The
arbitrator shall have at least ten years' current experience in the
ownership, management or operation of first class office buildings in
midtown Manhattan. The arbitrator shall only determine the Operating
Payment for such Operating Year, which Operating Payment shall be an amount
not less than the amount thereof set forth in Tenant's Operating Statement
for such Operating Year nor more than the amount thereof set forth in the
Operating Statement for such
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Operating Year. Any Superior Mortgagee and Superior Lessor shall have the
right to participate in any such arbitration, and prompt notice thereof shall
be given to each Superior Mortgagee and Superior Lessor by Tenant, provided
and to the extent Tenant shall have been previously notified of the name and
address of such Superior Mortgagees and Superior Lessor. If it is determined
in such arbitration that Tenant overpaid Landlord by 5% or less (but not less
than 1%) of the actual Operating Payment, then the fees and expenses of such
arbitration shall be borne by the parties equally, but each party shall bear
the expense of its own attorneys and experts and of presenting its own proof.
If it is determined in such arbitration that Tenant overpaid Landlord by
more than 5% of the actual Operating Payment, then the fees and expenses of
such arbitration, including the reasonable fees and expenses of Tenant's
attorneys and experts, shall be borne by Landlord. If it is determined in
such arbitration that Landlord's Operating Statement was correct, that Tenant
overpaid Landlord by less than 1% of the actual Operating Payment, or that
Tenant underpaid Landlord, then the fees and expenses of such arbitration,
including the reasonable fees and expenses of Landlord's attorneys and
experts, shall be borne by Tenant.
ARTICLE 6. Subordination to Mortgages and
Superior Leases
6.1. This Lease and all rights of Tenant hereunder shall be
subject and subordinate to all ground leases, overriding leases and
underlying leases of the Land and/or the Building now or hereafter existing
and to all mortgages now or hereafter existing affecting the Land and/or
the Building and/or any of such leases, whether or not such mortgages also
cover other lands and/or buildings and/or leases, to each and every advance
made or hereafter to be made under such mortgages, and to all renewals,
modifications, replacements and extensions of such leases and mortgages,
and spreaders and consolidations of such mortgages, provided that none of
the foregoing shall materially diminish Tenant's rights, or materially
increase Tenant's obligations, hereunder. This Section shall be
self-operative and no further be
-24-
instrument of subordination or priority shall required. In confirmation of
such subordination or priority Tenant shall execute, acknowledge and deliver
promptly after demand therefor any instrument reasonably acceptable to Tenant
that Landlord, the lessor under any such lease or the holder of any such
mortgage may reasonably request to evidence such subordination or priority.
Any lease to which this Lease is subject and subordinate is herein called a
"Superior Lease," and the lessor of a Superior Lease is herein called a
"Superior Lessor." Any mortgage to which this Lease is subject and
subordinate is herein called a "Superior Mortgage" and the holder of a
Superior Mortgage is herein called a "Superior Mortgagee."
6.2. If any act or omission of Landlord would give Tenant the
right, immediately or after lapse of a period of time, to cancel or
terminate this Lease, or to claim a partial or total eviction, Tenant shall
not exercise such right until (a) Tenant gives notice of such act or
omission to Landlord and to each Superior Mortgagee and Superior Lessor
whose name and address were previously furnished to Tenant, and (b) a
reasonable period of time for remedying such act or omission elapses
following the time when such Superior Mortgagee or Superior Lessor becomes
entitled under such Superior Mortgage or Superior Lease to remedy same
(which reasonable period shall in no event be less than the period to which
Landlord is entitled under this Lease or otherwise, after similar notice,
to effect such remedy).
6.3. If any Superior Mortgagee or Superior Lessor succeeds to the
rights of Landlord under this Lease, whether through possession or
foreclosure action or delivery of a new lease or deed, then at the request
of such party succeeding to Landlord's rights ("Successor Landlord") and
upon such Successor Landlord's written agreement to accept Tenant's
attornment, Tenant shall attorn to and recognize such Successor Landlord as
Tenant's landlord under this Lease and shall promptly execute and deliver
any instrument that such Successor Landlord reasonably requests to evidence
such attornment. Upon such attornment this Lease shall continue in full
force and effect as a direct lease between the Successor Landlord and
Tenant upon all of the terms and
-25-
conditions set forth in this Lease except that the Successor Landlord shall
not be (a) liable for any previous act or omission of Landlord under this
Lease (except to the extent that the state of facts resulting from such act
or omission shall continue to exist after the date such Successor Landlord
succeeds to the interest of Landlord and the existence of such state of facts
shall itself constitute a breach of Landlord's obligations under this Lease),
(b) subject to any offset which had accrued to Tenant against Landlord, (c)
obligated to complete any construction of the Building or the Premises other
than as provided in Sections 20 and 21 hereof, (d) obligated to make any
payment to or on behalf of Tenant other than as provided in Sections 4.4(b),
5.4 and 5.5, (e) required to account for any security deposit other than any
actually delivered to the Successor Landlord, or (f) bound by any previous
modification of this Lease or by any prepayment of more than one month's
Fixed Rent or Additional Charges unless such modification or prepayment was
expressly approved in writing by the lessor of the Superior Lease or the
holder of the Superior Mortgage through or by reason of which the Successor
Landlord succeeded to the rights of Landlord under this Lease.
6.4. If any prospective or actual Superior Mortgagee or Superior
Lessor requires any modification of this Lease, Tenant shall, upon notice
thereof from Landlord, promptly execute and deliver to Landlord the
instrument accompanying said notice from Landlord to effect such reasonable
modification if such instrument does not adversely affect any of Tenant's
rights under this Lease and does not increase any of Tenant's monetary or
other obligations under this Lease.
6.5. Tenant hereby irrevocably waives all rights it has, if any,
in connection with any zoning lot merger or transfer of development rights
in respect of the Property, including any rights it has to be a party to,
to contest, or to execute, any declaration of restrictions which would
cause the Property to be merged with any other zoning lot provided that
Tenant's right to quiet enjoyment as provided in Article 7 is not affected
thereby, Tenant's rights hereunder are not diminished and Tenant's
obligations hereunder are not
-26-
increased. This Lease shall be subject and subordinate to any declaration of
restrictions or any other document of similar nature and purpose now or
hereafter affecting the Property, provided such restrictions do not in any
way inhibit the use permitted under this Lease. In confirmation of such
waiver and subordination, Tenant shall promptly execute, acknowledge and
deliver any instrument that Landlord reasonably requests.
ARTICLE 7. Quiet Enjoyment
7.1. So long as Tenant pays all Fixed Rent and Additional Charges
and performs all of Tenant's other obligations under this Lease, Tenant
shall peaceably and quietly have, hold and enjoy the Premises without
hindrance, ejection or molestation by Landlord or any person lawfully
claiming through or under Landlord, subject to the provisions of this Lease
and to any Superior Leases and Superior Mortgages. This covenant shall be
construed as a covenant running with the Land and shall not be construed as
a personal covenant of Landlord except to the extent of Landlord's interest
in this Lease.
ARTICLE 8. Assignment, Subletting and Mortgaging
8.1. Except as otherwise expressly provided in this Lease, Tenant
shall not, voluntarily, involuntarily, by operation of law or otherwise,
except with the prior consent of Landlord: (a) assign or otherwise
transfer this Lease, (b) sublet the Premises or any part thereof, or allow
same to be used, occupied or utilized by any person other than Tenant,
(c) advertise or publicize in the media the availability of the Premises or
any part thereof, provided that Tenant may list the Premises or any part
thereof for assignment or subletting with a broker, agent, representative
or otherwise, who may advertise the availability of the Premises but may
not advertise rental rates, or (d) mortgage, pledge, encumber or otherwise
hypothecate this Lease.
8.2. If and so long as Tenant is a corporation, partnership, or a
limited liability company, the following shall be deemed to be an
assignment of this Lease under Section 8.1 prohibited by said Section
unless Tenant obtains the prior consent of Landlord: one or more sales or
transfers of
-27-
stock or partnership interests, voluntarily, involuntarily, by operation of
law or otherwise, or the issuance of new stock or partnership interests, as a
result of which an aggregate of 50% or more of Tenant's stock or partnership
interests shall be vested in a party or parties who are not stockholders or
partners as of the date hereof; provided, however, that any such sale,
transfer or issuance shall not be deemed an assignment or sublet if (i) it
was effected for legitimate business purposes and not for the purpose of
avoiding the limitations on assignment and subletting set forth in this
Article 8 and (ii) Tenant gives Landlord and each Superior Mortgagee and
Superior Lessor notice of such transaction within thirty (30) days after the
closing of such transaction. This Section and Section 8.1(a) shall not apply
to transactions with a corporation, partnership or limited liability company
into or with which Tenant is merged or consolidated or to which substantially
all of Tenant's assets are transferred or to any corporation, partnership or
limited liability company which controls or is controlled by Tenant or an
affiliate of Tenant or is under common control with Tenant if (a) the
successor to Tenant, based on customary real estate standards, has a
sufficient financial ability to support the obligations of Tenant under this
Lease during the Term, and (b) proof reasonably satisfactory to Landlord of
such financial ability is delivered to Landlord at least 10 days prior to the
effective date of any such transaction. The provisions of this Section shall
not apply to any corporation all the outstanding voting stock of which is
listed on a national securities exchange (as defined in the Securities
Exchange Act of 1934, as amended) or is traded in the over-the-counter market
with quotations reported by the National Association of Securities Dealers
through its automated system for reporting quotations. Notwithstanding the
foregoing, the original Tenant herein named shall have the right to assign
this Lease to an affiliate of the original Tenant herein named without
Landlord's consent, provided (x) Tenant gives notice to Landlord of such
assignment at least 30 days prior to the effective date thereof, (y) such
affiliate of the original Tenant is not
-28-
insolvent and would not be rendered insolvent by the assumption of this
Lease, and (z) the conditions of Section 8.4 are satisfied.
8.3. If this Lease is assigned, whether or not in violation of
the provisions of this Lease, Landlord may collect rent from the assignee.
If the Premises or any part thereof is sublet or occupied by any person
other than Tenant, whether or not in violation of this Lease, Landlord may,
after default by Tenant and expiration of Tenant's time to cure such
default, collect rent from the subtenant or occupant. In either event,
Landlord may apply the net amount collected to Fixed Rent and Additional
Charges, but no such assignment, subletting, occupancy or collection shall
be deemed a waiver of any of the provisions of this Article, or the
acceptance of the assignee, subtenant or occupant as tenant, or a release
of Tenant from the performance by Tenant of Tenant's obligations under this
Lease. The consent by Landlord to any assignment, mortgaging, subletting
or occupancy by others shall not relieve Tenant of the obligation to obtain
the consent of Landlord to any other or further assignment, mortgaging,
subletting or occupancy by others not expressly permitted by this Article
8. References in this Lease to occupancy by others than Tenant shall not
be construed as limited to subtenants and those claiming through or under
subtenants but shall be construed as including also licensees and others
claiming through or under Tenant, immediately or remotely.
8.4. Any assignment or transfer, whether or not Landlord's
consent is required, shall be made only if and shall not be effective until
the assignee executes, acknowledges and delivers to Landlord an agreement
in form and substance reasonably satisfactory to Landlord whereby the
assignee assumes the obligations of Tenant under this Lease and whereby the
assignee agrees that the provisions of this Article shall, notwithstanding
such assignment or transfer, continue to be binding upon it in respect of
all future assignments and transfers. Subject to the provisions of
Section 8.5 and notwithstanding any assignment or transfer, whether or not
in violation of the provisions of this Lease, and notwithstanding the
acceptance of Fixed Rent
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or Additional Charges by Landlord from an assignee, transferee, or any other
person, the original Tenant herein named and any and all successors in
interest of the original Tenant herein named shall remain fully liable
(jointly and severally with any immediate or remote successor in interest,
including the then Tenant) for the payment of Fixed Rent and Additional
Charges and for the other obligations of Tenant under this Lease.
8.5. The liability under this Lease of the original Tenant herein
named and any immediate or remote successor in interest of the original
Tenant herein named shall not be discharged, released or impaired in any
respect by any agreement or stipulation made by Landlord with the then
Tenant extending the time of, or modifying any of the obligations under,
this Lease, or by any waiver or failure of Landlord to enforce any of the
obligations of Tenant under this Lease; provided, however, that the
original Tenant herein named shall not be bound by any agreements made by
Landlord with any then Tenant which increase the obligations or liability
of the Tenant hereunder.
8.6. Neither the listing of any name other than that of Tenant,
whether on the door of the Premises or the Building directory, or
otherwise, nor the acceptance by Landlord of any check drawn by a person
other than Tenant in payment of Fixed Rent or Additional Charges, shall
operate to vest in any person any right or interest in this Lease or in the
Premises, nor shall same be deemed to be the consent of Landlord to any
assignment or transfer of this Lease or to any sublease of the Premises or
to the occupancy thereof by any person other than Tenant.
8.7. Except as specifically provided to the contrary in this
Article 8, if Tenant desires to assign this Lease or sublet all or any part
or the Premises, including any assignment or subletting pursuant to
Insolvency Laws, Tenant shall give notice thereof to Landlord, which notice
shall be accompanied by (a) a conformed or photostatic copy of the proposed
assignment or sublease, the effective date (as to an assignment) or
commencement date (as to a sublease) of which shall be at least 30 days
after the giving of such notice, (b) a statement setting forth in
reasonable detail the identity of the
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proposed assignee or subtenant, the nature of its business and its proposed
use of the Premises, and (c) with respect to a proposed assignment, current
financial information in respect of the proposed assignee, including its most
recent financial report. Such notice shall be deemed an offer from Tenant to
Landlord whereby Landlord (or Landlord's designee) may terminate this Lease
with respect to the space in question if the proposed transaction (the
"Proposed Transaction") is an assignment or is a sublease of all or
substantially all of the Premises to any person other than an affiliate of
the original Tenant herein named. Said option may be exercised by Landlord by
notice to Tenant at any time within 15 Business Days after such notice given
by Tenant to Landlord, and during such 15 Business Day period Tenant shall
not assign this Lease or sublet such space to any person. If Landlord
exercises its option to terminate this Lease, then this Lease shall terminate
on the date that the assignment was to be effective or the sublet was to
commence, and Fixed Rent and Additional Charges shall be apportioned as of
such date, and Tenant shall pay any transfer taxes due and owing in
connection with the termination, including any New York State Real Property
Transfer Taxes and New York City Real Property Transfer Taxes and any sums
due under Section 8.10, and no other sums which may accrue on or after the
effective date of termination with respect to the portion of the Premises as
to which the Lease has terminated shall be due hereunder.
8.8. Intentionally deleted.
8.9. If Landlord does not exercise its option pursuant to
Section 8.7 to so terminate this Lease and Tenant is not in default of any
of its obligations under this Lease beyond any applicable notice and cure
period, Landlord's consent (which shall be in form reasonably satisfactory
to Landlord) to the proposed assignment or sublease shall not be
unreasonably withheld, conditioned or delayed, provided and upon condition
that:
(a) Tenant has complied with the provisions of this Article 8,
(b) in Landlord's reasonable judgment the proposed assignee or
subtenant is engaged in a business and the Premises will be used in a
manner
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which (i) is in keeping with the then standards of the Building, (ii) is
limited to use for general office purposes and is not in violation of the
Rules and Regulations or any provisions of this Lease, and (iii) will not
violate any negative covenant as to use contained in any other lease of space
in the Building,
(c) the proposed assignee or subtenant is a reputable person of
good character and, in the case of the assignee, based on customary real
estate standards, has a sufficient financial ability to support the
obligations of Tenant under this Lease from the date of such assignment
until the Expiration Date, and Landlord has been furnished with reasonable
proof thereof,
(d) neither the proposed assignee or sublessee nor any person
that, directly or indirectly, controls, is controlled by, or is under
common control with, the proposed assignee or sublessee or any person who
controls the proposed assignee or sublessee, is then an occupant (excluding
any affiliate of the original Tenant) of any part of the Building,
provided, however, this subsection (d) shall be of no force and effect if
Landlord does not have comparable space available for rent in the Building,
(e) the proposed assignee or sublessee is not a person with whom
Landlord is then negotiating or in the prior six-month period was
negotiating to lease space in the Building, provided, however, that this
subsection (e) shall be of no force and effect if Landlord does not have
comparable space available for rent in the Building, and
(f) the form of the proposed sublease (if Tenant proposes to
sublease all or part of the Premises) is in form reasonably satisfactory to
Landlord and complies with the applicable provisions of this Article 8.
8.10. Provided Landlord has not exercised its option to terminate
this Lease in accordance with section 8.7 hereof, Tenant shall reimburse
Landlord within 30 days after demand for any reasonable costs incurred by
Landlord to non-affiliates of Landlord in connection with any proposed
assignment or sublease, whether or not consented to by Landlord, including
the
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reasonable cost of making investigations incurred by Landlord to
non-affiliates of Landlord as to the acceptability of the proposed assignee
or subtenant, and reasonable attorneys' fees and disbursements in connection
with the granting of any requested consent.
8.11. Notwithstanding the consent by Landlord to any subletting
to any subtenant and/or acceptance of rent or additional rent by Landlord
from any subtenant, Tenant shall remain fully liable for the payment of
Fixed Rent and Additional Charges due and to become due hereunder and for
all of the other obligations of Tenant under this Lease. Tenant shall
remain fully liable for all acts and omissions of any licensee or subtenant
or any person claiming through or under any licensee or subtenant that are
in violation of any of the obligations of Tenant under this Lease, and any
such violation shall be deemed to be a violation by Tenant.
