Exhibit 10.54
▇▇▇▇▇▇▇▇▇▇ ASSOCIATES L.P.
LANDLORD
AND
RSL COM U.S.A., INC.
TENANT
LEASE
Dated: As of January 15, 1997
INDEX
ARTICLE Page
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1 Demise, Premises, Term, Rents .............................. 1
2 Use ........................................................ 2
3 Condition of the Demised Premises .......................... 4
4 Real Estate Taxes .......................................... 5
5 Operating Costs ............................................ 7
6 Subordination, Attornment, Notice to
Lessors and Mortgages .................................... 9
7 Quiet Enjoyment ............................................ 10
8 Assignment, Mortgaging, Subletting ......................... 10
9 Compliance with Laws and Requirements
of Public Authorities .................................... 16
10 Insurance .................................................. 18
11 Rules and Regulations ...................................... 20
12 Tenant's Changes ........................................... 21
13 Tenant's Property .......................................... 24
14 Repairs and Maintenance .................................... 24
15 Electrical Energy .......................................... 25
16 Heat, Ventilation and Air Conditioning ..................... 27
17 Landlord's Other Services .................................. 28
18 Access, Changes in Building Facilities, Name ............... 30
19 Shoring, Notice of Accidents, etc .......................... 31
20 Non-Liability and Indemnification .......................... 32
21 Destruction or Damage ...................................... 33
22 Eminent Domain ............................................. 35
23 Surrender .................................................. 37
24 Conditions of Limitation ................................... 38
25 Re-entry by Landlord - Default Provisions .................. 39
26 Damages .................................................... 40
27 Waivers .................................................... 42
28 No Other Waivers or Modifications .......................... 42
29 Curing Tenant's Defaults ................................... 43
30 Consents ................................................... 44
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31 Notices .................................................... 45
32 Informal Arbitration ....................................... 45
33 Formal Arbitration ......................................... 46
34 Estoppel Certificate ....................................... 48
35 No Other Representations, Construction, Governing Law ...... 48
36 Parties Bound .............................................. 49
37 Certain Definitions and Constructions ...................... 49
38 Vaults, Vault Space, etc ................................... 52
39 Brokerage .................................................. 52
40 Failure to Deliver Possession .............................. 52
41 Miscellaneous .............................................. 53
42 Tenant's Termination Option ................................ 53
EXHIBITS
Exhibit "A" -- Floor Plan
Exhibit "B" -- Rules and Regulations
Exhibit "C" -- Cleaning Specifications
LEASE, dated as of January 15, 1997, between ▇▇▇▇▇▇▇▇▇▇ ASSOCIATES
L.P., a New York limited partnership, having an office for the conduct of
business c/o Corporate Property Investors, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ("Landlord"), and RSL COM U.S.A., INC., a corporation organized under
the laws of Delaware, qualified to conduct business in New York State, with an
office for the conduct of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("Tenant")
W I T N E S S E T H:
ARTICLE 1
Demise, Premises, Term, Rents
1.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the premises hereinafter described, in the building situated on the
block bounded by Fifth Avenue, 59th Street, Madison Avenue and 58th Street, in
the Borough of Manhattan, City, County and State of New York and known by the
street address ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Building"), for the term hereinafter
stated, for the rents hereinafter reserved and upon and subject to the
conditions (including limitations, restrictions and reservations) and covenants
hereinafter provided. Each party hereto expressly covenants and agrees to
observe and perform all of the conditions and covenants herein contained on its
part to be observed and performed.
1.02. The premises hereby leased to Tenant consist of approximately
2,589 square feet of rentable area located on the sixth (6th) floor of the
Building as more particularly outlined on the floor plan annexed hereto as
Exhibit "A". Said premises constitute and are hereinafter referred to as the
"Demised Premises".
1.03. The term of this Lease (the "Term") shall commence on January
15, 1997 (the "Commencement Date") and shall end at noon on January 31, 2002
(the "Expiration Date") or shall end on such earlier date upon which the Term
may expire or be canceled or terminated pursuant to any of the conditions or
covenants of this Lease or pursuant to law.
1.04. Tenant shall pay to Landlord without notice or demand and
without abatement, deduction or set-off, in lawful money of the United States of
America, at the office of Landlord or at such other place as Landlord may
designate, the Fixed Rent and "Additional Rent" (as defined below) reserved
under this Lease for each year of the Term, which payments shall consist of:
(A) Fixed Rent ("Fixed Rent") of One Hundred Ten Thousand
Thirty Two and 50/100 Dollars ($110,032.50) per year, and
(B) Additional Rent ("Additional Rent") consisting of all such
other sums of money as shall become due from and payable by Tenant to Landlord
hereunder, payable in monthly installments in advance, unless specifically
provided herein to the contrary, on the first day of each and every calendar
month during the Term.
1.05. All apportionments, allocations, reductions and abatements of
Fixed Rent and/or Additional Rent (Fixed Rent and Additional Rent being
hereinafter referred to collectively as "Rent(s)") or credits against Rents
provided in this Lease to be made with respect to any portion (including any
remainder) of the Demised Premises shall be determined by application of the
ratio of the rentable area of such portion to the rentable area of the Demised
Premises, or by application of per square foot amounts
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where such per square foot amounts specifically are set forth in this Lease. Any
proration of Rent or credits provided for in this Lease and any refunds or
credit against Rents then or thereafter due, for overpayment of Rents or payment
or Rents due or accrued (as the case may be) shall be made within twenty (20)
days after demand, except where otherwise expressly set forth in this Lease.
1.06. Tenant shall pay Fixed Rent and Additional Rent herein reserved
promptly as and when the same shall become due and payable. If the Commencement
Date shall occur on a day other than the first day of a calendar month, Fixed
Rent and Additional Rent for such calendar month shall be prorated for the
period from the Commencement Date to the last day of the said calendar month and
shall be due and payable on the Commencement Date. Notwithstanding the
provisions of the next preceding sentence, Tenant shall pay the first full
calendar monthly installment of Fixed Rent on the execution of this Lease.
1.07. Landlord shall have the same remedies for any default in the
payment of any installment or item of Additional Rent as is provided hereunder
for any default in the payment of Fixed Rent.
ARTICLE 2
Use
2.01. Tenant shall use and occupy the Demised Premises for executive
offices, administrative offices and/or general offices for the conduct of its
business, but not any business prohibited by Section 2.02, and for no other
purpose.
2.02. The use of the Demised Premises for the purposes specified in
Section 2.01 shall not in any event be deemed to include, and Tenant shall not
use, or permit the use of, the Demised Premises or any part thereof for:
(A) any sale or display of trucks, passenger cars or similar
vehicles, major household appliances, diesel engines, locomotives, and earth
moving or off-the-road equipment;
(B) sale of, or traffic in, any spiritous liquors, wines, ale
or beer kept in the Demised Premises, except as incidental to the service of
food to its officers, employees and guests in its dining facilities in the
Demised Premises and as may be approved by Landlord;
(C) sale at retail of any other products or materials kept in
the Demised Premises, by vending machines or otherwise, or demonstrations to the
public, except, upon the prior written approval of Landlord, for the sale of
candy, coffee, cigarettes, sandwiches and soda by vending machines to those
employees of Tenant who are employed at the Demised Premises;
(D) manufacturing, printing or electronic data processing,
except, subject to the provisions of this Lease, the operation of normal
business office reproducing and printing equipment, electronic data processing
equipment and other business machines for Tenant's own requirements or for the
requirements of Tenant and others engaged in joint operation of such equipment
and machines (as distinguished from operation for commercial hire or for sale of
the products thereof to others);
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(E) the rendition of medical, dental, or other diagnostic or
therapeutic services, but the foregoing restriction shall not be deemed to
preclude Tenant's employment of a resident nurse for consulting or emergency
services for Tenant's employees normally working at the Demised Premises;
(F) the conduct of a public auction of any kind;
(G) the conduct of a banking, trust company, savings bank, safe
deposit, savings and loan association, or loan company business (except for the
conduct of benefit plans limited to Tenant's employees, which in that event
could include a credit union);
(H) the issuance and sale of traveler's checks, foreign drafts,
letters of credit, foreign exchange or domestic money orders (except as is
incidentally required in the conduct of Tenant's normal business activity);
(I) the receipt of money for transmission (except as is
incidentally required in the conduct of Tenant's normal business activity)
(J) a restaurant, bar, or the sale of confectionery, candy,
tobacco, newspapers, magazines, soda beverages, sandwiches, ice cream, baked
goods or similar items, or the preparation, dispensing or consumption of food
and beverages in any manner whatsoever (except as is otherwise specifically
permitted hereunder or approved in writing by Landlord) ; or
(K) the conduct or maintenance of any gambling or gaming
activities or any political activities or any club activities, whether private
or public.
2.03. Tenant shall not suffer or permit the Demised Premises or any
part thereof to be used in any manner, or anything to be done therein, or suffer
or permit anything to be brought into or kept therein, which would in any way
(i) violate any of the provisions of any grant, lease or mortgage to which this
Lease is subordinate, (ii) violate any laws or requirements of public
authorities (subject to the right to contest such laws or requirements as
provided in Section 9.01), (iii) make void or voidable any fire or liability
insurance policy then in force with respect to the Building, (iv) make
unobtainable from reputable insurance companies authorized to do business in New
York State at standard rates any fire insurance with extended coverage, or
liability, elevator or boiler or other insurance required to be furnished by
Landlord under the terms of any lease or mortgage to which this Lease is
subordinate, (v) cause or in Landlord's reasonable opinion be likely to cause
physical damage to the Building or any part thereof, (vi) constitute a public or
private nuisance, (vii) impair, in the sole opinion of Landlord, the appearance,
character or reputation of the Building, (viii) discharge objectionable fumes,
vapors or odors into the Building air-conditioning system or into Building flues
or vents not designated to receive such fumes, vapors or odors, or otherwise
discharge same in such manner as may unreasonably offend other tenants or
occupants of the Building, (ix) impair or interfere with any of the Building
services or the proper and economic heating, cleaning, air-conditioning or other
servicing of the Building or the Demised Premises, or impair or interfere with
or tend to impair or interfere with, the use of any of the other areas of the
Building by, or occasion discomfort, annoyance or inconvenience to, Landlord or
any of the other tenants or occupants of the Building, the determination of any
such
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impairment or interference to be in the sole judgment of Landlord, or (x) cause
Tenant to default in any of its other obligations under this Lease. The
provisions of this Section, and the application thereof, shall not be deemed to
be limited in any way to or by the provisions of any of the following Sections
of this Article or any of the Rules and Regulations referred to in Article 11 or
Exhibit "B" attached hereto, except as may therein be expressly otherwise
provided.
2.04. If any governmental license or permit, other than a Certificate
of Occupancy, shall be required for the proper and lawful conduct of Tenant's
business in the Demised Premises, or any part thereof, and if failure to secure
such license or permit would in any way affect Landlord, then Tenant, at its
expense, shall duly procure and thereafter maintain such license or permit and
submit the same to inspection by Landlord. Tenant shall at all times comply with
the terms and conditions of each such license or permit, but in no event shall
failure to procure and maintain same by Tenant affect Tenant's obligations
hereunder.
2.05. Landlord shall secure a Certificate of Occupancy for the Demised
Premises which will allow Tenant to use the Demised Premises for the primary
purposes permitted by Section 2.01. Tenant shall not at any time use or occupy,
or suffer or permit anyone to use or occupy, the Demised Premises, or do or
permit anything to be done in the Demised Premises, in violation of the
Certificate of Occupancy for the Demised Premises or for the Building. Landlord
shall not knowingly and willingly do or permit anything to be done which will
result in a change in such Certificate of Occupancy with respect to the Demised
Premises such as would prohibit Tenant's use of the Demised Premises for the
uses permitted under Section 2.01 hereof without Tenant's written consent.
2.06 Tenant shall not place a load upon any floor of the Demised
Premises exceeding the floor load per square foot which such floor was designed
to carry and which is allowed by certificate, rule, regulation, permit or law.
Landlord reserves the right to prescribe the weight and position of all safes
and vaults which must be placed by Tenant, such placement to be made at Tenant's
sole expense. Business machines and mechanical equipment shall be placed and
maintained by Tenant at Tenant's sole expense, in such manner as shall be
sufficient in Landlord's judgment to absorb and prevent vibration, noise and
annoyance.
ARTICLE 3
Condition of the Demised Premises
3.01. Tenant acknowledges that it has inspected the Demised Premises
and agrees to take the whole of the Demised Premises "as is", without any work
being done thereon by Landlord and without any obligation upon Landlord to make
any contribution toward or to assume the performance of any "Tenant's Changes"
(as such term is hereinafter defined) necessary to make the Demised Premises
ready for occupancy by Tenant. Tenant does hereby assume the full obligation to
pay all costs and expenses which may be incurred in order to make the Demised
Premises ready for occupancy by Tenant.
3.02. On the Commencement Date it shall be conclusively presumed that
the approximate rentable area of the Demised Premises as stated in Section 1.02
is correct.
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ARTICLE 4
Real Estate Taxes
4.01. As used herein:
(A) "Base Year Taxes" shall mean the average of (i) Taxes
(hereinafter defined) for the twelve (12) calendar month period commencing July
1, 1996, and (ii) Taxes for the twelve (12) calendar month period commencing
July 1, 1997 (the twelve (12) calendar month period commencing January 1, 1997
being hereinafter referred to as the "Base Tax Year")
(B) "Tax Year" shall mean the twelve (12) month period
commencing July 1, 1996 and ending June 30, 1997 and each twelve (12) month
period thereafter any portion of which occurs during the term of this Lease.
(C) "Taxes" shall mean the real estate taxes, assessments,
special assessments, water rates, sewer rents and other governmental charges of
like kind or nature, now or hereafter in effect, levied or imposed by any
governmental authority upon the Building and/or the land on which the Building
is located (the "Land") and paid by Landlord, but such term shall not include,
except as provided in the sentence next following, any income, franchise,
transfer, inheritance, capital stock or other like tax. If at any time during
the Term the methods of taxation prevailing at the commencement of the Term
shall be altered so that in lieu of, or as an addition to, or as a substitute
for, the whole or any part of the taxes, assessments, levies, impositions or
charges now levied, assessed or imposed on real estate and the improvements
thereon, there shall be levied, assessed and imposed, (i) a tax, assessment,
levy, imposition or charge wholly or partially as a capital levy or otherwise on
the rents received therefrom, or (ii) a tax, assessment, levy, imposition or
charge measured by or based in whole or in part upon the Demised Premises and
imposed upon Landlord, or (iii) a license fee measured by the rent payable by
Tenant to Landlord, then all such taxes, assessments, levies, impositions or
charges, or the part thereof so measured or based, shall be deemed to be
included within the term "Taxes" for the purposes hereof; provided, however,
that the amount of such tax, assessment, levy, imposition or charge or part
thereof deemed to be included in the term "Taxes" shall be determined as if the
Building and the Land were the only assets of Landlord and as if the Rent were
the only income of Landlord. If there are any special assessments that are
payable over a period of time extending beyond the Term, only a pro rata portion
thereof, covering the portion of the Term unexpired at the time of the
imposition of such assessment, shall be included in Taxes. If, by law, any
assessment may be paid in installments, then, for the purposes hereof, (A) such
assessment shall be deemed to have been payable in the maximum number of
installments permitted by law and (B) there shall be included in Taxes for each
Tax Year in which such installments may be paid, the installments of such
assessment becoming payable during such Tax Year, together with any interest
payable during such Tax Year.
(D) "Tenant's Proportionate Share" shall mean .1581%, .1581%
being the proportion which the rentable area of the Demised Premises, which for
purposes of this Lease shall be deemed to be 2,589 square feet, bears to the
rentable area of the Building, which for purposes of this Lease shall be deemed
to be 1,637,379 square feet.
4.02. (A) If Taxes in any Tax Year shall increase above Base Year
Taxes, then Tenant shall pay as Additional Rent
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Tenant's Proportionate Share of such increase. With reasonable promptness after
Taxes for each Tax Year become known, Landlord shall render to Tenant a
comparative statement showing Taxes for the Base Tax Year, the amount of the
Taxes for such Tax Year and the amount of Additional Rent payable by Tenant in
respect of any increase in Taxes, setting forth in such comparative statement
the computation of Additional Rent. If Taxes for any Tax Year, or the assessment
upon which the Taxes are based, shall be reduced, Tenant shall pay to Landlord
Tenant's Proportionate Share of the amount of Landlord's costs and expenses
including, without limitation, attorneys' fees and disbursements, incurred in
connection with obtaining such reduction, within ten (10) days of receipt of a
written demand therefor.
(B) If Base Year Taxes are reduced, Landlord shall have the
right to recalculate Tenant's Proportionate Share of the increase of Taxes over
Base Year Taxes as the same have been reduced. Tenant shall pay the amount of
any adjustment, with respect to the monthly installment(s) of Additional Rent
already paid by Tenant, within forty-five (45) days after receipt of a demand
from Landlord therefor, which demand shall be accompanied by a copy of the
reduced tax ▇▇▇▇ together with Landlord's computation of the adjustment. All
monthly payments of Additional Rent due after said adjustment shall be based
upon the reduced Base Year Taxes.
(C) Only Landlord shall be eligible to institute tax reduction
or other proceedings to reduce the assessed valuation of the Land and the
Building. Nothing herein shall obligate Landlord to institute any proceeding for
the reduction of Taxes or the assessed valuation of the Land and the Building.
If Landlord shall receive any refund for any Tax Year in which Tenant has paid
Tenant's Proportionate Share of any increase in Taxes over Base Year Taxes,
Landlord shall promptly rebate to Tenant Tenant's Proportionate Share of such
refund and any interest paid thereon, after deducting from such refund the
reasonable costs and expenses, including, without limitation, attorneys' fees
and disbursements incurred in connection with obtaining such refund if Tenant
has not already paid same pursuant to Section 4.02(A) above.
(D) No right of Tenant to receive a payment from Landlord
pursuant to this Article shall entitle Tenant to an offset against any
installment of Fixed Rent or Additional Rent due and payable pursuant to the
provisions of this Lease.
