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EXHIBIT 10.1
STANDARD FORM OF OFFICE LEASE
The Real Estate Board of New York, Inc.
Agreement of Lease, made as of this 9th day of MAY 1997, between A & R REAL
ESTATE, INC., having an address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
party of the first part, hereinafter referred to as OWNER, and XXXXXX
COMMUNICATIONS INC., a Delaware corporation having an address at 00 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx party of the second part, hereinafter referred to as
TENANT,
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from Owner the
premises (hereinafter referred to as the "premises", "Demised Premises" or
"Premises") consisting of the rentable area of the entire sixteenth (16th) and
seventeenth (17th) floors in the building known as 000 Xxxxxxx Xxxxxx in the
Borough of Manhattan, City of New York, for the term of approximately ten (10)
years commencing as set forth below (or until such term shall sooner cease and
expire as hereinafter provided) both dates inclusive, at an annual fixed rental
rates of Five Hundred Twenty-five Thousand ($525,000.00) Dollars for the first
five (5) "Lease Years" (as defined below) of the Term and Five Hundred
Seventy-five Thousand ($575,000.00) Dollars commencing on the first day of the
sixth (6th) Lease year until the scheduled "Expiration Date" (as defined below)
which Tenant agrees to pay in lawful money of the United States which shall be
legal tender in payment of all debts and dues, public and private, at the time
of payment, in equal monthly installments in advance on the first day of each
month during said term, at the office of Owner or such other place as Owner may
designate, without any set off or deduction, except as otherwise provided in
this Lease except that Tenant shall pay the first monthly installment on the
execution hereof.
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner
predecessor in interest, Owner may at Owner's option and without notice to
Tenant add the amount of such arrears to any monthly installment of rent payable
hereunder and the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns, hereby
covenant as follows:
Rent: 1. Tenant shall pay the rent as above and as
hereinafter provided.
Occupancy: 2. Tenant shall use and occupy demised premises for
general, administrative and executive offices and for
no other purpose.
Tenant Alterations:
3. Tenant shall make no changes in or to the demised premises of any nature
without Owner's prior written consent except as otherwise provided for in this
Lease. Owner's consent to interior non-structural alterations
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shall not be unreasonably withheld. Tenant shall not be obligated to remove the
stairway between the two (2) floors comprising the Demised Premises. Subject to
the prior written consent of Owner, and to the provisions of this article,
Tenant, at Tenant's expense, may make alterations, installations, additions or
improvements which are non-structural and which do not affect utility services
or plumbing and electrical lines, in or to the interior of the demised premises
by using contractors or mechanics first approved in each instance by Owner which
consent shall not be unreasonably withheld or delayed. With respect to
alterations after the initial work, Owner shall review and respond to a request
for consent to alterations within ten (10) days after submission of such request
accompanied by reasonably appropriate plans and specifications and to a request
for the approval of any contractor within five (5) days after submission of
information regarding the contractor which shall be sufficient for Owner to base
its approval. Tenant shall, before making any alterations, additions,
installations or improvements, at its expense, obtain all permits, approvals and
certificates required by any governmental or quasi-governmental bodies and (upon
completion) certificates of final approval thereof and shall deliver promptly on
request duplicates of all such permits, approvals and certificates to Owner and
Tenant agrees to carry and will cause Tenant's contractors and sub-contractors
to carry such xxxxxxx'x compensation, general liability, personal and property
damage insurance as Owner may reasonably require. If any mechanic's lien is
filed against the demised premises, or the building of which the same forms a
part, for work claimed to have been done for, or materials furnished to, Tenant,
whether or not done pursuant to this article, the same shall be discharged by
Tenant within thirty days after notice at Tenant's expense, by payment or filing
the bond required by law. All fixtures and all paneling, partitions, railings
and like installations, installed in the premises at any time, either by Tenant
or by Owner on Tenant's behalf, shall, upon installation, become the property of
Owner and shall remain upon and be surrendered with the demised premises. Tenant
shall be required to remove its movable equipment, furniture, furnishings and
other personal property from the Demised Premises upon the expiration of the
Term. Nothing in this Article shall be construed to give Owner title to or to
prevent Tenant's removal of trade fixtures, moveable office furniture and
equipment, but upon removal of any such from the premises Tenant shall
immediately and at its expense, repair any damage to the demised premises or the
building due to such removal. All property permitted or required to be removed,
by Tenant at the end of the term remaining in the premises after Tenant's
removal shall be deemed abandoned and may, at the election of Owner, either be
retained as Owner's property or may be removed from the premises by Owner, at
Tenant's expense.
Maintenance and Repairs:
4. Tenant shall, throughout the term of this lease, take good care of the
demised premises and the fixtures and appurtenances therein. To the extent not
covered by Owner's insurance, Tenant shall be responsible for all damage or
injury to the demised premises or any other part of the building and the systems
and equipment thereof, whether requiring structural or nonstructural repairs
caused by or resulting from the negligence or willful misconduct of Tenant,
Tenant's subtenants, agents, employees, invitees or licensees, or which arise
out of any work, labor, service or equipment done
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for or supplied to Tenant or any subtenant or arising out of the installation,
use or operation of the property or equipment of Tenant or any subtenant. Tenant
shall also repair all damage to the building and the demised premises caused by
the moving of Tenant's fixtures, furniture and equipment. Tenant shall promptly
make, at Tenant's expense, all repairs in and to the demised premises for which
Tenant is responsible, using only the contractor for the trade or trades in
question, selected from a list of at least two contractors per trade submitted
by Owner. Any other repairs in or to the building or the facilities and systems
thereof for which Tenant is responsible shall be performed by Owner at the
Tenant's expense. Owner shall maintain in good working order and repair the
exterior and the structural portions of the building, including the structural
portions of its demised premises, and the public portions of the building
interior and the building plumbing, electrical, heating and ventilating systems
(to the extent such systems presently exist) serving the demised premises. Owner
shall maintain the sprinkler riser servicing the Demised Premises. Tenant shall
connect to that riser and install and maintain the sprinkler system within the
Demised Premises at Tenant's expense. Owner shall repair and, to the extent
necessary, replace any portion or components of the original existing
air-conditioning units servicing the Demised Premises. Tenant shall repair any
additional air-conditioning units or systems installed by or on behalf of
Tenant. On the Commencement Date, the electrical, plumbing, heating and original
air-conditioning systems shall be in good working order. On the Commencement
Date, the building sprinkler system servicing the Demised Premises shall be in
good working order. Tenant agrees to give prompt notice of any defective
condition in the premises for which Owner may be responsible hereunder. Except
as may be otherwise provided for in this Lease, there shall be no allowance to
Tenant for diminution of rental value and no liability on the part of Owner by
reason of inconvenience, annoyance or injury to business arising from Owner or
others making repairs, alterations, additions or improvements in or to any
portion of the building or the demised premises or in and to the fixtures,
appurtenances or equipment thereof. It is specifically agreed that Tenant shall
not be entitled to any setoff or reduction of rent by reason of any failure of
Owner to comply with the covenants of this or any other article of this Lease.
Tenant agrees that Tenant's sole remedy at law in such instance will be by way
of an action for damages for breach of contract. In performing any repairs or
alterations to the Demised Premises, Owner shall exercise reasonable due
diligence so as not to cause unreasonable interference with Tenant's business
operations. Except in the case of an emergency, prior to commencing any such
work, Owner shall give Tenant reasonable advance notice of the commencement of
such work and permit a representative of Tenant to be present during the
performance of any such work. The provisions of this Article 4 shall not apply
in the case of fire or other casualty which are dealt with in Article 9 hereof.
Window Cleaning:
5. Tenant will not clean nor require, permit, suffer or allow any window in the
demised premises to be cleaned from the outside in violation of Section 202 of
the Labor Law or any other applicable law or of the Rules of the Board of
Standards and Appeals, or of any other Board or body having or asserting
jurisdiction.
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Requirements of Law, Fire Insurance, Floor Loads:
6. Prior to the commencement of the lease term, if Tenant is then in possession,
and at all times thereafter, Tenant, at Tenant's sole cost and expense, shall
promptly comply with all present and future laws, orders and regulations of all
state, federal, municipal and local governments, departments, commissions and
boards and any direction of any public officer pursuant to law, and all orders,
rules and regulations of the New York Board of Fire Underwriters, Insurance
Services Office, or any similar body which shall impose any violation, order or
duty upon Owner or Tenant with respect to the demised premises, whether or not
arising out of Tenant's use or manner of use thereof, (including Tenant's
permitted use) or, with respect to the building if arising out of Tenant's use
or manner of use of the premises or the building (including the use permitted
under the lease). Nothing herein shall require Tenant to make repairs or
alterations unless Tenant has, by its manner of use of the demised premises or
method of operation therein (as opposed to the mere use of the Demised Premises
as general business and executive offices) violated any such laws, ordinances,
orders, rules, regulations or requirements with respect thereto or unless the
need for any repairs or alterations arises by reason of any alterations proposed
by Tenant. Except to the extent Tenant is required to do so, Owner shall comply
with all such laws, orders, rules, or regulations which shall impose any
violation or duty to perform repairs or alternations or install improvements to
the building or the Demised Premises, provided that Owner's failure to comply
would adversely affect the Demised Premises or Tenant's use thereof. Owner
represents that as of the date of this Lease, there are no existing violations
of record which affect the Demised Premises, including any violations of local
laws 5, 10 and 16 (as amended). Tenant may, after securing Owner to Owner's
satisfaction against all damages, interest, penalties and expenses, including,
but not limited to, reasonable attorney's fees, by cash deposit or by surety
bond in an amount and in a company satisfactory to Owner, contest and appeal any
such laws, ordinances, orders, rules, regulations or requirements provided same
is done with all reasonable promptness and provided such appeal shall not
subject Owner to prosecution for a criminal offense or constitute a default
under any lease or mortgage under which Owner may be obligated, or cause the
demised premises or any part thereof to be condemned or vacated. Tenant shall
not do or permit any act or thing to be done in or to the demised premises which
is contrary to law, or which will invalidate or be in conflict with public
liability, fire or other policies of insurance at any time carried by or for the
benefit of Owner with respect to the demised premises or the building of which
the demised premises form a part, or which shall or might subject Owner to any
liability or responsibility to any person or for property damage. Tenant shall
not keep anything in the demised premises except as now or hereafter permitted
by the Fire Department, Board of Fire Underwriters, Fire Insurance Rating
Organization or other authority having jurisdiction, and then only in such
manner and such quantity so as not to increase the rate for fire insurance
applicable to the building, nor use the premises in a manner which will increase
the insurance rate for the building or any property located therein over that in
effect prior to the commencement of Tenant's occupancy. Tenant shall pay all
costs, expenses, fines, penalties, or damages, which may be imposed upon Owner
by reason of Tenant's failure to comply with the provisions of this article and
if by reason of such failure the fire insurance rate
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shall, at the beginning of this lease or at any time thereafter, be higher than
it otherwise would be, then Tenant shall reimburse Owner, as additional rent
hereunder, for that portion of al fire insurance premiums thereafter paid by
Owner which shall have been charged because of such failure by Tenant. In any
action or proceeding wherein Owner and Tenant are parties, a schedule or
"make-up" of rate for the building or demised premises issued by the New York
Fire Insurance Exchange, or other body making fire insurance rates applicable to
said premises shall be conclusive evidence of the facts therein stated and of
the several items and charges in the fire insurance rates then applicable to
said premises. Notwithstanding the foregoing, Tenant shall not be liable for any
increase in insurance premiums by reason of Tenant's use of the Demised Premises
for the uses permitted under this Lease. Tenant shall not place a load upon any
floor of the demised premises exceeding the floor load per square foot area
which it was designed to carry and which is allowed by law. [Intentionally
Omitted] Owner reserves the right to prescribe the weight and position of all
safes. Such installations shall be placed and maintained by Tenant, at Tenant's
expense, in settings sufficient, in Owner's reasonable judgement, to absorb and
prevent excessive vibration, noise and annoyance.
Subordination:
7. This lease is subject and subordinate to all ground or underlying leases and
to all mortgages which may now or hereafter affect such leases or the real
property of which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall from time to time execute promptly any certificate that Owner may
request.
Property Loss, Damage Reimbursement Indemnity:
8. Owner or its agents shall not be liable for any damage to property of Tenant
or of others entrusted to employees of the building, nor for loss of or damage
to any property of Tenant by theft or otherwise, nor for any injury or damage to
persons or property resulting from any cause of whatsoever nature, unless caused
by or due to the negligence or willful misconduct of Owner, its agents, servants
or employees. Owner or its agents will not be liable for any such damage caused
by other tenants or persons in, upon or about said building or caused by
operations in construction of any private, public or quasi public work. If at
any time any windows of the demised premises are temporarily closed or darkened
by reason of repairs or maintenance to the building (or permanently closed,
darkened or bricked up, if required by law) Owner shall not be liable for any
damage Tenant may sustain thereby and Tenant shall not be entitled to any
compensation therefor nor abatement or diminution of rent nor shall the same
release Tenant from its obligations hereunder nor constitute an eviction
provided that in the case of a temporary closing or darkening, Owner shall act
diligently to reduce the duration of such closing or darkening and minimize any
interference with the conduct of Tenant's
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business during such period. Tenant shall indemnify and save harmless Owner
against and from all liabilities, obligations, damages, penalties, claims, costs
and expenses for which Owner shall not be reimbursed by insurance, including
reasonable attorneys fees, paid, suffered or incurred as a result of any breach
by Tenant, Tenant's agents, contractors, employees, invitees, or licensees, of
any covenant or condition of this lease, or the negligence or willful misconduct
of the Tenant, Tenant's agents, contractors, employees, invitees or licensees,
Tenant's liability under this lease extends to the acts and omissions of any
sub-tenant, and any agent, contractor, employee, invitee or licensee of any
sub-tenant. In case any action or proceeding is brought against Owner by reason
of any such claim, Tenant, upon written notice from Owner, will, at Tenant's
expense, resist or defend such action or proceeding by counsel approved by Owner
in writing, such approval not to be unreasonably withheld.
Destruction, Fire and Other Casualty:
9. (a) If the demised premises or any part thereof shall be damaged by fire or
other casualty, Tenant shall give notice thereof to Owner promptly after Tenant
becomes aware of same and this lease shall continue in full force and effect
except as hereinafter set forth. (b) If the demised premises are partially
damaged or rendered partially unusable by fire or other casualty, the damages
thereto shall be repaired by and at the expense of Owner and the rent and other
items of additional rent, until such repair shall be substantially completed and
the Demised Premises made accessible to Tenant shall be apportioned from the day
following the casualty according to the part of the premises which is usable.
(c) If the demised premises are totally damaged or rendered wholly unusable by
fire or other casualty, then the rent and other items of additional rent as
hereinafter expressly provided shall be proportionately paid up to the time of
the casualty and thenceforth shall cease until the date when the premises shall
have been repaired and restored by Owner (or sooner reoccupied in part by Tenant
then rent shall be apportioned as provided in subsection (b) above), subject to
Owner's right to elect not to restore the same as hereinafter provided. If the
building shall be so damaged that Owner shall decide to demolish it or to
rebuild it, then, in any of such events, Owner may elect to terminate this lease
by written notice to Tenant, given within 90 days after such fire or casualty,
or 30 days after adjustment of the insurance claim for such fire or casualty,
whichever is sooner, specifying a date for the expiration of the lease, which
date shall not be less than 120 nor more than 180 days after the giving of such
notice, and upon the date specified in such notice the term of this lease shall
expire as fully and completely as if such date were the date set forth above for
the termination of this lease and Tenant shall forthwith quit, surrender and
vacate the premises without prejudice however, to Landlord's rights and remedies
against Tenant under the lease provisions in effect prior to such termination,
and any rent owing shall be paid up to such date and any payments of rent made
by Tenant which were on account of any period subsequent to such date shall be
returned to Tenant. Unless Owner shall serve a termination notice as provided
for herein, Owner shall make the repairs and restorations under the conditions
of (b) and (c) hereof, with all reasonable expedition, subject to delays due to
adjustment of insurance claims, labor troubles and causes beyond Owner's
control. After any such casualty, Tenant shall cooperate with Owner's
restoration by removing from the premises as
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promptly as reasonably possible, all of Tenant's salvageable inventory and
moveable equipment, furniture, and other property. Tenant's liability for rent
shall resume after the Demised Premises is accessible to Tenant, but not sooner
than fifteen (15) days after written notice from Owner that the premises are
substantially ready for Tenant's occupancy. (d) Nothing contained hereinabove
shall relieve Tenant from liability that may exist as a result of damage from
fire or other casualty. Notwithstanding the foregoing, including Owner's
obligation to restore under subparagraph (b) above, each party shall look to any
insurance in its favor for recovery for loss or damage resulting from fire or
other casualty, Owner and Tenant each hereby releases and waives all right of
recovery with respect to subparagraphs (b) and (d) above, against the other or
any one claiming through or under each of them by way of subrogation or
otherwise. The release and waiver herein referred to shall be deemed to include
any loss or damage to the demised premises and/or to any personal property,
equipment, trade fixtures, goods and merchandise located therein. If, and to the
extent, that such waiver can be obtained only by the payment of additional
premiums, then the party benefiting from the waiver shall pay such premium
within ten days after written demand or shall be deemed to have agreed that the
party obtaining insurance coverage shall be free of any further obligation under
the provisions hereof with respect to waiver of subrogation. Tenant acknowledges
that Owner will not carry insurance on Tenant's furniture and/or furnishings or
any fixtures or equipment, improvements, or appurtenances removable by Tenant
and agrees that Owner will not be obligated to repair any damage thereto or
replace the same. (f) Tenant hereby waives the provisions of Section 227 of the
Real Property Law and agrees that the provisions of this article shall govern
and control in lieu thereof.
Eminent Domain:
10. If the whole or any part of the demised premises shall be acquired or
condemned by Eminent Domain for any public or quasi public use or purpose, then
and in that event, the term of this lease shall cease and terminate from the
date of title vesting in such proceeding and Tenant shall have no claim for the
value of any unexpired term of said lease and assigns to Owner, Tenant's entire
interest in any such award. Tenant shall have the right to make an independent
claim to the condemning authority for the value of Tenant's moving expenses and
personal property, trade fixtures and equipment, provided Tenant is entitled
pursuant to the terms of the lease to remove such property, trade fixture and
equipment at the end of the term and provided further such claim does not reduce
Owner's award.
Assignment, Mortgage, Etc.:
11. Tenant, for itself, its heirs, distributees, executors, administrators,
legal representative, successor and assigns, expressly covenants that it shall
not assign, mortgage or encumber this agreement, nor underlet, or suffer or
permit the demised premises or any part thereof to be used by others, without
the prior written consent of Owner in each instance. Transfer of the majority of
the stock of a corporate Tenant or the majority partnership interest of a
partnership Tenant shall be deemed an assignment. If this lease be assigned, or
if the demised premises or any part thereof be underlet or occupied by anybody
other than Tenant,
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Owner may, after default by Tenant, collect rent from the assignee, under-
tenant or occupant, and apply the net amount collected to the rent herein
reserved, but no such assignment, underletting, occupancy or collection shall be
deemed a waiver of this covenant, or the acceptance of the assignee,
under-tenant or occupant as tenant, or a release of Tenant from the further
performance by Tenant of covenants on the part of Tenant herein contained. The
consent by Owner to an assignment or underletting shall not in any wise be
construed to relieve Tenant from obtaining the express consent in writing of
Owner to any further assignment or underletting.
Electric Current:
12. Rates and conditions in respect to submetering or rent inclusion, as the
case may be, to be added in RIDER attached hereto. Tenant covenants and agrees
that at all times its use of electric current shall not exceed the capacity of
existing feeders to the building or the risers or wiring installation and Tenant
may not use any electrical equipment which, in Owner's opinion, reasonably
exercised, will overload such installations or interfere with the use thereof by
other tenants of the building. The change at any time of the character of
electric service shall in no wise make Owner liable or responsible to Tenant,
for any loss, damages or expenses which Tenant may sustain.
Access to Premises:
13. Owner or Owner's agents shall have the right (but shall not be obligated) to
enter the demised premises in any emergency at any time, and, at other
reasonable times upon reasonable notice to Tenant to examine the same and to
make such repairs, replacements and improvements as Owner may deem necessary and
reasonably desirable to the demised premises or to any other portion of the
building or which Owner may elect to perform. Tenant shall permit Owner to use
and maintain and replace pipes and conduits in and through the demised premises
and to erect new pipes and conduits therein provided they are concealed within
the walls, floor, or ceiling, do not reduce Tenant's useable space by more than
1%, are consistent with Tenant's decor, and do not interfere with the conduct of
Tenant's business operations. Owner may, during the progress of any work in the
demised premises, take all necessary materials and equipment into said premises
without the same constituting an eviction nor shall the Tenant be entitled to
any abatement of rent while such work is in progress nor to any damages by
reason of loss or interruption of business or otherwise provided that Owner
shall exercise due diligence to minimize any interference with the conduct of
Tenant's business operations. Throughout the term hereof Owner shall have the
right to enter the demised premises at reasonable hours upon reasonable notice
to Tenant for the purpose of showing the same to prospective purchasers or
mortgagees of the building, and during the last six months of the term for the
purpose of showing the same to prospective tenants. If Tenant is not present to
open and permit in entry into the demised premises, Owner or Owner's agents may
enter the same whenever such entry may be necessary in the event of an emergency
by master key or forcibly and provided reasonable care is exercised to safeguard
Tenant's property, such entry shall not render Owner or its agents liable
therefor, nor in any event shall the obligations of Tenant hereunder be
affected. If during the last month of the term Tenant shall have removed all or
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substantially all of Tenant's property therefrom Owner may immediately enter,
alter, renovate or redecorate the demised premises without limitation or
abatement of rent, or incurring liability to Tenant for any compensation and
such act shall have no effect on this lease or Tenant's obligations hereunder.
Vault, Vault Space, Area:
14. No Vaults, vault space or area, whether or not enclosed or covered, not
within the property line of the building is leased hereunder, anything contained
in or indicated on any sketch, blue print or plan, or anything contained
elsewhere in this lease to the contrary notwithstanding. Owner makes no
representation as to the location of the property line of the building. All
vaults and vault space and all such areas not within the property line of the
building, which Tenant may be permitted to use and/or occupy, is to be used
and/or occupied under a revocable license, and if any such license be revoked,
or if the amount of such space or area be diminished or required by any federal,
state or municipal authority or public utility, Owner shall not be subject to
any liability nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation, diminution or requisition be
deemed constructive or actual eviction.
Occupancy:
15. Tenant will not at any time use or occupy the demised premises in violation
of the certificate of occupancy issued for the building of which the demised
premises are a part a true copy of which has been delivered to Tenant. Owner
shall not amend the certificate of occupancy during the term of this Lease to
preclude the use of the Demised Premises as general administrative or executive
offices or to reduce the number of persons who may occupy the Demised Premises.
Tenant has inspected the premises and accepts them as is, subject to the riders
annexed hereto with respect to Owner's work, if any. In any event, Owner makes
no representation as to the condition of the premises except as otherwise
provided for in this Lease.