Notwithstanding any such subletting, no other or further subletting of the
Premises by Tenant or any person claiming through or under Tenant shall be
made except in compliance with and subject to the provisions of this
Article 8. If Landlord reasonably declines to give its consent to any
proposed assignment or sublease (provided Landlord is required to be
reasonable pursuant to the provisions of this Article 8), Tenant shall
indemnify Landlord against liability in connection with any claims made
against Landlord by the proposed assignee or subtenant or by any brokers or
other persons with whom Tenant communicated with respect to such proposed
assignment or sublease.
8.12. If (a) Landlord does not exercise its option under
Section 8.7 and Landlord consents to a proposed assignment or sublease and
(b) Tenant fails to execute and deliver the assignment or sublease to which
Landlord consented within 60 days after the giving of such consent, then
Tenant shall again be required to comply with the provisions of this
Article 8 (as if Tenant had not requested such consent) before assigning
this Lease or subletting all or any part of the Premises.
8.13. Notwithstanding anything to the contrary in this Article 8,
the original Tenant herein named shall have the right to sublet all or a
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portion of the Premises to an affiliate of the original Tenant herein named
without Landlord's consent, provided (a) Tenant gives to Landlord not less
than ten Business Days prior to the effective date of the sublease a notice
including (i) a conformed or photostatic copy of the sublease and (ii) a
certification by an officer of Tenant of the relationship between Tenant
and the proposed subtenant and (b) the conditions of paragraphs (a), (b)
and (c) of Section 8.14 are satisfied.
8.14. In respect of every sublease:
(a) no sublease shall be for a term ending later than the day
before the Expiration Date,
(b) no sublease shall be valid, and no subtenant shall take
possession of the Premises or any part thereof, until an executed
counterpart of such sublease has been delivered to Landlord,
(c) each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which this Lease is or
shall be subordinate, and that in the event of termination, reentry or
dispossess by Landlord under this Lease, Landlord may, at its option, take
over all of the right, title and interest of Tenant, as sublessor, under
such sublease, and such subtenant shall, at Landlord's option, attorn to
Landlord pursuant to the then executory provisions of such sublease and
execute and deliver such instruments as Landlord may reasonably request to
evidence and confirm such attornment, except that Landlord shall not be
(i) liable for any previous act or omission of Tenant under such sublease,
(ii) subject to any offset which had accrued to such subtenant against
Tenant, (iii) bound by any previous modification of such sublease unless
Landlord shall have consented in writing thereto or by any prepayment of
more than one month's rent or additional rent, (iv) obligated to make any
payment to or on behalf of such subtenant or to perform any repairs or
other work in the subleased space or the Building beyond Landlord's
obligations under this Lease, or (v) required to account for any security
deposit other than any actually delivered to Landlord, and
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(d) the rental and other terms and conditions of each sublease
shall be the same as those contained in the proposed sublease furnished to
Landlord pursuant to Section 8.7.
8.15. If Tenant assigns this Lease or sublets all or any portion
of the Premises, Tenant shall in consideration therefor pay to Landlord:
(a) in the case of an assignment, an amount equal to all sums
and other consideration paid to Tenant by the assignee or any other person
for or in connection with such assignment (including sums paid for the sale
or rental of Tenant's fixtures, leasehold improvements, equipment,
furniture, furnishings or other personal property, less the then net
unamortized or undepreciated cost thereof determined on the basis of
Tenant's federal income tax returns), less customary brokerage fees and
reasonable attorneys' fees and all other reasonable costs incurred by
Tenant in consummating the assignment, and
(b) in the case of a sublease, any rents, additional charges or
other consideration payable to Tenant (collectively, "Sublease Rent"), plus
any sums paid for the sale or rental of Tenant's fixtures, leasehold
improvements, equipment, furniture, furnishings or other personal property,
less, the then net unamortized or undepreciated cost thereof determined on
the basis of Tenant's federal income tax returns, less customary brokerage
fees and reasonable attorneys' fees and all other reasonable costs incurred
by Tenant in consummating the sublease ("Sale or Rental Payments"), to the
extent that the sum of the Sublease Rent and Sale or Rental Payments is in
excess of Fixed Rent and Additional Charges accruing during the term of the
sublease in respect of the subleased space (at the rate per rentable square
foot payable by Tenant hereunder). The deduction for the net unamortized
or undepreciated cost in the case of such a sale shall be made in equal
monthly installments over the term of the sublease. The sums payable under
this subsection shall be paid to Landlord as and when paid by the subtenant
or any other person to Tenant.
ARTICLE 9. Compliance With Legal and
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Insurance Requirements
9.1. Tenant and Landlord shall each give prompt notice to the
other of any notice it receives of the violation of any Legal Requirements
or Insurance Requirements in respect of the Premises or the use or
occupancy thereof. Tenant shall, regardless of whether Landlord has given
Tenant notice as provided in the immediately preceding sentence, at
Tenant's expense, comply with all Legal Requirements and Insurance
Requirements (including, without limitation, requirements of additional
sprinkler heads or changes to the sprinkler system in or serving the
Premises) that, in respect of the Premises or the use or occupancy thereof,
or the abatement of any nuisance in, on or about the Premises, impose any
violation, order or duty on Landlord or Tenant, by reason of or arising out
of (a) Alterations, (b) Tenant's use of the Premises, except for the mere
use of the Premises as provided in Section 2.1, (c) the manner of conduct
of Tenant's business or operation of its installations, equipment or other
property therein, except for the mere use of the Premises as provided in
Section 2.1, (d) any cause or condition created by or at the instance of
Tenant, except for the mere use of the Premises as provided in Section 2.1,
(e) Tenant's business, except for the mere use of the Premises as provided
in Section 2.1, or the location of partitions, trade fixtures or other
contents of the Premises, or (f) the breach of any of Tenant's obligations
under this Lease, and Tenant shall pay all the fines, penalties and damages
imposed upon, and all reasonable costs and expense incurred by, Landlord or
any Superior Lessors or Superior Mortgagees by reason of or arising out of
Tenant's failure to fully and promptly comply with and observe the
provisions of this Section. However, Tenant need not comply with any Legal
Requirement so long as Tenant is contesting the validity thereof or the
applicability thereof to the Premises in accordance with Section 9.2.
Landlord shall comply with all other Legal Requirements and Insurance
Requirements affecting the Premises or access thereto (including Legal
Requirements requiring structural changes, additions, repairs or
alterations provided that same do not arise out of or by reason of the
matters identified
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in clauses (a) through (f) above) but may similarly defer compliance so long
as Landlord is contesting the validity or applicability thereof. Landlord
represents to Tenant that the Premises do not contain any asbestos-containing
materials nor do they contain other hazardous materials (as defined pursuant
to Legal Requirements) in quantities exceeding those permitted under
applicable Legal Requirements. In the event that there is a breach of the
representation in the preceding sentence, Landlord, at its sole expense,
shall (a) remove any such materials present in the Premises on the
Commencement Date or which were brought into the Premises by Landlord
subsequent thereto, and (b) indemnify Tenant with respect thereto.
9.2. Tenant, at its expense, after notice to Landlord, may
contest by appropriate proceedings prosecuted diligently and in good faith
the validity or applicability to the Premises of any Legal Requirements
provided that (a) the condition which is the subject of such contest does
not in Landlord's reasonable judgment pose a danger to persons or property,
(b) neither Landlord nor any Superior Lessor or Superior Mortgagee is
subject to criminal penalty or to prosecution for a crime, and neither the
Building nor any part thereof is subject to being condemned or vacated, by
reason of noncompliance or otherwise by reason of such contest, (c) before
the commencement of such contest, Tenant furnishes to Landlord security in
an amount equal to the cost of such compliance plus any penalties which may
accrue during the term of such noncompliance reasonably satisfactory to
Landlord, and (d) such noncompliance or contest does not constitute or
result in any violation of any Superior Lease or Superior Mortgage (or if
any Superior Lease and/or Superior Mortgage permits such noncompliance or
contest only if Landlord takes some specified action or furnishes security,
such action is taken and/or such security is furnished at the expense of
Tenant). Tenant shall keep Landlord advised as to the status of such
proceedings and Tenant shall indemnify Landlord against liability in
connection with such contest or noncompliance. Without limiting the
application of the above, Landlord, any Superior Lessor and any Superior
Mortgagee shall be deemed
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"subject to prosecution for a crime" for purposes of this Section 9.2 if
Landlord or any Superior Lessor or Superior Mortgagee, or any managing agent
for the Building, or any officer, director, partner, shareholder or employee
of Landlord or of any managing agent for the Building or of any Superior
Lessor or Superior Mortgagee, is charged with, or is at risk of being charged
with, a crime of any kind or degree, whether by service of a summons or
otherwise unless and for so long as such party obtains a court order staying
such summons or other means of charge.
9.3. The provisions of Article 12, to the extent applicable,
shall apply to the work (and the plans and specifications therefor) which
Tenant performs or causes to be performed under this Article 9.
9.4. Landlord shall maintain a certificate of occupancy for the
Building, which would be consistent with the uses permitted under a
certificate of occupancy for the Premises for the uses set forth in
Section 2.1, in full force and effect, provided that Tenant and Tenant's
employees, contractors, agents, licensees and invitees shall not do
anything to cause said certificate of occupancy to be revoked or unable to
be renewed.
ARTICLE 10. Insurance
10.1. Tenant shall not violate or permit the violation of any
Insurance Requirements and shall not do, or permit anything to be done, or
keep or permit anything to be kept in the Premises which would subject
Landlord or any Superior Lessor or Superior Mortgagee to liability or
responsibility for bodily injury or death or property damage, or which
would increase any insurance rate in respect of insurance maintained by
Landlord over the rate which would otherwise then be in effect, or which
would result in an insurance company refusing to insure all or any part of
the Property or any contents thereof in amounts reasonably satisfactory to
Landlord, or which would result in the cancellation of or the assertion of
any defense by the insurer in whole or in part to claims under any policy
of insurance maintained by Landlord.
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10.2. If Landlord has knowledge of any use, cause or condition
with respect to the Premises which may cause the premiums on any insurance
maintained by Landlord to be higher than they otherwise would be, Landlord
shall give Tenant prompt notice thereof. If, by reason of (a) any failure
of Tenant to comply with the provisions of Section 9.1 or Section 10.1,
(b) Tenant's particular use of the Premises, or (c) any cause or condition
created by or at the instance of Tenant, including, without limitation, the
doing of or failure to do any Tenant's work or the making of or failure to
make any Alterations or repairs, the premiums on any insurance maintained
by Landlord shall be higher than they otherwise would be, Tenant shall
reimburse Landlord on demand for that part of such premiums attributable to
such failure on the part of Tenant. A schedule or "make up" of rates for
any insurance maintained by Landlord issued by the New York Fire Insurance
Rating Organization or other similar body making rates shall be conclusive
evidence of the facts therein stated and of the several items and charges
in the insurance rate then applicable to such insurance.
10.3. Tenant, at its expense, shall maintain (a) "broad-form"
property insurance covering Tenant's Property to a limit of not less than
90% of the replacement cost thereof, and (b) comprehensive general
liability insurance, including a contractual liability endorsement, in
respect of the Premises and the conduct or operation of business therein,
with Landlord and its managing agent, if any, and any Superior Lessors and
Superior Mortgagees whose names and addresses were furnished to Tenant, as
additional insureds, with limits of not less than $1,000,000 primary
coverage with $5,000,000 umbrella coverage combined single limit for bodily
injury (or death) and property damage liability in any occurrence. The
limits of such insurance shall not limit the liability of Tenant hereunder.
Tenant shall deliver to Landlord and all additional insureds certificates
and copies of the binders for such insurance in form reasonably
satisfactory to Landlord issued by the insurance company or its authorized
agent no later than 10 days after the Commencement Date, but in any event
prior to the commencement of any Tenant's
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work. All such policies shall be noncancellable in respect of Landlord and
any additional insureds unless 30 days' prior written notice (10 days' prior
written notice in the event of non-payment of the premium) is given to
Landlord and all additional insureds and all such policies shall provide that
no act or omission of Tenant shall affect or limit the obligations of the
insurer in respect of Landlord and the additional insureds. Tenant shall
procure and pay for renewals of such insurance from time to time before the
expiration thereof. Tenant shall deliver to Landlord and all additional
insureds certificates and copies of the binders for renewal policies issued
by the insurance company or its authorized agent at least 10 days prior to
the expiration of any existing policy. All such policies shall be issued by
companies licensed to do business in the State of New York, reasonably
satisfactory to Landlord and with a Best's (or its successor) rating of A XIV
or better.
10.4. Each party shall have included in each of its casualty
insurance policies (insuring the Building and Landlord's property therein
in the case of Landlord, and insuring Tenant's Property in the case of
Tenant) a waiver of the insurer's right of subrogation against the other
party or, if such waiver is unobtainable or unenforceable, (a) an express
agreement that such policy shall not be invalidated if the insured waives
the right of recovery against any party responsible for a casualty covered
by the policy before the casualty, or (b) any other form of permission for
the release of the other party. If such waiver, agreement or permission is
not, or ceases to be, obtainable from either party's then current insurance
company, the insured party shall so notify the other party promptly after
learning thereof, and shall use its reasonable efforts to obtain same from
another insurance company. If such waiver, agreement or permission is
obtainable only by payment of an additional charge, the insured party shall
so notify the other party promptly after learning thereof, and the insured
party shall not be required to obtain said waiver, agreement or permission
unless the other party pays the additional charge therefor. Each party
hereby releases the other in
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respect of any claim (including a claim for negligence) which it might
otherwise have against the other for loss, damage or destruction of or to its
property to the extent to which it is insured under a policy containing (i) a
waiver of subrogation, (ii) express agreement that such policy shall not be
invalidated by such release or (iii) permission to release liability, as
provided above in this Section. If notwithstanding the recovery of insurance
proceeds by either party for loss, damage or destruction of or to its
property, the other party is liable to the first party in respect thereof or
is obligated under this Lease to make replacement, repair, restoration or
payment, then, provided the first party's right of full recovery under its
insurance policy is not thereby prejudiced or otherwise adversely affected,
the amount of the net proceeds of the first party's insurance against such
loss, damage or destruction shall be offset against the second party's
liability to the first party therefor, or shall be made available to the
second party to pay for replacement, repair or restoration, as the case may
be. Nothing contained in this Section shall be deemed to (i) relieve either
party of any duty imposed elsewhere in this Lease to repair, restore or
rebuild or (ii) nullify any abatement or reduction of rents provided for
elsewhere in this Lease.
10.5. Landlord may from time to time, but not more frequently
than once every year, require that the amount of comprehensive general
liability insurance to be maintained by Tenant under Section 10.3 be
reasonably increased, so that the amount thereof adequately protects
Landlord's interest in accordance with standards for such insurance
(a) carried by occupants of similar first-class office buildings in midtown
Manhattan, or (b) of any Superior Mortgagee or Superior Lessor.
ARTICLE 11. Rules and Regulations
11.1. Tenant shall and shall cause its subtenants and licensees,
and its and their respective employees, agents, contractors and invitees,
to observe and comply with the rules and regulations attached hereto as
Exhibit D, and such reasonable changes therein (whether by modification,
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elimination or addition) as Landlord at any time or times makes and
notifies Tenant of which in Landlord's judgment are necessary or desirable
for the reputation, safety, care or appearance of the Building, or the
preservation of good order therein, or the operation or maintenance of the
Building. Such rules and regulations as changed from time to time are
herein called the "Rules and Regulations." In case of any conflict,
inapplicability or inconsistency between the provisions of this Lease and
any of the Rules and Regulations, the provisions of this Lease shall
control.
11.2. Nothing in this Lease contained shall be construed to
impose upon Landlord any duty or obligation to enforce the Rules and
Regulations against any other tenant or other person, and Landlord shall
not be liable to Tenant for violation by any other tenant or other person
of the Rules and Regulations or the rules and regulations contained in such
other leases. Landlord shall enforce the Rules and Regulations in a
non-discriminatory manner against all tenants.