4.03. (A) Whenever Additional Rent shall be payable pursuant to the
provisions of this Article, the same shall be payable in equal monthly
installments commencing with the monthly installment due after the rendering of
the comparative statement by Landlord as provided in Section 4.02(A) hereof.
(B) If the final Tax Year is less than twelve (12) months, any
Additional Rent for such final Tax Year shall be determined on a pro rata basis.
4.04. Every statement given by Landlord pursuant to this Article shall
be conclusive and binding upon Tenant unless within forty-five (45) days after
the receipt of such statement Tenant shall give notice to Landlord in the manner
hereinafter provided that it disputes the correctness thereof, specifying the
particular respect in which the statement is claimed to be incorrect. After
expiration of the aforesaid forty-five (45) day period, if such notice has not
been given to Landlord by Tenant as required hereunder, Tenant shall have waived
its rights in connection therewith and no claim may be made, nor any action
commenced, by Tenant in any court with respect to any matters
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covered by such statement. If Tenant gives Landlord timely notice and the
parties are thereafter unable to resolve such dispute within thirty (30) days,
then the dispute shall be resolved by informal arbitration pursuant to Article
32. Pending the determination of such dispute, Tenant shall pay Additional Rent
as provided herein in accordance with Landlord's statement and such payment
shall be without prejudice to Tenant's position If the dispute shall be
determined in Tenant's favor, Landlord shall forthwith pay Tenant the amount of
Tenant's overpayment of Additional Rent resulting from the compliance with
Landlord's statement. Landlord agrees to grant Tenant reasonable access to the
portions of Landlord's books and records pertaining to the items referred to in
this Article.
4.05. Landlord's failure during the Term to prepare and deliver any
estimates, statements or bills, or Landlord's failure to make a demand, under
this Article, or any other provisions of this Lease, shall not in any way be
deemed to be a waiver of, or cause Landlord to forfeit or surrender, its rights
to collect any portion of Additional Rent which may become due pursuant to this
Article. The liability of Tenant for the amounts due under this Article shall
survive the expiration or sooner termination of this Lease.
ARTICLE 5
Operating Costs
5.01. As used herein:
(A) "Lease Year" shall mean each consecutive calendar year
during the Term commencing January 1, 1997.
(B) "Wage Rate" shall mean the minimum hourly wage rate,
including adjustments of every kind and nature (including, without limitation,
all sums paid for "Fringe Benefits", as hereinafter defined) prescribed for
"Porters" (as hereinafter defined) for Class A office buildings (or any
successor category), in effect with respect to January 1st of each year,
pursuant to an agreement between the Realty Advisory Board on Labor Relations,
Incorporated (the "Real Estate Advisory Board"), or any successor thereto, and
the local of the Building Service Employees International Union, AFL-CIO (the
"Union"), or any successor thereto, provided, however, that such Wage Rate shall
be computed pursuant to Section 5.02 below; and provided, further, that if, at
any time during the Term, no agreement exists, Wage Rate shall mean the average
hourly wage rate, including adjustments of every kind and nature (including,
without limitation, Fringe Benefits) actually payable to Porters by Landlord or
the contractor performing services of the kind generally supplied by a ▇▇▇▇▇▇ in
the Building, or, if no Porters are employed at the Building, such rate for
Porters employed at Class A office buildings, computed pursuant to Section 5.02
below.
(C) "Base Rate" shall mean the Wage Rate in effect as of
January 1, 1997.
(D) "Rentable Area of the Demised Premises" shall mean 2,589
square feet.
(E) "Porters" shall mean those employees designated as "Class A
- Others" in the Commercial Building Agreement between the Realty Advisory Board
and the Union, who have been employed for ten (10) years or more, or, failing
such
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classification in any subsequent Agreement, the most nearly comparable
classification in such Agreement.
(F) "Fringe Benefits" shall mean all sums directly or
indirectly paid during each Lease Year for so-called "fringe benefits",
including, without limitation, the costs of (i) pensions, welfare funds,
training funds and dues, (ii) social security, vacations, sick pay, holidays,
jury duty, medical checkup, lunch time, relief time and other paid time off, and
(iii) unemployment, worker's compensation, disability benefits, health, life,
accident and other types of insurance.
5.02. The Wage Rate, Base Rate and/or the cost of Fringe Benefits on
each applicable occasion pursuant to this Lease, shall be calculated on the
basis of the minimum number of hours that Porters may be required to work under
the union agreement. For example, if the union agreement is predicated on a
2,080 hour work year (40 hours x 52 weeks) and provides that Porters shall be
paid for the following time during which they are not actually required to work:
Vacation - 120 hours; Holidays - 88 hours; Birthday - 8 hours; Medical Checkup -
16 hours; Sick Days - 80 hours; Disaster Day - 8 hours; and Relief Time - 147
hours; totaling 467 hours, then the Wage Rate and the Base Rate and the cost of
Fringe Benefits shall be calculated on the basis of 1,613 hours (2,080 hours
less 467 hours), the amount of hours that the contract requires Porters actually
work.
5.03. If, in any Lease Year during the Term, the Wage Rate shall
exceed the Base Rate, Tenant shall pay as Additional Rent an amount equal to the
sum obtained by multiplying the Rentable Area of the Demised Premised by the
product of (x) .75 and (y) the number of cents by which the Wage Rate exceeds
the Base Rate (i.e., .75 multiplied by the number of cents, including any
fraction of a cent of any increase in such hourly rate multiplied by 2,589
square feet). Landlord shall give Tenant a written statement of each increase
in the Wage Rate and the determination of the Additional Rent resulting
therefrom. If the final Lease Year extends beyond the Term, the amounts payable
pursuant to this Section 5.04 shall be determined on a pro rata basis.
5.04. (A) The amount of Additional Rent payable pursuant to Section
5.03 shall be fixed as of the effective date of such increase or decrease in the
Wage Rate, and Tenant shall pay in equal monthly installments one-twelfth
(1/12th) of the amount of such adjustment until a new adjustment becomes
effective pursuant to the terms of this Article. If the adjustment in the
Additional Rent pursuant to Section 5.03 affects months for which Tenant has
already paid the monthly installment of Additional Rent, the amount of the
increase for such months shall be paid by Tenant to Landlord, as Additional
Rent, within thirty (30) days of receipt of the statement referred to in Section
5.03 hereof.
(B) Any such adjustment for less than a year or for less than a
month shall be determined on a pro rata basis.
5.05. Anything in this Article to the contrary notwithstanding, under
no circumstances shall the Fixed Rent payable under this Lease be less than the
Fixed Rent set forth in Article 1 hereof.
5.06. Landlord's failure during the Term to prepare and deliver any
estimates, statements or bills, or Landlord's failure to make a demand under
this Article, or any other provisions of this Lease, shall not in any way be
deemed to be a waiver of, or cause Landlord to forfeit or surrender, its rights
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to collect any portion of Additional Rent which may have become due during the
Term pursuant to this Article. Tenant's liability for the amount due under this
Article shall survive the expiration or sooner termination of this Lease.
ARTICLE 6
Subordination, Attornment, Notice to Lessors and Mortgages
6.01. This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate in all respects to all present and future ground leases,
overriding leases and underlying leases and/or grants of term of the Land and/or
the Building or the portion thereof in which the Demised Premises are located in
whole or in part now or hereafter existing and to all mortgages and building
loan agreements, including leasehold mortgages and building loan agreements,
which may now or hereafter affect the Land and/or the Building and/or any of
such leases, whether or not such mortgages shall also cover other lands and/or
buildings, to each and every advance made or hereafter to be made under such
mortgages, and to all renewals, modifications, replacements and extensions of
such leases and such mortgages and spreaders and consolidations of such
mortgages. This Section shall be self-operative and no further instrument of
subordination shall be required. In confirmation of such subordination, Tenant
shall promptly execute and deliver at its own cost and expense any instrument,
in recordable form if required, that Landlord, the lessor of any such lease or
the holder of any such mortgage or any of their respective successors in
interest may request to evidence such subordination, and Tenant hereby
constitutes and appoints Landlord attorney-in-fact for Tenant to execute any
such instrument for and on behalf of Tenant. The leases to which this Lease is,
at the time referred to, subject and subordinate pursuant to this Article are
hereinafter sometimes called "superior leases" and the mortgages to which this
lease is, at the time referred to, subject and subordinate are hereinafter
sometimes called "superior mortgages" and the lessor of a superior lease or its
successor in interest at the time referred to is hereinafter sometimes called a
"lessor".
6.02. Landlord hereby notifies Tenant that this Lease may not be
modified or amended so as to reduce the Rents, shorten the Term, or adversely
affect in any other respect to any material extent the rights of the Landlord
hereunder, or be canceled or surrendered without the prior written consent of
each superior lessor and each superior mortgagee in each instance, except that
said consent shall not be required for the institution or prosecution of any
action or proceedings against Tenant by reason of a default on the part of
Tenant under the terms of this Lease.
6.03. This Lease shall not terminate or be terminable by Tenant by
reason of any termination of any superior lease, by summary proceedings, or
otherwise, unless lessor under the terminated superior lease shall elect in
connection therewith to terminate this Lease and the right of Tenant to
possession of the Demised Premises. Tenant agrees, without further instruments
of attornment in such case, to attorn to such lessor, to waive the provisions of
any statute or rule of law now or hereafter in effect which may give or purport
to give Tenant any right of election to terminate this Lease or to surrender
possession of the Demised Premises in the event such superior lease is
terminated, and that unless and until said lessor shall elect to terminate this
Lease and extinguish the leasehold estate demised hereunder, this Lease shall
not be affected in any way whatsoever
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by any such proceeding or termination, and Tenant shall take no steps to
terminate this Lease without giving written notice to such lessor, and a
reasonable opportunity to cure (without such lessor being obligated to cure),
any default on the part of the Landlord under this Lease.
6.04. Landlord represents that granting of this Lease is not in
contravention of the ground lease and superior mortgages and superior leases
existing at the date of this Lease, and further represents that as of the date
of the execution and delivery of this Lease, no notices of default under the
ground lease, superior mortgages or superior leases have issued as would subject
this Lease to any adverse proceedings on the part of lessor under the ground
lease or the said mortgagee or mortgagees under the superior mortgages or the
said lessor or lessors under the superior leases.
6.05. If the holder of any superior mortgage, or anyone claiming by,
through or under such holder, shall become the lessee under the ground lease as
a result of foreclosure of the superior mortgage, or by reason of an assignment
of the lessee's interest under the ground lease and the giving of a deed to the
Building in lieu of foreclosure, there shall be no obligation on the part of
such person succeeding to the interest of the lessee under the ground lease to
comply with, observe or perform any obligations as sublessee, tenant or landlord
under any superior lease.
ARTICLE 7
Quiet Enjoyment
7.01. Landlord covenants that if, and so long as, Tenant pays all of
the Fixed Rent and Additional Rent due hereunder, and keeps and performs each
and every covenant, agreement, term, provision and condition herein contained on
the part and on behalf of Tenant to be kept and performed, Tenant shall quietly
enjoy the Demised Premises without hindrance or molestation by Landlord or by
any other person lawfully claiming the same, subject to the covenants,
agreements, terms, provisions and conditions of this Lease and to the ground
leases and/or underlying or overriding leases and/or grants of terms and/or
mortgages to which this Lease is subject and subordinate, as hereinbefore set
forth.
ARTICLE 8
Assignment, Mortgaging, Subletting
8.01. Neither this Lease, nor the Term and estate hereby granted, nor
any part hereof or thereof, nor the interest of Tenant in any sublease or the
rentals thereunder, shall be assigned, mortgaged, pledged, encumbered or
otherwise transferred by Tenant by operation of law or otherwise, and neither
the Demised Premises, nor any part thereof, shall be encumbered in any manner by
reason of any act or omission on the part of Tenant or anyone claiming under or
through Tenant, or shall be sublet or be used or occupied or permitted to be
used or occupied, or utilized for desk space or for mailing privileges, by
anyone other than Tenant or for any purpose other than as permitted by this
Lease, without the prior written consent of Landlord in every case, except as
expressly otherwise provided in this Article.
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8.02. If this Lease be assigned, whether or not in violation of the
provisions of this Lease, Landlord may collect rent from the assignee. If the
Demised Premises or any part thereof be sublet or be used or occupied by anybody
other than Tenant, whether or not in violation of this Lease, Landlord may,
after default by Tenant, and expiration of Tenant's time to cure such default,
collect rent from the subtenant or occupant. In either event, Landlord may apply
the net amount collected to the rents herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of any of the
provisions of Section 8.01, or the acceptance of the assignee, subtenant or
occupant as tenant; or a release of Tenant from the further performance by
Tenant of Tenant's obligations under this Lease. The consent by Landlord to the
assignment, mortgaging, subletting or use or occupancy by others shall not in
any wise be considered to relieve Tenant from obtaining the express written
consent of Landlord to any other or further assignment, mortgaging or subletting
or use or occupancy by others not expressly permitted by this Article.
References in this Lease to use or occupancy by others, that is anyone other
than Tenant, shall not be construed as limited to subtenants and those claiming
under or through subtenants, but as including also licensees and others claiming
under or through Tenant, immediately or remotely.
8.03. If Tenant shall desire to assign its interest in this Lease,
Tenant shall submit to Landlord a written request for Landlord's consent to such
assignment, which request shall contain or be accompanied by the following
information: (i) the name and address of the proposed assignee; (ii) the terms
and conditions of the proposed assignment including the effective date of the
assignment; (iii) the nature and character of the business of the proposed
assignee and of its proposed use of the Demised Premises; and (iv) current
financial information and any other information Landlord may reasonably and
promptly request with respect to the proposed assignee. Landlord may then, by
notice to such effect given to Tenant within thirty (30) days after receipt of
Tenant's request elect to terminate this Lease effective as of the proposed
effective date of the assignment (the "Termination Date"). Tenant shall then
vacate and surrender the Demised Premises on or before the Termination Date and
the term of this Lease shall end on the Termination Date as if it were the
Expiration Date. If Landlord has not exercised its option to terminate the Lease
pursuant to the preceding sentence, and if in the reasonable judgment of
Landlord, the proposed assignee has a financial standing, is of a character and
engaged in a business such as are in keeping with the standards of Landlord in
those respects for the Building, then Landlord shall not withhold its consent to
the proposed assignment. Tenant shall reimburse Landlord for any reasonable
costs that may be incurred by Landlord in connection with the assignment,
including, without limitation, the cost of making investigations as to the
acceptability of the proposed assignee. If Tenant is a corporation, Tenant shall
have the privilege, without the consent of Landlord, to assign its interest in
this Lease to any corporation which is a successor to Tenant either by merger or
consolidation. No assignment shall be valid unless, within ten (10) days after
the execution thereof, Tenant shall deliver to Landlord (i) a duplicate original
instrument of assignment in form and substance satisfactory to Landlord, duly
executed by Tenant, and (ii) an instrument in form and substance satisfactory to
Landlord, duly executed by the assignee, in which such assignee shall assume
observance and performance of, and agree to be personally bound by, all of the
terms, covenants and conditions of this Lease on Tenant's part to be observed
and performed. Anything in this Section 8.03 to the contrary notwithstanding, a
transfer of control of shares of Tenant (if
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Tenant is a corporation or trust) or a transfer of a majority of the total
interest in Tenant (if Tenant is a partnership) shall be deemed an assignment of
this Lease and shall be subject to all of the provisions of this Article,
including, without limitation, the requirement that Tenant obtain Landlord's
prior consent thereto. The transfer of shares of Tenant (if Tenant is a
corporation or trust) for purposes of this Section shall not include the sale of
shares by persons other than those deemed "insiders" within the meaning of the
Securities Exchange Act of 1934, as amended, which sale is effected through the
"over-the-counter market" or through any recognized stock exchange.
8.04. Notwithstanding anything contained in Sections 8.01 and 8.02
hereof, in the event that at any time or from time to time prior to or during
the Term, Tenant desires to sublet all or any part of the Demised Premises,
Tenant (a) shall give written notice to Landlord ("Tenant's Subletting Notice")
specifying the term of the proposed subletting, the area so proposed to be
sublet, the proposed commencement date for said subletting, and the rent and
additional rent payable thereunder, (b) shall be deemed to have granted Landlord
the option to sublet from Tenant such space so proposed to be sublet upon the
covenants, agreements, terms, provisions and conditions hereinafter set forth,
(c) shall not offer such space for subletting to anyone other than Landlord
until thirty (30) days have elapsed after the receipt of such notice by
Landlord. Such option on the part of Landlord to sublet from Tenant such space
so proposed to be sublet shall be exercisable by Landlord in writing during said
period of thirty (30) days referred to in clause (c) of the preceding sentence
and the term of the sublet shall commence on the proposed commencement date of
the proposed subletting as set forth in Tenant's notice.
In the event Landlord exercises Landlord's option to sublet such
space, such sublease by Tenant to Landlord shall be at an annual fixed rent
equal to the lesser of (i) Fixed Rent and Additional Rent as provided in this
Lease for the entire Demised Premises or equal to an equitable apportionment of
such Fixed Rent and Additional Rent if such sublease shall cover less than the
whole of the Demised Premises, or (ii) the rent and additional rent payable
under the proposed sublease, and shall be for the same term as that of the
proposed subletting, and it is hereby expressly agreed that:
(1) The sublease shall be expressly subject to all of the
covenants, agreements, terms, provisions and conditions of this Lease
except such as are not relevant or applicable, and except as is
otherwise expressly set forth to the contrary in this Section;
(2) Such sublease to Landlord shall give Landlord the
unqualified and unrestricted right, without Tenant's permission, to
assign such sublease or any interest therein and/or to sublet the
space covered by such sublease or any part or parts of such space and
to make any and all changes, alterations and improvements in the space
covered by such sublease;
(3) Such sublease to Landlord shall provide that any assignee
or subtenant of Landlord may, at the election of Landlord, be
permitted to make alterations, decorations and installations in such
space or any part thereof and shall also provide in substance that any
such alterations, decorations and installations therein made by any
assignee or subtenant of Landlord may be removed, in whole or in part,
by such assignee or
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subtenant, at its option, prior to or upon the expiration or other
termination of such sublease provided that such assignee or subtenant,
at its sole expense, shall repair any damage and injury to such space
so sublet caused by such removal; and
(4) Such sublease to Landlord shall also provide that the
parties to such sublease expressly negate any intention that any
estate created under such sublease be merged with any other estate
held by either of said parties. Tenant covenants and agrees (a) that
any such assignment or subletting by the subtenant may be for any
purpose or purposes that Landlord, in Landlord's sole discretion,
shall deem suitable or appropriate, except the conduct of a business
directly competitive to Tenant, (b) that Tenant, at Tenant's sole
expense, shall and will at all times provide and permit reasonably
appropriate means of ingress to and egress from such space so sublet
by Tenant to Landlord, and (c) that at the expiration of the term of
such sublease, Tenant will accept the space covered by such sublease,
in its then existing condition, subject to the obligations of Landlord
to make such repairs thereto as may be necessary to preserve the
premises demised by such sublease in good order and condition.