Bankruptcy:
16. (a) Anything elsewhere in this lease to the contrary notwithstanding, this
lease may be canceled by Owner by the sending of a written notice to Tenant
within a reasonable time after the happening of any one or more of the following
events: (1) the commencement of a case in bankruptcy or under the laws of any
state naming Tenant as the debtor, and the failure of Tenant to have such case
dismissed or vacated within ninety (90) days after the filing thereof; or (2)
the making by Tenant of an assignment or any other arrangement for the benefit
of creditors under any state statute. Neither Tenant nor any person claiming
through or under Tenant, or by reason of any statute or order of court, shall
thereafter be entitled to possession of the premises demised but shall forthwith
quit and surrender the premises. If this lease shall be assigned in accordance
with its terms, the provisions of this Article 16 shall be applicable only to
the party then owning Tenant's interest in this lease.
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(b) it is stipulated and agreed that in the event of the termination of
this lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any
other provisions of this lease to the contrary, be entitled to recover from
Tenant as and for liquidated damages an amount equal to the difference between
the rent reserved hereunder for the unexpired portion of the term demised and
the fair and reasonable rental value of the demised premises for the same
period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such premises or any
part thereof be re-let by the Owner for the unexpired term of said lease, or any
part thereof, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the amount of rent reserved upon such re-letting
shall be deemed to be the fair and reasonable rental value for the part or the
whole of the premises so re-let during the term of the re-letting. Nothing
herein contained shall limit or prejudice the right of the Owner to prove for
and obtain as liquidated damages by reason of such termination, an amount equal
to the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved, whether
or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
Default:
17. (1) If Tenant defaults in fulfilling any of the covenants of this lease or
if the demised premises are abandoned or if any execution or attachment shall be
issued against Tenant or any of Tenant's property whereupon the demised premises
shall be taken or occupied by someone other than Tenant: or if this lease be
rejected under Section 365 of Title 11 of the U.S. Code (bankruptcy code); then,
in any one or more of such events, upon Owner serving a written ten (10) days'
notice to Tenant in the case of Tenant's failure to pay rent or additional rent,
and a twenty (20) day notice with respect to any other default specifying the
nature of said default and upon the expiration of the applicable period, if
Tenant shall have failed to comply with or remedy such default, or except for a
default in the payment of rent or additional rent if the said default or
omission complained of shall be of a nature that the same cannot be completely
cured or remedied within the applicable period, and if Tenant shall not have
diligently commenced curing such default within such period, and shall not
thereafter with reasonable diligence and in good faith, proceed to remedy or
cure such default, then Owner may serve a written seven (7) days' notice of
cancellation of this lease upon Tenant, and upon the expiration of said seven
(7) days this lease and the term thereunder shall end and expire as fully and
completely as if the expiration of such seven (7) day period were the day herein
definitely fixed for the end and expiration of this lease and the term thereof
and Tenant shall then quit and surrender the demised premises to Owner but
Tenant shall remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given and
the notice and any grace period shall have expired without Tenant curing the
default in the payment of rent or additional rent or without Tenant curing or
commencing to cure (as provided for above) any other
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default and the term shall expire as aforesaid: then and in any of such events
Owner may without notice, re-enter the demised premises and dispossess Tenant by
summary proceedings and the legal representative of Tenant or other occupant of
demised premises and remove their effects and hold the premises as if this lease
had not been made, and Tenant hereby waives the service of notice of intention
to re-enter or to institute legal proceedings to that end.
Remedies of Owner and Waiver of Redemption:
18. In case of any such default, re-entry, expiration and/or dispossess by
summary proceedings or other wise, (a) the rent shall become due thereupon and
be paid up to the time of such re-entry, dispossess and/or expiration, (b) Owner
may re-let the premises or any part or parts thereof, either in the name of
Owner or otherwise, for a term or terms, which may at Owner's option be less
than or exceed the period which would otherwise have constituted the balance of
the term of this lease and may grant concessions or free rent or charge a higher
rental than that in this lease, and/or (c) Tenant or the legal representatives
of Tenant shall also pay Owner as liquidated damages for the failure of Tenant
to observe and perform said Tenant's covenants herein contained, any deficiency
between the rent hereby reserved and/or covenanted to be paid and the net
amount, if any, of the rents collected on account of the lease or leases of the
demised premises for each month of the period which would otherwise have
constituted the balance of the term of this lease. The failure of Owner to
re-let the premises or any part or parts thereof shall not release or affect
Tenant's liability for damages. In computing such liquidated damages there shall
be added to the said deficiency such expenses as Owner may incur in connection
with re-letting, such as legal expenses, reasonable attorneys' fees, brokerage,
advertising and for keeping the demised premises in good order or for preparing
the same for re-letting. Any such liquidated damages shall be paid in monthly
installments by Tenant on the rent day specified in this lease and any suit
brought to collect the amount of the deficiency for any month shall not
prejudice in any way the rights of Owner to collect the deficiency for any
subsequent month by a similar proceeding. Owner, in putting the demised premises
in good order or preparing the same for re-rental may, at Owner's option, make
such alterations, repairs, replacements, and/or decorations in the demised
premises as Owner, in Owner's sole judgement, considers advisable and necessary
for the purpose of re-letting the demised premises, and the making of such
alterations, repairs, replacements, and/or decorations shall not operate or be
construed to release Tenant from liability hereunder as aforesaid. Owner shall
in no event be liable in any way whatsoever for failure to re-let the demised
premises, or in the event that the demised premises are re-let, for failure to
collect the rent thereof under such reletting, and in no event shall Tenant be
entitled to receive any excess, if any, of such net rents collected over the
sums payable by Tenant to Owner hereunder. In the event of a breach or
threatened breach by Tenant of any of the covenants or provisions hereof, Owner
shall have the right of injunction and the right to invoke any remedy allowed at
law or in equity as if re-entry, summary proceedings and other remedies were not
herein provided for. Mention in this lease of any particular remedy, shall not
preclude Owner from any other remedy, in law or in equity. Tenant hereby
expressly waives any and all rights of redemption granted by or under any
present or future laws in
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the event of Tenant being evicted or dispossessed for any cause, or in the event
of Owner obtaining possession of demised premises, by reason of the violation by
Tenant of any of the covenants and conditions of this lease, or otherwise.
Fees and Expenses:
19. If Tenant shall default in the observance or performance of any term or
covenant on Tenant's part to be observed or performed under or by virtue of any
of the terms or provisions in any article of this lease, after notice if
required and upon expiration of any applicable grace period if any, (except in
an emergency), then, unless otherwise provided elsewhere in this lease, Owner
may immediately or at any time thereafter and without notice in the case of an
emergency, and upon five (5) days' notice in all other cases, perform the
obligation of Tenant thereunder. If Owner, in connection with the foregoing or
in connection with any default by Tenant in the covenant to pay rent hereunder,
makes any expenditures or incurs any obligations for the payment of money,
including but not limited to reasonable attorneys' fees, in instituting,
prosecuting or defending any action or proceeding, and prevails in any such
action or proceeding then Tenant will reimburse Owner for such sums so paid or
obligations incurred with interest and costs. The foregoing expenses incurred by
reason of Tenant's default shall be deemed to be additional rent hereunder and
shall be paid by Tenant to Owner within thirty (30) days of rendition of any
xxxx or statement to Tenant therefor. If Tenant's lease term shall have expired
at the time of making of such expenditures or incurring of such obligations,
such sums shall be recoverable by Owner, as damages.
Building Alterations and Management:
20. Owner shall have the right at any time without the same constituting an
eviction and without incurring liability to Tenant therefor to change the
arrangement and/or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other public parts of the building and
to change the name, number or designation by which the building may be known
provided that access to the Demised Premises and the building shall not be
impaired and reasonable advance notice is given to Tenant. Except as otherwise
provided in this Lease, there shall be no allowance to Tenant for diminution of
rental value and no liability on the part of Owner by reason of inconvenience,
annoyance or injury to business arising from Owner or other Tenants making any
repairs in the building or any such alterations, additions and improvements.
Furthermore, Tenant shall not have any claim against Owner by reason of Owner's
imposition of such controls of the manner of access to the building by Tenant's
social or business visitors as the Owner may deem necessary for the security of
the building and its occupants.
No Representations by Owner:
21. Neither Owner nor Owner's agents have made any representations or promises
with respect to the physical condition of the building, the land upon which it
is erected or the demised premises, the rents, leases, expenses of operation or
any other matter or thing affecting or related to the premises except as herein
expressly set forth and no rights, easements
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or licenses are acquired by Tenant by implication or otherwise except as
expressly set forth in the provisions of this lease. Tenant has inspected the
demised premises and is thoroughly acquainted with their condition and except as
otherwise provided in this Lease agrees to take the same "as is" but in broom
clean condition and acknowledges that the taking of possession of the demised
premises by Tenant shall be conclusive evidence that the said premises were in
good and satisfactory condition at the time such possession was so taken, except
as to latent defects. All understandings and agreements heretofore made between
the parties hereto are merged in this contract, which alone fully and completely
expresses the agreement between Owner and Tenant and any executory agreement
hereafter made shall be ineffective to change, modify, discharge or effect an
abandonment of it in whole or in part, unless such executory agreement is in
writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment, is sought.
End of Term:
22. Upon the expiration or other termination of the term of this lease, Tenant
shall quit and surrender to Owner the demised premises, broom clean, in good
order and condition, ordinary wear and damage by fire, other casualty and the
negligence or willful misconduct of Owner, its agents, employees and licensees
and damages which Tenant is not required to repair as provided elsewhere in this
lease excepted, and Tenant shall remove all its personal property. Tenant's
obligation to observe or perform this covenant shall survive the expiration or
other termination of this lease. If the last day of the term of this Lease or
any renewal thereof, falls on Sunday, this lease shall expire at 6:00 p.m. on
the preceding Saturday unless it be a legal holiday in which case it shall
expire at noon on the preceding business day.
Quiet Enjoyment:
23. Owner covenants and agrees with Tenant that upon Tenant paying the rent and
additional rent and observing and performing all the terms, covenants and
conditions, on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the premises hereby demised, subject, nevertheless, to the
terms and conditions of this lease including, but not limited to, Article 31
hereof and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
Failure to Give Possession:
24. If Owner is unable to give possession of the demised premises on the date of
the commencement of the term hereof, because of the holding-over or retention of
possession of any tenant, undertenant or occupants or if the demised premises
are located in a building being constructed, because such building has not been
sufficiently completed to make the premises ready for occupancy or because of
the fact that a certificate of occupancy has not been procured or for any other
reason, Owner shall not be subject to any liability for failure to give
possession on said date and the validity of the lease shall not be impaired
under such circumstances, nor shall the same be construed in any wise to extend
the term of this lease, but the rent payable hereunder shall be abated (provided
Tenant is not responsible
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for Owner's inability to obtain possession or complete construction) until after
Owner shall have given Tenant written notice that the Owner is able to deliver
possession in condition required by this lease. If permission is given to Tenant
to enter into the possession of the demises premises or to occupy premises other
than the demised premises prior to the date specified as the commencement of the
term of this lease, Tenant covenants and agrees that such possession and/or
occupancy shall be deemed to be under all the terms, covenants, conditions and
provisions of this lease except the obligation to pay the fixed annual rent set
forth in the preamble to this lease. The provisions of this article are intended
to constitute "an express provision to the contrary" within the meaning of
Section 223-a of the New York Real Property Law. The foregoing provisions of
this printed Article 24 shall not apply to the original premises initially
demised under this Lease.
No Waiver:
25. The failure of Owner or Tenant, as the case may be to seek redress for
violation of, or to insist upon the strict performance of any covenant or
condition of this lease or in the case of Owner of any of the Rules or
Regulations, set forth or hereafter adopted by Owner, shall not prevent a
subsequent act which would have originally constituted a violation from having
all the force and effect of an original violation. The receipt by Owner of rent
and/or additional rent with knowledge of the breach of any covenant of this
lease shall not be deemed a waiver of such breach and no provision of this lease
shall be deemed to have been waived by Owner or Tenant, as the case may be
unless such waiver be in writing signed by Owner or Tenant, as the case may be.
No payment by Tenant or receipt by Owner of a lesser amount than the monthly
rent herein stipulated shall be deemed to be other than on account of the
earliest stipulated rent, nor shall any endorsement or statement of any check or
any letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Owner may accept such check or payment without prejudice to
Owner's right to recover the balance of such rent or pursue any other remedy in
this lease provided. No act or thing done by Owner or Owner's agents during the
term hereby demised shall be deemed an acceptance of a surrender of said
premises, and no agreement to accept such surrender shall be valid unless in
writing signed by Owner. No employee of Owner or Owner's agent shall have any
power to accept the keys of said premises prior to the termination of the lease
and the delivery of keys to any such agent or employee shall not operate as a
termination of the lease or a surrender of the premises.
Waiver of Trial by Jury:
26. It is mutually agreed by and between Owner and Tenant that the respective
parties hereto shall and they hereby do waive trial by jury in any action
proceeding or counterclaim brought by either of the parties hereto against the
other (except for personal injury or property damage) on any matters whatsoever
arising out of or in any way connected with this lease, the relationship of
Owner and Tenant, Tenant's use of or occupancy of said premises, and any
emergency statutory or any other statutory remedy. It is further mutually agreed
that in the event Owner commences any proceeding or action for possession
including a summary proceeding for possession of the premises. Tenant will not
interpose any counterclaim of
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whatever nature or description in any such proceeding including a counterclaim
under Article 4 except for statutory mandatory counterclaims.
Inability to Perform:
27. This Lease and the obligation of Tenant to pay rent hereunder and perform
all of the other covenants and agreements hereunder on part of Tenant to be
performed shall in no wise be affected, impaired or excused because Owner is
unable to fulfill any of its obligations under this lease or to supply or is
delayed in supplying any service expressly or impliedly to be supplied or is
unable to make, or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment,
fixtures, or other materials if Owner is prevented or delayed from so doing by
reason of strike or labor troubles or any cause beyond Owner's reasonable
control including, but not limited to, government preemption or restrictions or
by reason of any rule, order or regulation of any department or subdivision
thereof of any government agency or by reason of the conditions which have been
or are affected, either directly or indirectly, by war or other emergency. The
lack of funds shall not be deemed to be a cause beyond any party's control.
Bills and Notices:
28. Except as otherwise in this lease provided, a xxxx, statement, notice or
communication which Owner may desire or be required to give to Tenant, shall be
deemed sufficiently given or rendered if, in writing, delivered to Tenant
personally, with receipt acknowledged, or sent by registered or certified mail,
return receipt requested, addressed to Tenant at the building of which the
demised premises form a part or at the last known residence address or business
address of Tenant or left at any of the aforesaid premises addressed to Tenant
and with a copy of notices to Tenant to Xx. Xxxxx Xxxxxx, Chairman at the
Demised Premises, and a copy to Xxx Xxxxxxxxxxx, Esq., Xxxxxx, Xxxxxxxxx &
Xxxxxxxxxxx LLP, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx and the time
of the rendition of such xxxx or statement and of the giving of such notice or
communication shall be deemed to be the time when the same is delivered to
Tenant if delivered personally, or three (3) business days after mailing, if
sent by certified mail. Any notice by Tenant to Owner must be served personally
with receipt acknowledged or by registered or certified mail, return receipt
requested, addressed to Owner at the address first hereinabove given or at such
other address as Owner shall designate by written notice.
Services Provided by Owners:
29. Owner at its expense shall provide: (a) necessary elevator facilities on
business days from 8 a.m. to 6 p.m. and have one elevator subject to call at all
other times; (b) heat to the demised premises when and as required by law, on
business days from 8 a.m. to 6 p.m.; (c) water for ordinary cleaning and
lavatory purposes, but if Tenant uses or consumes water for any other purposes
or in unusual quantities (of which fact Owner shall be the sole judge). Owner
may install a water meter at Tenant's expense which Tenant shall thereafter
maintain at Tenant's expense in good working order and repair to register such
water consumption and Tenant shall pay for water consumed as shown on said meter
as additional rent as
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and when bills are rendered. Said premises are to be kept clean by Tenant, it
shall be done at Tenant's sole expense, in a manner reasonably satisfactory to
Owner and no one other than persons approved by Owner shall be permitted to
enter said premises or the building of which they are a part for such purpose.
Tenant shall pay Owner the cost of removal of any of Tenant's refuse and rubbish
from the building; (d) Owner reserves the right to stop services of the heating,
elevators, plumbing, air-conditioning, electric, power systems or cleaning or
other services, if any, when necessary by reason of accident or for repairs,
alterations, replacements or improvements necessary or desirable in the judgment
of Owner for as long as may be reasonably required by reason thereof. If the
building of which the demised premises are a part supplies manually operated
elevator service. Owner at any time may substitute automatic control elevator
service and proceed diligently with alterations necessary therefor without in
any wise affecting this lease or the obligation of Tenant hereunder.
Captions:
30. The Captions are inserted only as a matter of convenience and for reference
and in no way define, limit or describe the scope of this lease nor the intent
of any provisions thereof.
Definitions:
31. The term "office", or "offices", wherever used in this lease, shall not be
construed to mean premises used as a store or stores, for the sale or display,
at any time, of goods, wares or merchandise, of any kind, or as a restaurant,
shop, booth, bootblack or other stand, xxxxxx shop, or for other similar
purposes or for manufacturing. The term "Owner" means a landlord or lessor, and
as used in this lease means only the owner, or the mortgagee in possession, for
the time being of the land and building (or the owner of a lease of the building
or of the land and building) of which the demised premises form a part, so that
in the event of any sale or sales of said land and building or of said lease, or
in the event of a lease of said building, or of the land and building, the said
Owner shall be and hereby is entirely freed and relieved of all covenants and
obligations of Owner hereunder except in the performance of work which Owner
shall have approved pursuant to the provisions of this Lease and it shall be
deemed and construed without further agreement between the parties or their
successors in interest, or between the parties and the purchaser, at any such
sale, or the said lessee of the building, or of the land and building, that the
purchaser or the lessee of the building has assumed and agreed to carry out any
and all covenants and obligations of Owner, hereunder except in the performance
of work which Owner shall have approved pursuant to the provisions of this
Lease. The words "re-enter" and "re-entry" as used in this lease are not
restricted to their technical legal meaning. The term "business days" as used in
this lease shall exclude Saturdays, Sundays and all days as observed by the
State or Federal Government as legal holidays and those designated as holidays
by the applicable building service union employees service contract or by the
applicable Operating Engineers contract with respect to HVAC service. Wherever
it is expressly provided in this lease that consent shall not be unreasonably
withheld, such consent shall not be unreasonably delayed.
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Adjacent Excavation-Shoring:
32. If an excavation shall be made upon land adjacent to the demised premises,
or shall be authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the demised premises
for the purpose of doing such work as said person shall deem necessary to
preserve the wall or the building of which demised premises form a part from
injury or damage and to support the same by proper foundations without any claim
for damages or indemnity against Owner, or diminution or abatement of rent.
Rules and Regulations:
33. Tenant and Tenant's servants, employees, agents, visitors, and licensees
shall observe faithfully, and comply with, the Rules and Regulations and such
other and further reasonable Rules and Regulations as Owner or Owner's agents
may from time to time adopt. Notice of any additional rules or regulations shall
be given pursuant to Article 28 of this Lease. In case Tenant disputes the
reasonableness of any additional Rule or Regulation hereafter made or adopted by
Owner or Owner's agents, the parties hereto agree to submit the question of the
reasonableness of such Rule or Regulation for decision to the New York office of
the American Arbitration Association, whose determination shall be final and
conclusive upon the parties hereto. The right to dispute the reasonableness of
any additional Rule or Regulation upon Tenant's part shall be deemed waived
unless the same shall be asserted by service of a notice, in writing upon Owner
within fifteen (15) days after the giving of notice thereof. Nothing in this
lease contained shall be construed to impose upon Owner any duty or obligation
to enforce the Rules and Regulations or terms, covenants or conditions in any
other lease, as against any other tenant and Owner shall not be liable to Tenant
for violation of the same by any other tenant, its servants, employees, agents,
visitors or licensees.
Estoppel Certificate:
34. Tenant, at any time, and from time to time, upon at least 10 days' prior
notice by Owner, shall execute, acknowledge and deliver to Owner, and/or to any
other person, firm or corporation specified by Owner, a statement certifying
that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications), stating the dates to which the rent and additional
rent have been paid, and stating whether or not there exists any default by
Owner under this Lease, and, if so, specifying each such default.
Successors and Assigns:
35. The covenants, conditions and agreements contained in this lease shall bind
and inure to the benefit of Owner and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this lease, their assigns. Tenant shall look only to Owner's estate
and interest in the land and building, for the satisfaction of Tenant's remedies
for the collection of a judgment (or other judicial process) against Owner in
the event of any default by Owner hereunder, and
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no other property or assets of such Owner (or any partner, member, officer or
director thereof, disclosed or undisclosed), shall be subject to levy, execution
or other enforcement procedure for the satisfaction of Tenant's remedies under
or with respect to this lease, the relationship of Owner and Tenant hereunder,
or Tenant's use and occupancy of the demised premises.
SEE RIDER ATTACHED TO AND MADE A PART HEREOF.
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
Witness for Owner: A & R REAL ESTATE, INC.
By: /s/ Signature Illegible By: /s/ Signature Illegible
President
Witness for Tenant: XXXXXX COMMUNICATIONS INC.
By: /s/ Signature Illegible By: /s/ X. X. Xxxxxx
President
ACKNOWLEDGMENTS
CORPORATE OWNER STATE OF NEW YORK, ss.:
COUNTY OF
On this day of ____________, 19 before me personally came _______________ to
me known, who being by me duly sworn, did depose and say that he resides in
_______________; that he is the ______________ of ________________ the
corporation described in and which executed the foregoing instrument, as OWNER;
that he knows the seal of said corporation; the seal affixed to said instrument
is such corporate seal; that it was so affixed by order of the Board of
Directors of said corporation, and that he signed his name thereto by like
order.
_________________________________
CORPORATE TENANT STATE OF NEW YORK, ss.:
COUNTY OF
On this day of ____________, 19 before me personally came _______________ to
me known, who being by me duly sworn, did depose and say that he resides in
___________; that he is the ______________ of ________________ the corporation
described in and which executed the foregoing instrument, as OWNER; that he
knows the seal of said corporation; the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation, and that he signed his name thereto by like order.
_________________________________
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INDIVIDUAL OWNER STATE OF NEW YORK, ss.:
COUNTY OF
On this ___ day of __________ 19__, before me personally came _____________ to
me known and known to me to be the individual described in and who, as OWNER,
executed the foregoing instrument and acknowledged to me that he executed the
same.
__________________________________
INDIVIDUAL TENANT STATE OF NEW YORK, ss.:
COUNTY OF
On this ___ day of __________ 19__, before me personally came _____________ to
me known and known to me to be the individual described in and who, as TENANT,
executed the foregoing instrument and acknowledged to me that he executed the
same.