ARTICLE 12. Alterations
12.1. Tenant may from time to time, at its expense, make such
alterations ("Alterations") to the Premises as Tenant reasonably considers
necessary for the conduct of its business in the Premises, provided and
upon condition that: (a) the Alterations are non-structural and the
structural integrity of the Building is not affected, (b) the Alterations
are to the interior of the Premises, no part of the Building outside of the
Premises is affected, and the outside appearance of the Building is not
affected, and (c) the proper functioning of the mechanical, electrical,
sanitary and other service systems of the Building is not adversely
affected and the usage of such systems by Tenant is not materially
increased, provided that if Tenant does not initially use 6 xxxxx of
connected electrical load per rentable square foot of the Premises as
provided in Section 15.1, Tenant shall have the right to increase its
connected electrical load up to such amount. Before proceeding with any
Alteration other than nonstructural decorative changes, Tenant shall submit
to Landlord for Landlord's approval (which shall not be
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unreasonably withheld, delayed or conditioned) plans and/or specifications,
if required, and all changes thereto for the work to be done, and Tenant
shall not proceed with such work until it obtains such approval. Landlord's
approval shall be deemed granted if Landlord has not responded within twenty
(20) Business Days after all such plans and specifications have been
submitted to Landlord. In connection with Alterations affecting mechanical,
electrical, plumbing, heating, ventilation, air conditioning or sprinkler
systems, Tenant shall pay to Landlord within 30 days after demand the
reasonable direct costs and expenses incurred by Landlord to non-affiliates
of Landlord in (i) reviewing said plans and specifications and any changes
thereto and (ii) inspecting the Alterations to determine whether the same are
being performed in accordance with the approved plans and specifications and
all Legal Requirements and Insurance Requirements including the fees or costs
of any architect, engineer or draftsman (excluding the cost of architects,
engineers or draftsmen who are employees of Landlord or affiliates of
Landlord) for such purposes. Before proceeding with any Alteration that will
cost more than $20,000 (exclusive of items constituting Tenant's Property and
nonstructural decorative changes), as estimated, at Tenant's expense, by a
reputable and experienced contractor reasonably satisfactory to Landlord,
Tenant shall obtain and deliver to Landlord a copy of the most recent
financial statement of Tenant's contractor, evidence satisfactory to Landlord
that Tenant's contractor has at least five years' prior experience in
performing the type(s) of Alterations contemplated and such security as shall
be reasonably satisfactory to Landlord. Tenant shall fully and promptly
comply with and observe the Rules and Regulations then in force in respect of
making Alterations. Any review or approval by Landlord of any plans or
specifications in respect of any Alterations is solely for Landlord's benefit
and without any representation or warranty to Tenant as to the adequacy,
correctness or efficiency thereof or otherwise. Landlord shall approve or
disapprove Tenant's plans and/or specifications for Alterations within 10
Business Days after receipt thereof. Failure of Landlord to
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approve or disapprove any portion of Tenant's plans and/or specifications
within such 10 Business Day period shall be deemed approval. Landlord shall
not unreasonably withhold its approval to Tenant's plans and/or
specifications, except those portions thereof which may affect mechanical,
electrical, plumbing, heating, ventilation, air-conditioning or sprinkler
systems. Alterations shall not include Landlord's Work.
12.2. Tenant, at its expense, shall obtain all necessary
governmental permits and certificates for the commencement and prosecution
of Alterations and for final approval thereof upon completion, and shall
cause Alterations to be performed in compliance therewith, with the
provisions of Section 37.2 and with all applicable Legal Requirements and
Insurance Requirements. Alterations shall be diligently performed in a
good and workmanlike manner, using materials and equipment at least equal
in quality and class to those initially installed in the Premises.
Alterations shall be performed by contractors first approved by Landlord as
provided in Section 12.1; provided, however, that any contractor who will
be performing permitted work involving the mechanical, electrical,
plumbing, heating, ventilation, air-conditioning or sprinkler systems in
the Building must be selected from Landlord's then Building standard list.
Such list shall contain at least three contractors per trade and shall be
furnished to Tenant upon request. Alterations shall be performed in such a
manner as not to violate union contracts affecting the Property, or to
create any work stoppage, picketing, labor disruption or dispute or any
interference with the business of Landlord or any tenant of the Building.
If any such event occurs, Tenant shall cause such manner of performance to
be terminated immediately after Tenant has actual knowledge thereof. If
Tenant fails to do so, Landlord, in addition to any rights available to it
under this Lease or pursuant to law or equity, shall have the right of
injunction. In addition, Alterations shall be performed in such a manner
as not to (a) otherwise unreasonably interfere with or delay, or (b) impose
any additional expense upon, Landlord in the construction, maintenance,
repair, operation or cleaning of the Building
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(which additional expense, if charged by an affiliate of Landlord, must be
competitive with that charged by unaffiliated persons for the same services
in first-class office buildings in Manhattan), and if any such additional
expense is incurred by Landlord as a result of Tenant's performance of
Alterations, Tenant shall pay such additional expense to Landlord within 30
days after demand. Throughout the performance of Alterations, Tenant shall
carry, or cause its contractors to carry, workers' compensation insurance in
statutory limits, "Builder's Risk" insurance reasonably satisfactory to
Landlord, and comprehensive general liability insurance, with completed
operation endorsement, for any occurrence in or about the Building, under
which Landlord and its managing agent and any Superior Lessors and Superior
Mortgagees whose names and addresses were furnished to Tenant shall be named
as additional insureds, in such limits as Landlord may reasonably require,
with insurers reasonably satisfactory to Landlord and with a Best's (or its
successor) rating of A XIV or better or the then equivalent of such rating.
Tenant shall furnish Landlord with reasonably satisfactory evidence that such
insurance is in effect before the commencement of Alterations and, on
request, at reasonable intervals during the continuance of Alterations. If
any Alterations involve the removal of any fixtures, equipment or other
property in the Premises, other than Tenant's Property, such fixtures,
equipment or other property shall be promptly replaced at Tenant's expense
with fixtures, equipment or other property of like utility and at least equal
value, except to the extent such items are obsolete or may be replaced by
high quality time-saving items. Upon completion of any Alterations that cost
in excess of $10,000 (other than mere decorations and items constituting
Tenant's Property), Tenant shall deliver to Landlord not less than two scaled
and dimensioned prints of "as-built" plans for such Alteration.
12.3. Tenant, at its expense, shall promptly procure the
cancellation or discharge of all notices of violation arising from or
otherwise connected with Alterations, or any other work, labor, services or
materials done for or supplied to Tenant or any person claiming through or
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under Tenant which are issued by the Department of Buildings of the City of
New York or any other public authority having or asserting jurisdiction.
Tenant shall indemnify Landlord against liability in connection with any and
all mechanics' and other liens and encumbrances filed in connection with
Alterations, or any other work, labor, services or materials done for or
supplied to Tenant or any person claiming through or under Tenant, including
security interests in any materials, fixtures or articles so installed in the
Premises. Tenant, at its expense, shall procure the satisfaction or
discharge (by bond or otherwise) of record of all such liens and encumbrances
within 30 days after Tenant has received notice thereof from any person.
ARTICLE 13. Landlord's and Tenant's Property
13.1. Except as provided in Section 13.2, all fixtures,
equipment, improvements and appurtenances, including utility lines and
equipment, attached to or built into the Premises before or after the
Commencement Date, whether by or at the expense of Landlord or Tenant,
shall be and remain a part of the Premises, shall be deemed the property of
Landlord and shall not be removed by Tenant.
13.2. All movable partitions, business and trade fixtures, machinery
and equipment, communications equipment and office equipment (excluding
cabling), whether or not attached to or built into the Premises, which are
installed in the Premises by Tenant at any time during the Term without
expense to Landlord and which can be removed without structural damage to
the Building, and all furniture, furnishings, and all other articles of
movable personal property owned by Tenant and located and used in the
Premises at any time during the Term (collectively, "Tenant's Property")
shall be and shall remain the property of Tenant and may be removed by
Tenant at any time during the Term, provided that if any Tenant's Property
is installed or removed, Tenant shall repair or pay the cost of repairing
any damage to the Premises (except for minor incidental dents and
scratches) or to the Building resulting from the installation and/or
removal thereof.
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13.3. At or before the Expiration Date, or within 20 days after an
earlier termination date, Tenant, at its expense, shall remove from the
Premises all Tenant's Property, and Tenant shall repair any damage to the
Premises (except for minor incidental dents and scratches) and the Building
resulting from any installation and/or removal of Tenant's Property. Any
other items of Tenant's Property which remain in the Premises after the
Expiration Date, or after 20 days following an earlier termination, may, at
the option of Landlord, be deemed to have been abandoned, and in such case
such items may be retained by Landlord as its property or disposed of by
Landlord without accountability in such manner as Landlord shall determine
at Tenant's expense.
ARTICLE 14. Repairs and Maintenance
14.1. Tenant shall, at its expense, take good care of the Premises,
the fixtures and appurtenances therein, the space above the hung ceiling of
the Premises and the fixtures and appurtenances therein, and any Tenant's
Property. Tenant shall be responsible for and shall promptly make all
repairs, interior and exterior, structural and nonstructural, ordinary and
extraordinary, in and to the Premises and the Building the need for which
arises out of (a) the performance or existence of any Alterations or other
work by Tenant, (b) the installation, use or operation of Tenant's Property
(provided that Tenant shall be responsible for exterior, structural and
extraordinary repairs resulting from such installation, use or operation
only if such installation, use or operation is negligent, constitutes
willful misconduct or is otherwise in breach or default of Tenant's express
obligations under this Lease), (c) the moving of Tenant's Property in or
out of the Premises (except for minor incidental dents and scratches) or
the Building, or (d) the negligence or willful misconduct of or by Tenant
or any of its subtenants or licensees, or its or their respective
employees, agents, contractors or invitees. Tenant, at its expense (except
to the extent covered by Landlord's insurance), shall promptly replace all
damaged or broken doors and glass in and about the Premises and shall be
responsible for all repairs,
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painting, maintenance and replacement of wall and floor coverings in the
Premises and to the extent resulting from or in connection with Alterations
undertaken by Tenant, for the repair, maintenance and replacement of all
mechanical, electrical, sanitary, heating, ventilating, air conditioning and
other fixtures and equipment therein and above the hung ceiling thereof.
Notwithstanding the foregoing, Tenant shall not be responsible for the
repair, maintenance or replacement of the perimeter heating system unless the
need therefor arises out of any of the matters listed in clauses (a) through
(d) above. Any repairs and replacements required to be made by Tenant shall
be performed only by contractors reasonably approved by Landlord; provided,
however, that repairs or replacements to the mechanical, electrical,
sanitary, heating, ventilating, air-conditioning or other systems shall be
performed only by contractors selected from Landlord's then Building standard
list as described in Section 12.2. All replacements shall be at least equal
in utility and value to the utility and value that the materials and
equipment being replaced had when they were installed. Any repairs and
replacements for which Tenant is responsible may, at Landlord's option, be
performed by Landlord upon at least ten (10) Business Days' notice (except in
an emergency) if such repair or replacement will affect any Building system
or any other tenant's premises or work, at Tenant's expense, and Landlord
may, at its option, before Landlord or Tenant commences any such work or at
any time thereafter, require Tenant to furnish to Landlord security
reasonably satisfactory to Landlord under the same terms and conditions as
would apply if such repair or replacement were an Alteration.
Notwithstanding the foregoing, at any time that Tenant has commenced any work
pursuant to this Section 14.1 and is diligently proceeding to complete the
same, Landlord shall not have the right to perform the work in question.
14.2. Landlord shall promptly make all repairs, structural and
otherwise, interior and exterior, as and when needed in or to the Building
and the Premises (including structural repairs and repairs to the Building
systems, provided the need for same does not arise out of any of the
matters
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identified in clauses (a) through (d) of Section 14.1 or the third sentence
of said Section) except for those repairs for which Tenant or any other
tenant is responsible. If such repairs are to be performed within the
Premises, Landlord shall perform them, except in cases of emergency, upon
reasonable notice to Tenant. Notwithstanding anything to the contrary
contained in this Section 14.2, except in cases of emergency, any such
repairs performed within the Premises shall be performed by Landlord after
Business Hours (i) if such repairs would unreasonably interfere with the
normal conduct of Tenant's business or (ii) even if such repairs would not
interfere with the normal conduct of Tenant's business, if Tenant requests
that Landlord perform such repairs after Business Hours and agrees to pay the
additional cost incurred by Landlord as a result thereof.
14.3. Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant, nor shall Tenant's obligations under this
Lease be reduced or abated in any manner, by reason of any inconvenience,
annoyance, interruption or injury to Tenant's business arising from
Landlord's making any repairs or changes which Landlord is required or
permitted to make hereunder, under any other agreement to which Landlord is a
party or pursuant to Legal Requirements or Insurance Requirements; provided,
however, Landlord shall use reasonable efforts to minimize interference with
Tenant's business in the Premises during the performance of any such repairs.
14.4. Landlord shall maintain and repair the Building as a first-class
office building in accordance with what are customarily considered to be the
standards for first-class office buildings in midtown Manhattan.
ARTICLE 15. Electric Energy
15.1. Landlord has installed a riser and feeder to furnish electric
service to the Premises. Such service shall provide 6 xxxxx of connected
load per rentable square foot of the Premises for all of Tenant's power and
lighting requirements, including any supplemental air conditioning system(s),
computers or other electrical equipment installed by Tenant in the Premises
(but exclusive of electricity to operate the air conditioning
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equipment on the floors on which the Premises is located as
shown on Exhibit A (the "HVAC Units")). All transformers, panel boxes and
circuit breakers required in order to furnish the electric service to the
Premises described in this Section 15.1, shall be furnished and installed
as provided in Article 12 (if done as an Alteration).
15.2. Tenant shall obtain and pay for Tenant's supply of electric
current to the Premises by direct application to and arrangement with the
public utility company servicing the Building, which electric current shall
(subject to the provisions of Section 15.3) also serve the HVAC Units.
Tenant shall not use or install any fixtures, equipment or machines the use
of which in conjunction with other fixtures, equipment and machines in the
Premises would result in an overload of the electrical equipment supplying
electric current to the Premises. Tenant shall not permit its use of
electric current to exceed the lesser of (a) 6 xxxxx per rentable square
foot of the Premises and (b) the capacity of the electrical distribution
system in the Premises.
15.3. Notwithstanding the provisions of Section 15.2, unless and until
the Premises include the entire rentable area of the 8th floor, the following
shall apply:
(a) For the purposes of this Section 15.3, Landlord and Tenant agree
that the term "Cost per Kilowatt Hour" shall mean the total cost for
electricity as charged to Landlord by the public utility company to service
the Premises, as measured by the meter servicing that portion of the Building
in which the Premises are located, during a particular time period (including
all applicable surcharges, demand charges, energy charges, fuel adjustment
charges, time of day charges, taxes and other sums payable in respect thereof
but deducting therefrom any utility company rebates) divided by the total
kilowatt hours for the entire 8th floor purchased by Landlord from the public
utility during such period. Tenant shall pay to Landlord, as Additional
Rent, an amount determined by applying the Cost per Kilowatt Hour to Tenant's
consumption of electricity within the Premises (other than for the HVAC
Units) as recorded on the submeter servicing the Premises (which shall be
installed
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by Landlord at its expense). Landlord shall render to Tenant current bills
for electricity Additional Rent on a monthly basis (If requested by Tenant at
such time, Landlord shall also provide a copy of the underlying utility
xxxx). If any tax is imposed upon Landlord's receipts from the sale of
electricity to Tenant by Federal, State or municipal authority, Tenant agrees
that, unless prohibited by law, Tenant's proportionate share of such taxes
shall be included in the xxxx of, and paid by, Tenant to Landlord, as
Additional Rent. The actual reasonable costs incurred by Landlord for meter
readings for the submeter and the actual reasonable costs incurred by
Landlord in the maintenance of such submeter shall be included in the xxxx
of, and paid by, Tenant to Landlord, as Additional Rent.
(b) The electric current serving the HVAC Units on the 8th floor will be
measured by a separate meter (the "HVAC Meter"). The supply of electric
current measured by the HVAC Meter shall be arranged for by Landlord with the
public utility company servicing the Building. Tenant shall pay to Landlord
for its share of such electric current, an amount which is in the same ratio
to the total cost to Landlord of all electric current measured by the HVAC
Meter as the amount of Tenant's electrical consumption for the 8th floor (as
measured in accordance with Section 15.3(a)) bears to the total electrical
consumption on the 8th floor (other than the electric current consumed by the
HVAC Units on the 8th floor).
15.4. Landlord shall not be liable or responsible to Tenant for any loss,
damage or expense that Tenant sustains or incurs if either the quantity or
character of electric service is changed or interrupted or is no longer
available or suitable for Tenant's requirements unless due to the negligence
or willful misconduct of Landlord, its agents, employees or contractors.
15.5. Landlord, at Tenant's request and Tenant's cost and expense, shall
furnish, install and replace, as required, all lighting tubes, lamps, bulbs
and ballasts required in the Premises at reasonably competitive prices
(except that Landlord shall have furnished and installed all of the
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foregoing at its sole cost and expense as of the Commencement Date). All
lighting tubes, lamps, bulbs and ballasts so installed shall become
Landlord's property upon the Expiration Date or sooner termination of this
Lease.
ARTICLE 16. Heat, Ventilation and Air-Conditioning
16.1. Landlord shall cause the HVAC Units on the floor on which the
Premises is located and which serves the Premises to perform in accordance
with the following design conditions:
Summer:
Outdoor Design Conditions: 89 F db, 75 F wb
Inside Conditions: 78 F db, 50% XX
Xxxxxx:
Outdoor Design Conditions: 5 F and 15 mph wind
Inside Temperature: 70 F
At all times during the Term, Landlord shall cause (a) the Building
heating, ventilation and air-conditioning system to provide outside air for
ventilation of not less than 2500 CFM for each floor of the Building on
which the Premises or any portion thereof is located and (b) the HVAC Units
to be inspected, monitored and maintained in accordance with the standard
recommended by the American Society of Heating, Refrigerating and Air
Conditioning Engineers, Inc. for such HVAC Units. Landlord shall, subject
to energy and water conservation Legal Requirements, furnish heat to the
perimeter fin tubes in the Premises and ventilation and air-conditioning to
Tenant's horizontal distribution system in the Premises, as may be
reasonably required (except as otherwise provided in this Lease and except
for any special requirements of Tenant arising from its particular use of
the Premises and except that Tenant shall pay for the electric current that
serves the HVAC Units as set forth in Section 15.3) for reasonably
comfortable occupancy of the Premises during Business Hours as provided
above. If Tenant requires heat, ventilation or air-conditioning at any
other time, Landlord shall furnish such service for such times, if required
for a Business Day, upon not less than three hours' advance notice from
Tenant and if required for a day other than a Business Day, upon notice
from Tenant given not later than 3:00 p.m. on the Business
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Day immediately preceding such other day. Tenant shall pay to Landlord,
within 30 days after demand, Landlord's overtime charge for heating and/or
ventilating the Premises, which is $40 per hour for each floor of the
Premises for which such overtime service is requested by Tenant (which shall
be prorated to the extent other tenants on the 8th floor request overtime for
the same period), subject to CPI Adjustment. If Tenant gives Landlord
shorter notice than as provided above, Landlord shall use reasonable efforts,
but shall not be required, to comply with such request.