8.05. In the event Landlord does not exercise its option to so sublet
such space, Landlord covenants not to unreasonably withhold its consent to
Tenant's subletting of the space covered by Tenant's Subletting Notice,
provided, however, that Landlord shall not, in any event, be obligated to
consent to any such proposed subletting unless:
(1) The sublease shall be expressly subject to all of the
covenants, agreements, terms, provisions and conditions of this Lease
except such as are not relevant or applicable pursuant to the terms of
Tenant's Subletting Notice and except that such sublease shall not be
assigned nor the premises demised thereunder further sublet, in whole
or in part, without the prior consent of Landlord;
(2) The aggregate rent and additional rent payable under the
sublease shall in no event be less than, and all other terms and
conditions shall be substantially the same as or more favorable to
Tenant than the corresponding items in Tenant's Subletting Notice;
(3) Tenant shall furnish Landlord with the name and business
address of the proposed subtenant, a counterpart of the proposed
subleasing agreement, and satisfactory information with respect to the
nature and character of the business of the proposed subtenant,
together with current financial information and references reasonably
satisfactory to Landlord;
(4) In the reasonable judgment of Landlord the proposed
subtenant is of a character and engaged in a business such as are in
keeping with the standard of Landlord in those respects for the
Building;
(5) The purposes for which the proposed subtenant intends to
use the portion of the Demised Premises to be sublet to it are uses
expressly permitted by this Lease, and without limiting the generality
of the foregoing, Tenant shall not be
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permitted to sublet to any company engaged in the business of
manufacturing or selling passenger cars, trucks, or similar vehicles,
major household appliance, diesel engines, locomotives and
earth-moving or off-the-road equipment;
(6) Tenant shall not have (i) advertised or publicized in any
way the availability of all or part of the Demised Premises without
prior notice to and approval by Landlord, (ii) listed nor publicly
advertised the Demised Premises for subletting, whether through a
broker, agent, representative, or otherwise at a rental rate less than
the Fixed Rent and Additional Rent then payable hereunder for such
space; but the provisions of this Subsection shall not be deemed to
prohibit Tenant from negotiating a sublease at a lesser rate of rent
and consummating the same insofar as it may be permitted under the
provisions of this Article;
(7) Such subletting will result in there being no more than
five (5) occupants per floor of the Building, including the Tenant and
all subtenants;
(8) The rental rate for such subletting is no less than the
then going market rental rate (including Fixed Rent and Additional
Rent) for comparable space in the Building (or if none is or has been
currently leased or subleased, then comparable space in a comparable
building in the City of New York); any dispute as to whether the
proposed rental rate for such subletting is less than the said then
going market rental rate shall be determined by informal arbitration
pursuant to Article 32;
(9) Tenant shall reimburse Landlord for any reasonable costs
that may be incurred by Landlord in connection with the said sublease,
including, without limitation, the costs of making investigations as
to the acceptability of a proposed subtenant, and legal costs incurred
in connection with the granting of any requested consent; and
(10) The term of such sublease shall not be less than three (3)
years.
Notwithstanding anything to the contrary in this Article, if Landlord
fails to exercise its option to sublet the space within the thirty (30) day
period referred to in Section 8.04 and Tenant fails to enter into a sublease
with a third party and obtain Landlord's consent, in accordance with this
Article, within ninety (90) days thereafter, Tenant shall again comply with all
the conditions of this Article, as if the notice and option referred to in this
Article had not been given and the option rejected.
8.06. With respect to each and every sublease or subletting authorized
by the provisions of this Article, it is further agreed and understood between
Landlord and Tenant as follows:
(1) The term of such subletting shall commence within thirty
(30) days of the proposed commencement date as stated in Tenant's
notice to Landlord pursuant to Section 8.04;
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(2) No subletting shall be for a term ending later than one day
prior to the Expiration Date and any proposed sublease or any renewal
or extension thereof shall be deemed to be for a term which expires on
a date one day prior to the Expiration Date or earlier termination of
the term of this Lease, notwithstanding any other provision to the
contrary in such sublease; and
(3) Upon the execution of any such sublease as may be
authorized by this Article, Tenant shall promptly deliver to Landlord
a duplicate original of each such sublease.
8.07 If Tenant shall receive any consideration from its assignee,
other than from an assignee for whom Landlord's approval is not required, for or
in connection with the assignment of Tenant's interest in this Lease (including,
but not limited to, sums paid for the sale or rental of Tenant's fixtures or
leasehold improvements, less, in the case of a sale thereof, the then net
unamortized or undepreciated cost thereof determined on the basis of a ten
years' straight line depreciation of same), Tenant shall account to Landlord
therefor and shall pay over to Landlord one-half (1/2) of so much of such
consideration as shall be paid to Tenant by the assignee after deduction
therefrom of the reasonable costs and expenses of Tenant in making such
assignment, such as reasonable brokers' and attorneys' fees. If Tenant shall
sublet all or any portion of the Demised Premises to anyone for rents which for
any period shall exceed the Fixed Rent and Additional Rent (or proportionate
share thereof) payable under this Lease for the same period, Tenant shall pay
Landlord, as Additional Rent hereunder, one-half (1/2) of any rents, additional
charges or other consideration payable under the sublease to Tenant by the
sublessee which is in excess of the proportionate share of the Fixed Rent and
Additional Rent accruing during the term of the sublease in respect to the
subleased portion of the Demised Premises pursuant to the terms hereof. The sums
payable to Landlord upon such subletting shall consist of such excess less
reasonable brokerage commissions, attorneys' fees and disbursements and other
expenses reasonably incurred by Tenant in such subletting and customarily
deducted in the case of subletting similar space in similar buildings in the
City of New York. The sums payable under this Section shall be paid to Landlord
as Additional Rent as and when payable by the sublessee to Tenant.
8.08 Notwithstanding anything to the contrary set forth in this
Article, if Landlord should have space in the Building available for the
proposed subtenant or assignee, as the case may be, the proposed subtenant or
assignee shall not then be a tenant, subtenant or assignee of any space in the
Building, nor shall the proposed subtenant or assignee be a person or entity
with whom Landlord is then negotiating to lease space in the building, unless
such proposed subtenant or assignee was offered the aforesaid space by Landlord
and rejected the same.
8.09. If Landlord shall recover or come into possession of the Demised
Premises before the Expiration Date, Landlord shall have the right (but not the
obligation) to take over any sublease made by Tenant and to succeed to all
rights of Tenant thereunder, Tenant hereby assigning (effective as of the date
of Landlord's succession of Tenant's estate in the Demised Premises) such
subleases as Landlord may elect to take over. Every subletting hereunder shall
be subject to the condition that, from and after the termination of this Lease
or re-entry by Landlord hereunder or other succession by Landlord to Tenant's
estate in the Demised Premises, the subtenant under such sublease
- 16 -
shall waive any right to surrender possession or to terminate the sublease and,
at Landlord's election, shall be bound to Landlord for the balance of the term
thereof and shall attorn to and recognize Landlord, as its landlord, under all
of the then executory terms of such sublease, except that Landlord shall not be
(a) liable for any previous act, omission or negligence of Tenant under such
sublease, (b) subject to any counterclaim, defense or offset theretofore
accruing to such subtenant against Tenant, (c) bound by any previous
modification or amendment of such sublease made without Landlord's consent or by
any previous prepayment of more than one month's rent and additional rent unless
paid as provided in the sublease, or (d) obligated to perform any repairs or
other work in the subleased space or the Building beyond Landlord's obligations
under this Lease, and each subtenant shall execute and deliver such instruments
as Landlord may reasonably request to evidence and confirm such attornment.
ARTICLE 9
Compliance with Laws and Requirement of public Authorities
9.01 Tenant shall promptly notify Landlord of any written notice it
receives of the violation of any law or requirement of any federal, state,
municipal or other public authority, and at its expense Tenant shall comply with
all laws and requirements of such public authorities which shall, with respect
to the Building or the Demised Premises or the use and occupation thereof or the
abatement of any nuisance, impose any violation, order or duty on Landlord or
Tenant, arising from (i) Tenant's use of the Demised Premises, (ii) the manner
of conduct of Tenant's business or operation of its installations, equipment or
other property therein, (iii) any cause or condition created by or at the
instance of Tenant, or (iv) breach of any of Tenant's obligations hereunder.
If Tenant, after giving notice in writing to Landlord, shall have
satisfied Landlord as to Tenant's financial capacity, Tenant, at its sole cost
and expense and, by appropriate proceedings prosecuted diligently and in good
faith, may contest the validity or applicability to the Demised Premises of any
law or requirement of public authority, and Landlord shall cooperate with Tenant
in such proceedings, and Tenant need not comply with such law or requirement
while such contest or proceeding is pending and unresolved, provided that:
(A) Landlord shall not be subject to any liability, civil or
criminal, or to prosecution for a crime or otherwise, nor shall the Building or
Demised Premises or any part thereof be subject to any lien, charge or liability
of any kind or to being condemned or vacated, by reason of noncompliance with
the law or requirement during the period of such contest or proceeding;
(B) Tenant shall defend, indemnify and hold harmless Landlord
against all liability, loss or damage which Landlord shall suffer by reason of
such noncompliance or contest, including, without limitation, reasonable
attorneys' fees, court costs, fines and other expenses reasonably incurred by
Landlord;
(C) Such noncompliance or contest shall not constitute or
result in any violation of any superior lease or superior mortgage, or if such
superior lease and/or superior mortgage shall permit such noncompliance or
contest on condition of the taking of action or furnishing of security by
Landlord, such action shall be taken and such security shall be furnished at the
expense of Tenant; and
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(D) Tenant shall regularly keep Landlord advised as to the
status of such contest or proceedings.
Without limiting the application of Subsection (A) above thereto,
Landlord shall be deemed subject to prosecution for a crime within the meaning
of said Subsection if Landlord, or any officer or agent or employee of Landlord
individually, is charged with a crime of any kind or degree whatever, whether by
service of a summons or otherwise, unless such charge is withdrawn before
Landlord or such officer (as the case may be) is required to plead or answer
thereto. However, Landlord shall not be deemed to be subject to criminal penalty
or prosecution for a crime solely by reason of the existence of a notice of
violation of any of the health, building or labor laws or requirements of public
authorities under any of such laws.
9.02 Where a violation of a law or requirement described in Section
9.01 arises from a cause other than those specified in clauses (i) through (iv)
of said Section 9.01, and where any structural change or other substantial
change to or in connection with the Demised Premises is required by any law,
ordinance, rule, order or regulation, the cost of which as estimated by Landlord
would not exceed six (6) months' Fixed Rent payable under this Lease, Landlord
shall effect such compliance. However, where such cost is estimated as exceeding
that amount equal to six (6) monthly installments of Fixed Rent, Landlord shall
have the option of making such change and paying the cost thereof, or of
terminating this Lease and the Term and estate hereby granted by giving to
Tenant not less than thirty (30) days' prior written notice of such termination;
provided, however, that if within fifteen (15) days after the giving by Landlord
of its notice of termination as aforesaid, Tenant shall give written notice to
Landlord stating that Tenant elects to make such alteration at the expense of
Tenant, then such notice of termination shall be ineffective provided that
Tenant, at Tenant's expense, shall, concurrently with the giving of such notice
to Landlord, execute and deliver to Landlord Tenant's written undertaking, with
a surety and in form and substance satisfactory to Landlord, obligating Tenant
promptly and duly to make such change in a manner satisfactory to Landlord and
to save Landlord harmless from any and all costs, expenses, penalties and/or
liabilities (including, but not limited to, accountants' and attorneys' fees) in
connection therewith or by reason thereof; and Tenant covenants and agrees that,
after so electing to make any such alteration, Tenant will, at Tenant's expense,
and in compliance with all the covenants, agreements, terms, provisions and
conditions of this Lease, make such change and Tenant, at Tenant's expense, will
promptly and duly perform all covenants, conditions and provisions of such
undertaking and that all such covenants, conditions and provisions of such
undertaking shall be deemed to constitute covenants, conditions and provisions
of this Lease to be kept or performed on the part of Tenant with the same force
and effect as if the same had been set forth herein.
In the event that a notice of termination shall be given by Landlord
under the provisions of this Section 9.02 and such notice shall not become
ineffective as hereinbefore provided, this Lease and the Term and estate hereby
granted shall expire as of the date specified therefor in such notice with the
same effect as if that were the Expiration Date, and the Fixed Rent and
Additional Rent hereunder shall be apportioned as of such date of termination.
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ARTICLE 10
Insurance
10.01 Tenant shall not violate, or permit the violation of, any order,
rule or regulation of the New York Board of Fire Underwriters, and shall not do,
or permit anything to be done, or keep or permit anything to be kept in the
Demised Premises which would increase the fire or other casualty insurance rate
on the Building or the property therein over the rate which would otherwise then
be in effect (unless Tenant pays the resulting increased amount of premium as
provided in Section 10.02) or which would result in insurance companies of good
standing refusing to insure the Building or any of such property in amounts and
at normal rates reasonably satisfactory to Landlord. However, Tenant shall not
be subject to any liability or obligation under this Section by reason of the
proper use of the Demised Premises for the purposes permitted by Article 2.
10.02 If, by reason of any act or omission on the part of Tenant, the
rate of fire insurance with extended coverage on the Building or equipment or
other property of Landlord shall be higher than it otherwise would be, Tenant
shall reimburse Landlord, on demand, for that part of the premiums for fire
insurance and extended coverage paid by Landlord because of such act or omission
on the part of Tenant, which sum shall be deemed to be Additional Rent and
collectible as such.
10.03 In the event that any dispute should arise between Landlord and
Tenant concerning rates, a schedule or make up of rates for the Building or the
Demised Premises, as the case may be, issued by the New York Fire Insurance
Rating Organization or other similar body making rates for fire insurance and
extended coverage for the premises concerned, shall be presumptive evidence of
the facts therein stated and of the several items and charges in the fire
insurance rates with extended coverage then applicable to such premises.
10.04 Tenant shall obtain and keep in full force and effect during the
Term of this Lease at its own cost and expense comprehensive general liability
insurance including contractual liability, such insurance to afford protection
in an amount of not less than $3,000,000 combined single limit per occurrence
for injury or death, and for damage to property, protecting Landlord and Tenant
as insureds against any and all claims for personal injury, death or property
damage occurring in, upon, adjacent, or connected with the Demised Premises and
any part thereof. Said insurance is to be written on a form reasonably
satisfactory to Landlord by good and solvent insurance companies of recognized
standing, admitted to do business in the State of New York which shall be
reasonably satisfactory to Landlord. Tenant shall pay all premiums and charges
therefor and upon failure to do so Landlord may, but shall not be obligated to,
make such payments, and in such latter event Tenant agrees to pay the amount
thereof to Landlord on demand and said sum shall be deemed to be Additional Rent
and in each instance collectible on the first day of any month following the
date of notice to Tenant in the same manner as though it were Rent originally
reserved hereunder. Tenant will use its best efforts to include in such public
liability insurance policy a provision to the effect that same will be
noncancellable except upon reasonable advance written notice to Landlord. The
original insurance policies or appropriate certificates shall be deposited with
Landlord together with any renewals, replacements or endorsements to the end
that said insurance shall be in full force and effect for the benefit of
Landlord during the Term. In addition to the foregoing, upon notice by Landlord,
Tenant shall maintain such
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other insurance, and in such amounts, as shall then be customary for tenants in
first class office buildings in midtown Manhattan. In the event Tenant shall
fail to procure and place such insurance, Landlord may, but shall not be
obligated to, procure and place same, in which event the amount of the premium
paid shall be refunded by Tenant to Landlord upon demand and shall in each
instance be collectible on the first day of the month or any subsequent month
following the date of payment by Landlord, in the same manner as though said
sums were Additional Rent reserved hereunder.
10.05 Each party agrees to use its best efforts to include in each of
its insurance policies (insuring the Building and Landlord's property therein
and rental value thereof, in the case of Landlord, and insuring Tenant's
Property and business interest in the Demised Premises (business interruption
insurance), in the case of Tenant, against loss, damage, or destruction by fire
or other casualty) a waiver of the insurer's right of subrogation against the
other party, or if such waiver should be unobtainable or unenforceable (A) an
express agreement that such policy shall not be invalidated if the assured
waives the right of recovery against any party responsible for a casualty
covered by the policy before the casualty or (B) any other form of permission
for the release of the other party. If such waiver, agreement or permission
shall not be, or shall cease to be, obtainable without additional charge or at
all, the insured party shall so notify the other party promptly after learning
thereof. In such case, if the other party shall so elect and shall pay the
insurer's additional charge therefor, such waiver, agreement or permission shall
be included in the policy, or the other party shall be named as an additional
assured therein, and shall contain, if obtainable, agreements by the insurer
that the policy will not be canceled without at least ten (10) days' prior
notice to both assureds and that the act or omissions of one assured will not
invalidate the policy as to the other assured. Any failure by Tenant, if named
as an additional assured, promptly to endorse to the order of Landlord, without
recourse, any instrument for the payment of money under or with respect to the
policy of which Landlord is the owner or original or primary assured, shall be
deemed a default under this Lease.