__________________________________
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GUARANTY
FOR VALUE RECEIVED, and in consideration for, and as an
inducement to Owner making the within lease with Tenant, the undersigned
guarantees to Owner, Owner's successors and assigns, the full performance and
observance of all the covenants, conditions and agreements, therein provided to
be performed and observed by Tenant, including the "Rules and Regulations" as
therein provided, without requiring any notice of non-payment, non-performance,
or non-observance, or proof, or notice, or demand, whereby to charge the
undersigned therefor, all of which the undersigned hereby expressly waives and
expressly agrees that the validity of this agreement and the obligations of the
guarantor hereunder shall in no wise be terminated, affected or impaired by
reason of the assertion by Owner against Tenant of any of the rights or remedies
reserved to Owner pursuant to the provisions of the within lease. The
undersigned further covenants and agrees that this guaranty shall remain and
continue in full force and effect as to any renewal, modification or extension
of this lease and during any period when Tenant is occupying the premises as a
"statutory tenant." As a further inducement to Owner to make this lease and in
consideration thereof. Owner and the undersigned covenant and agree that in any
action or proceeding brought by either Owner or the undersigned against the
other on any matters whatsoever arising out of, under, or by virtue of the terms
of this lease or of this guarantee that Owner and the undersigned shall and do
hereby waive trial by jury.
Dated: 19
Guarantor
Witness
Guarantor's Residence
Business Address
Firm Name
STATE OF NEW YORK ) ss
COUNTY OF )
On this ___ day of ____________ 19__ before me personally came
________________________ to me known and known to me to be the individual
described in, and who executed the foregoing Guaranty and acknowledged to me
that he executed the same
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Notary
IMPORTANT - PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND
MADE A PART OF THIS LEASE
IN ACCORDANCE WITH ARTICLE 33.
1. The sidewalks, entrances, driveways, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by any
Tenant or used for any purpose other than for ingress or egress from the demised
premises and for delivery of merchandise and equipment in a prompt and efficient
manner using elevators and passageways designated for such delivery by Owner.
There shall not be used in any space, or in the public hall of the building,
either by any Tenant or by jobbers or others in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires and
sideguards. If said premises are situated on the ground floor of the building.
Tenant thereof shall further, at Tenant's expense, keep the sidewalk and curb in
front of said premises clean and free from ice, snow, dirt and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for any
purposes other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any window of
the building and no Tenant shall sweep or throw or permit to be swept or thrown
from the demised premises any dirt or other substances into any of the corridors
or halls, elevators, or out of the doors or windows or stairways of the building
and Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the demised premises, or permit or suffer the demised
premises to be occupied or used in a manner offensive or objectionable to Owner
or other occupants of the building by reason of noise, odors, and/or vibrations,
or interfere in any way with other Tenants or those having business therein, nor
shall any bicycles, vehicles, animals, fish, or birds be kept in or about the
building. Smoking or carrying lighted cigars or cigarettes in the elevators of
the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls of the
building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
building or on the inside of the demised premise if the same is visible from the
outside of the premises without the prior written consent of Owner, except that
the name of Tenant may appear on the entrance door of the premises. In the event
of the violation of the foregoing by any Tenant. Owner may remove same without
any liability, and may charge the expense
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incurred by such removal to Tenant or Tenants violating this rule.
6. No Tenant shall xxxx, paint, drill into, or in any way deface any part of the
demised premises or the building of which they form a part except in the
performance of work which Owner shall have approved pursuant to the provisions
of this Lease. No boring, cutting or stringing of wires shall be permitted,
except with the prior written consent of Owner which consent shall not be
unreasonably withheld or delayed. No Tenant shall lay linoleum, or other similar
floor covering, so that the same shall come in direct contact with the floor of
the demised premises, and, if linoleum or other similar floor covering is
desired to be used an interlining of builder's deadening felt shall be first
affixed to the floor, by a paste or other material, soluble in water, the use of
cement or other similar adhesive material being expressly prohibited.
7. Each Tenant must, upon the termination of his Tenancy, restore to Owner all
keys of stores, offices and toilet rooms, either furnished to, or otherwise
procured by, such Tenant, and in the event of the loss of any keys, so
furnished, such Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter of any
description shall be delivered to and removed from the premises only on the
freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease or which these Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited and each
Tenant shall cooperate in prevent the same.
10. Owner reserves the right to exclude from the building all persons who do not
present a pass to the building signed by Owner. Owner will furnish passes to
persons for whom any Tenant requests same in writing. Each Tenant shall be
responsible for all persons for whom he requests such pass and shall be liable
to Owner for all acts of such persons. Tenant shall not have a claim against
Owner by reason of Owner excluding from the building any person who does not
present such pass.
11. Tenant shall not bring or permit to be brought or kept in or on the demised
premises, any inflammable, combustible, explosive, or hazardous fluid, material,
chemical or substance, or cause or permit any odors of cooking or other
processes, or any unusual or other objectionable odors to permeate in or emanate
from the demised premises.
12. Tenant shall not move any safe, heavy machinery, heavy equipment, bulky
matter, or fixtures into or out of the building without Owner's prior written
consent. If such safe, machinery, equipment, bulky matter or fixtures requires
special handling, all work in connection therewith shall comply with the
Administrative Code of the City of New York and all other laws and regulations
applicable thereto and shall be done during such hours as Owner may designate.
13. Refuse and Trash. (1) Compliance by Tenant. Tenant covenants and
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agrees, at its sole cost and expense, to comply with all present and future
laws, orders, and regulations of all state, federal, municipal, and local
governments, departments, commissions and boards regarding the collection,
sorting, separation and recycling of waste products, garbage, refuse and trash.
Tenant shall sort and separate such waste products, garbage, refuse and trash
into such categories as provided by law. Each separately sorted category of
waste products, garbage, refuse and trash shall be placed in separate
receptacles reasonably approved by Owner. Such separate receptacles may, at
Owner's option, be removed from the demised premises in accordance with a
collection schedule prescribed by law. Tenant shall remove, or cause to be
removed by a contractor acceptable to Owner, at Owner's sole discretion, such
items as Owner may expressly designate. (2) Owner's Rights in Event of
Noncompliance. Owner has the option to refuse to collect or accept from Tenant
waste products, garbage, refuse or trash (a) that is not separated and sorted as
required by law or (b) which consists of such items as Owner may expressly
designate for Tenant's removal, and to require Tenant to arrange for such
collection at Tenant's sole cost and expense, utilizing a contractor
satisfactory to Owner. Tenant shall pay all costs, expenses, fines, penalties,
or damages that may be imposed on Owner or Tenant by reason of Tenant's failure
to comply with the provisions of this Building Rule 15, and, at Tenant's sole
cost and expense, shall indemnity, defend and hold Owner harmless (including
reasonable legal fees and expenses) from and against any actions, claims and
suits arising from such noncompliance, utilizing counsel reasonably satisfactory
to Owner.
[CHART OMITTED]
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RIDER ANNEXED TO LEASE DATED MAY 9, 1997 BETWEEN A & R REAL ESTATE,
INC., AS OWNER, AND XXXXXX COMMUNICATIONS INC., AS TENANT.
37. RIDER PROVISIONS PREVAIL:
------------------------
If and to the extent that any of the provisions of this Rider conflict
or are otherwise inconsistent with any of the preceding provisions of this
lease, the provisions of this Rider shall prevail.
38. OWNER'S WORK:
------------
(a) Owner and Tenant shall comply with the terms and conditions of the
"Building Standard Work Letter" attached to and made a part of this Lease as
Exhibit A with respect to the preparation of the Demised Premises for Tenant's
occupancy. Reference to "Landlord" in Exhibit A shall be deemed to refer to
Owner. Reference to "Owner's Work" means the work described as Landlord's Work
on Exhibit A. The terms and conditions of Exhibit A shall control with respect
to the performance of Owner's Work and "Tenant's Work" (as defined in Exhibit
A). Owner's Work shall be performed in accordance with applicable legal
requirements in a good and workmanlike manner. Other than the existing
air-conditioning units servicing the Demised Premises, all equipment installed
and materials used as part of Owner's Work shall be new.
(b) If Owner shall not substantially complete Owner's Work by December
31, 1997 (the "Outside Date"), Tenant may elect to terminate this Lease by
giving notice to Owner within forty-five (45) days after that right to terminate
shall arise. Upon any such termination, neither party shall have any further'
rights or obligations hereunder except that Owner shall return any rent which
may have been prepaid by Tenant. The Outside Date shall be extended for the
period of any delay in the commencement of or performance of Owner's Work caused
by Tenant, its agent, employees or contractors, including changes and
substitutions requested by Tenant and Tenant's failure to deliver the plans and
specifications required by Part B of Exhibit A - Part I by the "Submission Date"
(as defined therein).
(c) Within thirty (30) days following Delivery of Possession (as
defined below), Tenant shall prepare and deliver to Landlord a punch list
setting forth any deficiencies or defects in Owner's Work. Upon receipt of that
list, Owner shall correct any such defects or deficiencies. Provided that Tenant
shall deliver such a punch list within that thirty (30) day period, Owner shall
correct any defects in Owner's Work which shall arise within one (1) year
following Delivery of Possession. The foregoing warranty shall not apply to the
ceiling at the Demised Premises if Tenant shall require an open ceiling plan.
39. BASIC BUILDING WORK:
-------------------
In addition to Owner's Work, Owner agrees to perform certain work at
other portions of the Building outside of the Demised Premises in accordance
with a work schedule established by Owner. Such other work is described as the
"Basic Building Work" and is listed on Exhibit B attached to and made a part of
this Lease. Owner shall substantially complete the
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installation of the thermopane windows at the Demised Premises by August 1,
1997. Owner shall complete its renovation of the lobby of the building by
December 31, 1997. If Owner fails to substantially complete the renovation of
the lobby of the Building by December 31, 1997, from and after that date and
until the renovation of the lobby shall be substantially completed, the fixed
annual rent payable hereunder shall be reduced by ten (10%) percent.
40. TERM, COMMENCEMENT AND EXPIRATION DATES:
---------------------------------------
A. The "Commencement Date" of the term of this lease shall be the date
of Delivery of Possession of the Demised Premises.
B. The "Expiration Date" of this lease shall be October 31, 2007. If
this lease is canceled before the "Expiration Date", the effective date of
cancellation shall be the "Expiration Date".
C. "Lease Year" means each period of twelve (12) consecutive months
occurring within the Term of this Lease except that if the Commencement Date is
not the first day of a month, the first Lease Year shall consist of the partial
calendar month in which the Term commenced together with the next twelve (12)
full calendar months and except that the last Lease Year shall end on the
Expiration Date.
41. DELIVERY OF POSSESSION AND ENTRY BY TENANT:
------------------------------------------
A. Delivery of Possession shall occur when Owner shall notify Tenant
that Owner's Work is substantially complete and that the Tenant may take
possession of the Demised Premises.
B. Subject to the provisions set forth below, when Owner's Work has
progressed sufficiently in Owner's reasonable judgment to permit Tenant to do
so, and provided that in Owner's judgment entry and performance of work by
Tenant shall not interfere with or delay the performance of Owner's Work or
result in a possible or threatened work stoppage, labor dispute or labor
difficulty of any nature, Tenant may enter the Demised Premises prior to
Delivery of Possession for the purpose of wiring and/or cables for Tenant's
telephone and computer systems. If after any such entry by Tenant, a delay or
interference with Owner's Work, a work stoppage or labor dispute or difficulty
of any kind shall occur or be threatened, Tenant shall be required to cease such
work and activities. Tenant shall be responsible for any damage to any portion
of the Demised Premises and Owner's Work arising as a result of Tenant's entry
or the activities of Tenant, its contractors or their respective employees.
Except for the payment of rent, any such entry by Tenant shall be subject to all
of the terms and conditions of this Lease.
42. ESCALATION FOR WAGE RATES:
-------------------------
A. For the purposes of this lease:
1. The term "Escalation Year" shall mean each calendar year
which shall include any part of the term of this Lease.
2. The term "R.A.B." shall mean the Realty Advisory Board on
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Labor Relations, Incorporated, or its successor.
3. The term "Local 32B" shall mean Local 32B-32J of the
Building Service Employees International Union, AFL-CIO, or its successor.
4. The term "Class A Office Buildings" shall mean office
buildings in the Class A category under the building operating agreement between
R.A.B. and Local 32B.
5. The term "Wage Rates" with respect to any Escalation Year
shall mean the regular average hourly wage rate, exclusive of fringe benefits,
required to be paid to Porters in Class A Office Buildings pursuant to any
agreement between R.A.B. and Local 32B in effect during such Escalation Year,
provided that if any such agreement shall require Porters to be regularly
employed on days or during hours when overtime or other premium pay rates are in
effect, then the term "regular average hourly wage rate" shall mean the regular
average hourly wage rate for the hours in a calendar week which Porters are
required to be regularly employed (whether or not actually at work in the
building). If there is no such agreement in effect as of the date of Owner's
Statement on which such regular average hourly wage rate is determinable, the
computations shall be made on the basis of the regular average hourly wage rate
being paid by Owner or by the contractor performing xxxxxx or cleaning services
for Owner as of the date of such Owner's Statement and appropriate retroactive
adjustments shall be made when the regular average hourly wage rate paid as of
such Owner's Statement is finally determined. If length of service shall be a
factor in determining the wage rate, it shall be conclusively presumed that all
employees have five (5) or more years of service.
6. The term "Porters" shall mean that classification of
employee engaged in the general maintenance and operation of Class A Office
Buildings most nearly comparable to the classification now applicable to porters
in the current agreements between R.A.B. and Local 32B (which classification is
presently termed "others" in said agreement).
B. 1. Commencing on the first anniversary of the Commencement Date and
thereafter during the Term, for each Escalation Year or partial Escalation Year
occurring during the term of this Lease, Tenant shall pay ("Tenant's Operating
Payment") a sum equal to 25,000 multiplied by the number of cents (inclusive of
any fractions of a cent) of any increase in Wage Rates above those in effect as
of December 31, 1997. Any such payment shall be effective as of, and retroactive
to, if necessary, the date of such increase in Wage Rates.
2. Owner shall furnish to Tenant, prior to the commencement of
each Escalation Year, a written statement setting forth Owner's estimate of
Tenant's Operating Payment for such Escalation Year. Tenant shall pay to Owner
on the first day of each month during such Escalation Year an amount equal to
one-twelfth (1/12th) of Owner's estimate of Tenant's Operating Payment for such
Escalation Year. The Owner's estimate shall be based upon the published Wage
Rate, if any, for the new Escalation Year. If the Wage Rate for the new
Escalation Year shall not be known, then Owner's estimate may not exceed one
hundred eight (108%) percent of Tenant's Operating Payment for the immediately
prior Escalation Year. If, however, Owner shall
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furnish any such estimate for an Escalation Year subsequent to the commencement
thereof, then (a) until the first day of the month following the month in which
such estimate is furnished to Tenant, Tenant shall pay to Owner on the first day
of each month an amount equal to the monthly sum payable by Tenant to Owner
under this Section in respect of the last month of the preceding Escalation
Year; (b) promptly after such estimate is furnished to Tenant or together
therewith, Owner shall give notice to Tenant stating whether the installments of
Tenant's Operating Payment previously made for such Escalation Year were greater
or less than the installments of the Tenant's Operating Payment to be made for
such Escalation Year in accordance with such estimate, and (i) if there shall be
a deficiency, "Tenant shall pay the amount thereof within thirty (30) days after
demand therefor, or (ii) if there shall have been an overpayment, Owner shall
either refund to Tenant the amount thereof or permit Tenant to credit the amount
thereof against subsequent rent payments until Tenant is reimbursed; and (c) on
the first day of the month following the month in which such estimate is
furnished to Tenant, and monthly thereafter throughout the remainder of such
Escalation Year, Tenant shall pay to Owner an amount equal to one-twelfth
(1/12th) of Tenant's Operating Payment shown on such estimate. Owner may at any
time or from time to time furnish to Tenant a revised statement of Owner's
estimate of Tenant's Operating Payment for such Escalation Year; and in such
case, Tenant's Operating Payment for such Escalation Year shall be adjusted and
paid or refunded, as the case may be, substantially in the same manner as
provided in the preceding sentence.
3. Within ninety (90) days after the end of each Escalation
Year, Owner shall furnish to Tenant a Owner's Statement for such Escalation
Year. If the Owner's Statement shall show that the sums paid by Tenant under
this Section exceeded Tenant's Operating Payment paid by Tenant for such
Escalation Year, Owner shall either refund to Tenant the amount of such excess
or permit Tenant to credit the amount of such excess against subsequent rent
payments until Tenant is reimbursed; and if the Owner's Statement for such
Escalation Year shall show that the sums so paid by Tenant were less than
Tenant's Operating Payment paid by Tenant for such Escalation Year, Tenant shall
pay the amount of such deficiency within thirty (30) days after demand therefor.
4. The computation under this Article is intended to
constitute a formula for an agreed rental escalation and may or may not
constitute an actual reimbursement to Owner for its costs and expenses paid by
Owner with respect to the building.
5. If the first anniversary of the Commencement Date or if the
Expiration Date shall occur on a date other than January 1 or December 31,
respectively, any additional rent under this Article for the Escalation Year in
which the first anniversary of the Commencement Date or Expiration Date shall
occur shall be apportioned in that percentage which the number of days in the
period from the first anniversary of the Commencement Date to December 31 or
from January 1 to the Expiration Date, as the case may be, both inclusive, shall
bear to the total number of days in such Escalation Year. In the event of a
termination of this Lease, any additional rent under this Article shall be paid
or adjusted within thirty (30) days after submission of a Owner's Statement. In
no event shall fixed
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rent ever be reduced by operation of this Article and the rights an obligations
of Owner and Tenant under the provisions of this Article with respect to any
additional rent shall survive the termination of this Lease.
C. Owner's failure to render Owner's Statement with respect to any
Escalation Year shall not prejudice Owner's right to thereafter render a Owner's
Statement with respect thereto or with respect to any subsequent Escalation
Year. Nothing herein contained shall restrict Owner from issuing Owner's
Statement at any time there is an increase in Wage Rates during any Escalation
year or any time thereafter. Notwithstanding the foregoing, if Owner fails to
render Owner's Statement for any Escalation Year for more than three (3) years
after the statement shall be due, Owner shall be precluded from thereafter
rendering Owner's Statement with respect to that Escalation Year and Tenant
shall not be required to pay any deficiency with respect to that Escalation
Year.
D. Within ninety (90) days following receipt of Owner's Statement for
any Escalation Year, Tenant shall have the right to dispute the correctness of
and method in which Tenant's Operating Payment for that Escalation Year was
determined. If Tenant shall elect to do so, Tenant shall nevertheless be
obligated to pay Tenant's Operating Payments pursuant to Landlord's Statement
until the dispute is resolved. Tenant shall be entitled to inspect Owner's
records with respect to the calculation of Tenant's Operating Payment. If the
parties are unable to resolve any such dispute, upon the request of a party, the
parties shall submit the dispute to arbitration before the New York City office
of the American Arbitration Association. The cost of the arbitration, including
actual out-of-pocket attorneys' fees, shall be borne entirely by the party
against whom the arbitrator shall decide. The finding of the arbitrator shall be
binding upon the parties. Notwithstanding anything to the contrary, Tenant shall
have no right to elect to resolve any such dispute by arbitration and Landlord
shall not be required to do so if Tenant shall be in default in the payment of
fixed rent, additional rent or in default of any other material obligation under
the Lease beyond any applicable cure period either at the time a dispute shall
arise, at the time the election to arbitrate is sought to be made by Tenant, or
at the time an arbitration is scheduled to commence.
43. ESCALATION FOR INCREASE IN REAL ESTATE TAXES:
--------------------------------------------
A. As used herein:
1. "Taxes" shall mean all real estate taxes, assessments,
sewer and water rents, governmental levies, municipal taxes, county taxes or any
other governmental charge, general or special, ordinary or extraordinary,
unforeseen as well as foreseen, of any kind or nature whatsoever, which are or
may be assessed, levied or imposed upon all or any part of the land known as and
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, the Building, and the
sidewalks or streets in front of or adjacent thereto, including any tax, excise
or fee measured by or payable with respect to any rent, and levied against Owner
and/or land and building under the laws of the United States, the State of New
York, or any political subdivision thereof, or by the City of New York, or any
political subdivision thereof. Except as provided for below, "Taxes" shall not
include income, franchise,
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estate, capital gains, recording, transfer, excise, occupancy, gift, capital
stock or inheritance taxes of Owner or any penalties or interest due to a late
payment. If, due to a future change in the method of taxation or in the taxing
authority, a new or additional real estate tax, or a franchise, income, transit,
profit or other tax or governmental imposition, however designated, shall be
levied against Owner and/or the land and building, in addition to, or in
substitution in whole or in part of any tax which would constitute "Taxes", or
in lieu of additional Taxes, such tax or imposition shall be deemed for the
purposes hereof to be included within the term "Taxes" provided that any such
Taxes are calculated as if the Building was Owner's sole asset.
2. "Tax Year" shall mean each period of twelve (12) months,
commencing on the first day of July, which occurs in whole or in part of the
term of this lease.
3. "Base Tax" shall mean the Taxes for the twelve (12) month
period commencing July 1, 1997 and ending June 30, 1998 (the "Base Tax Year").
4. "Tenant's Proportionate Share" means ten (10%) percent.
B. If the Taxes for any Tax Year or portion of a Tax Year shall be
greater than the Base Tax, Tenant shall pay as additional rent for such Tax Year
a sum equal to Tenant's Proportionate Share of the amount by which the Taxes for
such Tax Year are greater than the Base Tax (which amount is hereinafter called
the "Tax Payment") within thirty (30) days after Owner renders its xxxx
accompanied by a photocopy of the current real estate tax xxxx. Owner shall not
be required to send a copy of a tax xxxx more than one time each year. Should
this lease terminate prior to the expiration of a Tax Year, such Tax Payment
shall be prorated to, and shall be payable on, or as and when ascertained after,
the Expiration Date as the case may be. Tenant's obligation to pay such
additional rent shall survive the termination of this lease for up to fifteen
(15) months. If the Taxes for any Tax Year subsequent to the Base Tax Year, or
an installation thereof, shall be reduced before such Taxes, or such
installment, shall be paid, the amount of Owner's reasonable costs and expenses
of obtaining such reduction (but not exceeding the amount of such reduction)
shall be added to and be deemed part of the Taxes for such Tax Year. Payment of
additional rent for any Tax Payment due from Tenant shall be made as and subject
to the conditions hereinafter provided in this Article.