16.2. The performance by Landlord of its obligations under Section 16.1
is conditioned upon Tenant's connected load not exceeding 4 xxxxx per
rentable square foot in the Premises and upon the occupancy of the Premises
not exceeding one individual per 125 rentable square feet in the Premises.
Use of the Premises or any part thereof in a manner exceeding the heating,
ventilating and/or air-conditioning design conditions (including occupancy
and connected electrical load), or rearrangement of partitioning which
interferes with normal operation of the heating, ventilation and/or
air-conditioning in the Premises, or the use of computer or data processing
machines or other machines or equipment, may require changes in the heating,
ventilating and/or air-conditioning systems servicing the Premises in order
to provide comfortable occupancy. Such changes shall be made at Tenant's
expense as Alterations in accordance with the provisions of Article 12, but
only to the extent permitted and upon the conditions set forth in that
Article.
ARTICLE 17. Other Services, Service Interruption
and Building Directory
17.1. Landlord shall make available to the floor on which the Premises is
located hot and cold water for drinking, pantry, lavatory and normal cleaning
purposes in the restrooms. If Tenant uses water for any other purpose,
Landlord may install and maintain, at Tenant's expense, meters to measure
Tenant's consumption of such cold water and hot water for such other
purposes. Tenant shall reimburse Landlord, within 30 days after demand, for
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the cost of all cold water and hot water consumed by Tenant as shown on such
meters.
17.2. Landlord shall cause the Premises, including the exterior
and interior of the exterior windows, to be cleaned in a manner standard to
the Building which shall be substantially in accordance with the provisions
of Exhibit E. Landlord may change Exhibit E from time to time to the
extent required to conform to changes in union contracts covering persons
performing such services, in accordance with cleaning standards then
generally applicable to first-class office buildings in midtown Manhattan.
Landlord shall not be required to clean any portions of the Premises used
for the preparation, serving or consumption of food or beverages, training
rooms, data processing or reproducing operations or private lavatories or
toilets. Tenant shall pay to Landlord within 30 days after demand the
costs incurred by Landlord for (a) extra cleaning work in the Premises
required because of (i) the act, omission, misuse or neglect of or by
Tenant or any subtenant or licensee, or their respective employees, agents,
contractors or invitees, (ii) use of portions of the Premises for special
purposes requiring greater or more difficult cleaning work than required in
normal office areas, (iii) interior glass partitions or unusual quantity of
interior glass surfaces, and (iv) special materials or finishes on items
installed by Tenant or its subtenants, (b) collection and removal from the
Premises and the Building of any refuse or rubbish of Tenant in excess of
that ordinarily accumulated in general office occupancy or, at Tenant's
request, at times other than Landlord's standard cleaning times, and
(c) extra cleaning work required due to use of the Premises by Tenant or
any subtenant or licensee or their respective employees, agents,
contractors or invitees other than during Business Hours. The foregoing
costs shall be consistent with charges for similar services then generally
being performed in other first-class office buildings in midtown Manhattan,
taking into consideration the use and nature of the Premises and the work
in question. Promptly after Landlord determines
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that any such costs will be incurred, Landlord shall give Tenant notice
thereof.
17.3. Landlord shall provide passenger elevator service to the Premises
during Business Hours, and Landlord shall have at least one passenger
elevator subject to call at all other times. If Tenant requires freight
elevator service at any time, or more than one passenger elevator at any time
other than during Business Hours, Landlord shall use reasonable efforts to
furnish such service upon not less than five hours' advance notice from
Tenant if required for a Business Day and if required for a day other than a
Business Day, upon notice from Tenant given not later than 1:00 p.m. on the
Business Day immediately preceding such other day, and Tenant shall pay to
Landlord within 30 days after demand Landlord's then established charges
therefor. If other tenants simultaneously require any such elevator service
and Tenant is required to share the use of such service, then Tenant shall
only be required to pay its pro rata share, as reasonably determined by
Landlord, of such charges. The use of the elevators shall be subject to the
Rules and Regulations. In addition, Landlord agrees to provide Tenant, at
Landlord's sole cost and expense, up to ten (10) hours of freight elevator
service during non-Business Hours in connection with Tenant's move into the
Premises.
17.4. Landlord shall have the right, without affecting Tenant's
obligations under this Lease, to stop or interrupt or reduce service of any
of the heating, ventilating, air-conditioning, electric, sanitary, elevator,
sprinkler, water or other Building systems, or to stop or interrupt or reduce
any other services required of Landlord under this Lease (whether or not
specified in Article 16 or in this Article), whenever and for so long as may
be necessary, by reason of (a) Force Majeure Events or (b) the making of
repairs, additions, changes or replacements which Landlord is required or
permitted to make or in good xxxxx xxxxx reasonably necessary; provided,
however, Landlord shall use reasonable efforts to minimize interference with
Tenant's business in the Premises and shall make such repairs with reasonable
diligence. Tenant shall be entitled to an abatement of Fixed Rent and
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Additional Rent if, as a result of Landlord's acts or Force Majeure Events,
there is a loss of access or services which renders the Premises untenantable
for seven (7) consecutive days and Tenant in fact does not use or occupy the
Premises during that period. Such abatement of Fixed Rent shall begin on the
eleventh day and shall be in addition to any other rights or remedies of
Tenant under this Lease.
17.5. Landlord, at Tenant's request, shall maintain listings on the
Building directory of the names of Tenant and any of Tenant's officers,
affiliates and employees and any permitted subtenants or occupants of Tenant,
provided that the names so listed shall not use more than Tenant's Operating
Percentage of the space on the Building directory. Notwithstanding the
foregoing, Landlord shall maintain not less than 25 listings for the benefit
of Tenant and any permitted subtenants of Tenant.
ARTICLE 18. Access, Notice of Occurrences, Windows,
Name of Building and No Dedication
18.1. Except for (a) the space below the hung ceiling and above the floor
and bounded by the interior surfaces of the walls, windows and doors bounding
the Premises, and (b) the space above the hung ceiling in which Tenant is
permitted to install, maintain, operate, repair and replace Tenant's Work and
Alterations, all of the Building, including exterior Building walls, core
corridor walls and doors and any core corridor entrances, any terraces or
roofs adjacent to the Premises and any space in or adjacent to the Premises
used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other
utilities, sinks or other Building facilities, and the use thereof, as well
as access thereto through the Premises for the purposes of operation,
maintenance, decoration and repair, are reserved to Landlord. Landlord shall
have the right, at any time, without affecting any of Tenant's obligations
under this Lease, to install, erect, use and maintain pipes, ducts and
conduits in and through the Premises upon reasonable notice to Tenant (except
in the case of emergencies) and to make such changes, alterations, additions
and improvements in or to the Building and Common Areas as Landlord deems
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necessary or desirable, provided the same do not reduce the rentable square
feet of the Premises by more than a de minimis amount or interfere with the
conduct of Tenant's business in the Premises. Landlord shall use
reasonable efforts in such instances to minimize interference with Tenant's
business in the Premises and Landlord shall repair or cause to be repaired
any damage caused to the Premises as a result of the exercise of any such
right.
18.2. Landlord and its agents shall have the right to enter and/or pass
through and/or be on the Premises at any time or times to examine the
Premises and to show it to actual or prospective Superior Lessors or Superior
Mortgagees or prospective purchasers of the Building at reasonable times
(except in the case of emergencies) on reasonable notice (except in the case
of emergencies). Landlord, its agents and contractors (including cleaning
contractors) and their respective employees (a) shall have the right to enter
and/or pass through and/or be on the Premises at reasonable times (except in
the case of emergencies) on reasonable notice (except in the case of
emergencies) to make such repairs, alterations and improvements in or to the
Building as Landlord is required or desires to make (except that access for
Landlord's cleaning contractors and its employees to clean the Premises on
Business Days shall only be from 6:00 p.m. to 8:00 a.m. and shall not require
notice), and (b) shall have the right to use, without charge therefor, all
light, power and water in the Premises while making repairs or alterations in
the Premises. Landlord shall have the right to take all materials into and
on the Premises that may be reasonably required in connection therewith and
such acts shall not be deemed an actual or constructive eviction and shall
have no effect upon Tenant's obligations under this Lease. During the period
of 6 months prior to the Expiration Date, Landlord and its agents may exhibit
the Premises at reasonable times to prospective tenants on reasonable notice
to Tenant. Landlord shall use reasonable efforts not to interfere with the
conduct of Tenant's business in the Premises and shall proceed with
reasonable diligence when Landlord enters and/or passes through and/or is on
the Premises and/or makes Building repairs, alterations and improvements
therein pursuant
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to this Section 18.2, and Landlord shall make Building repairs, alterations
and improvements therein at times other than during Business Hours (except in
the case of emergencies) if such repairs, alterations or improvements would
interfere with the conduct of Tenant's business in the Premises.
18.3. If at any time any windows of the Premises are temporarily darkened
or obstructed by reason of any repairs, improvements, maintenance and/or
cleaning in or about the Building, or if any part of the Building other than
the Premises is temporarily or permanently closed or inoperable, same shall
not be deemed an actual or constructive eviction and, provided there is
reasonable access to the Premises, shall have no effect upon Tenant's
obligations under this Lease.
18.4. Landlord may adopt any name for the Building, and Landlord shall
have the right to change the name and/or address of the Building at any
time and from time to time.
18.5. Landlord and its agents shall have the right to permit access to
the Premises at any time, whether or not Tenant shall be present, (a) by any
receiver, trustee, sheriff, marshal or other public official entitled to, or
purporting to be entitled to, and demanding such access (i) for the purpose
of taking possession of or removing any Tenant's Property or the property of
any other occupant of the Premises, or (ii) for any other lawful purpose, or
(b) by any representative of the fire, police, building, sanitation or other
department or instrumentality of any borough, city, state or federal
government who demands such access (provided that in any such event if
Landlord has prior notice of such demand, Landlord shall use reasonable
efforts to notify Tenant thereof (except in the case of an emergency)).
Nothing contained in, nor any action taken by Landlord under this Section,
shall be deemed to constitute recognition by Landlord that any person other
than Tenant has any right or interest in this Lease or the Premises.
18.6. Tenant shall give notice to Landlord, promptly after Tenant has
notice of same, of (a) any occurrence in or about the Premises for which
Landlord might be liable, (b) any fire or other casualty in the Premises,
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(c) any damage to or defect in the Premises, including the fixtures,
equipment and appurtenances thereof, for the repair of which Landlord might
be responsible, and (d) any damage to or defect in any part of the Building's
sanitary, electrical, sprinkler, heating, ventilating, air-conditioning,
plumbing, elevator or other systems located in or passing through the
Premises.
18.7. If an excavation is made or is to be made upon land adjacent to or
under the Building, upon reasonable notice (except in the case of an
emergency) and at times reasonably approved by Tenant, subject to Legal
Requirements, Tenant shall afford to the person causing or authorized to
cause such excavation, license to enter the Premises for the purpose of
performing such work as said person deems necessary or desirable to preserve
and protect the Building from injury or damage and to support same by proper
foundations, and same shall not be deemed an actual or constructive eviction
and shall have no effect on Tenant's obligations under this Lease.
18.8. If Tenant is not present when for any reason entry into the
Premises is necessary or permissible, Landlord or Landlord's agents may enter
same by a master key, or may forcibly enter same, in the case of an emergency
or if requested by any person listed in Section 18.5, without rendering
Landlord or such agents liable therefor (if during such entry Landlord or
such agents accord reasonable care to Tenant's Property), and such entry
shall not be deemed an actual or constructive eviction and shall have no
effect upon Tenant's obligations under this Lease. Notwithstanding anything
which may be to the contrary hereinabove or in the Rules and Regulations,
Tenant shall have the right to install a security system in the Premises
which permits access by master codes or cards and keys, subject to Landlord's
approval, and Tenant shall be required to provide Landlord only with the
master codes, cards or keys for such system.
18.9. Landlord shall have the right to erect any gate, chain or other
obstruction or to close off any portion of the Property to the public at any
time to the extent necessary to prevent a dedication thereof for public
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use and at any time other than Business Hours to the extent Landlord deems
reasonably necessary for any other reason.
ARTICLE 19. Non-Liability and Indemnification
19.1. Except as otherwise specifically provided herein, neither Landlord
nor any Superior Lessor or Superior Mortgagee shall be liable to Tenant for
any loss, injury or damage to Tenant or to any other person, or to its or
their property, irrespective of the cause of such injury, damage or loss,
except to the extent caused by or resulting from the negligence or misconduct
of Landlord or the Superior Lessor or Superior Mortgagee or their respective
contractors, agents or employees, in the operation or maintenance of the
Premises or the Building. Neither Landlord nor any Superior Lessor or
Superior Mortgagee shall be liable (a) for any damage caused by other tenants
or persons in, on or about the Building, or (b) even if resulting from
negligence or willful misconduct, for consequential damages of Tenant or any
subtenant or licensee of Tenant or for punitive damages.
19.2. Notwithstanding any provision to the contrary, Tenant shall look
solely to the estate and property of Landlord in and to the Property in the
event of any claim against Landlord or any partner, director, officer, agent
or employee of Landlord arising out of or in connection with this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Premises, and the
liability of Landlord arising out of or in connection with this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Premises, shall be
limited to such estate and property of Landlord. No other properties or
assets of Landlord or any partner, director, officer, agent or employee of
Landlord shall be subject to levy, execution or other enforcement procedures
for the satisfaction of any judgment (or other judicial process) or for the
satisfaction of any other remedy of Tenant arising out of or in connection
with this Lease, the relationship of Landlord and Tenant or Tenant's use of
the Premises, and if Tenant acquires a lien on or interest in any other
properties or assets by judgment or otherwise, Tenant shall promptly release
such lien on or interest in such other properties and assets by executing,
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acknowledging and delivering to Landlord an instrument to that effect
prepared by Landlord's attorneys. Tenant hereby waives the right of specific
performance and any other remedy allowed in equity if specific performance or
such other remedy could result in any liability of Landlord for the payment
of money to Tenant or any court or governmental authority (by way of fines or
otherwise) for Landlord's failure or refusal to perform or observe a judicial
decree or determination, unless Tenant looks solely to the estate and
property of Landlord in and to the Property to satisfy such payment. The
foregoing provisions are not intended to, and shall not, limit any right
Tenant may otherwise have to obtain (i) injunctive relief or other equitable
relief to the extent allowed by law except as otherwise provided above; and
(ii) proceeds actually received from any insurance maintained by Landlord.
19.3. Tenant shall indemnify Landlord against liability in connection
with (a) the conduct or management of the Premises or of any business
therein, or any work or thing done, or any condition created (other than by
Landlord or its employees, agents, contractors or invitees) in or about the
Premises during the Term, (b) any negligence or willful misconduct of Tenant
or any subtenant or licensee or their respective employees, agents,
contractors or invitees relating to the Premises or the Property or any
portion thereof, (c) any accident, injury or damage (unless caused by the
negligence or willful misconduct of Landlord, its employees, agents,
contractors or invitees) occurring in, at or upon the Premises, (d) the
failure of Tenant or any subtenant or licensee or their respective employees,
agents, contractors or invitees to comply with Legal Requirements and
Insurance Requirements or (e) any other breach or default by Tenant under
this Lease. Subject to the provisions of Section 10.4 and this Article 19,
Landlord shall indemnify Tenant against liability finally determined by a
court of competent jurisdiction to have arisen or been caused by a breach or
default by Landlord under this Lease, or to have arisen from or been caused
by any negligent act or willful misconduct of Landlord, its employees,
agents, or contractors or to
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have resulted from any other matter arising out of Landlord's ownership of
the Building. In the event of a liability as to which Tenant shall assert
that it is entitled to indemnification by Landlord under this Section 19.3
and as to which Landlord shall assert that it is entitled to indemnification
by Tenant under this Section 19.3, then, notwithstanding the preceding
provisions of this Section 19.3, unless it is otherwise finally determined by
a court of competent jurisdiction, (x) such liability shall be deemed to be a
liability as to which Tenant is required to indemnify Landlord, if and to the
extent that such matter relates to occurrences within the Premises, and (y)
such liability shall be deemed to be a liability as to which Landlord is
required to indemnify Tenant, if and to the extent that such matter relates
to occurrences without the Premises. Notwithstanding anything to the
contrary in this Lease, neither party hereunder shall be liable for
consequential or punitive damages.