10.06 Each party hereby releases the other party with respect to any
claim (including a claim for negligence) which it might otherwise have against
the other party for loss, damage or destruction with respect to its property
(including rental value or business interruption) occurring during the Term and
with respect and to the extent to which it is insured under a policy or policies
containing a waiver of subrogation or permission to release liability or naming
the other party as an additional assured, as provided in Sections 10.04 and
10.05. If notwithstanding the recovery of insurance proceeds by either party for
loss, damage or destruction of its property (or rental value or business
interruption) the other party is liable to the first party with respect thereto
or is obligated under this Lease to make replacement, repair or restoration or
payment, then provided the first party's right of full recovery under its
insurance policies is not thereby prejudiced or otherwise adversely affected,
the amount of the net proceeds of the first party's insurance against such loss,
damage or destruction shall be offset against the second party's liability to
the first party therefor, or shall be made available to the second party to pay
for replacement, repair or restoration, as the case may be.
10.07 The waiver of subrogation or permission for release referred to
in Section 10.05 shall extend to the agents of each party and its and their
employees and, in the case of Tenant, shall also extend to all other persons and
entities
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occupying, using or visiting the Demised Premises in accordance with the terms
of this Lease, but only if and to the extent that such waiver or permission can
be obtained without additional charge (unless such party shall pay such charge).
The releases provided for in Section 10.06 shall likewise extend to such agents,
employees and other persons and entities, if and to the extent that such waiver
or permission is effective as to them. Nothing contained in Section 10.06 shall
be deemed to relieve either party of any duty imposed elsewhere in this Lease to
repair, restore or rebuild or to nullify any abatement of Rents provided for
elsewhere in this Lease. Except as otherwise provided in Section 10.04, nothing
contained in Sections 10.05 and 10.06 shall be deemed to impose upon either
party any duty to procure or maintain any of the kinds of insurance referred to
therein or any particular amounts or limits of any such kinds of insurance.
However, each party shall advise the other, upon request, from time to time (but
not more often than once a year) of all of the policies of insurance it is
carrying of any of the kinds referred to in Section 10.05, and if it shall
discontinue any such policy or allow it to lapse, shall notify the other party
thereof with reasonable promptness. The insurance policies referred to in
Sections 10.05 and 10.06 shall be deemed to include policies procured and
maintained by a party for the benefit of its lessor, mortgagee or pledgee.
ARTICLE 11
Rules and Regulation
11.01 Tenant and its employees and agents shall faithfully observe and
comply with the Rules and Regulations annexed hereto as Exhibit "B", and such
reasonable changes therein (whether by modification, elimination or addition) as
Landlord at any time or times hereafter may make and give notice of in writing
to Tenant, which do not unreasonably affect the conduct of Tenant's business in
the Demised Premises; provided, however, that in case of any conflict or
inconsistency between the provisions of this Lease and any Rules and
Regulations, the provisions of this Lease shall control.
11.02 Notwithstanding anything to the contrary in any of the Rules
and Regulations set forth in Exhibit "B",
(A) Tenant may bring into and keep in the Demised Premises such
small quantities of inflammable or combustible objects or materials as are
incidental to the use of the Demised Premises for the purposes permitted by
Article 2, but this shall not be deemed to relieve Tenant of responsibility to
comply with all other obligations of this Lease that may be applicable to or
result from the introduction or maintenance of such objects or materials in the
Demised Premises, including but not limited to compliance with the provisions of
Sections 10.01 and 10.02 hereof.
(B) Subject to the provisions of Paragraph 2.02(D), Landlord
shall not unreasonably withhold its consent to the installation, maintenance and
operation by Tenant in the Demised Premises of data processing machines, office
duplicating machines, teletype machines and other business machines and
machinery customarily used in offices in the ordinary course of business,
provided, however, that Tenant shall comply with all other obligations of this
Lease that may be applicable to or result from such installation, maintenance or
operation.
(C) Landlord shall not unreasonably withhold from Tenant
any approval provided for in the Rules and
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Regulations. Tenant shall have the same right to contest any withholding of
approval under the Rules and Regulations it considers unreasonable as is
provided in Article 30 with respect to consents.
(D) Whenever Landlord shall claim by written notice to Tenant
that Tenant is violating any of the provisions of the Rules and Regulations and
Tenant shall in good faith dispute such claim by written notice given to
Landlord within ten (10) days after service of Landlord's notice of the
violation, the dispute shall be determined by informal arbitration pursuant to
Article 32.
ARTICLE 12
Tenant's Changes
12.01 Tenant may, at any time and from time to time during the Term of
this Lease, at its sole expense, make alterations, additions, installations,
substitutions, improvements, and decorations (hereinafter collectively called
"changes" and, as applied to changes provided for in this Article, "Tenant's
Changes") in and to the Demised Premises, excluding structural changes, on the
following conditions, and providing such changes will not result in a violation
of or require a change in the Certificate of Occupancy applicable to the Demised
Premises:
(A) The outside appearance, character or use of the Building
shall not be affected, and no Tenant's Changes shall weaken or impair the
structural strength or, in the opinion of Landlord, lessen the value of the
Building.
(B) No part of the Building outside of the Demised Premises
shall be physically affected.
(C) The proper functioning of any of the mechanical,
electrical, sanitary and other service systems of the Building shall not be
adversely affected.
(D) In performing the work involved in making the changes,
Tenant shall be bound by and observe all of the conditions and covenants
contained in the following Section of this Article.
(E) Tenant shall not be permitted to install and make part of
the Demised Premises any materials, fixtures or articles which are subject to
liens, conditional sales contracts or chattel mortgages.
(F) At the Expiration Date, or the date of any earlier
termination of this Lease, Tenant shall upon Landlord's written request restore
the Demised Premises to their condition prior to the making of any changes
permitted by this Article, reasonable wear and tear excepted.
12.02 (A) Before proceeding with any change (exclusive of changes to
items constituting "Tenant's Property" as defined in Article 13) Tenant shall
submit to Landlord plans and specifications (including mechanical, electrical
and plumbing drawings, if applicable) for the work to be done, for Landlord's
written approval, which approval shall not be unreasonably withheld. If Landlord
shall disapprove of any of Tenant's plans, Tenant shall be advised of the
reasons of such disapproval. In any event, Tenant agrees to pay to Landlord, as
Additional Rent,
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the reasonable cost of such review within forty-five (45) days of receipt of a
written demand therefor from Landlord.
(B) If the proposed change requires approval by or notices to
the lessor of a superior lease or the holder of a superior mortgage, no change
shall be proceeded with until such approval has been received, or such notice
has been given, as the case may be, and all applicable conditions and provisions
of said superior lease or superior mortgage with respect to the proposed change
or alteration have been met or complied with at Tenant's expense; and Landlord,
if it approves the change, will request such approval or give such notice, as
the case may be. Any change for which approval has been received shall be
performed strictly in accordance with the approved plans and specifications, and
no amendments or additions to such plans and specifications shall be made
without the prior written consent of Landlord.
(C) After Landlord's written approval has been sent to Tenant
and the approval by or notice to the lessor of a superior lease or the holder of
a superior mortgage has been received or given, as the case may be, Landlord
shall deliver to Tenant a list of approved contractors to construct Tenant's
Changes and Tenant shall designate in writing the contractor it selects to
perform the Tenant's Changes. Tenant shall deliver to Landlord promptly upon
execution thereof all agreements entered into with such contractors and,
promptly upon receipt thereof, copies of all contracts, work orders, amendments,
change orders, invoices, receipts and bills relating to the Tenant's Changes.
Tenant's contractors shall obtain on behalf of Tenant and at Tenant's sole cost
and expense, all necessary governmental permits and certificates for the
commencement and prosecution of Tenant's Changes and for final approval thereof
upon completion. In the event Tenant shall request any changes in the work to be
performed after the submission of the plans referred to in this Article, such
additional changes shall be subject to the same approvals and notices as the
changes initially submitted by Tenant.
(D) Tenant shall pay to Landlord as Additional Rent for
services to be performed by Landlord in connection with Tenant's Changes, a fee
equal to fifteen percent (15%) of the total cost of the Tenant's Changes,
including painting; provided, however, that if Tenant shall only require
painting of the Demised Premises during the Term of this Lease, Landlord's fee
therefor shall be a sum equal to seven and five-tenths percent (7.5%) of the
total cost of such painting.
12.03 All Tenant's Changes shall at all times comply with laws, orders
and regulations of governmental authorities having jurisdiction thereof, and all
rules and regulations of Landlord, and Tenant shall cause Tenant's Changes to be
performed in compliance therewith and with all applicable requirements of
insurance bodies, and in good and first class workmanlike manner, using
materials and equipment at least equal in quality and class to the original
installations of the Building. Tenant's Changes shall be performed in such
manner as not to interfere with the occupancy of any other tenant in the
Building nor delay or impose any additional expense upon Landlord in the
construction, maintenance or operation of the Building, and shall be performed
by contractors or mechanics approved by Landlord and submitted to Tenant
pursuant to Section 12.02(C). Throughout the performance of Tenant's Changes,
Tenant, at its expense, shall carry, or cause to be carried, workmen's
compensation insurance in statutory limits, and general liability insurance for
any occurrence in or about the Building, of which Landlord and its managing
agent shall be named as parties insured, in such limits
- 23 -
as Landlord may reasonably prescribe, with insurers reasonably satisfactory to
Landlord. Tenant shall furnish Landlord with reasonably satisfactory evidence
that such insurance is in effect at or before the commencement of Tenant's
Changes and, on request, at reasonable intervals thereafter during the
continuance of Tenant's Changes. No Tenant's Changes shall involve the removal
of any fixtures, equipment or other property in the Demised Premises which are
not Tenant's Property (as such term is defined in Article 13), unless Landlord's
prior written consent is first obtained and unless such fixtures, equipment or
other property shall be promptly replaced, at Tenant's expense and free of
superior title, liens and claims with fixtures, equipment or other property (as
the case may be) of like utility and at least equal value (which replaced
fixture, equipment or other property shall thereupon become the property of
Landlord), unless Landlord shall otherwise expressly consent in writing.
12.04 Tenant, at its expense, and with diligence and dispatch, shall
procure the cancellation or discharge of all notices of violation arising from
or otherwise connected with Tenant's Changes which shall be issued by the
Department of Buildings or any other public authority having or asserting
jurisdiction. However, nothing herein contained shall prevent Tenant from
contesting, in good faith and at its own expense, any such notice of violation
provided the Tenant shall comply with the provisions of Section 9.01. Tenant
shall defend, indemnify and save harmless Landlord against any and all mechanics
and other liens in connection with Tenant's Changes, repairs or installations,
including but not limited to the liens of any conditional sales of, or chattel
mortgages upon, any materials, fixtures, or articles so installed in and
constituting part of the Demised Premises and against all costs, attorneys'
fees, fines, expenses and liabilities reasonably incurred in connection with any
such lien, conditional sale or chattel mortgage or any action or proceeding
brought thereon.
Tenant, at its expense, shall procure the satisfaction or discharge of
all such liens within ten (10) days of the filing of such lien against the
Demised Premises or the Building. If Tenant shall fail to cause such lien to be
discharged within the period aforesaid, then, in addition to any other right or
remedy, Landlord may, but shall not be obligated to, discharge the same either
by paying the amount claimed to be due or by procuring the discharge of such
lien by deposit or by bonding proceedings, and in any such event Landlord shall
be entitled, if Landlord so elects, to compel the prosecution of an action for
the foreclosure of such lien by the lienor and to pay the amount of the judgment
in favor of the lienor with interest, costs and allowances. Any amount so paid
by Landlord and all costs and expenses incurred by Landlord, in connection
therewith, together with interest thereon at an annual rate of interest
specified in Section 41.02 from the respective dates of Landlord's making of the
payment or incurring of the cost and expense shall constitute Additional Rent
payable by Tenant under this Lease and shall be paid by Tenant on demand. If
Tenant makes any such payment it shall not be entitled to any set-off against
Rent due hereunder. Tenant agrees that it will not at any time prior to or
during the Term, either directly or indirectly, use any contractors, labor or
materials in the Demised Premises, if the use of such contractors, labor or
materials would, in Landlord's opinion, create any difficulty with other
contractors or labor engaged by Tenant or Landlord or others or would in any way
disturb harmonious labor relations in the construction, maintenance or operation
of the Building or any part thereof.
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ARTICLE 13
Tenant's Property
13.01 All fixtures, equipment, improvements and appurtenances attached
to or built into the Demised Premises at the commencement of or during the Term,
whether or not by or at the expense of Tenant, shall be and remain a part of the
Demised Premises, shall be deemed the property of Landlord and shall not be
removed by Tenant, except as hereinafter in this Article expressly provided.
13.02 All counters, screens, grilles, railings, lighting fixtures,
special cabinet work, other business and trade fixtures, and all other machines
and equipment, whether or not attached to or built into the Demised Premises,
which are installed in the Demised Premises by or for the account of Tenant,
without expense to Landlord, and can be removed without permanent structural
damage to or defacement of the Building, and all furniture, furnishings and
other articles of movable personal property owned by Tenant and located in the
Demised Premises (all of which are herein called "Tenant's Property") shall be
and shall remain the property of Tenant and may be removed by it at any time
during the Term; provided that if any of Tenant's Property is removed, Tenant
shall repair or pay the cost of repairing any damage to the Demised Premises or
to the Building resulting from such removal. Any fixtures, equipment or other
property which shall have been installed in the Demised Premises by or for the
account of Tenant and for which Landlord shall have made a contribution or
granted an allowance to Tenant, shall not be deemed to have been installed by or
for the account of Tenant without expense to the Landlord and shall not be
considered as Tenant's Property.
13.03 Except as otherwise provided in Section 12.01(F), at or before
the Expiration Date, or the date of any earlier termination of this Lease, or as
promptly as practicable after such an earlier termination date, Tenant shall
remove, at its expense, from the Demised Premises all of Tenant's Property and
shall repair any damage to the Demised Premises or the Building resulting from
such removal, and shall pay all other costs of such removal.
13.04 Any items of Tenant's Property which shall remain in the Demised
Premises after the Expiration Date or after a period of ten (10) days following
an earlier termination date, may, at the option of Landlord, be deemed to have
been abandoned, and in such case either may be retained by Landlord as its
property or may be disposed of, without accountability or liability whatsoever,
in such manner as Landlord may see fit. Tenant agrees to reimburse Landlord for
the costs of removal and for the cost of repairing any damage to the Building
arising out of Tenant's failure to remove Tenant's Property pursuant to any
request by Landlord so to do.
ARTICLE 14
Repairs and Maintenance
14.01 Tenant shall take good care of the Demised Premises and the
fixtures and appurtenances therein, but Landlord shall make all repairs thereto,
including structural repairs, as and when needed to preserve them in good
working order and condition. However, Tenant, at its expense, shall promptly
make all repairs, ordinary or extraordinary, interior or exterior, structural or
otherwise, in and about the Demised Premises and
- 25 -
the Building, as shall be required by reason of (i) the performance or existence
of Tenant's Changes, (ii) the installation, use or operation of Tenant's
Property in the Demised Premises, (iii) the moving of Tenant's Property in or
out of the Building, or (iv) the misuse or neglect of Tenant or any of its
employees, agents or contractors; but Tenant shall not be responsible, and
Landlord shall be responsible, for any of such repairs as are required by reason
of Landlord's neglect or other fault of Landlord or its employees, agents or
contractors.
14.02 Landlord shall keep and maintain the Building and its fixtures,
appurtenances, systems and facilities serving the Demised Premises, in good
working order, condition and repair and shall make all repairs, structural and
otherwise, interior or exterior, as and when needed in the Building, except for
those repairs for which Tenant is responsible pursuant to any other provisions
of this Lease, and subject to all other provisions of this Lease, including but
not limited to the provisions of Article 21.
14.03 Except as expressly otherwise provided in this Lease, Landlord
shall have no liability to Tenant by reason of any inconvenience, annoyance,
interruption or injury to business arising from Landlord or any tenant making
any repairs or changes or performing maintenance services, whether or not
Landlord is required or permitted by this Lease or by law to make such repairs
or changes or to perform such services in or to any portion of the Building or
the Demised Premises, or in or to the fixtures, equipment or appurtenances of
the Building or the Demises Premises, provided that Landlord shall use due
diligence with respect thereto and shall perform such work, except in case of
emergency, at times reasonably convenient to Tenant and otherwise in such manner
and to the extent practical as will not unreasonably interfere with Tenant's use
and occupancy of the Demised Premises.
ARTICLE 15
Electrical Energy
15.01 Landlord shall furnish to Tenant on a "rent inclusion basis"
alternating electrical energy through the transmission facilities installed by
Landlord in the Building, to be used by Tenant in the Demised Premises in such
reasonable quantities as may be required by Tenant for the operation of lighting
fixtures and office equipment and machinery. The total charge for electrical
energy in the sum of $6,472.50 (the "Electrical Energy Sum") is included in the
Fixed Rent set forth in Section 1.04(A) of this Lease. Except as provided in
Section 15.02(D), the Electrical Energy Sum shall not be reduced below the
amount set forth in this Section 15.01 but may be increased as hereinafter
provided.
15.02 (A) If the cost to Landlord of electricity shall be increased
subsequent to the date of execution of this Lease by any change in Landlord's
electric rate charges, fuel adjustment or service classifications, or by taxes
or charges of any kind imposed thereon, or for any other reason, the Electrical
Energy Sum reserved herein shall be changed in the same proportion to the
increase in the cost of electricity to Landlord.
(B) At any time after the Commencement Date, Landlord shall have
the option, but not the obligation, to have a reputable independent electrical
engineer selected by Landlord make a survey (a "Survey") of the electrical
equipment, usage and
- 26 -
power load to ascertain if the actual cost to Landlord of current electric
consumption and demand in the Demised Premises exceeds the electrical energy sum
set forth in Section 15.01 (or the Electrical Energy Sum as theretofore
adjusted) and to calculate the increase in the Electrical Energy Sum, if any, to
be made on the basis of the Survey.