C. Only Owner shall be eligible to institute proceedings to contest the
Taxes or reduce the assessed valuation of the land and Building. Owner shall be
under no obligation to contest the Taxes or the assessed valuation of the land
and the building for any Tax Year or to refrain from contesting the same, and
may settle any such contest on such terms as Owner in its sole judgment
considers proper. If Owner shall receive a refund for any Tax Year for which a
Tax Payment shall have been made by Tenant pursuant to Paragraph B above, Owner
shall repay to Tenant, with reasonable promptness but not exceeding thirty (30)
days, the lesser of (i) Tenant's Proportionate Share of such refund after
deducting from such refund the reasonable costs and expenses (including experts'
and attorneys' fees) of obtaining such refund or (ii) the applicable Tax Payment
made by Tenant
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less Tenant's proportionate share of such costs and expenses in obtaining that
refund. If the assessment for the Base Tax Year shall be reduced from the amount
originally imposed after Owner shall have rendered a comparative statement (as
provided in Paragraph D below) to Tenant with respect to a Tax Year, the amount
of the Tax Payment shall be adjusted in accordance with such change and Tenant,
on Owner's demand, shall pay any increase in additional rent resulting from such
adjustment.
D. At any time during or prior to a Tax Year after the Taxes for such
Tax Year become known, Owner may, or else with reasonable promptness after the
end of each Tax Year, Owner shall render to Tenant a comparative statement
showing the amount of the Base Tax, the amount of the Taxes for such Tax Year
and the Tax Payment, if any, due from Tenant for such Tax Year and indicating in
reasonable detail the computation of such Tax Payment. The Tax Payment shown on
such comparative statement may, at Owner's option, be payable in full within
twenty (20) days prior to the due date of such taxes or in monthly installments
as Owner may determine. Tenant shall pay the Tax Payment shown on such
comparative statement (or the balance of a proportionate installment thereof, if
only an installment is due) concurrently with the installment of fixed rent then
or next due. However, if such statement shall be rendered at or after the
termination of this lease the total Tax Payment shall be payable within thirty
(30) days after such rendition.
E. Owner's failure during the lease term to prepare and deliver any tax
statements or bills, or Owner's failure to make a demand under this Article or
under any other provision of this lease shall not in any way be deemed to be a
waiver of, or cause Owner to forfeit or surrender, its rights to collect any
items of additional rent which may have become due pursuant to this Article
provided, however, Owner may not render a xxxx for any Tax Year which has
occurred more than three (3) full tax years prior to the time Owner shall first
seek to render Owner's xxxx. Owner's obligation to refund any overpayments shall
survive the expiration or sooner termination of this lease.
F. In no event shall any adjustment of Tax Payments hereunder result in
a decrease in the fixed rent or additional rent payable pursuant to any other
provision of this lease, it being agreed that the payment of additional rent
under this Article is an obligation supplemental to Tenant's obligation to pay
fixed rent except for any refund or credit due to Tenant on account of Taxes
paid by Tenant.
G. If Tenant shall dispute the accuracy of any xxxx submitted by Owner
pursuant to this rider Article 43, Tenant shall nevertheless be obligated to pay
the amount which has been billed by Owner. If the parties are unable to resolve
the dispute, upon the request of a party, the parties shall submit the dispute
to arbitration before the New York City office of the American Arbitration
Association. The cost of the arbitration, including actual out-of-pocket
attorneys' fees, shall be borne entirely by the party against whom the
arbitrator shall decide. The finding of the arbitrator shall be binding upon the
parties. Notwithstanding anything to the contrary, Tenant shall have no right to
elect to resolve any such dispute by arbitration and Landlord shall not be
required to do so if Tenant shall be in default in the payment of fixed rent,
additional rent or
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in default of any other material obligation under the Lease beyond any
applicable cure period either at the time a dispute shall arise, at the time the
election to arbitrate is sought to be made by Tenant, or at the time an
arbitration is scheduled to commence.
H. Notwithstanding the foregoing, Tenant shall not have the obligation
to pay any increases in Taxes arising from an expansion of the Building.
44. ELECTRICITY:
-----------
A. Electricity shall be supplied to the Demised Premises in accordance
with the provisions of Paragraph B of this Article.
B. 1. Electricity shall be supplied by Owner to service the Demised
Premises on a submetering basis. Tenant shall pay to Owner, as additional rent,
the sum of (a) the "actual out-of-pocket cost of Owner to supply electric
current to the Demised Premises" plus (b) five (5%) percent of Owner's actual
cost (which sum is referred to herein as "Electrical Charges"). For the purposes
hereof, Owner's actual out-of-pocket cost to supply electrical service to the
Demised Premises include the actual cost of the electricity as recorded on the
submeter or submeters servicing the Demised Premises, any fuel adjustments
relating to the cost of such electricity that may be billed to Owner, any
special assessments, sales or other taxes or charges imposed by any governmental
authority on Owner and any other payment, charge, tax, penalty or cost actually
incurred by Owner in order to supply electrical current to the Demised Premises.
Landlord shall repair and maintain the submeters servicing the Demised Premises.
Landlord represents that at least five (5) xxxxx per square foot of floor area
of the Demised Premises, inclusive of the electricity used to operate the main
air-conditioning units at the Demised Premises, is available for use at the
Demised Premises.
2. If more than one meter measures the electrical service to
the Demised Premises, the service rendered through each meter shall be
separately computed and billed in accordance with the charges, taxes, terms and
rates stated herein. Landlord represents that the meters servicing the Demised
Premises do not measure electricity consumed on any other floor.
3. Bills for Electrical Charges shall be rendered monthly.
Electrical Charges shall commence on the date of Delivery of Possession.
Electrical Charges shall be deemed to be, and be paid as, additional rent
without set-off or deduction.
4. If Tenant disputes the accuracy of any xxxx, Tenant shall
nonetheless pay the amount billed pending resolution of the dispute. Tenant
shall be permitted to review Landlord's books and records pertaining the manner
in which Tenant's electric xxxx was calculated. Tenant may not dispute the
accuracy of any xxxx more than one (1) year after it was rendered and bills more
than one (1) year old which Tenant has not previously disputed shall
conclusively be deemed to be correct. If the parties are unable to resolve any
such dispute, at the request of a party, the parties shall submit the dispute to
arbitration before the New York
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City office of the American Arbitration Association. The cost of the
arbitration, including actual out-of-pocket attorneys' fees, shall be borne
entirely by the party against whom the arbitrator shall decide. The finding of
the arbitrator shall be binding upon the parties. Notwithstanding anything to
the contrary, Tenant shall have no right to elect to resolve any such dispute by
arbitration and Landlord shall not be required to do so if Tenant shall be in
default in the payment of fixed rent, additional rent or in default of any other
material obligation under the Lease beyond any applicable cure period either at
the time a dispute shall arise, at the time the election to arbitrate is sought
to be made by Tenant, or at the time an arbitration is scheduled to commence.
C. Owner shall not in any way be liable or responsible to Tenant for
any loss or damage or expense which Tenant may sustain or incur if either the
quantity or character of electric service is changed or is no longer available
or suitable for Tenant's requirements unless caused by the negligence or willful
misconduct of Owner or Owner's representatives or agents. Tenant's use of
electric current in the Demised Premises shall not at any time exceed the
capacity of any of the electrical conductors and facilities in or otherwise
serving the Demised Premises. In order to insure that such capacity is not
exceeded and to avert any possible adverse effect upon the Building's electric
service, Tenant shall not, without Owner's prior written consent in each
instance (not to be unreasonably withheld or delayed), make any alteration or
addition to the electric system of the Demised Premises. Should Owner grant such
consent, all additional risers or other equipment required in connection with
any such alteration or addition shall be provided by Owner at Tenant's expense
and upon notice to Tenant, and all reasonable and out-of-pocket costs and
expenses in connection therewith shall be paid by Tenant.
D. Provided that Owner elects to do so for the entire Building, Owner
reserves the right to discontinue furnishing electric current to Tenant in the
Demised Premises at any time upon not less than sixty (60) days' notice to
Tenant and provided that an alternate source of service shall be available for
the Demised Premises. If Owner, at its option, exercises such right of
discontinuance, this lease shall continue in full force and effect and shall be
unaffected thereby, except only that, from and after the effective date of such
discontinuance, Owner shall not be obligated to furnish electric current to
Tenant and except that, from and after the effective date of such
discontinuance, Electrical Charges shall no longer be payable by Tenant as
additional rent.
E. If Owner elects not to furnish electric current to Tenant, Tenant
shall arrange to obtain electric current directly from the public utility
corporation supplying electric current to the Building; and in that event, all
risers, equipment and other facilities which may be required for Tenant to
obtain electric current directly from such public utility corporation and may
already be in the Building, may be used by Tenant at no additional charge to
Tenant to receive service of up to five (5) xxxxx per square foot of floor area
of the Demised Premises. The cost of converting from a submetering basis to a
direct metering basis shall be borne by Owner. If Owner shall not furnish
electric current to Tenant, it shall not be liable to Tenant therefor and the
same shall not be deemed to be a lessening or diminution of services within the
meaning of any law, rule or regulation
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now or hereafter enacted, promulgated or issued, unless due to Owner's, its
agents' or employees' willful act or omission or gross negligence.
F. At all times during the term of this lease, Tenant will comply with
all present and future general rules, regulations, terms and conditions
applicable to service equipment, wiring and requirements in accordance with the
regulations of the public utility corporation supplying electric current to the
Building with respect to the Demised Premises and Tenant's manner of use of the
electrical system for the Building.
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45. RIDER TO SECTION 3 - ALTERATIONS:
--------------------------------
A. All alterations shall comply with all applicable governmental
requirements, legal requirements and Insurance Requirements. Tenant shall obtain
all necessary permits to perform the work and all approvals and sign-offs when
the work is completed at its sole expense.
B. Tenant shall make no alteration to the Demised Premises without
Owner's consent and unless it gives Owner at least thirty days prior notice
accompanied by detailed specifications and working drawings describing and
illustrating the proposed alteration. The specifications and drawings must be
prepared by an architect or engineer licensed in New York State. Owner's consent
to such alteration and approval of such plans and specifications shall not be
unreasonably withheld or delayed. Promptly after the substantial completion of
any alteration other than the initial alterations. Tenant shall prepare a set of
"as built" plans and specifications describing and illustrating the effect of
the alteration on the Demised Premises in reasonable detail. The "as built"
plans and specifications shall be delivered to Owner within sixty days after
substantial completion of an alteration.
C. Alterations shall be performed by Tenant in a manner which shall
cause the least interference to other occupants of the Building and not
unreasonably interfere with, delay or impose any additional expense upon Owner
in the operation of the Building. Owner reserves the right to reasonably
designate the time of day which shall include the hours during the business day
when materials or debris may be moved in or out of the building and when
alterations may be performed. If any portion of Tenant's Work or any alteration
approved by Owner involves alterations to the plumbing, heating, air
conditioning, mechanical or electrical systems of the building or involves
alterations to any structural element of the building that work shall be
performed at Tenant's reasonable expense by contractors reasonably designated by
Owner.
D. Except for the plans and specifications prepared by or on behalf of
Tenant for the initial alterations to prepare the Demised Premises for
occupancy, Tenant shall reimburse Owner for all reasonable out-of-pocket
expenses incurred by Owner in reviewing and approving Tenant's plans and
specifications and alterations. Payment shall be due within thirty (30) days
after Owner shall render a xxxx therefor.
E. "Alterations" or "alterations" means alterations, improvements, or
both.
F. Prior to commencing any alteration or any repairs, Tenant shall be
required to deliver to Owner the certificates evidencing public liability
insurance and workers' compensation insurance required hereunder.
G. Notwithstanding anything to the contrary contained herein, Owner's
consent and plans and specifications shall not be necessary for and Tenant may
make minor changes such as painting, decorating, finishing, carpeting,
installation of cabinets and shelves. Owner's prior written consent and plans
and specifications shall also not be necessary for other
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non-structural alterations to the Demised Premises if the alterations cost less
than Twenty-five Thousand ($25,000.00) Dollars; do not require a permit or
approval from any government entity; and do not reduce the value or impair the
safety of the Demised Premises or Building.
H. Except as otherwise expressly provided for herein, the cost of any
alterations and any repairs shall be paid for by Tenant so that the Demised
Premises and Building shall at all times be free of liens for labor and
materials supplied in connection with any alterations or repairs. Tenant agrees
to indemnify and save Owner harmless from and against any and all bills for
labor performed and equipment, fixtures and materials furnished to Tenant and
applicable sales taxes thereon as required by New York law and from and against
any and all liens, bills or claims therefor or against the Demised Premises or
the Building and from and against all losses, damages, costs, expenses, suits
and claims whatsoever in connection with Tenant's Work or any other alterations.
I. Prior to commencing any alteration or repair, Tenant shall at its
own cost and expense deliver to Owner an endorsement of its policy of
comprehensive general liability insurance referred to in Article 50 of this
lease, covering the risk during the course of performance of the work, together
with proof of payment of such endorsement, which policy as endorsed shall
protect Owner in the same amounts against any claims or liability arising out of
the work, and Tenant or Tenant's contractors shall obtain worker's compensation
insurance to cover all persons engaged in the work.
J. Except for the initial alterations and installations by Tenant,
prior to commencing any other work costing in excess of Two Hundred Fifty
Thousand ($250,000.00) Dollars, Tenant, at its own cost and expense, shall
deliver to Owner a surety company performance bond and a labor and material and
payment bond, issued by a surety company acceptable to Owner, or other security
satisfactory to Owner, in an amount at least equal to Owner's estimated cost of
the work, guaranteeing the performance thereof and payment therefor within a
reasonable time, free and clear of all liens, encumbrances, chattel mortgages,
conditional bills of sale and other charges, and in accordance with the plans
and specifications approved by Owner.
K. Notwithstanding anything herein contained to the contrary, Tenant
shall make all repairs to the Demised Premises necessitated by any work
permitted under this lease, and shall keep and maintain in good order and
condition all of the installations in connection with the work, and shall make
all necessary replacements thereto subject to ordinary wear and tear and damage
by fire or other insurable casualty and Owner's obligation to perform repairs
pursuant to this lease.
L. In granting its consent to any alterations, Owner may impose such
reasonable conditions subject to subsection J (as to guarantee of completion,
payment, restoration and otherwise including, the requirement of Tenant to post
a bond to insure the completion of the alterations) as Owner may require. In no
event shall Owner be required to consent to any alterations which would
adversely physically affect any part of the Building outside of the Demised
Premises or would adversely affect the
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proper functioning of the mechanical, electrical, sanitary or other service
systems of the Building.
M. If the performance of Tenant's work or any alteration shall
unreasonably interfere with the comfort and/or convenience of other tenants in
the Building or shall cause damage to or otherwise interfere with the occupancy
of adjacent buildings, Tenant shall upon Owner's demand remedy or remove the
condition or conditions complained of. Tenant further covenants and agrees to
indemnify and save Owner harmless from and against any and all claims, losses,
damages, costs, expenses, suits and demands whatsoever made or asserted against
Owner by reason of the foregoing.
46. RIDER TO ARTICLE 4 - REPAIRS:
----------------------------
Landlord shall maintain, repair and replace (to the extent necessary)
the air-conditioning units servicing the Demised Premises. On the Commencement
Date, the existing air-conditioning units servicing the Demised Premises shall
be delivered in good working order.
47. RIDER TO ARTICLE 6 - COMPLIANCE WITH LAWS:
-----------------------------------------
Supplementing the provisions of Article 6 hereof, Tenant shall notify
Owner within three (3) days of its receipt of any notice it receives of the
violation of any law or requirement of any public authority with respect to the
Demised Premises or the use or occupation thereof.
48. RIDER TO ARTICLE 7 - SUBORDINATION AND MORTGAGEE'S RIGHTS:
---------------------------------------------------------
A. If the land, the Building or the Demised Premises shall be
encumbered by a mortgage and the mortgage is foreclosed, or if the land, the
Demised Premises or the Building are sold pursuant to a foreclosure or by reason
of a default under a mortgage, then notwithstanding the foreclosure, sale, or
default:
1. Tenant shall not disaffirm this lease or any of its
obligations contained in this lease; and
2. At the request of the applicable mortgagee or
purchaser at the foreclosure sale, Tenant shall attorn to the mortgagee or
purchaser.
B. Insofar as Tenant is concerned, the performance by a mortgagee of
any of Owner's obligations shall be deemed performance on behalf of Owner and
shall be accepted by Tenant as if performed by Owner.
C. Owner represents that the Building is not encumbered by any ground
lease, mortgage of record or any "Institutional Mortgage" (as defined below).
D. 1. Notwithstanding anything to the contrary in Article 7 or Article
49, Owner shall use Owner's best efforts to obtain a nondisturbance
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agreement between Tenant and the holder of any future institutional mortgage
hereafter encumbering the Demised Premises as a condition of Tenant
subordinating its leasehold interest to any future institutional mortgage.
Reference to an "institutional mortgage" means a mortgage held by a savings
bank, commercial bank, savings and loan association, real estate investment
trust, pension fund, insurance company or other recognized mortgage lender. If
the holder of such an institutional mortgage shall refuse to enter into such an
agreement, this Lease shall continue and shall be subordinate to that mortgage.
Any such nondisturbance agreement shall provide in effect that provided Tenant
shall not be in default beyond any applicable notice or cure period, this Lease
and Tenant's rights under it shall not be terminated by reason of any default
under or foreclosure of the mortgage and that Tenant shall not be named as a
party in any foreclosure action. The form of the nondisturbance agreement shall
contain the customary terms and conditions and must be reasonably satisfactory
to the mortgagee.
2. Notwithstanding anything to the contrary in Article 7, this
Lease shall not be subordinate to any ground lease hereafter entered into or to
any mortgage granted hereafter (or any mortgage now in existence which may be
recorded at any time) by Owner which is not an institutional mortgage unless the
ground lessor or the mortgagee shall enter into such a subordination,
nondisturbance agreement with tenant in a form reasonably satisfactory to Tenant
and to any such ground lessor or mortgagee, as the case may be.
49. RIDER TO ARTICLE 8 - INDEMNIFICATION, LIABILITY INSURANCE:
---------------------------------------------------------
A. Tenant shall indemnify and save harmless Owner; Owner's affiliates
who occupy or have an interest in the Building; and Owner's officers, directors,
stockholders and employees; and any mortgagee against any and all losses,
liabilities, claims, costs, expenses or damages that may result from any
occurrence in or about the Demised Premises; the use of the Demised Premises;
any work or thing done on the Demised Premises or any condition created by
Tenant, its agents, servants, employees, or contractor on or off the Demised
Premises. Owner shall notify Tenant of any claim made against Owner for which
Tenant is obligated to indemnify and save Owner harmless.
B. Tenant shall defend any lawsuit using attorneys selected by Tenant
with respect to claims for loss, liability or damages against which the
indemnity provided in Paragraph A applies and pay any judgments which result
from the lawsuits. "Lawsuits" includes arbitration proceedings and
administrative proceedings and all other governmental and quasi-governmental
proceedings. "Liabilities" includes the fees and disbursements of attorneys and
witnesses. Landlord may not settle any claim without Tenant's participation and
joinder in the settlement.
C. Tenant shall provide and keep in force a comprehensive policy of
general public liability insurance with respect to the Demised Premises which
shall include a contractual liability endorsement as of the date of this lease.
The coverage limits shall not be less than a combined single limit of Three
Million ($3,000,000.00) Dollars with respect to personal
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injury, death or property damage in respect to any one occurrence. Each
insurance policy must be reasonably satisfactory to Owner, any Mortgagee and
Master Lessor as to form and as to substance. The insurance coverage may be
provided under a blanket policy.
D. Owner and any mortgagee (provided Owner notifies Tenant of the name
of the mortgagee) shall be named as additional insureds with respect to the
insurance. Upon Owner's request, any designee of Owner, including any partners
of Owner, the partners of the partners of Owner, and the officers, directors and
stockholders of Owner or of any corporation which is a partner of Owner shall be
named as an additional insured and if any additional premiums are charged
therefor, Owner may either elect to pay those premiums or forego having any such
designee named as an insured.
E. 1. Tenant shall deliver a duplicate original of each policy carried
pursuant to Paragraph C or, at Tenant's option, an original certificate of
insurance showing full payment to Owner before Tenant enters the Demised
Premises for any reason. At least twenty (20) days before coverage of any policy
carried pursuant to Paragraph C expires, Tenant shall renew the policy and
deliver to Owner certificates evidencing the renewal policy.
2. Each insurance policy carried pursuant to Paragraph C shall be
issued by an insurer of recognized responsibility. The insurer shall be
reasonably satisfactory to Owner and qualified to do business in the State of
New York. A policy shall provide that it may not be canceled, reduced in amount
or materially altered unless the insurer gives at least ten (10) days' notice to
Owner and any Mortgagee by certified mail, return receipt requested.
F. Prior to commencing any work including Tenant's Work or any
alterations or repairs at the Demised Premises, Tenant shall cause any
contractor or other party engaged to perform the Work to deliver a certificate
evidencing public liability insurance for at least the limits specified in
Paragraph C. Tenant and any contractor employed by Tenant shall also carry
workers' compensation insurance for any person employed by them on or about the
Demised Premises and deliver a certificate evidencing same to Owner. The amount
and insurance company shall be reasonably satisfactory to Owner and in keeping
with the customary limits maintained with respect to office buildings in the
midtown-south area of Manhattan. No contractor or subcontractor shall be
permitted to perform work at the Demised Premises until the required certificate
relating to public liability insurance evidence of workers' compensation
insurance is delivered to Owner. Each policy shall conform to the criteria set
forth in this lease. The certificate for public liability insurance shall name
Owner and any mortgagee and, upon notification of Owner, any of the parties
referred to in Paragraph D as additional insureds.
50. RIDER TO ARTICLE 9 - DESTRUCTION, FIRE AND OTHER CASUALTY:
---------------------------------------------------------
A. If the Demised Premises shall be damaged by fire or other casualty
to the extent of twenty-five (25%) percent or more of its replacement value
during the last two (2) years of the Term, Owner may
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elect to terminate this Lease by giving notice to Tenant within sixty (60) days
after the occurrence of the damage. Owner's notice shall specify the date of
cancellation which shall be no sooner than sixty (60) days and no later than one
hundred twenty (120) days after the date of the notice. On the cancellation
date, Tenant shall vacate the Demised Premises and surrender it to Owner without
prejudice to Owner's rights and remedies against Tenant which have occurred
prior to the date of cancellation.
B. If all or a portion of the Demised Premises shall be damaged by fire
or other casualty, within seventy-five (75) days after the occurrence of the
damage, Owner shall notify Tenant of the time, in the reasonable judgment of a
reputable independent contractor, it shall take to substantially repair the
damage and make the Demised Premises acceptable to Tenant. If such period shall
exceed two hundred seventy (270) days from the date of the damage, Tenant may
elect to terminate this Lease by giving notice to Owner within thirty (30) days
of the date of Owner's notice. If this Lease shall not be canceled as aforesaid
and the damage is not substantially repaired by Owner within that two hundred
seventy (270) day period, Tenant may elect to terminate this Lease by giving
notice to Owner within thirty (30) days after that right to terminate shall
arise. If Tenant shall elect to so terminate this Lease, this Lease shall expire
as of the date of termination set forth in Tenant's notice which shall be no
later than sixty (60) days following the date of Tenant's notice.