ARTICLE 20. Damage or Destruction
20.1. If the Building is partially or totally damaged or destroyed by
fire or other casualty (and this Lease is not terminated as provided in this
Article), Landlord shall repair the damage and restore and rebuild the
Building (except for Tenant's Property) with reasonable diligence after
notice to it of the damage or destruction and the collection of the insurance
proceeds attributable to such damage or destruction. If Tenant is conducting
business in the Premises during the period of repair and restoration,
Landlord shall use reasonable efforts to minimize interference with Tenant's
business in the Premises during the performance of such repairs.
20.2. Notwithstanding the provisions of Section 20.1 and subject to the
provisions of Section 20.5, if all or part of the Premises is damaged or
destroyed or rendered completely or partially untenantable by fire or other
casualty, Fixed Rent and any Additional Charges payable under Article 4 and
Article 5 shall be reduced in the proportion that the untenantable area of
the Premises bears to the total area of the Premises for the period from the
date of the damage or destruction to (a) 5 days after the date the damage to
the
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Premises is substantially repaired so as to permit Tenant to restore any
damaged Tenant's Property, or (b) if the Building and not the Premises is so
damaged or destroyed, 5 days after the date on which the Premises is made
tenantable; provided, however, should Tenant reoccupy a portion of the
Premises during the period in which repair work is taking place and prior to
the date the Premises is substantially repaired or made tenantable, Fixed
Rent and any Additional Charges payable under Article 4 and Article 5
allocable to such reoccupied portion, based upon the proportion which the
rentable square feet of the reoccupied portion of the Premises bears to the
entire rentable square feet of the Premises, shall be payable by Tenant from
the date of such occupancy. Notwithstanding the foregoing, whether or not the
Premises is damaged, if Tenant is unable to obtain safe access to the
Premises and in fact discontinues its use of the Premises by reason of such
inability to obtain safe access, then Fixed Rent and Additional Charges shall
fully xxxxx until such time as safe access is restored.
20.3. Notwithstanding the provisions of Section 20.1, if the Building is
so damaged or destroyed by fire or other casualty (whether or not the
Premises is damaged or destroyed) that its repair or restoration requires the
expenditure (as estimated by a reputable contractor or architect designated
by Landlord) of more than 25% of the full insurable value of the Building
immediately prior to the fire or other casualty, and leases covering at least
50% of the space in the Building are cancelled as a result thereof, then
Landlord may terminate this Lease by giving Tenant notice to such effect
within 90 days after the date of the fire or other casualty and Fixed Rent
and any Additional Charges payable under Article 4 and Article 5 shall be
prorated and adjusted as of the date of termination, which date shall not be
sooner than the tenth day after such notice is given. Any prepaid portion of
Fixed Rent or Additional Charges for any period following the effective date
of termination shall be refunded by Landlord to Tenant.
20.4. Except as otherwise expressly provided in this Section 20, Tenant
shall not be entitled to terminate this Lease and no damages,
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compensation or claim shall be payable by Landlord for inconvenience, loss
of business or annoyance arising from any repair or restoration of any
portion of the Premises or of the Building pursuant to this Article.
Landlord shall use reasonable efforts to make such repair or restoration in
such manner as not unreasonably to interfere with Tenant's use and
occupancy of the Premises and shall perform such repair or restoration with
reasonable diligence, but Landlord shall not be required to do such repair
or restoration work at times other than during Business Hours.
Notwithstanding anything to the contrary contained in this Section 20.4, if
(a) all or substantially all of the Premises is rendered untenantable by a
fire or other casualty, and (b) Landlord shall reasonably estimate that the
time required for the repair or restoration of such damage or destruction
is in excess of 90 days, then either party, at its option, may elect to
terminate this Lease as of the date such fire or other casualty occurred,
as if such date were the Expiration Date. Landlord shall notify Tenant of
such estimate within 10 days after demand therefor. Notwithstanding the
foregoing, if the Premises is damaged by fire or other casualty, and
Landlord fails to commence the repair and restoration of the Premises
within 90 days after such damage, subject to Force Majeure Events, or
Landlord fails to substantially complete the repair and restoration of the
Premises within 270 days after such casualty, subject to Force Majeure
Events, then Tenant shall have the right to terminate this Lease upon
notice to Landlord within 10 days following the date Tenant's right to
terminate this Lease first arises under this sentence. In the event of
such termination, any prepaid portion of Fixed Rent or Additional Charges
for any period following the date such damage occurs shall be refunded by
Landlord to Tenant, except to the extent Tenant continued to use and occupy
the Premises for the conduct of its business, in which event such refund
shall be equitably adjusted to the portion of the Premises which Tenant did
not so use and occupy as the result of such damage.
20.5. Notwithstanding the foregoing provisions of this Article, if by
reason of gross negligence or willful misconduct on the part of Tenant
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or any subtenant or licensee or its or their respective employees, agents,
contractors or invitees, Landlord or any Superior Lessor or Superior
Mortgagee is unable to collect all or substantially all the rent insurance
proceeds, then, without prejudice to any other remedies which may be
available against Tenant, any reduction of Fixed Rent or Additional Charges
provided for herein shall be reduced by the amount by which such rent
insurance proceeds have been so reduced. Further, nothing contained in this
Article 20 shall relieve Tenant from any liability that may exist as a result
of any damage or destruction by fire or other casualty.
20.6. Landlord will not carry insurance of any kind on Tenant's Property
and shall not be obligated to repair any damage to or replace Tenant's
Property.
20.7. The provisions of this Article shall be deemed an express agreement
governing any case of damage or destruction of the Premises by fire or other
casualty, and Section 227 of the Real Property Law of the State of New York,
providing for such a contingency in the absence of an express agreement, and
any other law of like import, now or hereafter in force, shall have no
application in such case and are hereby waived by the parties hereto.
ARTICLE 21. Eminent Domain
21.1. Except as otherwise provided in Section 21.5, if the whole of the
Building or the Premises is taken by condemnation or in any other manner for
any public or quasi-public use or purpose, this Lease shall terminate as of
the date of vesting of title on such taking ("Date of Taking"), and Fixed
Rent and any Additional Charges payable under Article 4 and Article 5 shall
be prorated and adjusted as of such date. Landlord shall give Tenant notice
of any such condemnation proceedings within 10 days after Landlord receives
notice of same.
21.2. Except as otherwise provided in Section 21.5, if any part of the
Building or the Land is so taken, this Lease shall be unaffected by such
taking, except that (a) if leases (including this Lease) covering 50% of the
rentable square feet in the Building are being cancelled, Landlord or
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Tenant may, at its option, terminate this Lease by giving the other party
notice to that effect within 90 days after the Date of Taking, and (b) if 10%
or more of the Premises is so taken and the remaining area of the Premises is
not reasonably sufficient (in Tenant's reasonable judgment) for Tenant to
continue a viable operation of its business, or if by reason of such
acquisition Tenant no longer has a reasonable means of access to the
Premises, Tenant may terminate this Lease by giving Landlord notice to that
effect within 90 days after the Date of Taking. This Lease shall terminate
on the date that such notice from Tenant to Landlord shall be given or 90
days after the date such notice from Landlord to Tenant shall be given, as
the case may be, and Fixed Rent and Additional Charges shall be prorated and
adjusted as of the earlier of the (i) Date of Taking or (ii) such
termination. Upon such partial taking and this Lease continuing in force as
to any part of the Premises, Fixed Rent, Tenant's Tax Percentage, and
Tenant's Operating Percentage shall be equitably adjusted according to the
rentable area remaining.
21.3. Except as otherwise provided in Section 21.5, Landlord shall be
entitled to receive the entire award or payment in connection with any taking
without deduction therefrom for any estate vested in Tenant by this Lease or
otherwise and Tenant shall receive no part of such award. Tenant hereby
assigns to Landlord all of Tenant's right, title and interest in and to all
such awards or payments. The foregoing, however, shall not preclude Tenant
from recovering a separate award for Tenant's moving expenses, loss of
business and Tenant's Property if such award does not reduce and is not
payable out of the award for the Property.
21.4. Except as otherwise provided in Section 21.5, in the event of any
taking of less than the whole of the Building and/or Land which does not
result in termination of this Lease, Landlord, whether or not any award or
awards shall be sufficient for the purpose, shall proceed with reasonable
diligence to repair the remaining parts of the Building (other than Tenant's
Property) to substantially their former condition to the extent that same is
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feasible (subject to reasonable changes which Landlord deems reasonably
necessary and desirable) and so as to constitute the Building complete and
tenantable. Landlord shall use reasonable efforts to minimize interference
with Tenant's business in the Premises during the performance of any such
repairs.
21.5. If the temporary use or occupancy of all or any part of the
Premises is taken by condemnation or in any other manner for any public or
quasi-public use or purpose, this Lease and the Term shall remain unaffected
by such taking and Tenant shall continue to be responsible for all of its
obligations under this Lease (except to the extent prevented from so doing by
reason of such taking). In such event, the Fixed Rent and any Additional
Charges payable under Article 4 and Article 5 shall be reduced for the period
of such taking, in the proportion that the part of the Premises so taken
bears to the total area of the Premises. Landlord shall be entitled to
claim, prove and receive the entire award.
ARTICLE 22. Surrender and Holding Over
22.1. On the Expiration Date or on any earlier termination of this Lease
or on any reentry by Landlord on the Premises, Tenant shall quit and
surrender the Premises to Landlord "broom clean" and in good order, condition
and repair, except for ordinary wear and tear, damage or destruction by fire
and other casualty and such other damage as Landlord is required to repair or
restore under this Lease, and Tenant shall remove all Tenant's Property
therefrom except as otherwise expressly provided in this Lease. No act or
thing done by Landlord or its agents or employees shall be deemed an
acceptance of a surrender of this Lease or the Premises, and no agreement to
accept such surrender prior to the Expiration Date shall be valid unless in
writing and signed by Landlord.
22.2. If Tenant remains in possession of the Premises after the
termination of this Lease without the execution of a new lease, Tenant, at
the option of Landlord, shall be deemed to be occupying the Premises as a
tenant from month to month, subject to all of the other terms and conditions
of this
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Lease insofar as the same are applicable to a month-to-month tenancy, but at
a monthly rental equal to the greater of (a) 150% of the monthly Fixed Rent
last payable by Tenant hereunder, plus all Additional Charges payable
hereunder, and (b) Landlord's then asking price, on a monthly basis, for
comparable space in the Building (or, if Landlord has no asking price, the
monthly rental equal to the prevailing rate for comparable space in
comparable buildings in the vicinity of the Building). Nothing contained in
this Section shall (i) imply any right of Tenant to remain in the Premises
after the termination of this Lease without the execution of a new lease,
(ii) imply any obligation by Landlord to grant a new lease or (iii) be
construed to limit any right or remedy that Landlord has against Tenant as a
holdover tenant or trespasser.
22.3. Tenant expressly waives, for itself and for any person claiming
through or under Tenant, any rights which Tenant or any such person may have
under the provisions of Section 2201 of the New York Civil Practice Law and
Rules and of any similar or successor law of same import then in force, in
connection with any holdover proceedings which Landlord may institute to
enforce the terms and conditions of this Lease.
ARTICLE 23. Default
23.1. This Lease is subject to the limitations that whenever Tenant makes
an assignment for the benefit of creditors, or files a voluntary petition
under any of the Insolvency Laws, or an involuntary petition alleging an act
of bankruptcy or insolvency is filed against Tenant under any Insolvency
Laws, or whenever a petition is filed by or against Tenant under the
reorganization provisions of any Insolvency Laws, or whenever a petition is
filed by Tenant under the arrangement provisions of any Insolvency Laws, or
whenever a receiver of Tenant or of or for the property of Tenant is
appointed, then each of such events shall constitute an event of default
under this Lease and Landlord (a) if such event occurs without the
acquiescence of Tenant, at any time after the event continues for 90 days, or
(b) in any other case at any time after the occurrence of any such event, may
give Tenant a notice of intention to terminate this Lease at the expiration
of 10 days from
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the date of service of such notice of intention, and upon the expiration of
said 10-day period this Lease, whether or not the Term had commenced, shall
terminate with the same effect as if that day were the Expiration Date, but
Tenant shall remain liable for damages as provided in Article 25.
23.2. This Lease is subject to the further limitations that:
(a) if Tenant defaults in the payment of any Fixed Rent or Regularly
Occurring Additional Charges and such default continues for 5 Business Days
after Landlord gives Tenant notice of such default (except that if Citibank,
N.A. or any successor or assign of Citibank, N.A. becomes the Landlord
hereunder, no such notice shall be required after the second such payment
default in any Lease Year), or
(b) if Tenant defaults in the payment of any Additional Charges (other
than Regularly Occurring Additional Charges) and such default continues for
10 Business Days after Landlord gives Tenant notice of such default, or
(c) if Tenant, whether by action or inaction, is in material default of
any other of its obligations under this Lease (other than a default in the
payment of Fixed Rent or Additional Charges) and such default continues and
is not remedied within 30 days after Landlord gives to Tenant a notice
specifying the same, or, in the case of a material default which because of
its nature or Force Majeure Events Tenant cannot with due diligence cure
within a period of 30 days and the continuance of which for the period
required for cure will not (i) subject Landlord or any Superior Lessor or
Superior Mortgagee to prosecution for a crime (as more particularly described
in Section 9.2) or (ii) result in the termination of any Superior Lease or
foreclosure of any Superior Mortgage, if Tenant does not, (x) within said
30-day period advise Landlord of Tenant's intention to take all steps
necessary to remedy such default, (y) duly commence within said 30-day period
and thereafter diligently prosecute to completion all steps necessary to
remedy the default, and (z) complete such remedy within a reasonable time
after the date of said notice from Landlord, subject to Force Majeure Events,
or
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(d) if any event occurs or any contingency arises whereby this
Lease, by operation of law or otherwise, devolves upon or passes to any
person other than Tenant, except as expressly permitted by Article 8, or
(e) if Tenant abandons the Premises, or
(f) if Tenant defaults under any other lease of space in the
Building which default is not remedied within the applicable grace period,
if any, provided therefor under such other lease, then each of such events
shall constitute an event of default under this Lease and in any of said
cases Landlord may give to Tenant a notice of intention to terminate this
Lease at the expiration of 20 days from the date of the service of such
notice of intention, and upon the expiration of said 20-day period this
Lease, whether or not the Term had commenced, shall terminate with the same
effect as if that day were the Expiration Date, but Tenant shall remain
liable for damages as provided in Article 25.
ARTICLE 24. Re-entry by Landlord
24.1. If this Lease terminates as provided in Article 23,
Landlord or Landlord's agents may immediately or at any time thereafter
re-enter the Premises, or any part thereof, either by summary dispossess
proceedings or by any suitable action or proceeding at law, or by force or
otherwise, without being liable for indictment, prosecution or damages
therefor, and may repossess same, and may remove any person therefrom, to
the end that Landlord may have, hold and enjoy the Premises. The word
"re-enter," as used herein, is not restricted to its technical legal
meaning. If this Lease is terminated under the provisions of Article 23,
or if Landlord re-enters the Premises under the provisions of this Article,
or in the event of the termination of this Lease, or of re-entry, by or
under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Tenant shall
thereupon pay to Landlord Fixed Rent and Additional Charges payable to the
time of such termination of this Lease, or of such recovery of possession
of the Premises
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by Landlord, as the case may be, and shall also pay to Landlord damages as
provided in Article 25.
24.2. In the event of a breach or threatened breach by Tenant of
any of its obligations under this Lease, Landlord shall also have the right
of injunction. The special remedies to which Landlord may resort hereunder
are cumulative and are not intended to be exclusive of any other remedies
to which Landlord may lawfully be entitled at any time and Landlord may
invoke any remedy allowed at law or in equity as if specific remedies were
not provided for herein.
24.3. If this Lease is terminated under the provisions of
Article 23, or if Landlord re-enters the Premises under the provisions of
this Article, or in the event of the termination of this Lease, or of
re-entry, by or under any summary dispossess or other proceeding or action
or any provision of law by reason of default hereunder on the part of
Tenant, Landlord shall be entitled to retain all monies, if any, paid by
Tenant to Landlord, whether as advance rent, security or otherwise, but
such monies shall be credited by Landlord against any Fixed Rent or
Additional Charges due from Tenant at the time of such termination or
re-entry or, at Landlord's option, against any damages payable by Tenant
under Article 25 or pursuant to law. In the event there are excess monies,
Landlord shall refund the excess to Tenant.