(C) Whenever at any time during the Term an adjustment in the
Electrical Energy Sum shall be due by Landlord in accordance with the provisions
of subsection (A) or (B) of this Section, Landlord shall furnish to Tenant a
statement in writing of Landlord's determination of the amount of said
adjustment in Fixed Rent and the basis for the computation of same. The amount
of such adjustment in Fixed Rent, as specified in any such statement of
Landlord, shall become binding upon the parties hereto unless, within thirty
(30) days after Landlord shall have furnished to Tenant such statement, Tenant
notifies Landlord in writing that Tenant disputes the amount of such adjustment
in Fixed Rent so determined by Landlord, in which event the amount of such
adjustment in Fixed Rent shall, unless otherwise mutually agreed upon, be
determined by informal arbitration in accordance with the provisions of Article
32. Pending the resolution of such dispute, Tenant shall pay to Landlord the
amount of such adjustment in Fixed Rent specified in Landlord's statement. Any
such adjustment in Fixed Rent shall become effective as of the effective date of
any increase in the cost to Landlord of electricity, or as of the date of the
making of a Survey.
(D) Landlord, at any time, at its option and upon not less than
thirty (30) days' prior written notice to Tenant, may discontinue the furnishing
of electrical energy to the Demised Premises. In such case, Tenant shall
contract for the supplying of such electrical energy with the public utility
company supplying electrical energy to the Building and Landlord shall permit
its wires, risers, conduits, feeders and switchboards, to the extent available,
suitable and safely capable, to be used for the purpose of supplying such
electrical energy; provided, however, that Tenant, at Tenant's cost and expense,
shall furnish and install at such location in the Building as Landlord shall
designate, and shall maintain and keep in repair, any such additional wires,
risers, conduits, feeders, switchboards and metering equipment as shall be
necessary for the purpose of supplying such electrical energy to Tenant or
measuring Tenant's consumption of electrical energy so supplied to Tenant by
said public utility company. In the event that Landlord shall exercise said
option, the Fixed Rent payable under this Lease (including any adjustment
therein pursuant to the Article) shall, effective as of the date of such
discontinuance of Landlord's furnishing of electrical energy to the Demised
Premises, be reduced by an amount equal to the Electrical Energy Sum (as same
may have theretofore been adjusted in accordance with this Article)
(E) Tenant's use of electrical energy shall not at any time
exceed the capacity of any of the electrical conductors and equipment in or
otherwise serving the Demised Premises. Tenant agrees that Tenant shall not make
any alteration or addition to the wiring, outlets or other components of the
electrical system of the Demised Premises or make any alteration or addition to
the electrical equipment and/or appliances in the Demised Premises (except for
ordinary lighting fixtures, typewriters and similar low current office
equipment), without the prior written consent of Landlord in each instance. In
the event that Tenant shall require additional electrical energy for use in the
Demised Premises and if, in Landlord's sole judgment, Landlord's facilities are
inadequate for such
- 27 -
additional requirements, and if electrical energy for such additional
requirements is available to Landlord, Landlord, upon written request and at the
sole cost and expense of Tenant, will furnish and install such additional wires,
risers, conduits, feeders and switchboards as may be reasonably required to
supply such additional requirements of Tenant provided (1) that the same shall
be permitted by applicable laws and not in violation of any insurance
regulations or recommendations, (2) that, in Landlord's sole judgment, the same
are necessary and will not cause permanent damage or injury to the Building or
the Demised Premises or cause or create a dangerous or hazardous condition or
entail excessive or unreasonable alterations or repairs or interfere with or
disturb other tenants or occupants of the Building, and (3) that Tenant, at
Tenant's sole expense, concurrently with the making of such written request,
shall execute and deliver to Landlord Tenant's written undertaking, with a
surety and in form and substance satisfactory to Landlord, obligating Tenant to
fully and promptly pay the entire cost and expense of so furnishing and
installing any such additional wires, risers, conduits, feeders and/or
switchboards.
(F) Landlord shall in no way be liable or responsible to Tenant
for any loss or damage or expense which Tenant may sustain or incur if, during
the Term, either the quantity or character of electrical energy is changed or is
no longer available for Tenant's requirements.
(G) Landlord shall in no way be liable for any failure of or
defect in the character or supply of electrical energy furnished to the Demised
Premises.
ARTICLE 16
Heat, Ventilation and Air-Conditioning
16.01. Landlord has installed in the Demised Premises, and Tenant has
inspected and accepted as satisfactory, the Building heating, ventilating and
air-conditioning systems. Landlord, at its expense, shall maintain and operate
such systems and shall furnish heat, ventilation and air-conditioning in the
Demised Premises through such systems during regular business hours, but not
before 9:00 A.M. or after 6:00 P.M. on business days (which term is used herein
to mean all days except Saturdays, Sundays and the days observed by the federal
or the New York State government as legal holidays), throughout the year. If
Tenant shall require air-conditioning service or heating service at any other
time (hereinafter called "after hours") Landlord shall furnish after hours
air-conditioning service or heating service upon reasonable advance notice from
Tenant, and Tenant shall pay Landlord's then established charges therefor on
Landlord's demand. If any of the other tenants of the Building shall request and
receive after hours heating or air-conditioning service, pursuant to Landlord's
obligation to provide the same to them, at the same time as Tenant, only that
equitably prorated portion of such charge for such common service shall be
charged to Tenant. If Tenant notifies Landlord reasonably in advance that the
Demised Premises will be open for business on any Lincoln's Birthday, Columbus
Day, Election Day or Veteran's' Day or on a Saturday, Landlord shall then
provide at no additional costs to Tenant heating, ventilating or
air-conditioning services on such holiday from 9:00 A.M. to 6:00 P.M., if
weekdays, and from 9:00 AM. to 12:30 P.M. on Saturdays.
16.02. Landlord will not be responsible for the failure of the
air-conditioning system to perform in accordance with its usual standards of
performance if such failure results
- 28 -
from the occupancy of the Demised Premises with more than an average of one
person for each 100 square feet or if the Tenant installs and operates machines
and appliances, the installed electrical load of which when combined with the
load of all lighting fixtures exceeds six (6) ▇▇▇▇▇ per square foot of floor
area in any one room or other area. If due to use of the Demised Premises in a
manner exceeding the aforementioned occupancy and electrical load criteria, or
due to rearrangement of partitioning after the initial preparation of the
Demised Premises, interference with normal operation of the air-conditioning in
the Demised Premises results, necessitating changes in the air-conditioning
system servicing the Demised Premises, such changes shall be made by Landlord
upon written notice to Tenant at Tenant's sole cost and expense. Tenant agrees
to lower and close window coverings when necessary because of the sun's position
whenever the said air-conditioning system is in operation, and Tenant agrees at
all times to cooperate fully with Landlord and to abide by all the regulations
and requirements which Landlord may prescribe for the proper functioning and
protection of the said air-conditioning system. Landlord, throughout the Term,
shall have free and unrestricted access to any and all air-conditioning
facilities in the Demised Premises. Landlord shall not be required to furnish,
and Tenant shall not be entitled to receive, any air-conditioning during any
period wherein tenant shall be in default in any material provision of this
Lease.
ARTICLE 17
Landlord's Other Services
17.01. Landlord, at its expense, shall provide public elevator
service, passenger and freight, by elevators serving the floor on which the
Demised Premises are situated during regular hours of business days, and shall
have at least one passenger elevator subject to call at all other times. The
elevators, or any of them, may be operated by automatic control and/or by manual
control, as Landlord shall determine at any time or from time to time. Landlord
shall not be obligated to furnish an operator for any automatic elevator and
shall have no liability to Tenant for discontinuing the service of any operator
theretofore furnished. If Tenant shall require Saturday or after hours service
of freight elevators or the loading platform under such circumstances as, in
Landlord's reasonable judgment, will require service or attention by Landlord's
personnel, Tenant shall pay Landlord, on demand, a reasonable charge
attributable to such service or attention.
17.02. Provided that Tenant shall keep the Demised Premises in good
order, Landlord, at its expense, shall cause the Demised Premises, including the
exterior and the interior of the windows thereof (subject to Tenant maintaining
unrestricted access to such windows), to be cleaned on business days, as defined
in Section 16.01, in accordance with the standards set forth in Exhibit "C".
Tenant will not clean, nor require, permit, suffer or allow any window in the
premises to be cleaned from the outside. Tenant shall pay to Landlord on demand
the costs incurred by Landlord for (A) cleaning work in the Demised Premises or
the Building required because of (i) misuse or neglect on the part of Tenant or
its employees or visitors, (ii) use of portions of the Demised Premises for
preparation, service, or consumption of food or beverages, reproducing
operations, private lavatories or toilets or other special purposes requiring
great or more difficult cleaning work than office areas, (iii) unusual quantity
of interior glass surfaces, (iv) non-building standard materials or finishes
installed by
- 29 -
Tenant or at its request (v) increases in frequency or scope in any of the items
set forth in Exhibit "C" as shall have been requested by Tenant and (B) removal
from the Demised Premises and the Building of (i) so much of any refuse and
rubbish of Tenant as shall exceed that normally accumulated daily in the routine
of ordinary business office occupancy and (ii) all of the refuse and rubbish of
Tenant's machines and the refuse and rubbish of any other eating facilities
requiring special handling (known as "wet garbage"). Landlord and its cleaning
contractor and their employees shall have after hours access to the Demised
Premises and the use of Tenant's light, power and water in the Demised Premises
as may be reasonably required for the purpose of cleaning the Demised Premises.
17.03. Landlord, at its expense, shall furnish adequate hot and cold
water to the floor(s) on which the Demised Premises are situated for drinking,
lavatory, toilet, and ordinary cleaning purposes.
17.04. Landlord shall use its best efforts to keep and maintain the
public areas and the public facilities of the Building clean and in good order
and the sidewalks adjoining the Building in good repair and free of accumulation
of snow and ice or unlawful obstructions.
17.05. Landlord, subject to its prior written approval and at Tenant's
expense, and on Tenant's request, shall maintain listings on the Building
directory of the names of Tenant, its organizational divisions and any other
person or business entities lawfully occupying the Demised Premises or any part
thereof, and the names of any of their officers and employees, provided that the
names so listed shall not take up more than Tenant's Proportionate Share of the
space on the Building directory, the size of which shall be determined by
Landlord. The listing of any name other than that of Tenant on the Building
directory or on any of the doors of the Demised Premises shall not be deemed to
vest in the person or entity so listed any right or interest in the Lease or in
the Demised Premises or to constitute the consent of Landlord required under
Article 8, or a waiver thereof.
17.06. Landlord reserves the right, without any liability to Tenant,
except as otherwise expressly provided in this Lease, and without being in
breach of any covenant of this Lease to stop, interrupt or suspend service of
any of the heating, ventilating, air-conditioning, electric, sanitary, elevator
or other Building systems serving the Demised Premises, or the rendition of any
of the other services required of Landlord under this Lease, whenever and for so
long as may be necessary, by reason of accidents, emergencies, strikes or the
making of repairs or changes which Landlord is required by this Lease or by law
to make or in good ▇▇▇▇▇ ▇▇▇▇▇ advisable, or by reason of difficulty in securing
proper supplies of fuel, steam, water, electricity, labor or supplies or by
reason of any other cause beyond Landlord's reasonable control, including
Governmental restrictions on the use of materials or the use of any of the
Building systems. In each instance Landlord shall exercise reasonable diligence
to eliminate the cause of stoppage and to effect restoration of service and
shall give Tenant reasonable notice, when practicable, of the commencement and
anticipated duration of such stoppage, and if any work is required to be
performed in or about the Demised Premises for such purpose the provisions of
Section 14.03 shall apply. Tenant shall not be entitled to any diminution or
abatement of rent or other compensation nor shall this Lease or any of the
obligations of Tenant be affected or reduced by reason of the interruption,
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stoppage or suspension of any of the Building systems or services arising out of
the causes set forth in this Section.
ARTICLE 18
Access, Changes in Building Facilities, Name
18.01. All walls, windows and doors bounding the Demised Premises
(including exterior Building walls, core corridor walls and doors and any core
corridor entrance), except the inside surfaces thereof, any terraces or roofs
adjacent to the Demised Premises, 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 purposes of
operation, maintenance, decoration and repair, are reserved to Landlord.
18.02. Tenant shall permit Landlord to install, use and maintain
pipes, ducts and conduits within or through the Demised Premises, or through the
walls, columns and ceilings therein, provided that the installation work is
performed at such times and by such methods as will not unreasonably interfere
with Tenant's use and occupancy of the Demised Premises, or damage the
appearance thereof, or reduce the floor area thereof by more than two percent
(2%) (without an appropriate adjustment in rent) or materially affect Tenant's
layout. Where access doors are required for mechanical trades in or adjacent to
the Demised Premises, Landlord shall furnish and install such access doors and
confine their location, wherever practical, to closets, coat rooms, toilet
rooms, corridors and kitchen or pantry rooms. Landlord and Tenant shall
cooperate with each other in the location of Landlord's and Tenant's facilities
requiring such access doors.
18.03. Landlord or Landlord's agents or employees shall have the right
upon request made on reasonable advance notice to Tenant, or to an authorized
employee of Tenant at the Demised Premises, to enter and/or pass through the
Demised Premises or any part thereof, at reasonable times during reasonable
hours, (i) to examine the Demised Premises or to show them to the fee owners,
lessors of superior leases, holders of mortgages, insurance carriers, or
prospective purchasers, mortgagees or lessees of the Land or the Building, and
(ii) for the purpose of making such repairs or changes or doing such repainting
in or to the Demised Premises or in or to the Building or its facilities as may
be provided for by this Lease or as Landlord may deem necessary or as Landlord
may be required to make by law or in order to repair and maintain the Building
or its fixtures or facilities. Landlord shall be allowed to take all materials
into and store upon the Demised Premises which may be required for such repairs,
changes, repainting or maintenance. However, Landlord's rights under this
Section shall be exercised in such manner as will not unreasonably interfere
with Tenant's use and occupancy of the Demised Premises. Landlord, its agents or
employees, shall also have the right to enter on and/or pass through the Demised
Premises, or any part thereof without notice at such times as such entry shall
be required by circumstances of emergency affecting the Demised Premises or the
Building.
18.04. During the period of eighteen (18) months prior to the
Expiration Date, Landlord may exhibit the Demised Premises to prospective
tenants upon the same notice and subject to the same conditions as are provided
in Section 18.03.
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18.05. Landlord reserves the right, without incurring any liability to
Tenant therefor, to make such changes in or to the Building and the Fixtures and
equipment thereof, as well as in or to the street entrances, halls, passages,
elevators, escalators and stairways thereof, as it may deem necessary or
desirable; provided that there be no unreasonably lengthy interference with the
use of the Demised Premises in excess of two (2%) percent without an appropriate
adjustment in Rents.
Landlord reserves the right to make such change or changes of
name for the Building as it may deem appropriate during Tenant's occupancy, and
Tenant agrees not to refer to the Building by any other name than (i) the
General Motors Building or any subsequent name as selected by Landlord, or (ii)
the postal address approved by the U.S. Post Office.
18.06. Landlord may limit and restrict, as provided in the Rules and
Regulations attached hereto as Exhibit "B", the means of access to the Demised
Premises outside of normal business hours, so long as Tenant's employees and
authorized agents have reasonable access to all parts of the Demised Premises.
Tenant and its agents, employees and visitors shall be entitled to access from
the Demised Premises to, and the right to use, the toilets, lavatories and
powder rooms only on the floor on which the Demised Premises are located.
ARTICLE 19
Shoring, Notice of Accidents, Etc.
19.01. If an excavation or other substructure work shall be undertaken
or authorized upon land adjacent to the Building or in the vaults beneath the
Building or in subsurface space adjacent to the said vaults, Tenant, without
liability on the part of Landlord therefor, shall afford to the person causing
or authorized to cause such excavation or other substructure work a license to
enter upon the Demised Premises for the purpose of doing such work as such
person shall deem necessary to protect or preserve any of the walls or
structures of the Building or surrounding lands from injury or damage and to
support the same by proper foundations, pinning and/or underpinning, and, except
in case of emergency, if so requested by Tenant such entry shall be accomplished
in the presence of a representative of Tenant, who shall be designated by Tenant
promptly upon Landlord's request. The said license to enter shall be afforded by
Tenant without any claim for damages or indemnity against Landlord and Tenant
shall not be entitled to any diminution or abatement of Rent on account thereof.
19.02. Tenant shall give notice to Landlord, promptly after Tenant
learns thereof, of (i) any accident in or about the Demised Premises or the
Building, (ii) all fires in the Demised Premises, (iii) all damages or defects
in the Demised Premises, including the fixtures, equipment and appurtenances
thereof, for the repair of which Landlord might be responsible or which
constitutes Landlord's property, and (iv) all damage to or defects in any parts
or appurtenances of the Building's sanitary, electrical, heating, ventilating,
air-conditioning, elevator and other systems located in or passing through the
Demised Premises.