C. If during the last year of the term of this Lease, if the Demised
Premises shall be damaged to the extent of twenty-five (25%) percent or more of
its replacement value, Tenant may elect to terminate this Lease by giving notice
to Owner within sixty (60) days after the occurrence of the damage. If Tenant
shall elect to so terminate this Lease, this Lease shall expire as of the date
of termination set forth in Tenant's notice which shall be no later than sixty
(60) days following the date of Tenant's notice.
D. Each party hereby releases the other party (which term as used in
this Article includes the employees, agent, officers and directors of the other
party) from all liability, whether for negligence or otherwise, in connection
with loss covered by any fire and/or extended coverage insurance policies, which
the releasor carriers with respect to the Demised Premises, or any interest or
property therein or thereon (whether or not such insurance is required to be
carried under this lease) but only to the extent that such loss is collected
under said fire and/or extended coverage insurance policies. Such release is
also conditioned upon the inclusion in the policy or policies of a provision
whereby any such release shall not adversely affect said policies, or prejudice
any right of the releasor to recover thereunder. Each party agrees that its
insurance policies aforesaid will include such a provision so long as the same
shall be obtainable without extra cost, or if extra cost shall be charged
therefor, so long as the party for whose benefit the clause or endorsement is
obtained shall pay such extra cost. If extra cost shall be chargeable therefor,
each party shall advise the other of the amount of the extra cost, and the other
party at its election may pay the same, but shall not be obligated to do so.
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51. RIDER TO ARTICLE 11 - ASSIGNMENT AND SUBLET OF TENANT'S INTEREST.
----------------------------------------------------------------
A. If Tenant shall desire to assign this Lease or to sublet the Demised
Premises, Tenant shall submit to Owner a written request for Owner's consent to
such assignment or subletting, which request shall contain or be accompanied by
the following information: (1) the name and address of the proposed assignee or
subtenant; (ii) a duplicate original or photocopy of the executed assignment
agreement or sublease; (iii) the nature and character of the business of the
proposed assignee or subtenant and its proposed use of the Demised Premises; and
(iv) banking, financial and other credit information with respect to the
proposed assignee or subtenant reasonably sufficient to enable Owner to
determine the financial responsibility of the proposed assignee or subtenant.
Owner shall then have the following options, any and all of which must be
exercised by notice ("Exercise Notice") given to Tenant within thirty (30) days
after receipt of Tenant's request for consent:
1. If the proposed transaction is an assignment of this Lease
or a subletting of the entire Demised Premises, the following shall apply:
(i) Owner may require Tenant to surrender the Demised
Premises to Owner and to accept a termination of this Lease as of a date (the
"Termination Date") to be designated by Owner in the Exercise Notice, which date
shall not be less than sixty (60) days nor more than one hundred twenty (120)
days following the date of Owner's Exercise Notice; or
(ii) Owner may require Tenant to assign this Lease to
Owner without merger of Owner's estates effective as of the day preceding the
proposed assignment or sublease and upon such an assignment, Tenant shall be
released from any future liability under this Lease which shall first accrue
after the date of the assignment.
2. If the proposed transaction involves a subletting of one of
the floors comprising the Demised Premises, the following shall apply: Owner may
require Tenant to surrender the floor proposed to be sublet and to enter into a
modification agreement with Owner to reflect the reduction in the size of the
Demised Premises and to provide for a proportionate reduction in the rent
payable under this Lease as of the date of the surrender to Owner of the floor
proposed to be sublet.
If pursuant to part (1) above, Owner shall elect to require Tenant to
surrender the Demised Premises and accept a termination of this Lease, then this
Lease shall expire on the Termination Date as if that date had been originally
fixed as the Expiration Date. Regardless of any option Owner exercises under
this subsection A, whether to terminate this Lease or to take an assignment
thereof, Owner shall be free to, and shall have no liability to Tenant if Owner
shall, lease the Demised Premises to Tenant's prospective assignee or subtenant.
B. If Owner shall not exercise any of its options under Section A above
or Section I below within the applicable time periods therein provided, then
Owner shall not unreasonably withhold consent to the proposed assignment or
subletting of the entire Demised Premises, or one of
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the floors comprising the Demised Premises, provided that the following further
conditions shall be fulfilled:
1. An event of default beyond applicable notice or cure
periods shall not have occurred at the time Owner's consent is requested and on
the effective date of the assignment or sublet.
2. In the case of an assignment, the proposed assignee shall
be financially capable, in Owner's reasonable discretion, to assume the
obligations of Tenant under the lease. The proposed assignee or subtenant shall
be of a character in keeping with the standards of the other office tenants of
the Building. Tenant shall deliver to Owner all reasonably complete and accurate
financial data and other information as Owner may reasonably request in a form
prepared by Tenant in the ordinary course of its business. In the case of a
sublease, the proposed subtenant shall be financially capable, in Owner's
reasonable discretion to pay the rent and all other charges relating to the
sublease.
3. The proposed assignee or subtenant shall not be a tenant
(or subsidiary, affiliate or parent of a tenant unless such subsidiary,
affiliate or parent of a tenant shall be occupying space in any other building
in the New York City metropolitan area at the time of the proposed assignment or
subletting) of other space in the Building with a lease coming due within two
(2) years from the date of the assignment, unless Owner previously grants its
written consent to this assignment or sublet.
4. The Demised Premises shall be used by the assignee or
subtenant solely in accordance with the terms of this lease.
5. The use shall not violate any restrictions contained in any
other leases in the Building.
6. In case of an assignment, the instrument of assignment
shall provide for the acceptance by the assignee of the assignment; the
assignee's assumption of all of the obligations and liabilities of Tenant under
this lease, and assignee's agreement to perform directly for the benefit of
Owner all of the terms and provisions of this lease on Tenant's part to be
performed. The instrument of assignment shall further provide an acknowledgment
by Tenant that its obligations under the lease shall not be discharged, released
or impaired by the assignment, any amendment or modification to the lease
consented to by Owner, any further assignment of the lease consented to by
Owner, any waiver, consent, extension, indulgence, act or omission with respect
to the tenant's obligations under the lease, any exercise or nonexercise or
waiver by Owner of any right, remedy, power or privilege under or with respect
to the lease, or any act or failure to act which, but for the provisions of the
assignment, may be deemed a legal or equitable discharge of a surety or
assignor.
7. Except as provided for below in this paragraph 7, in case
of a subletting, the sublease shall be for all of the Demised Premises or one of
the floors comprising part of the Demised Premises, the sublease shall be
expressly subject to all of the obligations of Tenant and the conditions of
Tenant's tenancy under this lease, the subtenant shall not assign, encumber or
otherwise transfer or sublease the Premises in whole or in
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part, or allow any part to be used or occupied by others without the prior
written consent of Owner in each instance.
C. The consent by Owner to any transfer, assignment or subletting shall
not be deemed to be a waiver on the part of Owner of any prohibition of any
future transfer, assignment or subletting. In no event shall an assignment or
subletting to which Owner shall have consented to under this Section release or
relieve Tenant of its obligations or liabilities under this lease.
D. Owner shall be furnished with a duplicate original of the assignment
or sublease within (i) ten (10) days after its execution, or (ii) prior to its
effective date, whichever is earlier. The assignment or sublease shall be fully
executed.
E. Tenant shall reimburse Owner for all reasonable out-of-pocket
expenses incurred by Owner in reviewing and approving Tenant's request to any
transfer, assignment or sublet.
F. If Owner consents to an assignment of this lease or a subletting,
the following shall apply:
1. Tenant shall pay to Owner, as and when received,
seventy-five (75%) percent of any consideration paid directly and/or indirectly
in connection with any such assignment in excess of the brokerage fees,
reasonable legal fees, the unamortized cost of any unattached personal property
sold to the transferee and other direct reasonable out-of-pocket costs incurred
by Tenant in connection with the assignment.
2. Tenant shall pay to Owner, as and when received,
seventy-five (75%) percent of the amount by which the rental or other charges
paid under or in connection with any sublease shall exceed the rental payable
under this lease for the applicable periods after Tenant shall recover from any
such excess, brokerage fees, reasonable legal fees, the unamortized cost of any
unattached personal property sold to the transferee and other direct reasonable
out-of-pocket costs incurred by Tenant in connection with the subletting.
3. The provisions of this paragraph shall not be construed as
a waiver of the prohibition against assignment or subletting without Owner's
prior written consent.
4. For the purposes of this section, any personal property
sold by Tenant shall be deemed to have been amortized on a straight line basis
over the earlier of ten (10) years or its useful life from the date the item of
personal property was acquired by Tenant.
G. An assignment or sublease consummated in violation of this Rider
Article 51 shall not be valid.
H. Notwithstanding anything to the contrary hereinabove set forth (but
provided that any assignee shall expressly assume in writing the obligations of
Tenant hereunder for the benefit of Owner), none of the following transactions
shall require Owner's consent: (i) the merger or
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consolidation of Tenant with or into an "Affiliate" (as defined below) of
Tenant; (ii) the exchange of all or any part of Tenant's outstanding shares of
stock for shares of stock of an Affiliate of Tenant; (iii) the sale of all or
substantially all of the assets of Tenant to an Affiliate of Tenant, and the
assignment to, and assumption of, this Lease by such Affiliate in connection
with the sale of those assets; (iv) the sale of shares of Tenant's outstanding
stock to, or a merger or consolidation of Tenant with or into, an entity (or an
Affiliate of an entity) whose shares are traded on a recognized stock exchange
or on NASDAQ or another over-the-counter market; (v) the sale of all or
substantially all of the assets of Tenant to an entity (or an Affiliate of an
entity) whose shares are traded on a recognized stock exchange or on NASDAQ or
another over-the-counter market, and the assignment to, and assumption of, this
Lease by such entity in connection with the sale of those assets; (vi) the sale
of shares of stock of Tenant in a public offering; or (vii) the occupancy of all
or any part of the Demised Premises by one or more Affiliates of Tenant. As used
in this Section with respect to Tenant or any other person or entity, the term
"Affiliate" shall mean a person, corporation, partnership, limited liability
company or other entity that directly or indirectly controls, is controlled by,
or is under common control with, Tenant or such other person or entity.
Notwithstanding the foregoing provisions of this section, unless the shares of
stock of an Affiliate of Tenant to which this Lease has been previously assigned
either (a) are traded on a recognized stock exchange or on NASDAQ or another
over-the-counter market or (b) sold in connection with or as part of a public
offering of such Affiliates shown, the sale of all or a controlling interest in
that Affiliate to which this Lease has been previously assigned shall be deemed
to be an assignment of this Lease which requires the consent of Owner.
I. 1. As an alternative to the requirements for consummated agreements
as set forth in Section A above and in addition to Owner's option set forth in
Section A above, if Tenant shall desire to assign this Lease or to sublet all or
any single floor comprising a part of the Demised Premises other than by an
assignment or sublease permitted pursuant to Section H above, Tenant may give
Owner notice thereof (the "Marketing Notice"), which notice shall include all of
the material and economic terms and conditions (other than the identity of the
proposed assignee or subtenant, if not yet known to Tenant) of the proposed
assignment or subletting, including, without limitation, the proposed effective
date thereof, fixed rent, all regularly scheduled items of additional rent, the
base year for all escalations, any rental concession, the amount of any tenant
installation allowance, any work to be performed by Tenant to prepare the
Demised Premises for occupancy by the proposed subtenant or assignee, any
consideration to be paid for the acquisition of the Demised Premises by reason
of such assignment or subletting, or for the acquisition or rental of any
leasehold improvements, furniture, fixtures or equipment of Tenant, any takeover
obligation and any options to be granted to the proposed subtenant. Such
Marketing Notice shall be deemed an offer from Tenant to Owner whereby Owner may
exercise an option (the "Recapture Option") to terminate this Lease. Within
forty-five (45) days after Owner shall have received the Marketing Notice, Owner
shall notify Tenant whether Owner shall exercise such Recapture Option. If Owner
shall fail to notify Tenant that Owner elects to exercise the Recapture Option,
the provisions of Section B above shall apply with respect to any sublease or
assignment
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proposed by Tenant, provided, however, that if within two hundred seventy (270)
days after the Marketing Notice, Tenant shall not have delivered to Landlord a
"Qualified" consummated agreement with respect to a proposed assignment of this
Lease or a subletting, Tenant shall be required to again deliver a Marketing
Notice and otherwise comply with the foregoing provisions before Owner shall be
required to make its election as to the exercise of a Recapture Option.
Reference to a "Qualified" agreement means (x) in the case of an assignment of
this Lease, a deviation or decrease of more than seven and one-half (7-1/2%)
percent of the consideration (if any) to be paid to Tenant by the assignee
stated in the applicable Marketing Notice, or (y) in the case of a subletting, a
decrease in the economic terms of more than seven and one-half (7-1/2%) percent
from the Marketing Notice, then Owner shall once again have a right to exercise
its Recapture Option with respect thereto. For the purposes of the foregoing, a
decrease in the economic terms shall be calculated by determination of the
effective rent, taking into account the monetary values of all of the
concessions, incentives and payments to be made under or in connection with any
such sublease or assignment.
2. The provisions of Section B, C, D, E and F above shall
apply with respect to any sublease or assignment consummated in accordance with
this Section I.
52. RIDER TO ARTICLE 27:
-------------------
If Tenant is prevented or delayed from performing its obligations
hereunder, other than its obligations to pay rent, additional rent or any other
charges due under this Lease, by reason of strike or labor troubles or any other
cause whatsoever beyond Tenant's reasonable control, including any governmental
preemptions or restrictions or to conditions arising by reason of war or other
emergency, the period of time which Tenant is prevented or delayed shall be
added to the time in which Tenant shall be required to perform the obligation
and Tenant shall not be in default hereunder for the failure to perform that
obligation during the period Tenant is so prevented or delayed. The provisions
of this rider Article do not excuse Tenant from the failure to pay rent,
additional rent or any other charges when they shall be due in accordance with
the provisions of this Lease.
53. RIDER TO ARTICLE 29 - SERVICES:
------------------------------
A. Owner shall not be required to supply cleaning services to Tenant.
B. Subject to compliance with Owner's obligations under rider Article
46, Owner shall not otherwise be required to supply air-conditioning service to
Tenant. Tenant shall pay for the cost of electricity used to pay for the
operation of the air-conditioning units servicing the Demised Premises.
C. If Owner shall fail to provide electric service to the Demised
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Premises for any consecutive period of ten (10) business days or more and if the
Demised Premises or portions thereof are rendered untenantable thereby and
Tenant actually ceases to use such portion of the Demised Premises due to events
arising or causes originating within the Building, fixed annual rent and
additional rent shall xxxxx from said tenth (10th) business day in proportion to
the rentable area rendered untenantable hereby until electrical service to the
Demised Premises is restored.
D. If Owner shall fail to provide water for lavatory purposes to the
Demised Premises for any consecutive period of ten (10) business days or more
and Owner is unable to arrange for reasonably adequate substitute lavatory use
at other locations in the Building due to events arising or causes originating
within the Building and not otherwise attributable to the acts or omission of
the public utility company serving the Building, fixed annual rent and
additional rent shall xxxxx from said tenth (10th) business day until either
water service for lavatory purposes is restored or such substitute lavatory use
is provided.
E. If Owner shall cease to provide heat to the Demised Premises during
the regular heating season for any period of ten (10) consecutive business days
or more and if the Demised Premises or any portion thereof is rendered
untenantable thereby and Tenant actually ceases using such portion of the
Demised Premises due to events arising or causes originating within the
Building, fixed annual rent and additional rent shall xxxxx from said tenth
(10th) business day in proportion to the rentable area rendered untenantable
thereby until heat service is provided by Owner or the regular hearing season
ends, whichever is earlier.
F. Tenant shall be entitled to a reasonable number of listings on the
Building directory, up to Tenant's proportionate share of the total number of
listings on that directory.
G. Tenant shall be entitled to up to eight (8) hours of use of overtime
freight elevator service to initially move into the Building without charge.
54. RIDER TO ARTICLE 33 - RULES AND REGULATIONS:
-------------------------------------------
Owner shall not enforce any rules or regulations against Tenant in a
discriminatory manner. If there is a conflict or inconsistency between any rules
and regulations and the provisions of this Lease, the provisions of this Lease
shall govern and the conflicting rule or regulation shall be deemed to be
amended accordingly.
55. TENANT'S EQUIPMENT:
------------------
A. 1. "Tenant's Equipment" means all personal property, furniture,
equipment and furnishings (whether or not affixed to the Demised Premises)
installed and maintained by Tenant for use in connection with the conduct of its
business. Heating, ventilating, air conditioning, plumbing,
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electrical, sprinkler, fire detection, and illumination fixtures (but excluding
track or other detachable lighting) and systems shall not be deemed to be
included as part of Tenant's Equipment.
2. Except as provided in this Section, Tenant shall be
entitled to affix Tenant's Equipment to, to install Tenant's Equipment in, and
to remove Tenant's Equipment from, the Demised Premises.
3. Tenant may not install any equipment, fixtures or machinery
in a manner which shall cause damage to any part of the building, overload
existing utility systems, create undue noise or create undue vibrations.
B. Tenant's Equipment shall be the property of Tenant and shall not be
part of the Demised Premises. Tenant shall keep Tenant's Equipment in good order
and repair. Upon removal of Tenant's Equipment, Tenant shall repair any damage
to the Demised Premises or building which shall have resulted from affixing,
installing or removing Tenant's Equipment.
56. ACCESS TO THE DEMISED PREMISES, PIPES AND EASEMENTS:
---------------------------------------------------
A. Owner and any mortgagee may inspect the Demised Premises during
regular business hours after giving Tenant reasonable notice and at all other
times after giving reasonable notice to Tenant except in an emergency when no
notice shall be required.
B. Owner shall be entitled after reasonable notice and at mutually
convenient times during business hours to access to the Demised Premises for the
purpose of carrying out Owner's obligations under this lease provided they do
not unreasonably interfere with Tenant's use and occupancy of the Demised
Premises. Owner agrees that certain work which is customarily performed in
office buildings after regular business hours such as core drilling shall be
performed at the Demised Premises only after regular business hours.
C. 1. Owner reserves an easement to install (along walls, floors and
ceilings), use, replace, repair and maintain equipment; installations; chutes,
shafts, chases, flues, duct, wires, pipes, cables, risers and conduits in parts
of the Demised Premises, provided that any new installation shall result in a de
minimis reduction in useable floor area.
2. Owner reserves the right to drill holes in the floor of the
Demised Premises and in any floor or surface above the Demised Premises.
3. The installation pursuant to parts 1 or 2 shall not unreasonably
or materially interfere with Tenant's use and enjoyment of the Demised Premises.
D. The easements created pursuant to Paragraph C shall be for the
benefit of Owner and any designee of Owner. Owner, Owner's mortgagee and their
agents, employees or contractors may enter the Demised Premises for the purposes
specified in Paragraphs A, B and C after reasonable notice and at mutually
convenient times during business hours. A person that enters
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the Demised Premises for a purpose specified in Paragraphs A, B or C shall do so
with due regard for the business being conducted in the Demised Premises by
Tenant.
E. Owner shall repair any damage to the Demised Premises that results
from the installation, replacement or repair of facilities pursuant to this
Section to the extent practicable, to the same condition it was prior thereto.
57. CERTIFICATES BY TENANT:
----------------------
At any time and from time to time, Tenant or Owner, as the case may be,
for the benefit of the other party and the lessor under any ground lease or
underlying lease or the holder of any mortgage affecting any ground lease or
underlying lease, or of any fee mortgage covering the land or the land and
building, or any permitted assignee or subtenant of Tenant or any lender of
Tenant on at least fifteen (15) days prior written request by Owner or Tenant,
as the case may be, will deliver to the other party a statement, certifying in
recordable form that this lease is not modified and is in full force and effect
(or if there shall have been modifications that same is in full force and effect
as modified, and stating the modifications), the Commencement and Expiration
Dates hereof, the dates to which the fixed rent, additional rent and other
charges to which the fixed rent, additional rent and other charges have been
paid, and whether or not, to the best knowledge of the signer of such statement,
there are any then existing defaults on the part of either Owner or Tenant in
the performance of the terms, covenants and conditions of this lease, and if so,
specifying the default of which the signer of such statement has knowledge.
58. LIMITATIONS OF LIABILITY:
------------------------
Tenant agrees that the liability of Owner under this lease and all
matters pertaining to or arising out of the tenancy and the use and occupancy of
the Demised Premises, shall be limited to Owner's interest in the Building and
the rents, profits and proceeds therefrom at the time the claim is asserted for
the satisfaction of any and all remedies of Tenant arising from the claim. In no
event shall Tenant make any claim against, proceed against, recover damages from
any other asset of Owner or to seek to impose any personal liability upon any
general or limited partner of Owner, or any principal shareholder of any firm or
corporation that may hereafter be or become the Owner.
59. BROKER:
------
Tenant represents and warrants that it neither consulted nor negotiated
with any broker or finder with regard to the rental of the Demised Premises from
Owner other than Newmark & Company Real Estate, Inc. and Insignia - Xxxxxx X.
Xxxxxx, Inc. (collectively the "Broker"). Owner
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shall pay any commission due to the Broker pursuant to a separate agreement
between Owner and the Broker. Tenant agrees to indemnify and hold Owner harmless
from any damages, costs and expenses suffered by Owner by reason of any breach
of the foregoing representation by Tenant. Owner agrees to indemnify and hold
Tenant harmless from any damages, cost and expenses suffered by Tenant by reason
of any breach of the foregoing representation by Owner.
60. BINDING EFFECT:
--------------
It is specifically understood and agreed that this lease is offered to
Tenant for signature subject to Owner's acceptance and approval, and that Tenant
shall have affixed its signature hereto with the understanding that such act
shall not, in any way, bind Owner or its agent until such time as this lease
shall have been approved and executed by Owner and delivered to Tenant.
61. NON-WAIVER AND SURVIVAL OF ADDITIONAL RENTAL OBLIGATIONS:
--------------------------------------------------------
Owner's failure during the lease term to prepare and deliver any of the
tax bills, statements, notice or bills set forth in this lease or Owner's
failure to make a demand, shall not in any way cause Owner to forfeit or
surrender its rights to collect any of the items of additional rent which may
have become due during the term of this lease provided Owner does so within
fifteen (15) months of incurring such expense, or Owner shall be deemed to have
waived its rights thereto. Tenant's liability for all amounts due under this
lease shall survive the expiration of the lease term for fifteen (15) months
from incurring such expense, as hereinabove set forth.
62. INTERFERENCE WITH BUILDING OPERATIONS:
-------------------------------------
Tenant covenants and agrees that prior to and through the term of this
lease, it shall not take any action which would knowingly violate Owner's union
contract, if any, affecting the Building, nor wilfully create any work stoppage,
picketing, labor disruption or dispute, or knowingly interfere with the business
of the Owner or any other tenant or occupant in the building or with the rights
and privileges of any person(s) lawfully in said Building, nor cause any
impairment or reduction of the good name of the Building. Any default by Tenant
under this Article, beyond the expiration of the applicable grace period, shall
be deemed a material default entitling Owner to exercise any or all of the
remedies as provided in this lease subject to the notice provisions provided in
Article 17 hereof.