ARTICLE 25. Damages
25.1. If this Lease is terminated under the provisions of
Article 23, or if Landlord re-enters the Premises under the provisions of
Article 24, or in the event of the termination of this Lease, or of
re-entry, by or under any summary dispossess or other proceeding or action
or any provision of law by reason of default hereunder on the part of
Tenant, Tenant shall pay to Landlord as damages, at the election of
Landlord, either:
(a) a sum which at the time of such termination of this Lease or
at the time of any such re-entry by Landlord, as the case may be,
represents the then value of the excess, if any, of (i) the aggregate
amount of Fixed Rent and Additional Charges which would have been
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payable by Tenant (conclusively presuming the average monthly
Additional Charges to be the same as were payable for the year (or in
the event same were abated for any reason, the amount which would have
been payable in the absence of such abatement), or if less than 365
days have then elapsed since the Commencement Date, the partial year,
immediately preceding such termination or re-entry) for the period
commencing with such earlier termination of this Lease or the date of
any such re-entry, as the case may be, and ending with the date that
would have been the Expiration Date if this Lease had not so
terminated or if Landlord had not so re-entered the Premises, over
(ii) the aggregate rental value of the Premises for the same period,
both discounted to their present value at the rate of 8% per annum, or
(b) sums equal to the Fixed Rent and Additional Charges which
would have been payable by Tenant had this Lease not so terminated, or
had Landlord not so re-entered the Premises, payable upon the due
dates therefor (as provided in this Lease) following such termination
or such re-entry until the date that would have been the Expiration
Date if this Lease had not so terminated or if Landlord had not so
re-entered the Premises; provided, however, that if Landlord shall
relet the Premises during said period, Landlord shall credit Tenant
with the net rents received by Landlord from such reletting, such net
rents to be determined by first deducting from the gross rents as and
when received by Landlord from such reletting the expenses incurred by
Landlord in terminating this Lease or in re-entering the Premises and
in securing possession thereof, as well as the commercially reasonable
expenses of reletting, including altering and preparing the Premises
for new tenants, brokers' commissions, attorneys' fees and
disbursements, and all other reasonable expenses, it being understood
that any such reletting may be for a period shorter or longer than
what would have been the unexpired portion of the Term if this Lease
had not so terminated or if Landlord had not so re-entered the
Premises, but in no
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event shall Tenant be entitled to receive any excess of such net rents
over the sums payable by Tenant to Landlord hereunder, nor shall
Tenant be entitled in any suit for the collection of damages pursuant
to this subdivision to a credit in respect of any net rents from a
reletting, except to the extent that such net rents are actually
received by Landlord. If the Premises or any part thereof is relet
in combination with other space, then proper apportionment on a per
square foot basis shall be made of the rent received from such reletting
and of the expenses of reletting.
If the Premises or any part thereof is relet by Landlord, in an arm's
length transaction entered into with a non-affiliate of Landlord, for what
would have been the unexpired portion of the Term if this Lease had not so
terminated, or if Landlord had not so re-entered the Premises, before
presentation of proof of such damages to any court, commission or tribunal,
the amount of rent set forth in any such lease(s) in connection with such
reletting shall, prima facie, be the fair and reasonable rental value for
the Premises, or part thereof, so relet during the term of the reletting.
Landlord shall have the right to relet the Premises or any part thereof in
Landlord's name or otherwise at such rental or rentals and upon such other
terms and conditions, which may include concessions and free rent periods,
as Landlord, in its reasonable business judgment, shall determine.
Landlord shall not be liable in any way for its failure or refusal to relet
the Premises or any part thereof, or if the Premises or any part thereof is
relet, for its failure to collect the rent under such reletting, and no
such refusal or failure to relet or failure to collect rent shall release
or affect Tenant's liability for damages or otherwise under this Lease.
25.2. Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord
to postpone suit until the date when the Term would have expired if this
Lease had not so terminated or had Landlord not so re-entered the Premises.
Nothing
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herein contained shall be construed to limit or preclude recovery
by Landlord against Tenant of any sums or damages to which, in addition to
the damages particularly provided above, Landlord may lawfully be entitled
by reason of any default of Tenant hereunder. Nothing herein contained
shall be construed to limit or prejudice the right of Landlord to prove for
and obtain as damages by reason of the termination of this Lease or
re-entry on the Premises for the default of Tenant under this Lease an
amount equal to the maximum allowed by any statute or rule of law in effect
at the time when, and governing the proceedings in which, such damages are
to be proved whether or not such amount is greater than, equal to, or less
than any of the sums referred to in Section 25.1.
25.3. In addition, if this Lease is terminated under the
provisions of Article 23, or if Landlord re-enters the Premises under the
provisions of Article 24, Tenant agrees that:
(a) the Premises then shall be in the same condition as that in
which Tenant has agreed to surrender the same to Landlord on the Expiration
Date, and
(b) for the breach of any obligation of Tenant set forth above
in this Section, Landlord shall be entitled immediately, without notice or
other action by Landlord, to recover, and Tenant shall pay as and for
liquidated damages therefor the reasonable cost of performing such
obligation (as estimated by an independent contractor selected by
Landlord).
25.4. Tenant acknowledges that, to induce Tenant to enter into
this Lease, Landlord has incurred significant costs, including some or all
of the following: (i) expenditures incurred to prepare the Premises for
Tenant's occupancy, including, without limitation, any amounts paid to or
on behalf of Tenant by Landlord in respect thereof and (ii) rent abatements
or concessions (collectively, the "Inducements"). Tenant further
acknowledges that Landlord would not have granted the Inducements to Tenant
but for Tenant's agreement to perform all of the terms, covenants,
conditions and agreements to be performed by it under this Lease for the
entire Term. Accordingly, if an event of
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default shall occur hereunder and remain uncured beyond any applicable notice
and cure periods (an "Event of Default"), Tenant shall pay as liquidated
damages for granting the Inducements and not as a penalty, with the next
monthly installment of Fixed Rent ensuing after the occurrence of the Event
of Default, as Additional Charges, the unamortized portion of those
Inducements incurred or granted prior to the date of the Event of Default
(the "Pre-Default Inducements"). For the purposes hereof, the unamortized
portion of the Pre-Default Inducements shall be the product of (i) the
Pre-Default Inducements and (ii) a fraction, the numerator of which shall be
the number of months and/or portions thereof from the date of the occurrence
of the Event of Default to the Expiration Date, not to exceed the number of
months in which Tenant is obligated to pay Rent hereunder without any
abatement or concession, and the denominator of which shall be the number of
months and/or portions thereof in the Term less the number of months in the
Term in which rent concessions and/or abatements are granted to Tenant.
Landlord may or, at Tenant's request, shall, after the occurrence of an Event
of Default, forward a statement to Tenant setting forth the unamortized
portion of the Pre-Default Inducements, but the failure to deliver such a
statement shall not be or be deemed to be a waiver of the right to collect
the unamortized Pre-Default Inducements or extend the date upon which such
obligation shall be due and payable.
ARTICLE 26. Waivers
26.1. Tenant, on behalf of itself and any and all persons
claiming through or under Tenant, does hereby waive and surrender all right
and privilege which it, they or any of them might have under or by reason
of any present or future law, to redeem the Premises or to have a
continuance of this Lease after being dispossessed or ejected therefrom by
process of law or under the terms of this Lease or after the termination of
this Lease.
26.2. If Tenant is in arrears in payment of Fixed Rent or Additional
Charges, Tenant waives its right, if any, to designate the items to which
any payments made by Tenant are to be credited, and Landlord may apply
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any payments made by Tenant to such items as Landlord sees fit, irrespective
of any designation or request by Tenant as to the items to which any such
payments shall be credited.
26.3. Landlord and Tenant hereby waive trial by jury in any
action, proceeding or counterclaim brought by either against the other on
any matter arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the
Premises, including any claim of injury or damage, and any emergency and
other statutory remedy in respect thereof.
26.4. Tenant shall not interpose any counterclaim (other than a
compulsory counterclaim) in any summary proceeding commenced by Landlord to
recover possession of the Premises and shall not seek to consolidate such
proceeding with any action which may have been or will be brought by Tenant
or any other person.
26.5. The failure of either party to insist in any one or more
instances upon the strict performance of any one or more of the obligations
contained in this Lease, or to exercise any election herein contained,
shall not be construed as a waiver or relinquishment for the future of the
performance of such one or more obligations contained in this Lease or of
the right to exercise such election, but same shall continue and remain in
full force and effect in respect of any subsequent breach, act or omission.
The receipt by Landlord of Fixed Rent or Additional Charges with knowledge
of breach by Tenant of any obligation contained in this Lease shall not be
deemed a waiver of such breach.
ARTICLE 27. Curing Tenant's Defaults and
Costs of Enforcement
27.1. If Tenant defaults in the performance of any of Tenant's
obligations under this Lease, Landlord, without thereby waiving such
default, may (but shall not be obligated to) perform same for the account
and at the expense of Tenant, without notice in case of emergency, and in
any other case only if such default continues after notice from Landlord
and the expiration
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of any applicable grace periods. Bills for any expenses incurred by Landlord
in connection with any such performance by it for the account of Tenant, and
bills for all reasonable costs, expenses and disbursements of every kind and
nature, including reasonable attorneys' fees and disbursements, involved in
collecting or endeavoring to collect Fixed Rent or Additional Charges or
enforcing or endeavoring to enforce any rights against Tenant, under or in
connection with this Lease or pursuant to law, including any such reasonable
cost, expense and disbursement involved in instituting and prosecuting
summary proceedings or in recovering possession of the Premises after default
by Tenant or upon the Expiration Date or sooner termination of this Lease,
and interest on all sums advanced by Landlord under this Section at the Lease
Interest Rate, may be sent by Landlord to Tenant monthly, or immediately, at
Landlord's option, and such amounts shall be due and payable in accordance
with the terms of such bills (but in no event sooner than 30 days after the
date of delivery of each such xxxx).
ARTICLE 28. Broker
28.1.(a) Tenant represents and warrants that no brokers except
Xxxxxxx & Wakefield, Inc. and Xxxxxxxx Special Services, Inc. (collectively
the "Broker") procured this Lease and that Tenant had no conversations or
negotiations with any broker except Broker concerning the leasing of the
Premises. Tenant shall indemnify Landlord against liability in connection
with a breach of Tenant's representation and warranty in this Section and
in connection with any claim for a brokerage commission arising out of any
conversations or negotiations had by Tenant with any broker other than
Broker.
(b) Landlord represents and warrants that no broker except
Broker procured this Lease and that Landlord had no conversations or
negotiations with any broker except Broker concerning the leasing of the
Premises to Tenant. Landlord shall indemnify Tenant against liability in
connection with a breach of Landlord's representation and warranty in this
Section and in connection with any claim for brokerage commissions arising
out of any conversations or negotiations had by Landlord with any broker other
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than Broker. Landlord agrees to pay any commission due to Broker pursuant to
separate agreement between Landlord and Broker.
(c) The provisions of this Article 28 shall survive the
termination of this Lease.
ARTICLE 29. Notices
29.1. Any notice, demand, consent, approval or other
communication required or permitted to be given by either party to the
other or to any Superior Lessor or Superior Mortgagee (collectively,
"Notices" and individually, "Notice") must be in writing and, except as
otherwise provided in the succeeding Sections, shall be deemed to have been
properly given only if sent by registered or certified mail, return receipt
requested, posted in a United States post office station or letter box in
the continental United States (excluding statements of amounts due which
will be given by (a) hand delivery, (b) regular mail, (c) reputable,
overnight courier service, or (d) both telecopier (to 000-000-0000 prior to
the date Tenant occupies the Premises for the conduct of its business, and
thereafter, to a telecopier number designated by Tenant) and regular mail),
addressed to Landlord or Tenant as the receiving party at its address set
forth at the head of this Lease, and addressed to any Superior Lessor or
Superior Mortgagee to it at the last address of which Landlord or Tenant,
as the case may be, was notified. Copies of Notices to Landlord shall be
sent at the same time and in the same manner to: 1325 Limited Partnership,
c/o Xxxxxx X. Xxxxxxxx Equities Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: Xx. Xxxxxx Xxxxxxxx and to Battle Xxxxxx LLP,
00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxx X. Xxxxxxx,
Esq. Copies of Notices to Tenant shall be sent at the same time and in the
same manner to: Princeton Video Image, Inc., 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Xxxxxxx X. Xxxxxxxx, President and Chief
Executive Officer and to Smith, Stratton, Wise, Xxxxx & Xxxxxxx, 000
Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, Attn: Xxxxxxx X. Xxxxx,
Esq. A Notice shall be deemed to have been given on the third Business Day
after the day so mailed by registered or certified mail, and with respect
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to statements of amounts due, (i) on the day hand delivered, (ii) on the
third Business Day after the day mailed by regular mail or (iii) if by
telecopier and regular mail, on the day the telecopy was transmitted.
Either party may, by notice as aforesaid, designate a different address
(or, with respect to statements of amounts due, telecopier number) for
Notices intended for it. At any time that Tenant consists of more than one
person, a Notice to Tenant shall be effective if given to any one of said
persons.
29.2. Notwithstanding the provisions contained in Section 29.1,
any Notice from Landlord or Tenant to the other of a default hereunder may
be given by hand delivery and receipted or sent by Federal Express or other
reputable overnight courier and receipted, with a concurrent copy of such
Notice sent by mail as provided in Section 29.1.
29.3. Notwithstanding the provisions contained in Section 29.1,
(a) Notices from Tenant to Landlord requesting after-hours or special
services pursuant to Article 16 or Article 17 shall be given by hand
delivery to the Building management office or any other person or office in
the Building designated in a notice from Landlord to receive such Notices,
and (b) any Notice may be given by telegram, hand delivery or reputable,
overnight courier service either in case of an emergency or in case United
States certified and registered mail are both not then operating.
29.4. Landlord shall have the right to assume that any Notice
from Tenant signed by any person purporting to be an officer of Tenant if
Tenant is a corporation or a partner in Tenant if Tenant is a partnership
is duly authorized and approved by and binding on Tenant, and Tenant shall
be bound by such Notice whether or not the person signing the Notice was
actually authorized and approved by Tenant.
ARTICLE 30. Estoppel Certificates, Financial
Statements, and Memorandum of Lease
30.1. Each party shall, at any time and from time to time, as
requested by the other party, execute and deliver to the other party within
10 business days after receipt of such request a statement (a) certifying that
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this Lease is unmodified and in full force and effect (or if modified,
that same is in full force and effect as modified and stating the
modifications), (b) certifying the dates to which Fixed Rent and Additional
Charges have been paid, (c) stating whether or not, to the best knowledge
of the signing party, the other party is in default in performance of any
of its obligations under this Lease, and, if so, specifying each such
default of which the signing party has knowledge, and (d) stating whether
or not, to the best knowledge of the signing party, any condition or event
exists which with the giving of notice or passage of time, or both, would
constitute such a default, and, if so, specifying each such condition or
event. Any statement delivered pursuant to this Section shall be deemed a
representation and warranty that may be relied upon by the party requesting
the statement and by others with whom such party may be dealing, regardless
of independent investigation. Tenant also shall include in any such
statement such other information concerning this Lease as any prospective
Superior Mortgagee or Superior Lessor may reasonably require or as Landlord
may reasonably request.
30.2. If Landlord's lender or any prospective lender so requests,
Tenant shall furnish to Landlord: within 120 days after the end of each
fiscal year of Tenant annual consolidated financial statements (balance
sheets and profit and loss statements) of Tenant, certified by an
independent certified public accountant of recognized standing.
30.3. At the request of Landlord, Tenant shall promptly execute,
acknowledge and deliver to Landlord a memorandum in respect of this Lease
and a memorandum of any amendment to or modification of this Lease
sufficient for recording, setting forth only the matters required to be set
forth pursuant to Section 291-c of the New York Real Property Law. Such
memorandum shall not in any circumstance be deemed to change or otherwise
affect any of the terms of this Lease or any amendment or modification.
Landlord may, but Tenant shall not, record this Lease or any amendment or
modification or any memorandum or any other document related hereto.
ARTICLE 31. Force Majeure
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31.1. Except as otherwise provided in this Lease, the obligations
of Tenant under this Lease shall not be affected, impaired or excused and
Landlord shall not have any liability to Tenant (regardless of whether
Landlord is required to proceed with reasonable diligence or to use
reasonable efforts), because Landlord is unable to fulfill, or is delayed
in fulfilling, any of its obligations under this Lease by reason of any of
the following ("Force Majeure Events"): fire or other casualty; acts of
God; war; riot or other civil disturbance; emergency; strike or other labor
trouble; governmental preemption of priorities or other controls in
connection with a national or other public emergency; inability or delay
beyond Landlord's reasonable control in securing proper amounts of or
failure or defect in the supply or quality of fuel, gas, steam, water,
electricity, supplies or labor; or any other event preventing or delaying
Landlord from fulfilling any obligation, whether similar or dissimilar,
beyond Landlord's reasonable control.
ARTICLE 32. Consents
32.1. If Tenant requests Landlord's consent and Landlord fails or
refuses to give such consent, Tenant shall not be entitled to any damages
for any withholding by Landlord of its consent; Tenant's sole remedy
therefor shall be an action for specific performance or injunction, and
such remedy shall be available only in those cases where this Lease
provides that Landlord shall not unreasonably withhold its consent or where
as a matter of law Landlord may not unreasonably withhold its consent,
except that, solely in the event that Landlord fails or refuses to give its
consent to an Alteration or a sublease of the Premises or an assignment of
this Lease, in addition to an action for specific performance or
injunction, Tenant may commence an expedited arbitration proceeding
pursuant to the rules and regulations and under the auspices of the
American Arbitration Association and Section 5.7.
ARTICLE 33. Rent Control
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33.1. If any Fixed Rent or Additional Charges shall become
uncollectible, reduced or required to be refunded because of any Legal
Requirements, Tenant shall enter into such agreements and take such other
steps (without additional expense to Tenant) as Landlord requests and as
may be legally permissible to permit Landlord to collect the maximum rents
which from time to time during the continuance of such legal rent
restriction may be legally permissible (but not in excess of the amounts
reserved therefor under this Lease). If the termination of such legal rent
restriction occurs during the Term, then (a) Fixed Rent and Additional
Charges shall be payable in accordance with the amounts reserved herein for
the periods following such termination through the Expiration Date and
(b) Tenant shall pay to Landlord, to the maximum extent legally
permissible, an amount equal to (i) the Fixed Rent and Additional Charges
that would have been paid pursuant to this Lease but for such legal rent
restriction, less (ii) the rent and additional rent actually paid by Tenant
during the period such legal rent restriction was in effect. The
provisions of this Section 33.1 shall survive the expiration or termination
of this Lease.