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ARTICLE 20
Non-Liability and Indemnification
20.01. Neither Landlord nor any agent or employee of Landlord shall be
liable to Tenant, its employees, agents, contractors and licensees, and Tenant
shall hold Landlord harmless for any injury or damage to Tenant or to any other
person for any damage to, or loss (by theft or otherwise) of, any property of
Tenant and/or of any other person, irrespective of the cause of such injury,
damage or loss, unless caused by or due to the negligence of Landlord, its
agents or employees without contributory negligence on the part of Tenant, it
being understood that no property, other than such as might normally be brought
upon or kept in the Demised Premises as incident to the reasonable use of the
Demised Premises for the purposes herein permitted, will be brought upon or be
kept in the Demised Premises. Landlord shall not be liable in any event for loss
of, or damage to, any property entrusted to any of Landlord's employees or
agents by Tenant without Landlord's specific written consent. Without affecting
the generality of the foregoing, if Landlord shall consent to the omission or
removal of any part of, or the insertion of any door or other opening in, any
wall separating the Demised Premises from adjoining space leased to another
tenant, then (i) Tenant shall be responsible for all risk of damage to, or loss
or theft of, property arising as a result of such omission or removal or the use
of such door or other opening, or because of the existence thereof, and shall
indemnify and save Landlord harmless from and against any claim, demand or
action for, or on account of, any such loss, theft or damage, and (ii) in the
event of the termination of this Lease or the lease of said other tenant,
Landlord may enter the Demised Premises and Landlord, at Tenant's expense, may
close up such door or other opening by erecting a wall to match the wall
separating the Demised Premises from said adjoining space, and Tenant shall pay
the reasonable cost thereof and Tenant shall not be entitled to any diminution
or abatement of Rent or other compensation by reason thereof provided, however,
that nothing herein contained shall be deemed to vest Tenant with any right or
interest in, or with respect to, said adjoining space, or the use thereof, and
Tenant hereby expressly waives any right to be made a party to, or to be served
with process or other notice under or in connection with any proceeding or
action which may be hereafter be instituted by Landlord for the recovery of the
possession of said adjoining space.
20.02. Tenant shall defend, indemnify and save harmless Landlord and
its agents and employees against and from all liabilities, obligations, damages,
penalties, claims, costs, charges and expenses, including reasonable architects'
and attorneys fees, which may be imposed upon or incurred by or asserted against
Landlord and/or its agents by reason of any of the following occurring during
the Term:
(A) any work or thing done in, on or about the Demised Premises
or any part thereof by or at the instance of Tenant, its agents, contractors,
subcontractors, servants, employees, licensees or invitees including, without
limitation, the performance of Tenant's Changes;
(B) any negligence or otherwise wrongful act or omission on the
part of Tenant or any of its agents, contractors, subcontractors, servants,
employees, subtenants, licensees or invitees;
(C) any accident, injury or damage to any person or property
occurring in, on or about the Demised Premises
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or any part thereof, or vault, passageway or space adjacent thereto; and
(D) any failure on the part of Tenant to perform or comply with
any of the covenants, agreements, terms, provisions, conditions or limitations
contained in this Lease on its part to be performed or complied with.
In case any action or proceeding is brought against Landlord by
reason of any such claim, Tenant upon written notice from Landlord shall at
Tenant's expense resist or defend such action or proceeding by counsel approved
by Landlord in writing, which approval Landlord shall not unreasonably withhold.
20.03. Whenever either party shall be obligated under the terms of
this Lease to indemnify the other party, the indemnifying party may select legal
counsel (subject to the consent of the indemnified party, which consent shall
not be unreasonably withheld) and shall keep the indemnified party fully
apprised at all times of the status of such defense. Legal counsel of the
insurer for either party is hereby deemed satisfactory to both parties.
20.04. Except as otherwise expressly provided herein, this Lease and
the obligations of Tenant to pay Rent and perform all of the other covenants,
agreements, terms, provisions and conditions hereunder on the part of Tenant to
be performed shall in no wise be affected, impaired or excused because Landlord
is unable to fulfill any of its obligations under this Lease or is unable to
supply or is delayed in supplying any service, express or implied, to be
supplied or is unable to make or is delayed in supplying any equipment or
fixtures if Landlord is prevented or delayed from so doing by reason of any
cause whatsoever beyond Landlord's reasonable control, including, but not
limited to, Acts of God, strikes, labor troubles, governmental preemption in
connection with a national emergency or by reason of any rule, order or
regulation of any department or subdivision thereof of any governmental agency
or by reasons of the conditions of supply and demand which have been or are
affected by war, hostilities or other similar emergency; provided that Landlord
shall in each instance exercise reasonable diligence to effect performance when
and as soon as possible. However, nothing contained in this Section shall be
deemed to extend or otherwise modify or affect any of the time limits and
conditions set forth in Section 21.03.
20.05. The provisions of this Article are intended to be cumulative to
and shall not be deemed to supersede, limit or modify any of the other
provisions of this Lease and the provisions of Sections 20.01 and 20.02 are
likewise intended to be cumulative to each other and neither such Section shall
be deemed to limit the other in any respect.
ARTICLE 21
Destruction or Damage
21.01. If the Demised Premises and/or access thereto shall be
partially or totally damaged or destroyed by fire or other casualty, then
Landlord shall, subject to its rights under Section 21.03 hereof, repair the
damage and restore and rebuild the Demised Premises and/or access thereto as
nearly as may be reasonably practical to its condition and character immediately
prior to such damage or destruction, with reasonable diligence after notice to
it of the damage or destruction.
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21.02. If the Demised Premises and/or access thereto shall be
partially or totally damaged or destroyed by fire or other casualty not
attributable to the fault, negligence or misuse of the Demised Premises by
Tenant, its agents or employees under the provisions of this Lease, the Rents
shall be abated to the extent that the Demised Premises shall have been rendered
untenantable from the date of such damage or destruction to the date the damage
shall be substantially repaired or restored or rebuilt. Should Tenant reoccupy a
portion of the Demised Premises during the period that the repair, restoration,
or rebuilding is in progress and prior to the date that the same are made
completely tenantable, Rents allocable to such portion shall be payable by
Tenant from the date of such occupancy to the date the Demised Premises are made
tenantable.
21.03. In case of substantial damage or destruction of the Demised
Premises, and if Landlord has not completed the making of the required repairs
and restored and rebuilt the Demised Premises and/or access thereto within nine
(9) months from the date of such damage or destruction, and such additional time
after such date (but in no event to exceed six (6) months) as shall equal the
aggregate period Landlord may have been delayed in doing so by adjustment of
insurance, labor trouble, governmental controls, Acts of God, or any other cause
beyond Landlord's reasonable control, Tenant may serve notice on Landlord of its
intention to terminate this Lease, and if within thirty (30) days thereafter
Landlord shall not have completed the making of the required repairs and
restored and rebuilt the Demised Premises, this Lease shall terminate on the
expiration of such thirty (30) day period as if such termination date were the
Expiration Date.
In case the Building shall be so damaged by such fire or other
casualty that substantial renovation, reconstruction or demolition of the
Building shall, in Landlord's opinion, be required (whether or not the Demised
Premises shall have been damaged by such fire or other casualty), then Landlord
may, at its option, terminate this Lease and the Term and estate hereby granted,
by notifying Tenant in writing of such termination, within sixty (60) days after
the date of such damage. If at any time prior to Landlord giving Tenant the
aforesaid notice of termination or commencing the repair and restoration
pursuant to Section 21.01, the holder of a superior mortgage or any person
claiming under or through the holder of such superior mortgage takes possession
of the Building through foreclosure or otherwise, such holder or person shall
have a further period of sixty (60) days from the date of so taking possession
to terminate this Lease by appropriate written notice to Tenant. In the event
that such a notice of termination shall be given pursuant to either of the next
two preceding sentences, this Lease and the Term and estate hereby granted shall
expire as of the date of such termination with the same effect as if that were
the date hereinbefore set for the expiration of the Term, and Fixed Rent and
Additional Rent due and to become due hereunder shall be apportioned as of such
date if not earlier abated pursuant to Section 21.02. Nothing contained in this
Section 21.03 shall relieve Tenant from any liability to Landlord or to its
insurers in connection with any damage to the Demised Premises or the Building
by fire or other casualty if Tenant shall be legally liable in such respect.
21.04. No damages, compensation or claim shall be payable by Landlord
for inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Demised Premises or of the Building pursuant
to this Article. Landlord shall use commercially reasonable efforts to
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effect such repair or restoration promptly and in such manner as not
unreasonably to interfere with Tenant's use and occupancy.
21.05. Landlord will not carry insurance of any kind on Tenant's
Property, and, except as provided by law or its breach of any of its obligations
hereunder, shall not be obligated to repair any damage thereto or replace the
same.
21.06. The provisions of this Article shall be considered an express
agreement governing any case of damage or destruction of the Demised Premises by
fire or other casualty, and Section 227 of the Real Property Law of the State of
New York, providing for such a contingency in the absence of an express
agreement, and any other law of like import, now or hereafter in force, shall
have no application in such case.
21.07. Notwithstanding any of the foregoing provisions of this
Article, if Landlord or the lessor of any superior lease or the holder of any
superior mortgage shall be unable to collect all of the insurance proceeds
(including rent insurance proceeds) applicable to damage or destruction of the
Demised Premises or the Building by fire or other cause, by reason of some
action or inaction on the part of Tenant or any of its employees, agents or
contractors, then, without prejudice to any other remedies which may be
available against Tenant the abatement of Rents provided for in this Article
shall not be effective to the extent of the uncollected insurance proceeds.
ARTICLE 22
Eminent Domain
22.01. In the event that the Land, Building or any part thereof or the
Demised Premises or any part thereof shall be taken in condemnation proceedings
or by the exercise of any right of eminent domain or by agreement between any
superior lessors and lessees and/or Landlord on the one hand and any
governmental authority authorized to exercise such right on the other hand,
Landlord shall be entitled to collect from any condemnor the entire award or
awards that may be made in any such proceeding without deduction therefrom for
any estate hereby vested in or owned by Tenant, to be paid out as in this
Article provided. Tenant hereby expressly assigns to Landlord all of its right,
title and interest in or to every such award and also agrees to execute any and
all further documents that may be required in order to facilitate the collection
thereof by Landlord.
22.02. At any time during the Term if title to the whole or
substantially all of the Land, Building and/or Demised Premises shall be taken
in condemnation proceedings or by the exercise of any right of eminent domain or
by agreement between any superior lessors and lessees and/or Landlord on the one
hand and any governmental authority authorized to exercise such right on the
other hand, this Lease shall terminate and expire on the date of such taking and
Fixed Rent and Additional Rent provided to be paid by Tenant shall be
apportioned and paid to the date of such taking. For the purposes of this
Article, substantially all of the Land, Building and/or Demised Premises shall
be deemed to have been taken if the remaining portion of such Land, Building or
Demised Premises not so taken cannot reasonably or practicably be repaired or
reconverted so as to permit the use thereof for substantially the same purposes
for which such Land, Building or Demised Premises were used immediately prior to
such taking.
22.03. However, if substantially all of the Land or Building is not
so taken and if only a part of the entire Demised
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Premises shall be so taken, this Lease nevertheless shall continue in full force
and effect, except that Tenant may elect to terminate this Lease if that portion
of the Demised Premises then occupied by Tenant shall be reduced by more than
twenty-five (25%). Tenant shall give notice of such election to Landlord not
later than thirty (30) days after (i) notice of such taking is given by Landlord
to Tenant, or (ii) the date of such taking, whichever occurs later. Upon the
giving of such notice by Tenant this Lease shall terminate on the date of
service of Tenant's notice and Fixed Rent and Additional Rent due and to become
due, shall be prorated and adjusted as of the date of the taking. If Tenant
fails to give such notice upon such partial taking and this Lease continuing in
force as to any part of the Demised Premises not taken, the Rents apportioned to
the part taken shall be prorated and adjusted as of the date of taking and from
such date Fixed Rent shall be reduced to the amount apportioned to the remainder
of the Demised Premises and Additional Rent shall be payable or receivable
pursuant to Articles 4 and 5 according to the rentable areas remaining.
22.04. Notwithstanding the foregoing provisions of this Article and
subject to the interests of any mortgagee or lessor or grantor under any
mortgage or ground or underlying lease, Tenant shall be entitled to appear,
claim, prove and receive in the proceedings relating to any taking mentioned in
the preceding Sections of this Article, such portion of each award made therein
as represents the then value of Tenant's Property.
22.05. If the temporary use or occupancy of all or any part of the
Demised Premises shall be lawfully taken by condemnation or in any other manner
for any public or quasi-public use or purpose during the Term, Tenant shall be
entitled, except as hereinafter set forth, to receive that portion of the award
for such taking which represents compensation for the use and occupancy of the
Demised Premises and, if so awarded, for the taking of Tenant's Property and for
moving expenses, and Landlord shall be entitled to receive that portion which
represents reimbursement for the cost of restoration of the Demised Premises.
This Lease shall be and remain unaffected by such taking and Tenant shall
continue to be responsible for all of its obligations hereunder insofar as such
obligations are not affected by such taking and shall continue to pay in full
Fixed Rent and Additional Rent when due. Notwithstanding the provisions of the
two immediately preceding sentences, any lump sum award received by Tenant as
compensation for temporary use and occupancy of the Demised Premises shall be
delivered forthwith to Landlord to be held by Landlord in trust for the making
of payments by Tenant as provided in this Lease. The rights and interests of
Landlord and Tenant to any award or awards received with respect to a
condemnation for temporary use or occupancy shall be in all other respects
governed by the provisions, limitations and conditions of Article 16.08 of the
ground lease and of any references therein made, including provisions therein
relating to the appointment of a trustee, and in the event of any conflict
between the provisions, limitations and conditions of this Section and those of
the said ground lease, the ground lease shall govern.
22.06. If the temporary use of occupancy of all or any material part
of the Demised Premises shall be lawfully taken by condemnation or in any other
manner as hereinabove described at any time during the last three (3) years of
the Term, either party may terminate this Lease by giving the other written
notice to such effect within sixty (60) days after such taking and this Lease
shall then expire on the effective date stated in such notice as if that were
the Expiration Date but Fixed Rent and
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Additional Rent shall be prorated and adjusted as of the date of such taking. In
the event of such a termination, however, Tenant shall not be entitled to any
award or share thereof made in condemnation, with the exception of any award to
which Tenant shall be entitled pursuant to Section 22.04.
22.07. In the event of any such taking of less than the whole of the
Building which does not result in a termination of this Lease, or in the event
of such taking of all or any part of the Demised Premises which does not result
in a termination of this Lease, Landlord, at its expense, shall proceed with
reasonable diligence to repair, alter and restore the remaining parts of the
Building and the Demised Premises to substantially the same condition as they
were in immediately prior to such taking to the extent that the same may be
feasible, so as to constitute a tenantable Building and Demised Premises,
provided that Landlord's liability under this Section shall be limited to the
amount received by Landlord as an award arising out of such taking.
22.08. If the grade of any street upon which the Land, Building or
Demised Premises abuts shall be changed by any competent authority, this Lease
shall nevertheless continue in full force and effect, and Landlord shall be
entitled to collect from such authority the entire award that may be made in
such proceedings. Tenant hereby expressly assigns to Landlord all of its rights,
title and interest in or to every such award and also agrees to execute any and
all further documents that may be required in order to facilitate the collection
thereof by Landlord.
22.09. Should any part of the Demised Premises be taken to effect
compliance with any law or requirement of public authority other than in the
manner hereinabove provided in this Article, then, (i) if such compliance is the
obligation of Tenant under this Lease, Tenant shall not be entitled to any
diminution or abatement of Rents or other compensation from Landlord therefor,
but (ii) if such compliance is the obligation of Landlord under this Lease,
Fixed Rent and Additional Rent hereunder shall be equitably adjusted according
to the reduction in rentable area of the Demised Premises resulting from such
taking.
22.10. In the event that there shall be any dispute between Landlord
and Tenant arising out of the provisions of this Article, such dispute shall be
settled by informal arbitration pursuant to Article 32 hereof.
ARTICLE 23
Surrender
23.01. On the last day of the Term, or upon any earlier termination of
this Lease, or upon any re-entry by Landlord upon the Demised Premises, Tenant
shall quit and surrender the Demised Premises to Landlord broom clean, in good
order, condition and repair except for ordinary wear and tear and damage by fire
or other insured casualty, and Tenant shall remove Tenant's Property subject to
the provisions of Article 13 hereof.
23.02 If at any time during the last month of the Term of this Lease,
Tenant shall have removed all or substantially all of Tenant's property from the
Demised Premises, Landlord may, and Tenant irrevocably grants to Landlord a
license to, immediately enter and alter, renovate and redecorate the Demised
Premises, without diminution or abatement of rent, or incurring liability
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to Tenant for any compensation, and such acts shall have no effect on this
Lease, except that Tenant shall not be responsible for occurrences in the
Demised Premises after vacating the same if Landlord exercises such license.
23.03 Tenant agrees it shall indemnify and save Landlord harmless
against all costs, claims, loss or liability resulting from delay by Tenant in
surrendering the Demised Premises upon expiration or sooner termination of the
Term of this Lease, including, without limitation, any claims made by any
succeeding tenant founded on such delay. The parties recognize and agree that
the damage to Landlord resulting from any failure by Tenant timely to surrender
the Demised Premises will be substantial, will exceed the amount of monthly rent
theretofore payable hereunder, and will be impossible of accurate measurement.
Tenant therefore agrees that if possession of the Demised Premises is not
surrendered to Landlord within two (2) days after the date of the expiration or
sooner termination of the Term of this Lease, then Tenant will pay Landlord as
liquidated damages for each month and for each portion of any month during which
Tenant holds over in the Demised Premises after expiration or sooner termination
of the Term of this Lease, a sum equal to three (3) times the average Fixed Rent
and Additional Rent which was payable per month under this Lease during the six
(6) month period preceding such expiration or termination of the Term of this
Lease. The aforesaid obligations shall survive the expiration of sooner
termination of the Term of this Lease.
ARTICLE 24
Conditions of Limitation
24.01. This Lease and the Term and estate hereby granted are subject
inter alia to the limitation that whenever Tenant shall make an assignment for
the benefit of creditors, or shall file a voluntary petition under any
bankruptcy or insolvency law, or an involuntary petition alleging an act of
bankruptcy or insolvency is filed against Tenant, or whenever a petition shall
be filed by or against Tenant seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
present or any future federal bankruptcy act or any other present or future
applicable federal, state or other statute or law, or shall seek or consent to
or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant
or of all or any substantial part of its properties, or whenever a permanent or
temporary receiver of Tenant or of or for the property of Tenant shall be
appointed, or if Tenant shall plead bankruptcy or insolvency as a defense in any
action or proceeding then, Landlord, (A) at any time after receipt of notice of
the occurrence of any such event, or (B) if such event or act occurs without the
acquiescence of Tenant, at any time after the event or act continues for thirty
(30) days, may give Tenant a notice of intention to end the Term at the
expiration of five (5) days from the service of such notice of intention, and
upon expiration of said five (5) day period this Lease and the Term and estate
hereby granted, whether or not the Term shall theretofore have commenced, shall
terminate with the same effect as if that day were the Expiration Date, but
Tenant shall remain liable for damages as provided in Article 26.