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63. HOLDOVER:
--------
Supplementing Article 22 hereof, if Tenant shall default in
surrendering the Demised Premises upon the expiration or termination of the
term, Tenant's occupancy subsequent to such expiration or termination, if not
with the consent or acquiescence of Owner, shall be deemed to be that of a
tenancy at will and in no event from month-to-month or from year-to-year, and it
shall be subject to all the terms, covenants and conditions of this lease
applicable thereto, except the fixed rent shall be one hundred fifty (150%)
percent thereafter times the amount payable in the last year of the term, and no
extension or renewal of this lease shall be deemed to have occurred by such
holding over. In the event Owner shall commence proceedings to dispossess Tenant
by reason of Tenant's default hereunder only, Tenant shall pay, in addition to
costs and disbursements, reasonable legal fees for each proceeding in which
Owner finally prevails as additional rent hereunder.
64. RULE AGAINST PERPETUITIES:
-------------------------
Notwithstanding anything to the contrary, if the Commencement Date has
not occurred on or before the fifth anniversary of the date of this Lease, this
Lease shall be null and void and of no further force and effect. Upon any such
cancellation, any security deposited by Tenant shall be returned to Tenant.
65. DEFINITIONS:
-----------
For the purposes of this lease and all agreements supplemental to this
lease, and all communications with respect thereto, unless the context otherwise
requires:
A. The term "fixed rent" shall mean rent at the annual rental rate or
rates provided for in the granting clause appearing at the beginning of this
lease.
B. The term "additional rent" shall mean all sums of money, other than
fixed rent, and which become due and payable from Tenant to Owner hereunder, and
Owner shall have the same remedies therefor as for a default in payment of fixed
rent.
C. The term "rent" and "rents" shall mean and include fixed rent and/or
additional rent hereunder.
D. The terms "include", "including" and "such as" shall each be
construed as if followed by the phrase "without being limited to".
E. The terms "laws, legal requirements and/or requirements of public
authorities" and words of like import shall mean laws and ordinances of any or
all of the Federal, state, city, county and borough governments and
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rules, regulations, orders and/or directives of any or all departments,
subdivisions, bureaus, agencies or offices thereof, or of any other
governmental, public or quasi-public authorities, having jurisdiction in the
premises, and/or the direction of any public officer pursuant to law.
F. The terms "requirements of insurance bodies" or "Insurance
Requirements" and words of like import shall mean rules, regulations, orders and
other requirements of the New York Board of Fire Underwriters and/or the New
York Fire Insurance Rating Organization and/or any other similar body performing
the same or similar functions and having jurisdiction or cognizance of the
building and/or the Demised Premises.
G. The term "repair" shall be deemed to include restoration and
replacement as may be necessary to achieve and/or maintain good working order
and condition.
H. Words and phrases used in the singular shall be deemed to include
the plural and vice versa, and nouns and pronouns used in any particular gender
shall be deemed to include any other gender. The term "person" and "persons" as
used in this lease, shall be deemed to include natural persons, firms,
corporations, associations and other private or public entities.
66. RENT CONCESSION:
---------------
A. Notwithstanding anything to the contrary, Tenant shall not be
obligated to pay the monthly installments of fixed rent due with respect to the
first four (4) full months of the Term of this Lease and the installments of
fixed rent due for the fifth (5th) through the twelfth (12th) full months of the
term shall be reduced to one-half of the regular monthly rate.
B. If the Commencement Date is a day other than the first day of a
month, the installment of fixed rent for that partial month shall be equitably
prorated based upon the number of days in that month and shall be due and
payable on the Commencement Date.
67. SECURITY:
--------
A. Contemporaneously with the execution and delivery by Tenant of this
Lease, Tenant has deposited Ninety-five Thousand Eight Hundred Thirty-three
Dollars and 33/100 ($95,833.33) with Owner to be held by Owner as security for
the full and faithful performance by Tenant of each and every term, covenant and
condition of this Lease. The security shall be held in a separate interest
bearing account selected by Owner. Interest earned on the security, less
interest of one (1%) percent which may be retained by Owner, shall accrue for
the account of Tenant and shall be paid to Tenant from time to time upon
Tenant's request, provided Tenant shall not be in default beyond any notice or
cure period. In the event that Tenant defaults in respect to any of the terms,
provisions, covenants and conditions of this
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Lease, including, but not limited to, payment of any item of fixed rent or any
item of additional rental or other charge payable under this Lease or the
performance of any other obligation hereunder which shall remain uncured beyond
notice or cure periods, if any, then the said security deposit may be used,
applied or retained by Owner, in whole or in Part, for the payment of any item
of fixed rental or additional rental or other charge in default or for any other
sum which Owner may expend or be required to expend by reason of Tenant's
default, including any damages or deficiency in the reletting of the Demised
Premises, whether such damage or deficiency may accrue before or after summary
proceedings or other re-entry by Owner. In the event Owner shall apply the
security on account of amounts due, upon Owner's demand, Tenant shall replenish
the amount which has been applied by Owner. In the event that Tenant shall fully
and faithfully comply with all the terms, provisions, covenants and conditions
of this Lease, the security or any balance thereof together with accrued and
unpaid interest shall be returned to Tenant after the time fixed as the
expiration of the herein demised Term as same may be extended. In the absence of
evidence satisfactory to Owner of any assignment of the security, or the
remaining balance thereof, Owner may return the security or balance to the
original Tenant, regardless of one or more assignments of the lease itself. In
the event of a bona fide sale, subject to this Lease, Owner shall have the right
to transfer any security deposit to the vendee for the benefit of Tenant and
upon the transfer to said vendee the Owner shall be considered released by
Tenant from all liability for the return of such or security or balance, and
Tenant agrees to look to the new Owner solely for the return of the said
security or balance, and it is agreed that this shall apply to every transfer or
assignment made of the security or balance to a new Owner. No holder of a
mortgage to which this Lease is subordinate shall be responsible in connection
with the security deposited hereunder, unless such mortgagee actually shall have
received the security deposited hereunder. The security deposited under this
Lease shall not be mortgaged, assigned or encumbered by Tenant without the
written consent of Owner.
68. HAZARDOUS MATERIAL:
------------------
A. Owner shall deliver an ACP-5 certificate for the Demised Premises to
Tenant. Owner represents that Owner has no knowledge of the presence of any
hazardous substance at the Demised Premises.
B. If Tenant, its employees, agents or contractors shall cause any
hazardous substance or material, including asbestos, petroleum products or any
other substance or material declared to be hazardous under any federal, state or
local law, ordinance, rule or regulation, to be present at the Demised Premises
or the Building, Tenant shall be required to correct and xxxxx that condition in
the manner and to the extent required by such legal requirements. Tenant shall
defend, indemnify and hold Owner harmless from and against any claims, loss,
liability, fines, or penalties arising as a result of any condition created by
Tenant, its employees, agents or contractors. The provisions of this Section
shall survive the expiration of
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the term of this Lease.
69. TENANT'S OPTIONS TO LEASE:
-------------------------
A. Tenant shall have the option to elect to lease the fourteenth (14th)
floor of the building upon the terms and conditions described below by giving
notice to Owner of Tenant's election to do so on or before the thirtieth (30th)
day following the date of this Lease. If Tenant shall elect to do so, the
following shall apply:
1. This Lease shall be automatically amended to include the
fourteenth (14th) floor as part of the Demised Premises;
2. commencing as of the date Delivery of Possession shall
occur with respect to the fourteenth (14th) floor, the annual rate of fixed
annual rent shall be increased to Seven Hundred Eighty-seven Thousand Five
Hundred ($787,500.00) Dollars for the first five (5) Lease Years and Eight
Hundred Sixty-two Thousand Five Hundred ($862,500.00) Dollars from the first day
of the sixth (6th) Lease Year until the Expiration Date;
3. The multiple in the amount of 25,000 set forth in paragraph
1 of Section B of Rider Article 42 shall be increased to 37,500;
4. Tenant's Proportionate Share under Rider Article 43 shall
be increased to fifteen (15%) percent;
5. Tenant shall deliver plans and specifications for the
fourteenth (14th) floor within twenty (20) business days after the date of
Tenant's notice and Owner shall be required to perform Owner's Work to prepare
that floor for Tenant's occupancy;
6. The outside date for the completion of Owner's Work on the
fourteenth (14th) floor shall be extended for a period of sixty (60) days after
the date referred to in Section (b) of Rider Article 38 and if Delivery of
Possession of the original two floors comprising the Demised Premises shall
occur prior to the delivery of the fourteenth (14th) floor, the Term of this
Lease shall commence upon the occurrence of Delivery of Possession with respect
to the original two floors; and
7. The security deposit required under Rider Article 67 shall
be increased by the sum of Forty-seven Thousand Nine Hundred Sixteen
($47,916.00) Dollars.
8. Notwithstanding paragraph 2 above, the increase in rent
attributable to the fourteenth (14th) floor shall be abated for the same number
of months and in the same manner as the abatement referred to in Rider Article
66.
B. Subject to a right of first refusal granted to another lessee in the
Building, Xxxxxx Xxxx Incorporated, Tenant shall have the option to elect to
lease the sixth and/or the seventh floors of the Building by giving notice to
Owner of Tenant's election to do so on or before the
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"Outside Option Date". With respect to either such floor, the "Outside Option
Date" means the earlier to occur of (i) the ninetieth (90th) day following the
date of this Lease or (ii) five (5) business days after Owner shall notify
Tenant that Owner has received a bonafide offer which Owner is willing to accept
from an unaffiliated party to lease any such floor. If Tenant shall elect to do
so, Owner shall immediately notify Xxxxxx Xxxx Incorporated of Tenant's offer.
If Xxxxxx Xxxx Incorporated exercises that right of first refusal, Tenant's
election shall be canceled. If Xxxxxx Xxxx Incorporated shall not exercise its
right of first refusal, the following shall apply:
1. This Lease shall be automatically amended to include said
floor or floors Tenant has elected to lease;
2. Commencing as of the date of Delivery of Possession with
respect to any such floor, the annual rate of fixed annual rent shall be
increased for each such floor leased by Tenant by the sum of Two Hundred
Thirty-seven Thousand Five Hundred ($237,500.00) Dollars for the first five (5)
Lease Years and by the sum of Two Hundred Sixty-two Thousand Five Hundred
($262,500.00) Dollars from the first day of the sixth (6th) Lease Year until the
Expiration Date;
3. The multiple set forth in paragraph 1 of Section B of Rider
Article 42 shall be increased, or further increased as the case may be, by the
amount 12,500 for each such additional floor Tenant has elected to lease;
4. Tenant's Proportionate Share under Rider Article 43 shall
be increased by adding an additional five (5%) percent for each such floor
Tenant has elected to lease;
5. Tenant shall deliver plans and specifications for any such
additional floor Tenant has elected to lease within twenty (20) business days
after the date Owner shall notify Tenant that Xxxxxx Xxxx Incorporated has not
exercised its right of first refusal and Owner shall be required to perform
Owner's Work to prepare any such floor for Tenant's occupancy, which work shall
be performed with reasonable dispatch in accordance with a work schedule
established by Owner in Owner's reasonable judgment;
6. The security deposit required under Rider Article 67 shall
be increased by the sum of Forty-three Thousand Seven Hundred Fifty ($43,750.00)
Dollars for each such additional floor leased by Tenant.
7. Notwithstanding the provisions of paragraph 2 above, any
increase in rent attributable to any such additional floor shall be abated for
the same number of months and in the same manner as the abatement referred to in
Rider Article 66.
C. The provisions of Rider Article 38 and Exhibit A shall control with
respect to the performance of Owner's Work for any additional floors leased by
Tenant pursuant to Sections A and B above.
D. If Tenant shall exercise any such option, at the request of either
party, the parties shall enter into a confirmatory written agreement
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reflecting the applicable changes to the Lease.
70. TENANT'S RIGHT OF FIRST OFFER:
-----------------------------
A. At the time the existing Lease with the Natori Company, Inc. for the
fifteenth (15th) floor shall be terminated or expire without being renewed or
extended, if Owner shall desire to lease that floor to any party which is not
affiliated with or under common control with Owner, owned by or related to
Owner's principal shareholder, officers or directors or members of their family
(an "Affiliated Entity"), provided Tenant shall not be in default under this
Lease beyond any applicable notice or grace period, Owner shall notify Tenant of
Owner's intention to do so ("Owner's Notice"). Owner's Notice shall set forth
the rental rate, the term and other terms and conditions acceptable to Owner.
B. Tenant shall have fifteen (15) days from the date of Owner's Notice
to elect to lease the fifteenth (15th) floor at the rental rate, for the term
and upon the terms and conditions set forth in Owner's Notice by notifying Owner
of Tenant's agreement to do so. If Tenant shall fail to so notify Owner,
Tenant's right of first offer with respect to that floor shall expire and Owner
shall be free to lease the floor to any other party at a rental rate of no less
than ninety-two and one-half (92.5%) percent of the rental rate set forth in
Owner's Notice. If Owner shall seek to lease the floor for more than seven and
one-half (7.5%) percent less than the rental rate set forth in Owner's Notice,
Tenant's right of first offer shall apply anew with respect to the reduced
rental rate.
C. If Tenant shall elect to lease the vacant space within 15 days after
Owner's Notice, Owner shall submit a lease or a lease amendment containing the
rental terms, the term and other terms and conditions set forth in Owner's
Notice and Tenant shall have ten (10) business days after submission of the
lease to execute and deliver it to Owner. If Tenant shall fail to execute and
deliver the lease OR AMENDMENT within that 10 business day period, Tenant's
right to lease the floor shall expire.
D. The provisions of this Rider Article 70 shall not apply to the
renewal or extension of the existing lease for the fifteenth (15th) floor.
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71. SATELLITE DISH AND EXTERIOR LOUVER:
----------------------------------
A. Subject to Tenant's compliance with applicable legal requirements
and approval of the size and manner of installation thereof, Owner hereby
consents to the installation of a mini satellite dish on the roof of the
building. Owner's consent shall not be unreasonably withheld or delayed. Tenant
shall be responsible for any damage to the roof or other portions of the
building caused by the installation of that satellite dish.
B. Subject to compliance with applicable legal requirements, Owner
consents that Tenant may install a louver to the exterior of the building at a
location on east side of building near lot line windows designated by Owner for
the purpose of supplying fresh air to a supplementary air-conditioning system to
be installed by Tenant for the purpose of cooling Tenant's telephone room.
72. MISCELLANEOUS:
-------------
A. No receipt of monies by Owner from Tenant, after any reentry or
after the cancellation or termination of this lease in any lawful manner, shall
reinstate the lease; and after the service of notice to terminate this lease, or
after the commencement of any action, proceeding or other remedy, Owner may
demand, receive and collect any monies due, and apply them on account of
Tenant's obligations under this lease but without in any respect affecting such
notice, action, proceeding or remedy, except that if a money judgment is being
sought in any such action or proceeding, the amount of such judgment shall be
reduced by such payment.
B. If Tenant is in arrears in the payment of fixed rent or additional
rent, Tenant waives it right, if any, to designate the items in arrears against
which any payments made by Tenant are to be credited and Owner may apply any of
such payments to any such items in arrears as Owner, in its sole discretion,
shall determine, irrespective of any designation or request by Tenant as to the
items against which any such payments shall be credited.
C. 1. In every case in which Tenant is required by the terms of this
lease to pay to Owner a sum of money as fixed rent, additional rent, or
otherwise and payment is not made within ten (10) days after written notice that
the same shall become due, interest shall accrue and be payable on such sum or
so much thereof as shall be unpaid from the date it becomes due until it is
paid. Such interest shall be at an annual rate which shall be two (2) percentage
points above the prime commercial lending rate of Citibank, N.A., charged to its
customers of highest credit standing for ninety (90) day unsecured loans, in
effect from time to time, but in no event more than the highest rate of interest
which at such time shall be permitted under the laws of the State of New York.
2. If Tenant shall issue a check to Owner which is returnable unpaid
for any reason, Tenant shall pay Owner an additional charge of $100.00 for
Owner's expenses in connection therewith.
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D. Owner will not be required to furnish any services, including window
or other cleaning services, except as otherwise expressly provided in this
lease.
E. This lease contains the entire agreement between the parties and all
prior negotiations and agreements are merged into this lease. This lease may not
be changed, modified, terminated or discharged, in whole or in part, nor any of
its provisions waived except by a written instrument which (i) expressly refers
to this lease, (ii) is executed by the party against whom enforcement of the
change, modification, termination, discharge or waiver is sought and (iii) is
reasonably permissible under all mortgages affecting the real property of which
the Demised Premises are a part and any underlying leases.
F. Tenant expressly acknowledges that neither Owner nor Owner's agents
has made or is making, and Tenant, in executing and delivering this lease, is
not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this lease, and no
rights, easements or licenses are or shall be acquired by Tenant by implication
or otherwise unless expressly set forth in this lease.
G. The laws of the State of New York applicable to contracts made and
to be performed wholly within the State of New York shall govern and control the
validity, interpretation, performance and enforcement of this lease.
H. Except for the inside surfaces of all walls, windows and doors
bounding the Demised Premises, all of the building including exterior building
walls, core corridor walls and doors and any core corridor entrance and any
space in or adjacent to the Demised 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 Demised
Premises for the purpose of operation, maintenance, decoration and repair, are
reserved to Owner.
I. With respect to any provision of this lease which provides, in
effect, that Owner shall not unreasonably withhold or unreasonably delay any
consent or any approval, Tenant in no event, shall be entitled to make, nor
shall Tenant make, any claim, and Tenant hereby waives any claim, for money
damages; nor shall Tenant claim any money damages by way of setoff, counterclaim
or defense, based upon any claim assertion by Tenant that Owner has unreasonably
withheld or unreasonably delayed any consent or approval; but Tenant's sole
remedy shall be an action or proceeding to enforce any such provision, or for
specific performance, injunction or declaratory judgment, except as otherwise
permitted by law if it is proven that Owner acted with malicious intent. As an
alternative to commencing any action or proceeding, Tenant may submit the
dispute to expedited arbitration before the American Arbitration Association at
its New York City offices. The finding of the arbitrator shall be binding upon
the parties. Notwithstanding anything to the contrary, Tenant shall have no
right to elect to resolve any such dispute by arbitration and Landlord shall not
be required to do so if Tenant shall be in default in the payment of fixed rent,
additional rent or in default of any other material
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obligation under the Lease beyond any applicable cure period either at the time
a dispute shall arise, at the time the election to arbitrate is sought to be
made by Tenant, or at the time an arbitration is scheduled to commence.
J. Tenant covenants not to place this lease on record without the
consent of Owner. At the request of Owner, Tenant will execute a statutory short
form lease for recording purposes containing references to such provisions of
this lease as Owner, in its sole discretion, shall deem necessary.
K. All rent payments shall be paid without notice, demand,
counterclaim, offset, deduction, defense or abatement except as otherwise
provided herein. If the Commencement Date is not the first day of the month, the
first and last rent payments shall be for the proportionate fraction of the
whole month.
OWNER:
A & R REAL ESTATE, INC.
By: /s/ Signature Illegible
President
TENANT:
XXXXXX COMMUNICATIONS INC.
By: /s/ X.X. Xxxxxx
President
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EXHIBIT A - PART I
------------------
000 XXXXXXX XXXXXX
BUILDING STANDARD WORKLETTER
----------------------------
OFFICE CONSTRUCTION
-------------------
FEBRUARY 1997 - A
-----------------
"BUILDING STANDARD" DEFINITION
------------------------------
The term "Building Standard" shall refer to all work to be performed by
Landlord, at his sole expense, on the Demised Premises with "Standard of the
Building" materials as outlined in the Workletter of the Lease.
PART A - LANDLORD'S WORK
------------------------
Landlord shall provide and install the following facilities and materials and
complete the following work at Landlord's sole cost and expense (except as
herein otherwise provided) in accordance with Tenant's Final Plans, as defined
in Part B herein. The term "Building Standard" shall mean such materials as
Landlord may elect to use as part of its standard construction substantially
throughout the Building. For purposes of this Lease the Landlord's work shall
be:
(1) PARTITIONS
----------
A. One (1) lineal foot of drywall partition for every 15 square
feet of rentable area.
B. Drywall partitions shall be constructed of 2-1/2" steel studs
24" on center with a layer of 5/8" sheetrock on each side.
Interior partitions shall extend to 6" above the hung ceiling.
C. Demising partitions shall be constructed of 2-1/2" steel studs
with one layer of 5/8" sheetrock on one side and layer of 5/8"
sheetrock on the other side. Both layers of 5/8" sheetrock
shall extend to the slab above. All demising partitions shall
be packed with insulation.
D. Any angles in any partition shall be at Tenant's expense.
Partitions ending at the exterior walls shall meet a column or
mullion.
E. Two (2) 5' long paint-grade hat shelves and poles will be
provided.
(2) DOORS & BUCKS
-------------
A. One (1) door and buck for every 25 lineal feet of drywall
partition allowed pursuant to Item (1) above.
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B. Doors shall be flush type, hollow metal 3'-0" x 8'-0" high.
C. Two (2) 5'-0" x 8'-0" closet double doors.
(3) HARDWARE
--------
A. Each interior door allowed pursuant to Item (2) above shall be
fitted with one 1/1/2 pair of butt hinges, heavy duty latch
set, brushed chrome finish and door bumper.
(4) ELECTRIC SERVICE
----------------
A. The Demised Premises will be served with an incoming electric
service of adequate capacity to meet conditions constructed in
accordance with the "Building Standard Workletter". The
distribution system is designed for 5 xxxxx per square foot of
rentable area for the combined lighting and power load.
Subject to the foregoing, any required alteration at electric
panel shall be performed by Landlord.
B. One (1) 15 amp, 120 volt duplex electrical receptacle for
every 125 sq. ft. of rentable area, to be installed within
building standard partitions specified above.
C. Two (2) 30 amp, 120 volt separate circuit outlets.
(5) LIGHTING
--------
A. One (1) modern recessed type fluorescent, 4 tube light fixture
with Parawedge lens, for every 90 sq. ft. of rentable area.
B. One (1) silent type wall switch for every room.
C. Exit and emergency lighting to be in accordance with state and
city Building Code.
(6) FIRE ALARM
----------
A. Provide five (5) combination speaker/strobe devices per floor
and any required work at the central building alarm panel.
(7) HVAC
----
The HVAC System shall be capable of maintaining 74 degrees Fahrenheit
plus or minus 2 degrees, when outdoor conditions are 91 degrees
Fahrenheit dry bulb and 75 degrees Fahrenheit wet bulb. The HVAC System
shall be capable of maintaining 70 degrees Fahrenheit at outdoor
temperature 5 degrees Fahrenheit dry bulb. The HVAC System is designed
based upon (i) electrical usage of 5 xxxxx per usable square
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foot for all purposes (lighting and power) and (ii) occupancy rate of
one (1) person per usable 100 square feet.
(8) ACOUSTIC CEILING
----------------
A. A mechanically suspended acoustic ceiling shall be installed
throughout the Demised Premises. The acoustic tile shall be 2'
x 2' mineral fissured with an exposed semi-regressed spline
suspension system.