ARTICLE 34. Partnership or Multi-Person Tenant
34.1. If the original Tenant herein named is a partnership (or is
comprised of two or more persons, individually or as co-partners of a
partnership) or if Tenant's interest in this Lease is assigned to a
partnership (or to two or more persons, individually or as co-partners of a
partnership), the following provisions shall apply: (a) the liability of
each of the persons at any time comprising the general partners of Tenant
shall be joint and several, (b) each of the persons at any time comprising
Tenant shall be bound by (i) any written instrument executed by Tenant or
any successor Tenant changing, modifying, extending or discharging this
Lease, in whole or in part, or surrendering all or any part of the Premises
to Landlord, (ii) any Notices given by Tenant or by any of the persons
comprising Tenant, (iii) any statement executed by Tenant or any of the
persons comprising Tenant, pursuant to Section 30.1, and (iv) any
memorandum executed by Tenant or any of the
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persons comprising Tenant, pursuant to Section 30.3, (c) any Notices given to
Tenant or to any of such persons shall be binding on Tenant and all such
persons, (d) if Tenant admits new general partners, all of such new general
partners shall, by their admission to Tenant, be deemed to have assumed joint
and several liability for the performance of all of Tenant's obligations
under this Lease, (e) Tenant shall give prompt notice to Landlord of the
admission of any such new general partners, and on demand of Landlord shall
cause each such new general partner to execute and deliver to Landlord an
agreement in form satisfactory to Landlord wherein each such new partner
assumes joint and several liability for the performance of all of Tenant's
obligations under this Lease (but neither Landlord's failure to request any
such agreement nor the failure of any such new partner to execute or deliver
any such agreement to Landlord shall vitiate the provisions of clause (d) of
this Section), and (f) the death, adjudication of incompetency or withdrawal
of an individual comprising Tenant or of an individual partner shall not
relieve him or his personal representatives of any liability for the
performance of Tenant's obligations under this Lease.
ARTICLE 35. Special Bankruptcy-Related Provisions
35.1. All amounts payable by Tenant to or on behalf of Landlord
under this Lease (other than any amounts payable pursuant to Section 25.4
hereof), whether or not expressly denominated rent or additional rent,
shall constitute rent for the purpose of Section 502(b)(6) of the United
States Bankruptcy Code, as same may be amended, and for the purpose of any
similar section of any other present or future Insolvency Laws.
35.2. If Tenant assigns its interest in this Lease, and this Lease
is thereafter disaffirmed or rejected in any proceeding under the Insolvency
Laws, or in the event of termination of this Lease by reason of any such
proceeding, the original Tenant herein named, upon request of Landlord given
within 120 days after such disaffirmance or rejection, shall (a) pay to
Landlord all Fixed Rent and Additional Charges then due and payable to
Landlord under this Lease to and including the date of such disaffirmance or
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rejection and (b) enter into a new lease as lessee with Landlord of the
Premises for a term commencing on the effective date of such disaffirmance or
rejection and ending on the date that would have been the Expiration Date if
this Lease had not been disaffirmed or rejected, at the same Fixed Rent and
Additional Charges and upon the then executory terms and conditions contained
in this Lease, except that (i) the rights of the lessee under the new lease
shall be subject to any possessory rights of the last assignee of this Lease
and any rights of persons claiming through or under such assignee, (ii) such
new lease shall require all defaults existing under this Lease to be cured by
the lessee with reasonable diligence, and (iii) such new lease shall require
the lessee to pay all Fixed Rent and Additional Charges which, had this Lease
not been disaffirmed or rejected, would have become due after the effective
date of such disaffirmance or rejection. If the original Tenant herein named
shall fail or refuse to enter into the new lease within 10 days after
Landlord's request to do so, then in addition to all other rights and
remedies by reason of such default under this Lease, at law or in equity,
Landlord shall have the same rights and remedies against the original Tenant
herein named as Landlord would have had if the original Tenant herein named
had entered into such new lease and such new lease had thereafter been
terminated at the beginning of its term by reason of the default of the
lessee thereunder.
35.3. If pursuant to the Insolvency Laws Tenant is permitted to
assign this Lease in disregard of the restrictions contained in Article 8
or if this Lease is assumed by a trustee, the trustee or assignee shall
cure any default under this Lease and shall provide adequate assurance of
future performance by the trustee or assignee including (a) adequate
assurance of the source of payment of Fixed Rent and Additional Charges and
performance of other obligations of Tenant under this Lease (for which
adequate assurance shall mean the deposit of cash security with Landlord in
an amount equal to the sum of one year's Fixed Rent plus an amount equal to
any Additional Charges under Article 4 and Article 5 payable for the
calendar year preceding
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or subsequent to (in which latter event as such sum shall be reasonably
projected by Landlord), whichever shall be greater, the year in which such
assignment or assumption is intended to become effective, which deposit shall
be held by Landlord, without interest, for the balance of the Term as
security for the full and faithful performance of all of Tenant's obligations
under this Lease, and (b) assurance (in the form of a covenant) that the use
of the Premises shall in no way diminish the reputation of the Building as a
first-class office building or impose any additional burden upon the Building
or increase the services to be provided by Landlord.
ARTICLE 36. Miscellaneous
36.1. Tenant expressly acknowledges and agrees that Landlord has
not made and is not making, and Tenant, in executing and delivering this
Lease, is not relying upon, any warranties, representations, promises or
statements except to the extent that they are expressly set forth in this
Lease or in any other written agreement made between the parties
concurrently with the execution and delivery of this Lease. All prior
understandings and agreements between the parties are merged in this Lease
and any other written agreements made concurrently herewith, which alone
fully and completely express the agreement of the parties and which are
entered into after full investigation.
36.2. No agreement shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this Lease, in
whole or in part, unless such agreement is in writing, refers expressly to
this Lease and is signed by both parties.
36.3. Except as otherwise expressly provided in this Lease , the
obligations under this Lease shall bind and benefit the successors and
assigns of the parties hereto with the same effect as if mentioned in each
instance where a party is named or referred to; provided, however, that (a)
no violation of the provisions of Article 8 shall operate to vest any rights
in any successor or assignee of Tenant and (b) the provisions of this Section
shall not be construed as modifying the conditions of limitation contained in
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Article 23. No provision in this Lease shall be construed for the benefit of
any third party except as expressly provided herein.
36.4. Submission by Landlord of this Lease for review and/or
execution by Tenant shall not confer any rights or impose any obligations
on either party unless and until both Landlord and Tenant execute this
Lease and duplicate originals thereof are delivered to the respective
parties.
36.5. Tenant hereby represents to Landlord that it is not
entitled, directly or indirectly, to diplomatic or sovereign immunity. In
all disputes arising out of this Lease, the original Tenant herein named,
each person comprising Tenant, each assignee of Tenant's interest in this
Lease and each person comprising each such assignee, shall be deemed
subject to service in the State of New York and to the jurisdiction of the
state and federal courts located in the State of New York and such service
may be accomplished in the same manner as the giving of a Notice hereunder.
36.6. Irrespective of the place of execution or performance, this
Lease shall be governed by and construed in accordance with the laws of the
State of New York. If any provision of this Lease or the application
thereof to any person or circumstance, for any reason and to any extent, is
invalid or unenforceable, the remainder of this Lease and the application
of that provision to other persons or circumstances shall not be affected
but rather shall be enforced to the extent permitted by law. The table of
contents, captions, headings and titles in this Lease are solely for
convenience of reference and shall not affect its interpretation. This
Lease shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Lease to be drafted.
Each obligation of Tenant under this Lease shall be deemed and construed as
a separate and independent covenant of Tenant, not dependent on any other
provision of this Lease. All terms and words used in this Lease,
regardless of the number or gender in which they are used, shall be deemed
to include any other number and any other gender as the context may
require.
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36.7. Tenant represents and warrants that (a) Tenant is a duly
formed and validly existing corporation, and (b) the execution, delivery
and performance by Tenant of this Lease have been duly authorized by all
necessary corporate action.
36.8. If Landlord fails to pay any amount due hereunder to Tenant
within 30 days after the same is due to Tenant, such unpaid amount shall
bear interest at the Lease Interest Rate, from the date such payment was
due to Tenant to the date of payment thereof by Landlord.
ARTICLE 37. Security Deposit
37.1.(a) Tenant shall, upon the execution of this lease by
Tenant, deposit with Landlord a letter of credit issued in favor of the
Landlord in the sum of Seventy Thousand Dollars ($70,000.00) as security
for the faithful performance and observance by Tenant of the terms of this
Lease.
(b) The letter of credit shall be an irrevocable, unconditional
letter of credit with an initial term of not less than one year from the
Commencement Date of this lease. Without further act or instrument
required by Landlord, the letter of credit shall be renewed by Tenant not
less than 30 days prior to the then current expiration date of the letter
of credit for successive additional terms of at least one year throughout
the remainder of the Lease. The letter of credit (or any renewal,
extension or replacement thereof) shall continue in full force and effect
and shall be maintained in the Security Amount for one full calendar month
beyond the expiration of the Term of this lease. The letter of credit
shall (i) be negotiable and freely transferable in connection with a sale
or transfer by Landlord as hereinafter described; (ii) be issued by a New
York bank or other banking institution reasonably acceptable to Landlord
which is a member of the New York Clearing House Association or other
association accepted by Landlord; (iii) provide for payment of all or any
portion of the face amount of the Letter of Credit to Landlord upon the
receipt by the issuing bank of a statement signed by a representative of
Landlord that Landlord is entitled to such amount pursuant
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to the terms of this Lease; and (iv) be otherwise in form and substance
reasonably satisfactory to Landlord. Tenant's failure to maintain the
letter of credit or to substitute a cash security deposit as a replacement
therefor shall constitute a default under this Lease.
(c) If (x) Tenant defaults in the full and prompt payment and
performance of any of Tenant's covenants and obligations under this Lease,
including the payment of Fixed Rent and Additional Charges, or (y) Tenant
fails to deliver to Landlord a renewal or replacement of such letter of
credit or any replacement thereof at least 30 days before the expiry
thereof, Landlord may, but shall not be required to, draw upon such letter
of credit and use, apply or retain the whole or any part of the proceeds
thereof, to the extent required for the payment of any Fixed Rent and
Additional Charges or any other sums as to which Tenant is in default or
for any sum which Landlord may expend or may be required to expend by
reason of Tenant's default in respect of any of the terms, covenants and
conditions of this Lease, including any damages or deficiency in the
reletting of the Premises, whether such damages or deficiency accrue before
or after summary proceedings or other reentry by Landlord. If Landlord
shall so use, apply or retain the whole or any part of such proceeds,
Tenant shall upon demand immediately deposit with Landlord a sum equal to
the amount so used, applied or retained, as security as aforesaid, failing
which Landlord shall have the same rights and remedies as for the
nonpayment of Fixed Rent beyond the applicable grace period. If Tenant
shall fully and faithfully comply with all of Tenant's covenants and
obligations under this Lease, the letter of credit or any proceeds thereof
which have not been so used, applied or retained and any additional amounts
deposited with Landlord under the preceding sentence, shall be returned or
paid over to Tenant upon the Expiration Date or any earlier termination of
this Lease (except by reason of Tenant's default) and after delivery to
Landlord of possession of the entire Premises. In the event of any sale,
transfer or leasing of Landlord's interest in the Building, whether or not
in connection with a sale, transfer or leasing of the Land to a vendee,
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transferee or lessee, Landlord shall have the right to transfer the letter
of credit, any proceeds thereof which have not been so used, applied or
retained and/or such additional amounts deposited with Landlord, as the
case may be, to the vendee, transferee or lessee and Landlord shall
thereupon be released by Tenant from all liability for the return or
payment thereof, and Tenant shall look solely to the new landlord for the
return or payment of the same. Tenant, at Tenant's expense, shall obtain
promptly upon Landlord's request any amendment of the letter of credit
required to permit such vendee, transferee or lessee to draw upon the same.
Except in connection with an assignment of this Lease permitted under
Article 8, Tenant shall not assign or encumber or attempt to assign or
encumber the letter of credit, any proceeds thereof or such additional
amounts deposited with Landlord, and neither Landlord nor its successors or
assigns shall be bound by any such assignment, encumbrance, attempted
assignment or attempted encumbrance. In any event, in the absence of
evidence satisfactory to Landlord of an assignment of the right to receive
the letter of credit, any proceeds thereof which have not been so used,
applied or retained and such additional amounts deposited with Landlord,
Landlord may return the security to the original Tenant regardless of one
or more assignments of this Lease. Any replacement letter of credit shall
be in the same amount (except as otherwise provided in the first sentence
of this Section 37.1) and in substantially the same form as the letter of
credit being replaced and shall be issued by a commercial bank which is a
member of the New York Clearing House (or successor) or other bank
reasonably acceptable to Landlord and shall be for a term of at least one
year.
(d) Provided Tenant is not then in default under this Lease and
Landlord has not drawn upon such letter of credit as provided herein, Tenant
shall have the right, upon reasonable prior notice to Landlord, to replace
such letter of credit with a good and sufficient check payable to Landlord,
or to any Superior Mortgagee which is then holding such letter of credit;
such check to be in the Security Amount drawn on and certified by a New York
City bank which is then a member of the New York Clearing House or a
successor
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thereto. The letter of credit shall be returned to Tenant upon collection by
Landlord (or such Superior Mortgagee) of the funds evidenced by such check.
Landlord shall deposit such check in an interest bearing account. The
proceeds of such check, together with the interest earned thereon, shall be
held, used and applied as if they were proceeds of such letter of credit.
(e) Provided that Tenant is not then in default under this Lease
beyond the expiration of any applicable notice and grace periods, upon the
first anniversary of the Rent Commencement Date, Tenant may reduce the
amount of the letter of credit to Thirty-Four Thousand Four Hundred Dollars
($34,400.00).
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Lease as of the day and year first above written.
LANDLORD:
1325 LIMITED PARTNERSHIP
By: 1325/GP Limited Partnership,
General Partner
By: 1325 Ave/Am GP Corp.,
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxx
President
TENANT:
PRINCETON VIDEO IMAGE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name:
Title: President, CEO
Tenant's Federal Tax Identification
Number
-----------------------------------
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STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the ____ day of ______, 1996, before me personally came Xxxxxx
X. Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say
that he resides at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx; that he is the
President of 1325 Ave/Am GP Corp., the general partner of 1325/GP Limited
Partnership, which partnership is the general partner of 1325 Limited
Partnership, the partnership described in and which executed the foregoing
instrument, and that he signed his name thereto by order of the board of
directors of said corporation.
---------------------------------------
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 26th day of March, 1997, before me personally came Xxxxxxx
X. Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say
that he resides at _____________, _____________________________; that he is
a President/CEO of Princeton Video Image, Inc., the corporation described
in and which executed the foregoing instrument; and that he signed his name
thereto by order of the board of directors of said corporation.
/s/ Xxxxx X. Xxxxx
--------------------------------------
Notary Public
Xxxxx X. Xxxxx
FLOOR PLAN(S) OF PREMISES
[FLOOR PLAN OF THE PREMISES]
EXHIBIT A
Page 1
DESCRIPTION OF LAND
ALL that certain lot, piece or parcel of land, situate, lying and being in
the Borough of Manhattan, City, County and State of New York, bounded and
described as follows:
BEGINNING at a point on the northerly side of West 53rd Street, distant 462
feet 6 inches westerly from the corner formed by the intersection of the
said northerly side of West 53rd Street with the westerly side of Avenue of
the Americas;
THENCE running northerly and parallel with the westerly side of Avenue of
the Americas 100 feet 5 inches to the center line of the block;
THENCE running easterly along the center line of the block 12 feet 6
inches;
THENCE running northerly and parallel with the westerly side of Avenue of
the Americas 100 feet 5 inches to the southerly side of Xxxx 00xx Xxxxxx;
THENCE running westerly along said southerly side of West 54th Street, 194
feet;
THENCE running southerly parallel with said westerly side of Avenue of the
Americas 100 feet 5 inches to the center line of the block;
THENCE running easterly along the center line of the block 19 feet;
THENCE running southerly parallel with said westerly side of Avenue of the
Americas 100 feet 5 inches to the said northerly side of West 00xx Xxxxxx;
THENCE running easterly along said northerly side of West 53rd Street, 162
feet 6 inches to the POINT OR PLACE OF BEGINNING.
EXHIBIT B
Page 1
FIXED RENT
Annual Rate
Annual Per Rentable
Period Fixed Rent Square Foot
------ ---------- -------------
A. Commencement Date until the
Rent Commencement Date ("RCD") $ 0 $ 0
B. RCD, until May 31, 2000 $137,600.00 $32.00
EXHIBIT C
Page 1
RULES AND REGULATIONS
1. The rights of each tenant in the Common Areas are limited to
ingress to and egress from such tenant's premises for the tenant and its
employees, subtenants, licensees and invitees, and no tenant shall use, or
permit the use of, the Common Areas for any other purpose. No tenant shall
invite to the tenant's premises, or permit the visit of, persons in such
numbers or under such conditions as to interfere with the use and enjoyment
of any of the Common Areas by any other tenants. Fire exits and fire tower
stairways are for emergency use only, and they shall not be used for any
other purpose by any tenant or any subtenant or licensee of such tenant, or
their respective employees, agents, contractors or invitees. No tenant
shall obstruct, or permit the obstruction of any of the Common Areas.