24.02. This Lease and the Term and estate hereby granted are subject
to the further limitation that
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(A) whenever Tenant shall default in the payment of any
installment of Fixed Rent or Additional Rent, on any day upon which the same
shall be due and payable and such default shall continue for ten (10) days after
Landlord shall have given Tenant notice of such default, or
(B) whenever Tenant shall do or permit anything to be done,
whether by action or inaction, contrary to any of Tenant's obligations
hereunder, and if such situation shall continue and shall not be remedied by
Tenant within fifteen (15) days after Landlord shall have given to Tenant a
notice specifying the same, or, in the case of a happening or default which
cannot with due diligence be cured within a period of fifteen (15) days and the
continuance of which for the period required for cure will not subject Landlord
to the risk of criminal liability (as more particularly described in Section
9.01) or termination of any superior lease or foreclosure of any superior
mortgage, if Tenant shall not duly institute within such fifteen (15) day period
and promptly and diligently prosecute to completion all steps necessary to
remedy the same, or
(C) whenever any event shall occur or any contingency shall arise
whereby this Lease or any interest herein or the estate hereby granted or any
portion thereof or the unexpired balance of the Term would, by operation of law
or otherwise, devolve upon or pass to any person, firm or corporation other than
Tenant, except as expressly permitted by Article 8, or
(D) whenever Tenant shall abandon the Demised Premises, or a
substantial portion of the Demised Premises shall remain vacant for a period of
ten (10) consecutive days, unless such vacancy arises as a result of a casualty,
then in any such event at any time thereafter, Landlord may give to Tenant a
notice of intention to end the Term at the expiration of five (5) days from the
date of service of such notice of intention, and upon the expiration of said
five (5) days this Lease and the Term and estate hereby granted, whether or not
the Term shall theretofore have commenced, shall terminate with the same effect
as if that day were the Expiration Date, but Tenant shall remain liable for
damages as provided in Article 26.
ARTICLE 25
Re-entry by Landlord, Default Provisions
25.01. If this Lease shall terminate for any reason whatsoever,
Landlord or Landlord's agents and employees may without further notice
immediately or at any time thereafter enter upon and re-enter the Demised
Premises, or any part thereof, and possess or repossess itself thereof either by
summary dispossess proceedings, ejectment or by any suitable action or
proceeding at law, or by agreement, or by force or otherwise, and may dispossess
and remove Tenant and all other persons and property from the Demised Premises
without being liable to indictment, prosecution or damages therefor, and may
repossess the same, and may remove any persons therefrom, to the end that
Landlord may have, hold and enjoy the Demised Premises and the right to receive
all rental income again as and of its first estate and interest therein. The
words "enter" or "re-enter", "possess" or "repossess" as herein used, are not
restricted to their technical legal meaning. In the event of any termination of
this Lease under the provisions of Article 24 or re-entry under this Article or
in the event of the termination of
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this Lease, or of re-entry by summary dispossess proceedings, ejectment or by
any suitable action or proceeding at law, or by agreement or by force or
otherwise by reason of default hereunder on the part of Tenant, Tenant shall
thereupon pay to Landlord Fixed Rent and Additional Rent due up to the time of
such termination of this Lease, or of such recovery of possession of the Demised
Premises by Landlord, as the case may be, and shall also pay to Landlord damages
as provided in Article 26.
25.02. In the event of any breach or threatened breach by Tenant of
any of the agreements, terms, covenants or conditions contained in this Lease,
Landlord shall be entitled to enjoin such breach or threatened breach and shall
have the right to invoke any right and remedy allowed at law or in equity or by
statute or otherwise as though re-entry, summary proceedings, and other remedies
were not provided for in this Lease.
25.03. Each right and remedy of Landlord provided for in this Lease
shall be cumulative and shall be in addition to every other right or remedy
provided for in this Lease or now or hereafter existing at law or in equity or
by statute or otherwise, and the exercise or beginning of the exercise by
Landlord of any one or more of the rights or remedies provided for in this Lease
or now or hereafter existing at law or in equity or by statute or otherwise
shall not preclude the simultaneous or later exercise by Landlord of any or all
other rights or remedies provided for in this Lease or now or hereafter existing
at law or in equity or by statute or otherwise.
25.04. If this Lease shall terminate under the provisions of Article
24, or if Landlord shall re-enter the Demised Premises under the provisions of
this Article, or in the event of the termination of this Lease, or of re-entry,
by or under any summary dispossess or other proceeding or action or any
provision of law by reason of default hereunder on the part of Tenant, Landlord
shall be entitled to retain all monies, if any, paid by Tenant to Landlord,
whether as advance rent, security or otherwise, but such monies shall be
credited by Landlord against any Fixed Rent or Additional Rent due from Tenant
at the time of such termination or re-entry or, at Landlord's option, against
any damages payable by Tenant under Article 26 or pursuant to law.
ARTICLE 26
Damages
26.01. If this Lease is terminated under the provisions of Article 24,
or if Landlord shall re-enter the Demised Premises under the provisions of
Article 25, or in the event of the termination of this Lease, or of re-entry by
summary dispossess proceedings, ejectment or by any suitable action or
proceeding at law, or by agreement, or by force or otherwise, by reason of
default hereunder on the part of Tenant, Tenant shall pay to Landlord as
damages, at the election of Landlord, either
(A) on demand, a sum which at the time of such termination of
this Lease or at the time of any such re-entry by Landlord, as the case may be,
represents the excess of (1) the aggregate of Fixed Rent and Additional Rent
payable hereunder which would have been payable by Tenant (conclusively
presuming Additional Rent to be the same as was payable for the year immediately
preceding such termination) for the period commencing with such earlier
termination of this Lease or the date of any such re-entry, as the case may be,
and ending with the Expiration Date, had this Lease not so terminated or had
Landlord not so
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re-entered the Demised Premises, over (2) the aggregate rental value (calculated
as of the date of such termination or re-entry) of the Demised Premises for the
same period, or
(B) sums equal to Fixed Rent and Additional Rent (as above
presumed) payable hereunder which would have been payable by Tenant had this
Lease not so terminated, or had Landlord not so re-entered the Demised Premises,
payable quarterly but otherwise upon the terms therefor specified herein
following such termination or such re-entry and until the Expiration Date,
provided, however, that if Landlord shall relet the Demised Premises or any
portion or portions thereof during said period, Landlord shall credit Tenant
with the net rents received by Landlord from such reletting, such net rents to
be determined by first deducting from the gross rents as and when received by
Landlord from such reletting the expenses incurred or paid by Landlord in
terminating this Lease or in re-entering the Demised Premises and in securing
possession thereof, as well as the expenses of reletting, including altering and
preparing the Demised Premises or any portion or portions thereof for new
tenants, brokers' commissions, advertising expenses, and all other expenses
properly chargeable against the Demised Premises and the rental therefrom; it
being understood that any such reletting may be for a period shorter or longer
than the remaining Term but in no event shall Tenant be entitled to receive any
excess of such net rents over the sums payable by Tenant to Landlord hereunder,
nor shall Tenant be entitled in any suit for the collection of damages pursuant
to this Subsection to a credit in respect of any net rents from a reletting,
except to the extent that such net rents are actually received by Landlord. If
the Demised Premises or any part thereof should be relet in combination with
other space, then proper apportionment shall be made of the rents received from
reletting and of the expenses of reletting.
If the Demised Premises or any part thereof be relet by Landlord
for the unexpired portion of the Term, or any part thereof, before presentation
of proof of such damages to any court, commission or tribunal, the amount of
rent reserved upon such reletting shall, prima facie, be the fair and reasonable
rental value of the Demised Premises, or part thereof, so relet during the term
of the reletting. Landlord, however, shall in no event and in no way be
responsible or liable for any failure to relet the Demised Premises or any part
thereof or for failure to collect any rent due upon any such reletting.
26.02. Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the Term would have expired if it had not been
so terminated under the provisions of Article 24, or under any provision of law,
or had Landlord not re-entered the Demised Premises. Nothing herein contained
shall be construed to limit or preclude recovery by Landlord against Tenant of
any sums or damages to which, in addition to the damages particularly provided
above, Landlord may lawfully be entitled by reason of any default hereunder or
otherwise on the part of Tenant. Nothing herein contained shall be construed to
limit or prejudice the right of Landlord to prove for and obtain as liquidated
damages by reason of the termination of this Lease or re-entry on the Demised
Premises for the default of Tenant under this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, such damages are to be proved whether or not
such amount be greater, equal to, or less than any of the sums referred to in
Section 26.01.
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ARTICLE 27
Waivers
27.01. Tenant, for itself, and on behalf of any and all persons
claiming through or under Tenant, including creditors of all kinds, does hereby
waive and surrender all right and privilege so far as is permitted by law, which
they or any of them might have under or by reason of any present or future law,
(i) to the service of any notice of intention to re-enter, (ii) to any and all
right of redemption or re-entry or repossession in case Tenant shall be
dispossessed or ejected by process of law or in case of re-entry or repossession
by Landlord or in case of any expiration or termination of this Lease as herein
provided, or (iii) to any notice and/or delay in levy of execution in case of an
eviction or dispossession of tenant for nonpayment of rent.
27.02. In the event that Tenant is in arrears in payment of Fixed Rent
or Additional Rent or any other sums due hereunder, Tenant waives Tenant's
right, if any, to designate the items against which any payments made by Tenant
are to be credited, and Tenant agrees that Landlord may apply any payments made
by Tenant to any items it sees fit, irrespective of and notwithstanding any
designation or request by Tenant as to the items against which any such payments
shall be credited. In the event Landlord commences any summary proceeding or
other action for non-payment of Rent, Tenant covenants and agrees that it will
not interpose any counterclaim of whatsoever nature or description in any such
proceeding.
27.03. To the extent permitted by applicable law, Landlord and Tenant
hereby waive trial by jury in any action, proceeding or counterclaim brought by
either against the other on any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, or Tenant's
use or occupancy of the Demised Premises, or any emergency or other statutory
remedy with respect thereto.
ARTICLE 26
No Other Waivers or Modifications
28.01. The failure of either party to insist in any one or more
instances upon the strict performance of any one or more of the agreements,
terms, covenants, conditions or obligations of this Lease, or to exercise any
right, remedy or election herein contained, or to perform any act or fail to
perform any act, shall not be construed as a waiver or relinquishment for the
future of the performance of such one or more obligations of this Lease or of
the right to exercise such election, but the same shall continue and remain in
full force and effect with respect to any subsequent breach, act or omission.
The manner of enforcement or the failure of Landlord to enforce any of the Rules
and Regulations set forth herein, or hereafter adopted against the Tenant and/or
any other tenant in the Building shall not be deemed a waiver of any such Rules
and Regulations. No executory agreement hereafter made between Landlord and
Tenant shall be effective to change, modify, waive, release, discharge,
terminate or effect an abandonment of this Lease, in whole or in part, unless
such executory agreement is in writing, refers expressly to this Lease and is
signed by the party against which enforcement of the change, modification,
waiver, release, discharge or termination or effectuation of the abandonment is
sought.
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28.02. The following specific provisions of this Section shall not be
deemed to limit the generality of the foregoing provisions of this Article:
(A) No agreement to accept a surrender of all or any part of the
Demised Premises shall be valid unless in writing and signed by Landlord. The
delivery of keys to an employee of Landlord or of its agent shall not operate as
a termination of this Lease or a surrender of the Demised Premises. If Tenant
shall at any time request Landlord to sublet the Demised Premises for Tenant's
account, Landlord or its agent is authorized to receive said keys for such
purposes without releasing Tenant from any of its obligations under this Lease,
and Tenant hereby releases Landlord of any liability for loss or damage to any
of Tenant's property in connection with such subletting.
(B) The receipt or acceptance by Landlord of Rents with knowledge
of breach by Tenant of any term, agreement, covenant, condition or obligation of
this Lease shall not be deemed a waiver of such breach.
(C) No payment by Tenant or receipt by Landlord of a lesser
amount than the correct Fixed Rent or Additional Rent due hereunder shall be
deemed to be other than a payment on account, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment be deemed
to effect or evidence an accord and satisfaction, and Landlord may accept such
check or payment without prejudice to Landlord's right to recover the balance or
pursue any other remedy in this Lease or at law provided.
(D) If, in connection with obtaining, continuing or renewing
financing for which the Building, Land or the leasehold or any interest therein
represents collateral in whole or in part, a banking, insurance or other lender
shall request reasonable modifications of this Lease as a condition of such
financing, Tenant will not unreasonably withhold, delay or defer its consent
thereto.
ARTICLE 29
Curing Tenant's Defaults
29.01. If Tenant shall default in the performance of any covenant,
agreement, term, provision or condition herein contained, or if Landlord shall
incur any liability, loss, cost or expense on behalf of Tenant or for which
Landlord shall otherwise be entitled to reimbursement by Tenant, Landlord,
without thereby waiving such default, may perform the same for the account and
at the expense of Tenant, [and may apply or retain the whole or any part of the
Security Deposit (hereinafter defined) or present the LC (hereinafter defined)
for payment and apply or retain the whole or any part of the proceeds, thereof,
as the case may be,] without notice in a case of emergency and in any other case
if such default continues after three (3) days from the date of the giving by
Landlord to Tenant of written notice of intention so to do. Bills for any
expense incurred by Landlord in connection with any such performance by Landlord
for the account of Tenant, and bills for all costs, expenses and disbursements,
including (without being limited to) counsel fees, incurred in collecting or
endeavoring to collect Fixed Rent, Additional Rent or other charges or any part
thereof or enforcing or endeavoring to enforce any rights against Tenant under
or in connection with this Lease, or pursuant to law, including (without being
limited to) any such cost, expense and
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disbursement involved in instituting and prosecuting summary proceedings, as
well as bills for any property, material, labor or services provided, furnished
or rendered, or caused to be provided, furnished or rendered, by Landlord to
Tenant including (without being limited to) electric lamps and other equipment,
construction work done for the account of Tenant, water, ice, drinking water,
drinking cups, towel and other services, as well as for any charges for any
additional elevator, heating, air conditioning or cleaning services incurred
under Articles 16 and 17 hereof and any charges for other services incurred by
Tenant under this Lease, may be sent by Landlord to Tenant monthly, or
immediately, at Landlord's option, and shall be due and payable by Tenant in
accordance with the terms of said bills and if not paid when due, the amounts
thereof shall immediately become due and payable as Additional Rent under this
Lease together with interest thereon as provided for in Section 41.02 hereof.
Landlord reserves the right, without liability to Tenant and without
constituting any claim of constructive eviction, to suspend furnishing or
rendering to Tenant any property, material, labor, utility or other service,
wherever Landlord is obligated to furnish or render the same at the expense of
Tenant, in the event that (but only for so long as) Tenant is in arrears in
paying Landlord therefor.
ARTICLE 30
Consents
30.01. It is hereby agreed that the provisions of this Article shall
apply only in cases where either party hereto shall have specifically agreed not
to unreasonably withhold its consent or approval as provided in this Lease.
30.02. Wherever it is provided that consent or approval is not to be
unreasonably withheld, such consent or approval (hereinafter referred to
collectively as "consent") shall also not be unreasonably delayed. If a party
considers that the other party has unreasonably withheld or delayed a consent it
shall so notify the other party within ten (10) days after receipt of notice of
denial of the requested consent or, in case notice of denial is not received,
within twenty (20) days after making its request for the consent, and within ten
(10) days after giving the first mentioned notice may submit the question of
whether the withholding or delaying of such consent is unreasonable to
determination by informal arbitration in the manner provided in Article 32 or
formal arbitration in the manner provided in Article 33, as such aggrieved party
may elect. A consent shall not be deemed to have been unreasonably withheld or
delayed unless the aggrieved party complies with the foregoing procedure and a
final determination to the effect that such consent was unreasonably withheld or
delayed shall have resulted from the arbitration proceeding. In the event of
such determination the requested consent shall be deemed to have been granted;
however, the party who shall have refused or failed to give such consent shall
not have any liability therefor to the other party. The sole remedy for an
unreasonable withholding or delaying of consent by either party shall be as
provided in this Section and no other.
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ARTICLE 31
Notices
31.01. Any notice, statement, demand, request or other communication
required or permitted to be given, rendered or made by either party to the
other, pursuant to this Lease or pursuant to any applicable law or requirement
of public authority, shall be in writing (whether or not so stated elsewhere in
this Lease) and shall be deemed to have been properly given, rendered or made,
if sent by registered or certified mail, return receipt requested, postage
prepaid, addressed to the other party at the address hereinabove set forth
(except that after the date hereof, Tenant's address, unless Tenant shall give
notice to the contrary, shall be the Building), and shall be deemed to have been
given, rendered or made on the day so mailed, unless mailed outside of the State
of New York, in which case it shall be deemed to have been given, rendered or
made on the expiration of five (5) business days after mailing. Either party
may, by notice as aforesaid, designate a different address or addresses for
notices, statements, demands or other communications intended for it.
31.02. However, notices requesting after hours service pursuant to
Sections 16.01 and 17.01 may be given, provided they are in writing, by delivery
to the Building Superintendent or any other person in the Building designated by
Landlord to receive such notices, and notice of fire, accident or other
emergency shall be given by telegram or by personal delivery of written notice
to that address designated for this purpose from time to time by the respective
parties hereto.
31.03. Whenever either party shall consist of more than one person or
entity, any notice, statement, demand, or other communication required or
permitted to be given, rendered or made to or by, and any payment to be made to
such party, shall be deemed duly given, rendered, made or paid if addressed to
or by (or in the case of payment by check to the order of) any one of such
persons or entities who shall be designated from time to time as the authorized
representative of such party. Such party shall promptly notify the other of the
identity of such person or entity who is so to act on behalf of all persons and
entities then comprising such party and of all changes in such identity.