(9) FLOOR COVERING
--------------
A. Furnish and install carpeting throughout the Demised Premises
in colors selected by the Tenant from samples submitted by the
Landlord. If Tenant chooses to install his own carpeting he
will be allowed $18.00 per square yard of carpeted area.
B. Furnish and install 4" vinyl base, straight or cove, on all
columns and partitions allowed pursuant to Item (1) above.
(10) PAINT
-----
A. One prime coat and one flat finish coat, in colors selected by
Tenant from samples submitted by Landlord. Special colors, and
additional colors per room, where requested shall be done at
additional expense to Tenant. Paint to be Xxxxxxxx Xxxxx flat
latex or equal. Doors and door bucks to receive two coats of
semi-gloss enamel in the same color as the walls.
B. Paint existing radiator enclosure as required.
(11) WINDOW TREATMENT
----------------
A. Furnish and install one Building Standard Solar Shade in each
window. Shades shall be of a light neutral color. There shall
be no substitution allowed for this item.
(12) ENTRANCE
--------
A. Furnish and install 1/2" clear tempered glass doors, 6' x 8"
pair with top and bottom shoe.
Or
B. Furnish and install 1 3/4" veneered wood doors, 6'-8" pair
with hollow metal frame.
(13) PLUMBING
--------
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A. Provide one (1) pantry sink and faucet and all associated
roughing.
(14) MILLWORK
--------
A. Provide plastic laminate pantry cabinets, both wall and base
(including a countertop) not to exceed 10 lineal feet.
The foregoing provisions of this Part A of Exhibit A, Part I shall be deemed to
be modified and supplemented by the provisions of Exhibit A, Part II attached
hereto and made a part hereof.
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PART B - PLANS, SPECIFICATIONS AND DRAWINGS
-------------------------------------------
(1) Tenant, at its sole cost and expense, shall prepare and submit to
Landlord, for Landlord's approval, plans, specifications and drawings,
including basic construction work and finished work (herein referred to
as Tenant's Final Plans) on or before 20 business days after the date
of this Lease (the Submission Date).
(2) All engineering for electrical, structural, plumbing and HVAC services
required for any of Tenant's layouts, Tenant's Final Plans or Tenant's
installations (including Landlord's work under Part A) shall be
performed by Landlord's engineers only, and at Tenant's expense.
(3) Tenant's Final Plans shall comply with and conform with the Building
plans filed with Department of Buildings, and with all the rules,
regulations and/or other requirements of any governmental department
having jurisdiction over the construction of the building and/or
Demised Premises. Landlord shall, at Tenant's sole cost and expense,
file Tenant's Final Plans together with any mechanical plans and
specifications with the appropriate governmental agencies in such form
(building notice, alteration or other form) as Landlord may direct.
Landlord shall also obtain, at Tenant's sole cost and expense, all
necessary permits and approvals. Any changes required by any
governmental department affecting the construction of the building
and/or the Demised Premises shall be complied with by Landlord in
completing said building and/or the Demised Premises and shall not be
deemed to be a violation of Tenant's Final Plans or any provisions of
this Part B, and shall be accepted by the Tenant.
(4) If after the delivery of any phase of Tenant's Final Plans Tenant
shall make any changes thereto, Tenant shall reimburse Landlord for
any additional costs and expenses in connection therewith, including
Landlord's engineers' charges resulting from such changes or
revisions. Tenant shall also reimburse Landlord for the delay
resulting from such changes or revisions as set forth in Part D
thereof.
(5) Tenant's final plans are expressly subject to landlord's written
approval, which approval or rejection landlord shall use all
reasonable efforts to provide within 2 weeks. Landlord's approval may
not address aesthetic matter and shall not be unreasonably withheld
provided, however, if Tenant's Final Plans (1) require any materials,
services or installations that are not readily available at the
appropriate time or will result in an unreasonable delay in
construction or (ii) require structural alterations not contemplated
under Part A of the Workletter, Landlord may withhold approval. If
Landlord shall not disapprove or comment upon the plans and
specifications within that two (2) week period, the plans and
specifications shall be deemed to be approved.
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PART C - TENANT'S WORK
----------------------
All labor and materials which are to be furnished at the expense of Tenant in
accordance with Section B above, and all labor and materials required by Tenant
for any of its initial installations over and above the work to be furnished by
landlord pursuant to Section A above, shall be indicated on Tenant's Final Plans
and shall be performed at Tenant's cost and expense.
(A) All such work, irrespective of the nature thereof (excluding carpeting,
draperies, furniture, accessories and interior decorations other than
wall treatments) shall be performed by Landlord's contractors and shall
be charged to Tenant based upon Landlord's actual cost thereof plus 21%
of said cost for Landlord's expenses and overhead in connection
therewith.
(B) Prior to commencing any such work required by Tenant, Landlord shall
submit to Tenant written estimates of the cost of such work with
copies of the transmittal letter accompanying such estimates sent to
Tenant's attorney as set forth in the Lease. Tenant shall either
approve any such estimate within ten working days or reissue a revised
set of working drawings eliminating the extra work so as not to delay
construction of the work undertaken by Landlord pursuant to Section A
above. Failure of Tenant to reply to such estimate as aforesaid within
said ten working day period shall be deemed an approval of said
estimate with appropriate back-ups. In rejecting any estimate, Tenant
may direct Landlord in writing to proceed with such additional
materials on a "time and material" basis plus the applicable
percentage of cost to be added thereto in accordance with Paragraph A
above, and Tenant shall pay such sums as provided in Paragraph C,
below. Landlord shall submit to Tenant an itemized statement as to the
cost of "time and materials" billed and if requested by Tenant,
Landlord shall submit its records substantiating the same.
(C) Tenant agrees to pay Landlord for the cost of such work (together with
the applicable percentage of cost set forth in Paragraph A above) as
work progresses or materials are delivered, within thirty days after
submission of bills therefore.
PART D - SUBSTITUTES AND CREDITS
--------------------------------
Tenant may substitute material, equipment and fixtures for those specified in
Section A except where substitution is specifically prohibited, provided that
the item substituted is of like kind, quality and character. All finish work
shall require the installation of new materials at least comparable to the
quality of the item being substituted. Tenant shall pay Landlord the cost to
Landlord for such substitute items which are in excess of such items to be
furnished. The cost to Tenant for such substitution shall be Landlord's cost for
the substitute item less a credit for the item to be furnished, plus 21% of the
balance for Landlord's expenses and overhead in the handling of the
substitution. Tenant may also request Landlord to omit the installation of any
item not theretofore installed,
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provided Landlord shall not thereafter be obligated to install the same. Tenant
shall not be entitled to any credit for any such item omitted against any
additional item or any item of a different kind or character. There shall be no
cash credits. Where a substitution is made in accordance with the provisions of
this Part D, the item substituted shall be deemed the property of Landlord. Any
delays resulting from substitutions or omissions designated by Tenant shall be
subject to Part E below.
PART E - DELAYS BY TENANT
-------------------------
Tenant has been advised of the importance to Landlord of completing the Demised
Premises as speedily as possible and the great financial loss to Landlord
resulting from a delay thereof. If Tenant, or Persons Within Tenant's Control,
delay the progress or completion of work required to be performed by Landlord
hereunder or pursuant to any separate agreement, or delay the Commencement Date
of the Lease by (I) failing to submit to Landlord timely any of Tenant's Final
Plans, or failing to approve any estimate for additional work or failing to make
necessary revisions in Tenant's Final Plans within the time required, or
delaying any selections of materials to be made by Tenant, or (ii) requesting
changes in Tenant's Final Plans or of any items to be provided by Landlord, or
(iii) otherwise interfering or delaying Landlord's performance, then the date of
substantial completion of the Demised Premises shall be deemed to date upon
which the Demised Premises would have been substantially completed but for the
acts or omissions by Tenant or Persons Within Tenant's Control and Tenant shall
reimburse Landlord for Fixed Minimum Rent and additional rent for the period of
such delay and for the additional cost to Landlord and damages resulting from
such delay, within thirty days after being billed therefore, whether or not the
Lease has commenced. Landlord agrees to give written notice to Tenant of any
delay which Tenant is causing at or about the time the delay commences. The
above provisions shall be in addition to, and not in limitation of, any other
rights Landlord shall have under the Lease or at law; provided, however, that
Landlord shall not terminate this Lease if Tenant fails to submit Tenant's Final
Plans on the submission dates so long as Tenant pays Fixed Minimum Rent for the
period of delay and any other sums that may be due, as aforesaid.
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EXHIBIT A
PART II
-------
PARTITIONS
----------
1. Existing exterior walls and core walls will be repaired, if
necessary, and painted.
2. Up to 20% of the interior walls should have 24" high
clearstory glass.
3. Low drywall with wood and/or plastic laminate cap may be
substituted for full height dry wall.
4. In addition to the demising partitions, up to 10% of the
interior walls shall have sound attenuating insulation and go
slab to slab.
5. Tenant shall be allowed to angle partitions and dogleg
partitions at exterior walls.
HARDWARE
--------
Interior doors shall have heavy duty A.D.A. approved hardware and locksets.
ELECTRIC SERVICE
----------------
1. Electrical distribution system shall be a minimum of 5 xxxxx
per square foot of rentable area.
2. One 15 amp outlet 120_.duplex outlets shall be provided for
every 100 sq. ft. of rentable area.
LIGHTING
--------
1. Up to 15% of the fixtures may be substituted with fluorescent
high hat fixtures with (2) 1BW. The Landlord's contribution
for each high hat fixture shall not exceed the cost of the
recessed fluorescent fixture.
2. All wall switches shall be Decura type.
3. Lampak units shall be provided in the fluorescent fixtures in
accordance with the N.Y.C. Building Codes.
FIRE ALARM
----------
Shall comply to the N.Y.C. Building Code.
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H.V.A.C.
--------
Distribution ductwork to accommodate the interior layout shall be provided.
FLOOR COVERING
--------------
Landlord shall repair floor and flash patch as required.
PAINT
-----
A minimum of (2) colors of eggshell finish. Xxxxxxxx Xxxxx Paint shall be over a
prime coat shall be applied to all gypsum board surfaces. All metal work shall
receive (2) coats of semi-gloss in a different color.
WINDOW TREATMENT
----------------
Landlord will consider using a LeVelor "Xxxxxx" Series mini-blind as building
standard. If not, Landlord and Tenant will agree upon a building standard blind.
PLUMBING
--------
BATHROOMS
---------
FIRE PROTECTION
---------------
Landlord to compartmentalize space as required by Code.
RADIATOR COVERS
---------------
Landlord to provide for new radiator convector covers using basic standard
aluminum covers.
CEILINGS
--------
Tenant may not want to have an acoustic ceiling. Tenant may instead prefer to
have Landlord to repair and patch ceiling and paint ceiling.
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EXHIBIT B
---------
BASIC BUILDING WORK
-------------------
1. Install new thermopane windows at the Demised Premises.
2. Renovate lobby, including upgrading floor in elevator cabs.
3. Prior to Delivery of Possession (as defined in the Lease), remove
stairway between 18th and 17th floors and install and patch ceiling of the 17th
floor.
4. Refurbish existing bathrooms to building standards prior to Delivery
of Possession with the number of water closets and sinks in the men's and
women's bathrooms as existing as of the date hereof and in their present
locations. Install one separate ADA compliant bathroom on each floor.
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FIRST AMENDMENT OF LEASE DATED AS OF JUNE 6, 1997 BETWEEN A & R REAL
ESTATE, INC. AND XXXXXX COMMUNICATIONS, INC.
The parties agree as follows:
ARTICLE I
---------
RECITALS AND DEFINITIONS
------------------------
SECTION 1.01 THE PARTIES
------------ -----------
(a) A & R Real Estate, Inc. is a New York corporation. It has an
address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. It is referred to below
as "Owner".
(b) Xxxxxx Communications, Inc. is a Delaware corporation. It has an
address at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. It is referred to below
as "Tenant".
SECTION 1.02 THE LEASE
------------ ---------
Reference to the "Lease" means the lease dated May 9, 1997 between
Owner, as lessor, and Tenant, as lessee, relating to the sixteenth (16th) and
seventeenth (17th) floors of the building known as 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx (the "Building").
SECTION 1.03 DEFINITIONS
------------ -----------
The words and phrases defined in the Lease have the same meaning in
this agreement, except as may be otherwise provided in this agreement.
ARTICLE II
----------
AMENDMENTS
----------
SECTION 2.01 THE OPTION TO LEASE
------------ -------------------
(a) Owner and Tenant hereby confirm that Tenant has validly exercised
Tenant's option to lease the fourteenth (14th) floor of the Building pursuant to
Rider Section 69 A of the Lease.
(b) Pursuant to Rider Section 69 A of the Lease, the fourteenth (14th)
floor is included as part of the Demised Premises and the provisions of
paragraphs 1 through 8 of said Rider Section 69 A apply and are in full force
and effect.
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(c) Contemporaneously with the execution of this agreement, Tenant has
paid the first month's worth of fixed annual rent in the amount of Twenty-one
Thousand, Eight Hundred and Seventy-five ($21,875.00) Dollars attributable to
the fourteenth floor and has deposited with Landlord the additional sum of
Forty-seven Thousand Nine Hundred Sixteen ($47,916.00) Dollars as additional
security to be held and applied pursuant to Rider Article 67 of the Lease.
SECTION 2.02 ASSIGNMENT
------------ ----------
Rider Section 51H of the Lease is hereby amended as follows:
(a) the words "either (a)" are inserted after the words "has been
previously assigned are" in the fifth line from the bottom of the Section; and
(b) the words "or (b) sold in connection with or as part of a public
offering of such Affiliate's shares" are inserted after the words "over the
counter market" in the fourth line from the bottom of the Section.
ARTICLE III
-----------
GENERAL PROVISIONS
------------------
SECTION 3.01 CONFIRMATION
------------ ------------
Except as set forth in this agreement, the Lease remains unchanged and
in full force and effect.
SECTION 3.02 SUCCESSORS AND ASSIGNS
------------ ----------------------
This agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
SECTION 3.03 MODIFICATION
------------ ------------
This agreement may not be modified orally.
SECTION 3.04 INTERPRETATION
------------ --------------
This agreement shall be interpreted under and governed by the laws of
the State of New York.
The parties have caused this agreement to be duly executed as
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of the date set forth above by their respective duly authorized representatives.
A & R Real Estate, Inc.
By: /s/ Signature Illegible
President
Xxxxxx Communications, Inc.
By: /s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
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A & R REAL ESTATE, INC.
000 XXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
July 28, 1997
Xxxxxx Communications, Inc.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Re: Lease dated May 9, 1997 - Xxxxxx Communications, Inc.
with A&R Real Estate, Inc. - 000 Xxxxxxx Xxxxxx, X.X.
-----------------------------------------------------
Gentlemen:
This letter relates to the above captioned lease as amended by the
Amendment of Lease dated June 6, 1997, (collectively the "Lease"). This letter
is intended to be an amendment of the Lease with respect to the work to be
performed at the 14th, 16th and 17th floors of the building. The words and
phrases defined with Lease have the same meaning in this letter, except as may
be otherwise set forth below.
With respect to the 16th and 17th floors, reference below to the "Plans
and Specifications" means the plans and specifications dated 6/09/97, prepared
by Xxxxxxx Xxxxxxxx, numbered 16-A1 through X0, 00X0 through A6, A7 through A14,
M1 through M6, F1 through F5, P3 and P4, SP1 through XX0, X0 xxxxxxx X0, XX0 and
FA2, which Plans and Specifications have been approved by Owner. Tenant has not
yet prepared plans and specifications for the 14th floor. The plans and
specifications for the 14th floor work shall be subject to Owner's approval
which shall not be unreasonably withheld or delayed. Tenant agrees that the
plans and specifications for the 14th floor shall be substantially similar to
the Plans and Specifications. The work described in the Plans and Specifications
and the contemplated work for the 14th floor are referred to below as "Tenant's
Build Out Work".
We hereby agree as follows:
1. Notwithstanding the provisions of this Lease, Owner shall not be
required to perform any work, including but not limited to Owner's Work, to
prepare the 14th, 16th and 17th floors for Tenant's occupancy, except that Owner
shall be required to close the opening in the slab between the 17th and 18th
floors (unless Tenant and Owner enter into a lease for the 18th floor within 45
days after the date of this letter).
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2. (a) Tenant shall perform Tenant's Build Out Work at Tenant's sole
cost and expense.
(b) From and after the date hereof, Tenant may enter the
Demised Premises for the purpose of performing Tenant's Build Out Work. Tenant's
Build Out Work shall be performed in accordance with the Plans and
Specifications with respect to the 16th and 17th floors and the plans and
specifications approved by Owner with respect to the 14th floor, in a good and
workmanlike manner, and in accordance with all applicable legal requirements.
Tenant may not commence work at the 14th floor until plans and specifications
for the 14th floor have been approved by Owner. Any changes or deletions in
Tenant's Build Out Work shall be subject to Owner's approval, which approval
shall not be unreasonably withheld. All materials, fixtures and equipment
installed by Tenant as part of Tenant's Build Out Work shall be new. Rider
Section 41B is deleted with respect to the 16th and 17th floors.
(c) Tenant shall abide by all reasonable rules and
regulations prescribed by Owner with respect to the delivery of materials and
performance of Tenant's Build Out Work. Tenant shall be responsible for any
damage caused to the Building by Tenant's agents, employees, contractors or
subcontractors. The provisions of Rider Section 49 of the Lease shall apply with
respect to the performance of Tenant's Build Out Work.
(d) Upon completion of Tenant's Build Out Work, Tenant shall
deliver to Owner a complete and detailed list of the costs and expenses incurred
by Tenant for Tenant's Build Out Work and two (2) sets of "as built" plans and
specifications for Tenant's Build Out Work.
(e) Owner shall be entitled to inspect Tenant's Build Out
Work as the work progresses. Tenant's Build Out Work shall be subject to Owner's
approval with respect to whether Tenant's Build Out Work conforms to the
approved plans and specifications (including the Plans and Specifications) and
applicable legal requirements and whether the work was performed in a good and
workmanlike manner. Owner's approval shall not be unreasonably withheld. Tenant
shall correct any defects or deficiencies in Tenant's Build Out Work.
Notwithstanding the provisions of the Lease, during the Term, Tenant shall be
responsible for all repairs to any heating, ventilating and air conditioning
equipment installed by Tenant. The foregoing shall not be deemed to be a release
of Owner's obligation to maintain the existing air-conditioning units servicing
the Demised Premises.
(f) Owner shall be obligated to complete the unfinished
portions of the Basic Building Work pursuant to the Lease.
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3. (a) Upon substantial completion of Tenant's Build Out Work and
submission to Owner of reasonably satisfactory evidence that the Tenant's Build
Out Work has been paid for in full, no mechanic's liens have been filed, all
contractors and subcontractors have delivered the appropriate waiver of liens
and all governmental approval and signoffs have been obtained, in addition to
the rent concession provided for in Rider Section 66, Tenant shall be entitled
to an additional abatement of fixed annual rent in the net amount of One Million
One Hundred Ninety Thousand Six Hundred Twenty-five ($1,190,624.00) Dollars less
Owner's inspection and supervisory fee of Ninety-nine Thousand Three Hundred
Seventy-five ($99,375.00) Dollars. The net additional rent abatement of One
Million Ninety-one Thousand Two Hundred Fifty ($1,091,250.00) Dollars shall be
applied as follows:
(i) The installment of fixed rent for the fifth
(5th) through the twelfth (12th) months of the Term shall be abated in full
rather than the one-half abatement provided for in Rider Subsection 66A;
(ii) the installment of fixed annual rent due for
the thirteenth (13th) through the twenty-fourth (24th) months of the Term shall
be abated in full; and
(iii) the installment of fixed annual rent due for
the twenty- fifth (25th) month of the Term shall be reduced by Forty-one
Thousand Two Hundred Fifty ($41,250.00) Dollars.
4. Notwithstanding the provisions of the Lease, the Commencement Date
with respect to the entire Demised Premises shall be changed to the ninetieth
(90th) day after the date of this letter.
5. Any contractor employed by Tenant to perform Tenant's Build Out Work
shall be subject to Owner's approval. Which approval shall not be unreasonably
withheld.
6. Owner hereby approves Xxxxxxx Construction Company ("Xxxxxxx") as a
contractor to perform Tenant's Build Out Work. Owner shall cause Xxxxxxx to
employ the subcontractors listed in Schedule A hereof to perform the HVAC work,
the sprinkler work, the plumbing work, the electrical work and the Class E fire
safety work provided for in the Plans and Specifications. With respect to the
electrical work, Tenant and/or its general contractor and not the electricity
subcontractor shall supply the electrical fixtures. Tenant and/or its general
contractor shall be solely responsible for any delay in supplying same or any
missing, defective or incomplete fixtures and delays arising therefrom.
7. Except as set forth in this letter, the Lease remains
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unchanged and in full force and effect.
Please confirm your agreement to the foregoing by countersigning a
counterpart of this letter.
Very truly yours,
A & R Real Estate, Inc.
By: /s/ Signature Illegible
President
Agreed as of July 28, 1997
Xxxxxx Communications, Inc.
By: /s/ Xxxxxx Xxxxxxxx
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SCHEDULE A
----------
16th and 17th Floor
Prices
------
1. HVAC: Xxxxxxx Wimco $121,000
2. Plumbers & Sprinklers: Melenik Plumbing $ 67,000
3. Electric: Xxxxxx Electric $175,000
(Labor Only)
4. Class E Alarm: FSA Fire Alarm $ 24,725
NOTE: Subject to differences in the scope of the work for the 14th floor, Bid
Prices for the 14th floor shall be reasonably comparable to the above
prices.
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THIRD AMENDMENT OF LEASE DATED AS OF OCTOBER 1, 1997 BETWEEN A & R REAL
ESTATE, INC. AND XXXXXX COMMUNICATIONS, INC.
The parties agree as follows:
ARTICLE I
---------
RECITALS AND DEFINITIONS
------------------------
SECTION 1.01 THE PARTIES
------------ -----------
(a) A & R Real Estate, Inc. is a New York corporation. It has an
address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. It is referred to below
as "Owner".
(b) Xxxxxx Communications, Inc. is a Delaware corporation. It has an
address at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. It is referred to below
as "Tenant".
SECTION 1.02 THE LEASE AND LEASE YEAR
------------ ------------------------
(a) Reference to the "Lease" means the lease dated May 9, 1997 between
Owner, as lessor, and Tenant, as lessee, relating to the sixteenth (16th) and
seventeenth (17th) floors of the building known as 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx (the "Building"), as amended by the First Amendment of Lease dated as
of June 6, 1997 confirming the addition of the fourteenth (14th) floor of the
Building as part of the Demised Premises, and by a letter agreement dated July
28, 1997.
(b) The parties hereby confirm that the first "Lease Year" of the
Lease shall commence on October 26, 1997 and shall end on October 31, 1998.