Landlord reserves the right to control and operate the Common Areas and the
other public facilities, as well as any other facilities furnished for the
common use of the tenants, in such manner as Landlord in its reasonable
judgment deems best for the benefit of the tenants generally, including the
right to allocate certain elevators for delivery service and the right to
designate which Building entrances shall be used by persons making
deliveries in the Building. No doormat of any kind whatsoever shall be
placed or left in any public hall or outside any entry door of any tenant's
premises.
2. Landlord may refuse admission to the Building outside of
Business Hours to any person not known to the watchman or other person in
charge or not having a pass issued by Landlord or the tenant whose premises
are to be entered. Landlord may require all persons admitted to or leaving
the Building outside of Business Hours to provide appropriate
identification, in which case Landlord shall supply identification cards
and be reimbursed by the tenant for its identification cards at Landlord's
cost. Each tenant shall be responsible for all persons for whom it issues
any such pass and shall be liable to Landlord for all acts or omissions of
such persons. Each tenant shall promptly notify Landlord of any lost
identification cards and will
EXHIBIT D
Page 1
reimburse Landlord at cost for replacement of identification cards. Landlord
shall have the right but shall not be obligated to require all persons
entering the Building outside of Business Hours to sign a register, to be
announced to the tenant such person is visiting, and/or to be accepted as a
visitor by such tenant or to be otherwise properly identified (and, if not so
accepted or identified, Landlord may exclude such persons from the Building)
and Landlord shall have the right but shall not be obligated to require
persons leaving the Building outside of Business Hours to sign a register or
to surrender the pass given to such person. Any person whose presence in the
Building at any time shall, in the judgment of Landlord, be prejudicial to
the safety, character or reputation of the Building or of its tenants may be
denied access to the Building or may be ejected therefrom. During the
continuance of any Force Majeure Events, Landlord may prevent all access to
the Building by closing the doors or otherwise if and to the extent required
for the safety of the tenants and protection of property in the Building.
Landlord may institute, revise and discontinue such security measures,
systems and requirements as Landlord deems appropriate.
3. No tenant shall obtain or accept for use in its premises
drinking water, food, beverage, towel, barbering, bootblacking, floor
polishing, cleaning or other services from any persons prohibited by
Landlord from furnishing such services. Such services shall be furnished
only at such hours, and under such reasonable regulations, as may be fixed
by Landlord from time to time.
4. The cost of repairing any damage to the Common Areas or to
any other public facilities or to any equipment or other facilities used in
common with other tenants, or to any adjoining building or property, or to
any other parts of the Building or to any equipment or facilities therein,
caused by a tenant, subtenant or licensee of such tenant or their
respective employees, agents, contractors or invitees, shall be paid by
such tenant.
5. No awnings or other projections shall be attached to the
outside walls of the Building. No curtains, blinds, shades or screens which
EXHIBIT D
Page 2
are different from the standards adopted from time to time by Landlord for
the Building shall be attached to or hung in, or used in connection with, any
exterior window or door of the premises of any tenant without the prior
consent of Landlord. Such curtains, blinds, shades or screens must be of a
quality, type, design and color, and attached in the manner reasonably
approved by Landlord.
6. No lettering, sign, advertisement, notice or object shall be
displayed in or on the exterior windows or doors, or on the outside of any
tenant's premises, or at any point inside any tenant's premises where the
same might be visible outside of such premises, without the prior consent
of Landlord. Upon approval by Landlord of any such lettering, sign,
advertisement, notice or object and the location thereof, no further
consent of Landlord shall be required with respect to such location.
Interior signs, elevator cab designations and lettering on doors and the
Building directory shall, if and when approved by Landlord, be inscribed,
painted or affixed for each tenant by Landlord at the expense of such
tenant, and shall be of a size, color and style acceptable to Landlord.
7. The sashes, sash doors, skylights, windows and doors that
reflect or admit light and air into the halls, passageways or other Common
Areas shall not be covered or obstructed by any tenant, nor shall any
bottles, parcels or other articles be placed on the window xxxxx or the
peripheral heating or air conditioning enclosures, if any.
8. No showcases or other articles shall be put in front of or
affixed to any part of the exterior of the Building or of any tenant's
premises or placed in the Common Areas.
9. No noise, including music or the playing of musical
instruments, recordings, radio or television, which in the judgment of
Landlord might disturb other tenants in the Building shall be made or
permitted by any tenant. Nothing shall be done or permitted in the premises
of any tenant which would impair or interfere with the use or enjoyment by any
EXHIBIT D
Page 3
other tenant in the Building but the foregoing shall not be construed to
limit the use permitted by Tenant under this Lease.
10. Except as permitted in the Lease, no additional locks or
bolts of any kind shall be placed upon any of the doors or windows by any
tenant, nor shall any changes be made in locks or the mechanism thereof,
except where keys therefor are given to Landlord. Additional keys for a
tenant's premises and toilet rooms located outside the tenant's premises
shall be procured only from Landlord who may make a reasonable charge
therefor. Each tenant shall, upon the termination of its lease, turn over
to Landlord all keys to the Building and any facilities therein, either
furnished to, or otherwise procured by, such tenant, and in the event of
the loss of any keys furnished by Landlord, such tenant shall pay to
Landlord the cost incurred by Landlord in replacing the same.
Notwithstanding the foregoing, a tenant may, subject to obtaining
Landlord's prior consent, install a security system in its premises which
uses master codes or cards instead of keys, provided that such tenant
provides Landlord with the master code or card for such system. No tenant
shall lend or furnish to any public messenger the keys to any toilet rooms.
11. All removals, or the carrying in or out of any safes,
freight, furniture, packages, boxes, crates or any other object or matter
of any description must take place during such hours and in such elevators,
and in such manner as Landlord or its agent may determine from time to time
are appropriate. No persons shall be employed to move safes or other
similarly heavy objects unless reasonably acceptable to Landlord and, if so
required by law, unless such persons hold a Master Rigger's license.
Arrangements must be made by each tenant with Landlord for moving large
quantities of furniture and equipment into or out of the Building. All
labor and engineering costs incurred by Landlord in connection with any
moving of safes or other similarly heavy objects, including a reasonable
charge for overhead, and the cost of overtime or extra work for Landlord's
or Landlord's agent's employees, shall be paid by the tenant to Landlord,
within 30 days after demand.
EXHIBIT D
Page 4
12. Landlord reserves the right to inspect all objects to be
brought into the Building and to exclude from the Building all objects
which violate any of these Rules and Regulations or this Lease. Landlord
shall have the right but shall not be obligated to require any person
leaving the Building with any package or other object to submit a pass,
listing such package or object, from the tenant from whose premises the
package or object is being removed, but the establishment and enforcement
of such requirement shall not impose any responsibility on Landlord for the
protection of any tenant against the removal of property from the premises
of such tenant. Landlord shall in no way be liable to any tenant for
damages or loss arising from the admission, exclusion or ejection of any
person to or from the premises or the Building under the provisions of this
Rule or of Rule 2 hereof.
13. No tenant shall occupy or permit any portion of its premises
to be occupied for (a) the possession, storage, manufacture or sale of
liquor, narcotics or tobacco in any form, (b) gambling activities, (c) the
conduct of obscene, pornographic or similar disreputable activities, (d)
public assembly purposes, (e) lodging or sleeping, or (f) any immoral or
illegal purpose.
14. Landlord shall have the right to prohibit any tenant's
advertising or identifying sign which, in Landlord's reasonable judgment,
impairs the reputation of the Building or its desirability, and upon notice
from Landlord such tenant shall refrain from and discontinue such
advertising or identifying sign. Once Landlord has approved Tenant's
advertising or identifying sign, Landlord will not exercise its rights
under this paragraph with respect to the same or any substantially similar
advertising or identifying sign. With respect to Tenant's advertising,
Landlord's rights shall arise only if the Property or any portion thereof
is referred to or identified in such advertising (but such rights shall not
arise if such advertising, including ordinary business materials, merely
lists the Property as Tenant's address (including invitations to the
Premises)).
EXHIBIT D
Page 5
15. Tenant shall not place a load upon the floor of the Premises
in excess of 70 pounds per usable square foot of the Premises. Landlord
shall have the right to prescribe the weight and position of safes and
other objects of excessive weight, and no safe or other object whose weight
exceeds the lawful load for the area upon which it would stand shall be
brought into or kept upon any tenant's premises. If in the judgment of
Landlord the concentrated weight of any heavy object should be distributed,
the work involved in such distribution shall be done at the expense of the
tenant and in such manner as Landlord shall determine.
16. No machinery or mechanical equipment other than ordinary
portable business machines may be installed or operated in any tenant's
premises without Landlord's prior consent which consent shall not be
unreasonably withheld, and in no case (even where same are of a type so
excepted or as so consented to by Landlord) shall any machines or
mechanical equipment be so placed or operated as to disturb other tenants.
Machines and mechanical equipment permitted to be installed and used in a
tenant's premises shall be so equipped, installed and maintained by such
tenant as to prevent any disturbing noise, vibration or electrical or other
interference from being transmitted from such premises to any other area of
the Building.
17. The requirements of tenants will be attended to only upon
application at the office of the Building. Employees of Landlord or its
managing agent shall not perform any work or do anything outside of their
regular duties unless under special instructions from Landlord.
18. Canvassing, soliciting and peddling in the Building are
prohibited and each tenant shall cooperate to prevent same.
19. No tenant shall cause or permit any unusual or objectionable
odors to emanate from its premises which would annoy other tenants or
create a public or private nuisance. No cooking shall be done in the
premises of any tenant except as is expressly permitted herein and in such
tenant's lease.
20. Nothing shall be done or permitted in any tenant's premises,
and nothing shall be brought into or kept in any tenant's premises, which
EXHIBIT D
Page 6
would impair or interfere with any of the Building's services or the proper
and economic heating, ventilating, air conditioning, cleaning or other
servicing of the Building, or the use or enjoyment by any other tenant of
its premises, nor shall any tenant install any ventilating,
airconditioning, electrical or other equipment of any kind which in the
reasonable judgment of Landlord might cause any such impairment or
interference.
21. No acids, vapors or other materials shall be discharged or
permitted to be discharged into the waste lines, vents or flues of the
Building. The water and wash closets and other plumbing fixtures in or
serving any tenant's premises shall not be used for any purpose other than
the purposes for which they were designed or constructed, and no sweepings,
rubbish, rags, acids or other foreign substances shall be deposited
therein. Nothing shall be swept or thrown into the Common Areas or into or
on any heating or ventilating vents or registers or plumbing apparatus in
the Building, or on adjoining buildings or land or the street. Any
cuspidors or containers or receptacles used as such or for garbage or
similar refuse in the premises of any tenant shall be emptied, cared for
and cleaned by and at the expense of such tenant.
22. All entrance doors in each tenant's premises shall be left
locked and all windows shall be left closed by the tenant when the tenant's
premises are not in use. Entrance doors shall not be left open at any
time.
23. Hand trucks not equipped with rubber tires, side guards and
such other safeguards as Landlord may require shall not be used within the
Building. No hand trucks shall be used in passenger elevators.
24. All windows in each tenant's premises shall be kept closed, and
all blinds therein above the ground floor shall be lowered as reasonably
required because of the position of the sun, during the operation of the
Building air-conditioning system to cool or ventilate the tenant's premises,
unless Landlord permits otherwise. If Landlord elects to install any energy
saving film on the windows of the Building or to install energy saving
windows in place of the present windows, each tenant shall cooperate with the
EXHIBIT D
Page 7
reasonable requirements of Landlord in connection with such installation and
thereafter the maintenance and replacement of the film and/or windows and
shall permit Landlord to have access to the tenant's premises at reasonable
times during Business Hours to perform such work in accordance with the terms
of the Lease.
25. Each tenant at its own expense shall cause all portions of
its premises used for the storage, preparation, service or consumption of
food or beverages to be cleaned daily in a manner reasonably satisfactory
to Landlord, and to be exterminated against infestation by vermin, rodents
or roaches regularly and, in addition, whenever evidence of any infestation
is discovered. No tenant shall permit any person to enter its premises or
the Building for the purpose of providing such extermination services other
than persons first approved by Landlord, such approval not to be
unreasonably withheld. If Landlord's cleaning contractor cleans the
portions of the Premises used for storage, preparation, service or
consumption of food or beverages, the charges therefor shall be consistent
for similar services in other first-class office buildings in midtown
Manhattan, taking into consideration the use and nature of the Premises and
the work in question.
26. No tenant, subtenant or licensee, or any contractor,
employee, agent or invitee of any tenant, subtenant or licensee shall at
any time bring into or keep upon any premises or the Building any
inflammable, combustible, explosive or otherwise dangerous fluid, chemical
or substance.
27. Except as otherwise permitted pursuant to the Lease, no tenant
shall xxxx, paint, drill into, or in any way deface, any part of its premises
or the Building. Except as otherwise permitted pursuant to the Lease, no
boring, cutting or stringing of wires or instruments shall be permitted
except with the prior consent of, and as directed by, Landlord. No telephone,
telegraph or other wires shall be installed by any tenant except in a manner
approved by Landlord. Except as otherwise permitted pursuant to the Lease,
no tenant shall lay linoleum, or other similar floor covering so that the
same shall come in direct contact with the floor of its premises, and, if
EXHIBIT D
Page 8
linoleum or other similar floor covering is desired to be used, an
interlining of builder's deadening felt shall be first affixed to the floor
by a paste or other material, soluble in water, the use of cement or other
similar adhesive material being expressly prohibited.
28. No bicycles, vehicles, animals (except seeing eye dogs),
fish or birds of any kind shall be brought into or kept in or about the
premises of any tenant.
29. All paneling, doors, trim or other wood products not
considered furniture shall be of fire-retardant materials. Before
installation of any such materials, certification of the materials'
fire-retardant characteristics shall be submitted to Landlord, and such
materials shall be installed in a manner approved by Landlord.
30. Whenever any tenant submits to Landlord any plan, agreement
or other document for the consent or approval of Landlord, such tenant
shall pay to Landlord, on demand, a processing fee in the amount of the
reasonable out-of-pocket fees for the review thereof, including the
services of any architect, engineer or attorney employed by Landlord to
review such plan, agreement or documents.
31. Landlord reserves the right to rescind, alter, waive or add
any rule or regulation at any time when, in Landlord's judgment, Landlord
deems it necessary, desirable or proper for the best interest of the
Building or for the best interest of the tenants generally. No alteration,
rescission, waiver or addition of any rule or regulation in favor of one
tenant shall operate as an alteration, rescission, waiver or addition in
favor of any other tenant. Landlord shall enforce the Rules and
Regulations in a non-discriminatory manner but Landlord shall not be
responsible to any tenant for the nonobservance or violation by any other
tenant of any of the Rules and Regulations.
EXHIBIT D
Page 9
CLEANING SPECIFICATIONS
CLEANING SPECIFICATIONS FOR OFFICE SPACE
Nightly -- Business Days:
General Offices:
1. All hardsurfaced flooring to be swept using approved
dustdown preparation.
2. Vacuum all carpets, moving only light furniture (desks, file
cabinets, etc. not to be moved).
3. Hand dust and wipe clean all furniture, fixtures and window
xxxxx.
4. Empty and clean all ash trays and screen all sand urns.
5. Empty and clean all waste receptacles and remove wastepaper.
6. Dust interiors of all waste disposal cans and baskets.
7. Wash clean all water fountains and coolers.
8. Sweep all private stairways.
Lavatories:
1. Sweep and wash all floors, using proper disinfectants.
2. Wash and polish all mirrors, shelves, bright work and
enameled surfaces.
3. Wash and disinfect all basins, bowls and urinals.
4. Wash all toilet seats.
5. Hand dust and clean all partitions, tile walls, dispensers
and receptacles in lavatories and restrooms.
6. Paper towel and sanitary receptacles emptied and cleaned.
7. Fill toilet tissue holders and soap dispensers.
Weekly:
1. Dust all door louvers and other ventilating louvers within a
person's reach.
2. Wipe clean all interior metal and remove fingermarks.
Monthly:
High dust Premises completely including the following:
1. Dust all pictures, frames, charts, graphs and similar wall
hangings not reached in nightly cleaning.
EXHIBIT E
Page 1
2. Dust clean all vertical surfaces, such as walls, partitions,
doors, bucks and other surfaces not reached in nightly
cleaning.
3. Dust all pipes, ventilating and air conditioning louvers,
ducts, high moldings and other high areas not reached in
nightly cleaning.
4. Dust all venetian blinds.
Four Times Per Year:
Wash all windows.
EXHIBIT E
Page 2
LANDLORD'S WORK
Preparation of demised premises for Tenant's occupancy in
accordance with the layout shown on Exhibit A, and a level of finish
comparable to the premises occupied by Hunter Capital Group, LLC, on the
12th floor of the Building.
EXHIBIT F
Page 1