SECTION 1.03 DEFINITIONS
------------ -----------
The words and phrases defined in the Lease have the same meaning in
this agreement, except as may be otherwise provided in this agreement.
SECTION 1.04 AGREEMENT TO AMEND
------------- ------------------
The parties have agreed to further amend the Lease by adding the
eighteenth (18th) floor of the Building as part of the Demised Premises.
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ARTICLE II
----------
AMENDMENTS
----------
SECTION 2.01 THE ADDITIONAL PREMISES
------------ -----------------------
The eighteenth (18th) floor of the Building is hereby added to and
included as part of the Demised Premises. Tenant represents that Tenant is
familiar with the condition of the eighteenth (18th) floor and agrees to accept
possession of it in "as is" condition as of the date of this Agreement. Tenant
shall be entitled to possession of the eighteenth (18th) floor on the date of
this Agreement. Owner shall not be required to perform any work with respect to
the eighteenth (18th) floor of the Building. Landlord shall not be required to
enclose the floor slab between the seventeenth (17th) and eighteenth (18th)
floors.
SECTION 2.02 ADDITIONAL SECURITY AND FIXED RENT
------------ ----------------------------------
Contemporaneously with the execution of this agreement, Tenant has paid
the first month's worth of the "Eighteenth Floor Rent" (as defined below) in the
amount of Twenty- four Thousand Four Hundred Seventy-nine Dollars and 67/100
($24,479.67) Dollars and has deposited with Landlord the additional sum of
Fifty-three Thousand One Hundred Twenty-five ($53,125.00) Dollars as additional
security to be held and applied pursuant to Rider Article 67 of the Lease.
SECTION 2.03 RENTAL INCREASE
------------ ---------------
(a) Commencing as of January 1, 1998, subject to the abatement
provided for in Section 2.04 below, the annual rate of fixed annual rent payable
under the Lease is further increased by an annual rate of fixed rent equal to
the "Eighteenth Floor Rent". Reference to the "Eighteenth Floor Rent" means the
annual rate of fixed rent attributable to the eighteenth floor at the following
annual rates:
(i) for the period from January 1, 1998 until the end of the
fifth (5th) Lease Year, the Eighteenth Floor Rent shall be Two Hundred
Ninety-three Thousand Seven Hundred Fifty ($293,750.00) Dollars; and
(ii) from the first day of the sixth (6th) Lease Year until
the Expiration Date, the Eighteenth Floor Rent shall be Three Hundred Eighteen
Thousand Seven Hundred Fifty ($318,750.00) Dollars.
(b) Commencing as of January 1, 1998, the multiple set forth in
paragraph 1 of Section B of Rider Article 42 shall be increased by an additional
12,500 to an aggregate of 50,000.
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(c) Commencing as of January 1, 1998, Tenant's Pro Rata Share under
Article 43 shall be increased by an additional five (5%) percent to an aggregate
of twenty (20%) percent.
(d) The Eighteenth Floor Rent shall not be payable for the period from
October 1, 1997 until December 31, 1997.
SECTION 2.04 ABATEMENT OF EIGHTEENTH FLOOR RENT
------------ ----------------------------------
(a) Notwithstanding the provisions of subsection 2.03(a) above, the
increase in fixed annual rent provided for in said subsection 2.03(a) above
shall be abated as follows:
(i) The Eighteenth Floor Rent shall not be payable for the
eight (8) month period from January 1, 1998 through August 31, 1998; and
(ii) Provided Tenant shall not be in default beyond any
applicable notice or cure period, including any default relating to Tenant's
obligation under Section 2.05, in order to partially reimburse Tenant for the
cost of preparing the Demised Premises for Tenant's possession, commencing on
September 1, 1998 and on the first day of each month thereafter, Tenant shall be
entitled to an abatement of the monthly installments of the Eighteenth Floor
Rent until Tenant has received an aggregate abatement pursuant to this part (ii)
equal to "Tenant's Eighteenth Floor Costs".
(b) "Tenant's Eighteenth Floor Costs" means the lesser of (i)
ninety-five (95%) percent of actual costs of work performed at and improvements
made by or on behalf of Tenant to the eighteenth (18th) floor (the "Eighteenth
Floor Work") and (ii) the difference between (x) Three Hundred Seventy-five
Thousand ($375,000.00) Dollars less (y) five (5%) percent of the actual cost of
the Eighteenth Floor Work.
SECTION 2.05 PERFORMANCE OF THE WORK
------------ -----------------------
(a) Tenant shall perform the Eighteenth Floor Work at Tenant's sole
cost and expense. Prior to commencing any part of the Eighteenth Floor Work,
Tenant shall submit to Owner complete plans and specifications for the
Eighteenth Floor Work for Owner's approval. Owner's approval of the Eighteenth
Floor Work shall not be unreasonably withheld or delayed and shall not be deemed
to be an agreement by Owner that the plans and specifications comply with
applicable legal requirements. The plans and specifications shall be prepared by
an architect licensed in the State of New York. The Eighteenth Floor Work shall
be performed in a good and workmanlike manner in accordance with the approved
plans and specifications and applicable legal requirements.
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(b) Tenant shall abide by all reasonable rules and regulations
prescribed by Owner with respect to the delivery of materials and performance of
the Eighteenth Floor Work. Tenant shall be responsible for any damage caused to
the Building by Tenant's agents, employees, contractors or subcontractors. The
provisions of Rider Section 49 of the Lease shall apply with respect to the
performance of the Eighteenth Floor Work.
(c) Upon completion of the Eighteenth Floor Work, Tenant shall deliver
to Owner a complete and detailed list of the costs and expenses incurred by
Tenant for the Eighteenth Floor Work and two (2) sets of "as built" plans and
specifications for the Eighteenth Floor Work.
(d) Owner shall be entitled to inspect the Eighteenth Floor Work as
the work progresses. The Eighteenth Floor Work shall be subject to Owner's
approval with respect to whether the Eighteenth Floor Work conforms to the
approved plans and specifications and applicable legal requirements and whether
the work was performed in a good and workmanlike manner. Owner's approval shall
not be unreasonably withheld. Tenant shall correct any defects or deficiencies
in the Eighteenth Floor Work. Notwithstanding the provisions of the Lease,
during the Term, Tenant shall be responsible for all repairs of any portion of
the Eighteenth Floor Work including any repairs to any heating, ventilating and
air conditioning installations or equipment installed by Tenant as part of the
Eighteenth Floor Work. The parties hereby confirm that the Owner shall be
responsible for the repair of the heating, ventilating and air-conditioning unit
located on the eighteenth (18th) floor on the date of this Agreement.
(e) Upon substantial completion of the Eighteenth Floor Work, Tenant
shall deliver to Owner reasonably satisfactory evidence that the Eighteenth
Floor Work has been paid for in full, no mechanic's liens have been filed, all
contractors and subcontractors have delivered the appropriate waiver of liens
and all governmental approvals and signoffs have been obtained.
SECTION 2.06 CONTRACTORS
------------ -----------
(a) Any general contractor or construction manager employed by Tenant
with respect to the Eighteenth Floor Work shall be subject to Owner's approval,
which approval shall not be unreasonably withheld. Notwithstanding anything to
the contrary, Tenant shall not be permitted to employ Xxxxxxx Construction
Company or any affiliate, person or party related to Xxxxxxx Construction
Company with respect to the performance of the Eighteenth Floor Work.
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(b) Tenant and any contractor or construction manager employed by
Tenant shall be required to employ the subcontractors designated by Owner for
the performance of any electrical, plumbing, heating and air-conditioning and
alarm work at the eighteenth floor.
ARTICLE III
-----------
GENERAL PROVISIONS
------------------
SECTION 3.01 CONFIRMATION
------------ ------------
Except as set forth in this agreement, the Lease remains unchanged and
in full force and effect.
SECTION 3.02 SUCCESSORS AND ASSIGNS
------------ ----------------------
This agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
SECTION 3.03 BROKERS
------------ -------
The parties hereby represent to each other that they have dealt with no
brokers in connection with this amendment agreement and the Lease other than
Newmark & Co. and Insignia/Xxxxxx X. Xxxxxx Co.
SECTION 3.04 MODIFICATION
------------ ------------
This agreement may not be modified orally.
SECTION 3.05 INTERPRETATION
------------ --------------
This agreement shall be interpreted under and governed by the laws of
the State of New York.
The parties have caused this agreement to be duly executed as of the
date set forth above by their respective duly authorized representatives.
A & R Real Estate, Inc.
By: /s/ Signature Illegible
----------------------
Xxxxxx Communications, Inc.
By: /s/ Xxxxxx Xxxxxxxx
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EXHIBIT A - PART I
------------------
000 XXXXXXX XXXXXX
BUILDING STANDARD WORKLETTER
----------------------------
OFFICE CONSTRUCTION
-------------------
FEBRUARY 1997 - A
-----------------
"BUILDING STANDARD" DEFINITION
------------------------------
The term "Building Standard" shall refer to all work to be performed by
Landlord, at his sole expense, on the Demised Premises with "Standard of the
Building" materials as outlined in the Workletter of the Lease.
PART A - LANDLORD'S WORK
------------------------
Landlord shall provide and install the following facilities and materials and
complete the following work at Landlord's sole cost and expense (except as
herein otherwise provided) in accordance with Tenant's Final Plans, as defined
in Part B herein. The term "Building Standard" shall mean such materials as
Landlord may elect to use as part of its standard construction substantially
throughout the Building. For purposes of this Lease the Landlord's work shall
be:
(1) PARTITIONS
----------
A. One (1) lineal foot of drywall partition for every 15 square
feet of rentable area.
B. Drywall partitions shall be constructed of 2 1/2" steel studs
24" on center with a layer of 5/8" sheetrock on each side.
Interior partitions shall extend to 6" above the hung ceiling.
C. Demising partitions shall be constructed of 2 1/2" steel studs
with one layer of 5/8" sheetrock on one side and layer of 5/8"
sheetrock on the other side. Both layers of 5/8" sheetrock
shall extend to the slab above. All demising partitions shall
be packed with insulation.
D. Any angles in any partition shall be at Tenant's expense.
Partitions ending at the exterior walls shall meet a column or
mullion.
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E. Two (2) 5' long paint-grade hat shelves and poles will be provided.
(2) DOORS & BUCKS
-------------
A. One (1) door and buck for every 25 lineal feet of drywall partition
allowed pursuant to Item (1) above.
B. Doors shall be flush type, hollow metal 3'-0" x 8'-0" high.
C. Two (2) 5'-0" x 8'-0" closet double doors.
(3) HARDWARE
--------
A. Each interior door allowed pursuant to Item (2) above shall be fitted
with one 1/1/2 pair of butt hinges, heavy duty latch set, brushed
chrome finish and door bumper.
(4) ELECTRIC SERVICE
----------------
A. The Demised Premises will be served with an incoming electric
service of adequate capacity to meet conditions constructed in
accordance with the "Building Standard Workletter". The
distribution system is designed for 5 xxxxx per square foot of
rentable area for the combined lighting and power load.
Subject to the foregoing, any required alteration at electric
panel shall be performed by Landlord.
B. One (1) 15 amp, 120 volt duplex electrical receptacle for
every 125 sq. ft. of rentable area, to be installed within
building standard partitions specified above.
C. Two (2) 30 amp, 120 volt separate circuit outlets.
(5) LIGHTING
--------
A. One (1) modern recessed type fluorescent, 4 tube light fixture
with Parawedge lens, for every 90 sq. ft. of rentable area.
B. One (1) silent type wall switch for every room.
C. Exit and emergency lighting to be in accordance with state and
city Building Code.
(6) FIRE ALARM
----------
A. Provide five (5) combination speaker/strobe devices per floor
and any required work at the central building alarm panel.
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(7) HVAC
----
The HVAC System shall be capable of maintaining 74 degrees Fahrenheit
plus or minus 2 degrees, when outdoor conditions are 91 degrees
Fahrenheit dry bulb and 75 degrees Fahrenheit wet bulb. The HVAC System
shall be capable of maintaining 70 degrees Fahrenheit at outdoor
temperature 5 degrees Fahrenheit dry bulb. The HVAC System is designed
based upon (i) electrical usage of 5 xxxxx per usable square foot for
all purposes (lighting and power) and (ii) occupancy rate of one (1)
person per usable 100 square feet.
(A) ACOUSTIC CEILING
----------------
A. A mechanically suspended acoustic ceiling shall be installed
throughout the Demised Premises. The acoustic tile shall be 2'
x 2' mineral fissured with an exposed semi-regressed spline
suspension system.
(9) FLOOR COVERING
--------------
A. Furnish and install carpeting throughout the Demised Premises
in colors selected by the Tenant from samples submitted by the
Landlord. If Tenant chooses to install his own carpeting he
will be allowed $18.00 per square yard of carpeted area.
B. Furnish and install 4" vinyl base, straight or cove, on all
columns and partitions allowed pursuant to Item (1) above.
(10) PAINT
-----
A. One prime coat and one flat finish coat, in colors selected by
Tenant from samples submitted by Landlord. Special colors, and
additional colors per room, where requested shall be done at
additional expense to Tenant. Paint to be Xxxxxxxx Xxxxx flat
latex or equal. Doors and door bucks to receive two coats of
semi-gloss enamel in the same color as the walls.
B. Paint existing radiator enclosure as required.
(11) WINDOW TREATMENT
----------------
A. Furnish and install one Building Standard Solar Shade in each
window. Shades shall be of a light neutral color. There shall
be no substitution allowed for this item.
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(12) ENTRANCE
--------
A. Furnish and install 1/2" clear tempered glass doors, 6' x 8"
pair with top and bottom shoe.
Or
B. Furnish and install 1 3/4" vaneered wood doors, 6'-8" pair
with hollow metal frame.
(13) PLUMBING
--------
A. Provide one (1) pantry sink and faucet and all associated
roughing.
(14) MILLWORK
--------
A. Provide plastic laminate pantry cabinets, both wall and base
(including a countertop) not to exceed 10 lineal feet.
The foregoing provisions of this Part A of Exhibit A, Part I shall be deemed to
be modified and supplemented by the provisions of Exhibit A, Part II attached
hereto and made a part hereof.
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PART B - PLANS, SPECIFICATIONS AND DRAWINGS
-------------------------------------------
(1) Tenant, at its sole cost and expense, shall prepare and submit to
Landlord, for Landlord's approval, plans, specifications and drawings,
including basic construction work and finished work (herein referred to
as Tenant's Final Plans) on or before 20 business days after the date
of this Lease (the Submission Date).
(2) All engineering for electrical, structural, plumbing and HVAC services
required for any of Tenant's layouts, Tenant's Final Plans or Tenant's
installations (including Landlord's work under Part A) shall be
performed by Landlord's engineers only, and at Tenant's expense.
(3) Tenant's Final Plans shall comply with and conform with the Building
plans filed with Department of Buildings, and with all the rules,
regulations and/or other requirements of any governmental department
having jurisdiction over the construction of the building and/or
Demised Premises. Landlord shall, at Tenant's sole cost and expense,
file Tenant's Final Plans together with any mechanical plans and
specifications with the appropriate governmental agencies in such form
(building notice, alteration or other form) as Landlord may direct.
Landlord shall also obtain, at Tenant's sole cost and expense, all
necessary permits and approve's. Any changes required by any
governmental department affecting the construction of the building
and/or the Demised Premises shall be complied with by Landlord in
completing said building and/or the Demised Premises and shall not be
deemed to be a violation of Tenant's Final Plans or any provisions of
this Part B, and shall be accepted by the Tenant.
(4) If after the delivery of any phase of Tenant's Final Plans Tenant shall
make any changes thereto, Tenant shall reimburse Landlord for any
additional costs and expenses in connection therewith, including
Landlord's engineers' charges resulting from such changes or revisions.
Tenant shall also reimburse Landlord for the delay resulting from such
changes or revisions as set forth in Part D thereof.
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(5) Tenant's Final Plans are expressly subject to Landlord's written
approval, which approval or rejection Landlord shall use all reasonable
efforts to provide within 2 weeks. Landlord's approval may not address
asthetic matter and shall not be unreasonably withheld provided,
however, if Tenant's Final Plans (1) require any materials, services or
installations that are not readily available at the appropriate time or
will result in an unreasonable delay in construction or (ii) require
structural alterations not contemplated under Part A of the Workletter,
Landlord may withhold approval. If Landlord shall not disapprove or
comment upon the plans and specifications within that two (2) week
period, the plans and specifications shall be deemed to be approved.
PART C - TENANT'S WORK
----------------------
All labor and materials which are to be furnished at the expense of Tenant in
accordance with Section B above, and all labor and materials required by Tenant
for any of its initial installations over and above the work to be furnished by
landlord pursuant to Section A above, shall be indicated on Tenant's Final Plans
and shall be performed at Tenant's cost and expense.
(A) All such work, irrespective of the nature thereof (excluding carpeting,
draperies, furniture, accessories and interior decorations other than
wall treatments) shall be performed by Landlord's contractors and shall
be charged to Tenant based upon Landlord's actual cost thereof plus 21%
of said cost for Landlord's expenses and overhead in connection
therewith.
(B) Prior to commencing any such work required by Tenant, Landlord shall
submit to Tenant written estimates of the cost of such work with copies
of the transmittal letter accompanying such estimates sent to Tenant's
attorney as set forth in the Lease. Tenant shall either approve any
such estimate within ten working days or reissue a revised set of
working drawings eliminating the extra work so as not to delay
construction of the work undertaken by Landlord pursuant to Section A
above. Failure of Tenant to reply to such estimate as aforesaid within
said ten working day period shall be deemed an approval of said
estimate with appropriate back-ups. In rejecting any estimate, Tenant
may direct Landlord in writing to proceed with such additional
materials on a "time and material" basis plus the applicable percentage
of cost to be added thereto in accordance with Paragraph A above, and
Tenant shall pay such sums as provided in Paragraph C, below. Landlord
shall submit to Tenant an itemized statement as to the cost of "time
and materials" billed and if requested by Tenant, Landlord shall submit
its records substantiating the same.
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(C) Tenant agrees to pay Landlord for the cost of such work (together with
the applicable percentage of cost set forth in Paragraph A above) as
work progresses or materials are delivered, within thirty days after
submission of bills therefore.
PART D - SUBSTITUTES AND CREDITS
--------------------------------
Tenant may substitute material, equipment and fixtures for those specified in
Section A except where substitution is specifically prohibited, provided that
the item substituted is of like kind, quality and character. All finish work
shall require the installation of new materials at least comparable to the
quality of the item being substituted. Tenant shall pay Landlord the cost to
Landlord for such substitute items which are in excess of such items to be
furnished. The cost to Tenant for such substitution shall be Landlord's cost for
the substitute item less a credit for the item to be furnished, plus 21% of the
balance for Landlord's expenses and overhead in the handling of the
substitution. Tenant may also request Landlord to omit the installation of any
item not theretofore installed, provided Landlord shall not thereafter be
obligated to install the same. Tenant shall not be entitled to any credit for
any such item omitted against any additional item or any item of a different
kind or character. There shall be no cash credits. Where a substitution is made
in accordance with the provisions of this Part D, the item substituted shall be
deemed the property of Landlord. Any delays resulting from substitutions or
omissions designated by Tenant shall be subject to Part E below.
PART E - DELAYS BY TENANT
-------------------------
Tenant has been advised of the importance to Landlord of completing the Demised
Premises as speedily as possible and the great financial loss to Landlord
resulting from a delay thereof. If Tenant, or Persons Within Tenant's Control,
delay the progress or completion of work required to be performed by Landlord
hereunder or pursuant to any separate agreement, or delay the Commencement Date
of the Lease by (I) failing to submit to Landlord timely any of Tenant's Final
Plans, or failing to approve any estimate for additional work or failing to make
necessary revisions in Tenant's Final Plans within the time required, or
delaying any selections of materials to be made by Tenant, or (ii) requesting
changes in Tenant's Final Plans or of any items to be provided by Landlord, or
(iii) otherwise interfering or delaying Landlord's performance, then the date of
substantial completion of the Demised Premises shall be deemed to date upon
which the Demised Premises would have been
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substantially completed but for the acts or omissions by Tenant or Persons
Within Tenant's Control and Tenant shall reimburse Landlord for Fixed Minimum
Rent and additional rent for the period of such delay and for the additional
cost to Landlord and damages resulting from such delay, within thirty days after
being billed therefore, whether or not the Lease has commenced. Landlord agrees
to give written notice to Tenant of any delay which Tenant is causing at or
about the time the delay commences. The above provisions shall be in addition
to, and not in limitation of, any other rights Landlord shall have under the
Lease or at law; provided, however, that Landlord shall not terminate this Lease
if Tenant fails to submit Tenant's Final Plans on the submission dates so long
as Tenant pays Fixed Minimum Rent for the period of delay and any other sums
that may be due, as aforesaid.
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EXHIBIT A
PART II
-------
PARTITIONS
----------
1. Existing exterior walls and core walls will be repaired, if
necessary, and painted.
2. Up to 20% of the interior walls should have 24" high
clearstory glass.
3. Low drywall with wood and/or plastic laminate cap may be
substituted for full height dry wall.
4. In addition to the demising partitions, up to 10% of the
interior walls shall have sound attenuating insulation and go
slab to slab.
5. Tenant shall be allowed to angle partitions and dogleg
partitions at exterior walls.
HARDWARE
--------
Interior doors shall have heavy duty A.D.A. approved hardware and locksets.
ELECTRIC SERVICE
----------------
1. Electrical distribution system shall be a minimum of 5 xxxxx
per square foot of rentable area.
2. One 15 amp outlet 120_. duplex outlets shall be provided for
every 100 sq. ft. of rentable area.
LIGHTING
--------
1. Up to 15% of the fixtures may be substituted with fluorescent
high hat fixtures with (2) 1BW. The Landlord's contribution
for each high hat fixture shall not exceed the cost of the
recessed fluorescent fixture.
2. All wall switches shall be Decura type.
3. Lampak units shall be provided in the fluorescent fixtures in
accordance with the N.Y.C. Building Codes.
FIRE ALARM
----------
Shall comply to the N.Y.C. Building Code.
H.V.A.C.
--------
Distribution ductwork to accommodate the interior layout shall be provided.
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FLOOR COVERING
--------------
Landlord shall repair floor and flash patch as required.
PAINT
-----
A minimum of (2) colors of eggshell finish. Xxxxxxxx Xxxxx Paint shall be over a
prime coat shall be applied to all gypsum board surfaces. All metal work shall
receive (2) coats of semi-gloss in a different color.
WINDOW TREATMENT
----------------
Landlord will consider using a LeVelor "Xxxxxx" Series mini-blind as building
standard. If not, Landlord and Tenant will agree upon a building standard blind.
PLUMBING
--------
BATHROOMS
---------
FIRE PROTECTION
---------------
Landlord to compartmentalize space as required by Code.
RADIATOR COVERS
---------------
Landlord to provide for new radiator convector covers using basic standard
aluminum covers.
CEILINGS
--------
Tenant may not want to have an acoustic ceiling. Tenant may instead prefer to
have Landlord to repair and patch ceiling and paint ceiling.
15