ARTICLE 32
Informal Arbitration
32.01. The parties hereto shall not have been deemed to have agreed to
determination of any dispute arising out of this Lease by informal arbitration
unless determination in such manner shall have been specifically and
unequivocally provided for in this Lease and in no other case or cases.
32.02. Every dispute between the parties which is specifically
provided in this Lease to be determined by informal arbitration shall be
submitted to the Chairman of the Board of Directors of the Management Division
of the Real Estate Board of New York, Inc., for determination by him or by such
other impartial person or persons as he may designate, and such determination,
when made and rendered to the parties in writing, shall be final and conclusive
on the parties Such submission may be made by either party on notice to the
other and the other party may then present its statement of the matter in
dispute (if different than the first party's statement) to such arbitrator, with
a copy of such statement and upon notice to the first party.
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The expenses of such informal arbitration shall be borne by the parties equally.
Judgment may be entered on the determination and award made on such informal
arbitration in any court of competent jurisdiction and may be enforced in
accordance with the laws of the State of New York.
32.03. If at the time such dispute is to be submitted for informal
arbitration said Chairman is unable or unavailable to act, or the office of said
Chairman shall not exist, the dispute shall be submitted to such officer of the
Real Estate Board of New York, Inc., as shall then be exercising the functions
of said Chairman or functions similar thereto; or if no such officer is then
exercising such functions, the dispute shall be submitted to the President, or
other officer then acting as chief executive officer of the Real Estate Board of
New York, Inc. If, at the time such dispute is to be submitted, the Real Estate
Board of New York, Inc. shall be out of existence, the dispute shall be
submitted to a like officer exercising like functions or authority in any
successor or other organization then devoted to purposes and having standing
similar to said Real Estate Board of New York, Inc.
32.04. If, at the time such dispute is to be submitted, neither the
Real Estate Board of New York, Inc. nor any such successor or similar
organization shall exist, or if at such time the appropriate officer or officers
of the Real Estate Board of New York, Inc. or of such successor or similar
organization contemplated by Section 32.03 shall be unwilling or unable to
accept the submission, or if despite diligent efforts made in good faith by
either party, the arbitrator is not appointed or does not commence hearing the
matter within thirty (30) days after the service of a notice of the submission
on the other party, or if the arbitrator to whom the matter is submitted shall
fail to render his decision to the parties in writing within sixty (60) days
after the service of said notice, then in any such event, either party, if the
event shall not be due to its neglect or other fault, shall have the right to
have the matter in dispute determined by formal arbitration provided in Article
33.
32.05. Notwithstanding anything to the contrary provided elsewhere in
this Lease, either party may elect, in the manner provided in this Section, to
have determined by formal arbitration pursuant to Article 33 any dispute which
would otherwise be determinable by informal arbitration pursuant to the
preceding Sections of this Article. Such election may be exercised by either
party giving the other party a notice (as provided for in Section 33.03)
requesting formal arbitration of the matter in dispute which shall include an
express statement of the election, with express reference to this Section. Such
notice containing such election may be given by the party first requesting a
determination of such matter by arbitration or by the party receiving a notice
of submission to informal arbitration (pursuant to Section 32.02) provided, in
the latter instance, the notice for formal arbitration containing such election
is given within ten (10) days after receipt of the notice of submission to
informal arbitration.
ARTICLE 33
Formal Arbitration
33.01. The parties hereto shall not have been deemed to have agreed to
determination of any dispute arising out of this Lease by formal arbitration
unless determination in such
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manner shall have been specifically and unequivocably provided for in this Lease
and in no other case or cases.
33.02 Every dispute between the parties which is expressly provided in
this Lease to be determined by formal arbitration shall be resolved in the
manner provided in this Article.
33.03. The party requesting formal arbitration shall do so by giving
notice to that effect to the other party, specifying in said notice the name and
address of the person designated to act as an arbitrator on its behalf. Within
ten (10) days after the service of such notice, the other party shall give
notice to the first party specifying the name and address of the person
designated to act as an arbitrator on its behalf. If the second party fails to
notify the first party of the appointment of its arbitrator, as aforesaid,
within the time above specified, the appointment of the second arbitrator shall
be made in the same manner as hereinafter provided for the appointment of a
third arbitrator in a case where the two arbitrators appointed hereunder and the
parties are unable to agree upon such appointment. If, within twenty (20) days
after the second arbitrator is appointed, the two arbitrators shall not have
determined the dispute, they shall together appoint a third arbitrator. In the
event of their being unable to agree upon such appointment within thirty (30)
days after the appointment of the second arbitrator, the third arbitrator shall
be selected by the parties themselves if they can agree thereon within a further
period of ten (10) days. If the parties do not so agree, then either party on
behalf of both and on notice to the other, may request such appointment by the
American Arbitration Association (or any organization successor thereto) in
accordance with its rules then prevailing or if the American Arbitration
Association (or such successor organization) shall fail to appoint said third
arbitrator within ten (10) days after such request is made, then either party
may apply, on notice to the other, to the Supreme Court in the County of New
York (or any other court having jurisdiction and exercising functions similar to
those now exercised by said court) for the appointment of such third arbitrator,
and the other party shall not raise any questions to such court's full power and
jurisdiction to entertain the application and make the appointment. Each
arbitrator chosen or appointed pursuant to this Section shall be a disinterested
person having at least ten (10) years experience in the County of New York in a
calling connected with the dispute.
33.04. The arbitration shall be conducted by the three arbitrators
appointed in accordance with the provisions hereof and, to the extent consistent
with this Article, in accordance with the then prevailing rules of the American
Arbitration Association (or any organization successor thereto in the City and
County of New York). The arbitrators shall have the right to retain and consult
experts and competent authorities skilled in the matters under arbitration. The
arbitrators shall render their decision and award, upon the concurrence of at
least two of their number, within thirty (30) days after the appointment of the
third arbitrator or fifteen (15) days after the final hearing of the
arbitrators, whichever is later. Such decision and award shall be in writing and
counterpart copies thereof shall be delivered to each of the parties. In
rendering such decision and award, the arbitrators shall not add to, subtract
from or otherwise modify the provisions of this Lease. Judgment may be entered
on the determination and award made by arbitrators in any court of competent
jurisdiction and may be enforced in accordance with the laws of the State of New
York.
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33.05. If for any reason whatsoever the written decision and award of
the arbitrators shall not be rendered within the time limits set forth in
Section 33.04, either party may apply to the Supreme Court of the State of New
York or to any other court having jurisdiction and exercising the functions
similar to those now exercised by such court, by action, proceeding or otherwise
(but not by a new arbitration proceeding) as may be proper to determine the
question in dispute consistently with the provisions of this Lease.
33.06. Each party shall pay the fees and expenses of the one of the
two original arbitrators appointed by or for such party and the fees and
expenses of the third arbitrator and all other expenses of the arbitration shall
be borne by the parties equally. However, each party shall bear the expense of
its own counsel, experts and presentation of proof.
33.07. Notwithstanding anything to the contrary elsewhere provided in
this Lease, if the subject matter of a dispute which is provided in this Lease
to be determined by arbitration (whether informal or formal) is one which would
directly affect the liability of an insurer under any of the policies of
insurance referred to in Sections 10.05 and 10.06, and the party which is the
insured under such policy so notifies the other party, then unless such insurer
gives its written consent to the determination of such matter by arbitration
pursuant to the provisions of this Lease, the dispute shall not be determined by
arbitration and the parties shall be left to such other remedies as they may
have.
ARTICLE 34
Estoppel Certificate
34.01. Tenant agrees, at any time and from time to time, as requested
by Landlord, upon not less than ten (10) days' prior notice, to execute and
deliver without cost or expense to Landlord 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), certifying the dates to which Fixed Rent and Additional Rent
have been paid, and stating whether or not, to the best knowledge of Tenant,
Landlord is in default in performance of any of its obligations under this
Lease, and, if so, specifying each such default of which Tenant may have
knowledge, it being intended that any such statement delivered pursuant thereto
may be relied upon by any other person with whom Landlord may be dealing.
ARTICLE 35
No Other Representations, Construction, Governing Law
35.01. Tenant expressly acknowledges and agrees that Landlord has not
made and is not making, and Tenant, in executing and delivering this Lease is
not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this Lease or in
any other written agreement which may be made and executed between the parties
concurrently with the execution and delivery of this Lease and shall expressly
refer to this Lease.
35.02. If any of the provisions of this Lease, or the application
thereof to any person or circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this Lease,
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or the application of such provision or provisions to persons or circumstances
other than those as to whom or which it is held invalid or unenforceable, shall
not be affected thereby, and every provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
35.03. This Lease shall be governed in all respects by the laws of the
State of New York.
ARTICLE 36
Parties Bound
36.01. The obligations of this Lease shall bind and benefit the
successors and assigns of the parties with the same effect as if mentioned in
each instance where a party is named or referred to, except that no violation of
the provisions of Article 8 shall operate to vest any rights in any successor or
assignee of Tenant and that the provisions of this Article shall not be
construed as modifying the conditions of limitation contained in Article 24.
However, the obligations of Landlord under this Lease shall not be binding upon
Landlord herein named with respect to any period subsequent to the transfer of
its interest in the Building as owner or lessee thereof and in the event of such
transfer said obligations shall thereafter be binding upon each transferee of
the interest of Landlord herein named as such owner or lessee of the Building,
but only with respect to the period ending with a subsequent transfer within the
meaning of this Article, and such transferee, by accepting such interest, shall
be deemed to have assumed such obligations except only as may be expressly
otherwise provided elsewhere in this Lease. A lease of Landlord's entire
interest in the Building as owner or lessee thereof shall be deemed a transfer
within the meaning of this Article 36.
36.02. Tenant shall look solely to the estate and interest of
Landlord, its successors and assigns in, to and under the ground lease and the
Building, or the proceeds thereof, for the collection of a judgment (or other
judicial process) requiring the payment of money by Landlord in the event of any
default by Landlord hereunder, and no other property or assets of Landlord shall
be subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies under or with respect to either this Lease,
the relationship of Landlord and Tenant hereunder or Tenant's use and occupancy
of the Demised Premises.
ARTICLE 37
Certain Definitions and Constructions
37.01. For the purposes of this Lease and all agreements supplemental
to this Lease, unless the context otherwise requires:
(A) (i) The term "ground lease" means a certain Agreement of
Modification of Lease dated July 16, 1965, between The Equitable Life Assurance
Society of the United States, as lessor, and Savoy Fifth Avenue Corporation, as
lessee, and recorded in the Office of the Register of the City of New York, for
the County of New York, in Liber 5344, Cp. 298, the lessor's interest in which
is presently held by ▇▇▇▇▇▇▇▇▇▇ Associates L.P. and the lessee's interest in
which is presently held by Landlord.
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(ii) The term "mortgage" shall include an indenture of
mortgage and deed of trust to a trustee to secure an issue of bonds, and the
term "mortgagee" shall include such a trustee.
(B) The terms "include", "including" and "such as" shall each be
construed as if followed by the phrase "without being limited to".
(C) The term "obligations of this Lease" and words of like
import, shall mean the covenants to pay Fixed Rent and Additional Rent under
this Lease and all of the other covenants and conditions contained in this
Lease. Any provision in this Lease that one party or the other or both shall do
or not do or shall cause or permit or not cause or permit a particular act,
condition or circumstance shall be deemed to mean that such party so covenants
or both parties so covenant, as the case may be.
(D) The term "Tenant's obligations hereunder", and words of like
import, and the term "Landlord's obligations hereunder", and words of like
import, shall mean the obligations of this Lease which are to be performed or
observed by Tenant, or by Landlord, as the case may be. Reference to
"performance" of either party's obligations under this Lease shall be construed
as "performance and observance". Tenant's obligations hereunder shall be
construed in every instance as conditions as well as covenants.
(E) Reference to Tenant being or not being "in default
hereunder", or words of like import, shall mean that Tenant is in default in the
performance of one or more of Tenant's obligations hereunder, or that Tenant is
not in default in the performance of any of Tenant's obligations hereunder, or
that a condition of the character described in Section 24.01 has occurred and
continues or has not occurred or does not continue, as the case may be.
(F) References to Landlord as having "no liability to Tenant" or
being "without liability to Tenant", shall mean that Tenant is not entitled to
terminate this Lease, or to claim actual or constructive eviction, partial or
total, or to receive any abatement or diminution of Rent, or be relieved in any
manner of any of its other obligations hereunder, or to be compensated for loss
or injury suffered or to enforce any other kind of liability whatsoever against
Landlord under or with respect to this Lease or with respect to Tenant's use or
occupancy of the Demised Premises.
(G) The term "laws and/or requirement 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 rules, regulations,
orders and/or directives of any or all departments, subdivisions, bureaus,
agencies or offices thereof, or of any other public or quasi-public authorities,
having jurisdiction over the Building and/or Demised Premises, and/or the
direction of any public officer pursuant to law.
(H) The term "requirements of insurance bodies" 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 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.
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(I) 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, and the term "untenantable" shall be deemed to include being
inaccessible.
(J) Reference to "termination of this Lease" includes expiration
or earlier termination of the Term or cancellation of this Lease pursuant to any
of the provisions of this Lease or to law. Upon a termination of this Lease, the
Term and estate granted by this Lease shall end at noon of the date of
termination as if such date were the Expiration Date and neither party shall
have any further obligation or liability to the other after such termination (i)
except as shall be expressly provided for in this Lease, or (ii) except for such
obligations as by their nature or under the circumstances can only be, or by the
provisions of this Lease, may be, performed after such termination, and, in any
event, unless expressly otherwise provided in this Lease, any liability for
payment which shall have accrued to or with respect to any period ending at the
time of termination shall survive the termination of this Lease.
(K) The term "in full force and effect" when herein used in
reference to this Lease as a condition to the existence or exercise of a right
on the part of Tenant shall be construed in each instance as including the
further condition that at the time in question no default on the part of Tenant
exists, and no event has occurred which has continued to exist for such period
of time (after the notice, if any, required by this Lease), as would entitle
Landlord in either such instance to terminate this Lease or to dispossess
Tenant.
(L) The term "Tenant" shall mean Tenant herein named or any
assignee or other successor in interest (immediate or remote) of Tenant herein
named, when Tenant herein named or such assignee or other successor in interest,
as the case may be, is in possession of the Demised Premises as owner of the
Tenant's estate and interest granted by this Lease, and also if Tenant is not an
individual or corporation, all of the individuals, firms and/or corporations or
other entities comprising Tenant.
(M) 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.
(N) The rule of "ejusdem generis" shall not be applicable to
limit a general statement following or referable to an enumeration of specific
matters to matters similar to the matters specifically mentioned.
(0) All references in this Lease to numbered Articles, numbered
Sections and Subsections and lettered Exhibits are references to Article and
Sections and Subsections of this Lease, and Exhibits annexed to (and thereby
made part of) this Lease, as the case may be, unless expressly otherwise
designated in the context.
37.02. The various terms which are defined in other Articles of this
Lease or are defined in Exhibits annexed hereto, shall have the meaning
specified in such other Articles and such Exhibits for all purposes of this
Lease and all agreements supplemental thereto, unless the context shall
otherwise require.
37.03. The Article headings in this Lease and the Index prefixed to
this Lease are inserted only as a matter of
- 52 -
convenience of reference, and are not to be given any effect whatsoever in
construing this Lease.
ARTICLE 38
Vaults, Vault Space. Etc.
38.01. No vaults, vault space or other space not within the property
line of the Building is leased hereunder, anything contained in or indicated on
any sketch, blueprint or plan, or anything contained elsewhere in this Lease to
the contrary notwithstanding. Landlord makes no representation as to the
location of the property line of the Building. All vaults and vault space and
all other space not within the property line of the Building, which Tenant may
be permitted to use and/or occupy, are to be used and/or occupied under a
license revocable by Landlord at will and on ten (10) days notice to Tenant, and
if any such license be revoked by Landlord, or if the amount of any such vaults,
vault space or other space be diminished or required by any federal, state or
municipal authority or public utility, Landlord 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. If any such license shall be revoked by
Landlord, Tenant shall, at its sole cost and expense, do and perform all such
work as may be necessary to comply with any order revoking the same. Any fee,
tax or charge of municipal authorities for any such vault, vault space or other
space shall be paid by Tenant, and Tenant shall only be permitted to use and/or
occupy such space subject to such laws, permits, orders, rules and regulations
as may be imposed by appropriate governmental authorities with respect thereto.
ARTICLE 39
Brokerage
39.01. Tenant represents and warrants that it has dealt only with
Corporate Property Investors ("CPI"), in the negotiation of this Lease and
Tenant does hereby indemnify and agree to hold Landlord harmless of and from any
liability, claim, damage, cost or expense (including, without limitation,
attorneys' fees) arising out of or in connection with claims for commissions
made against Landlord by any broker, finder, or like agent who claims to have
dealt with Tenant in connection with this Lease other than CPI. Landlord will
compensate CPI pursuant to separate agreements between CPI and Landlord.
ARTICLE 40
Failure to Deliver Possession
40.01. If Landlord is unable to give possession of the Demised
Premises on the Commencement Date, because of the holding over or retention of
possession of any tenant, undertenant or occupants, because a certificate of
occupancy has not been procured, or for any other reason, Landlord shall not be
subject to any liability for failure to give possession on said date and the
validity of this Lease shall not be impaired under such circumstances, nor shall
the same be construed in any wise to extend the Term, but the Rents payable
hereunder shall be abated (provided Tenant is not responsible for the inability
to obtain possession), for the period of time after the Commencement Date that
Landlord is delayed in delivering possession of Demised
- 53 -
Premises to Tenant. 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.
ARTICLE 41
Miscellaneous
41.01. This Lease does not constitute an offer to lease the Demised
Premises to Tenant and Tenant shall have no rights with respect to the leasing
of the Demised Premises unless and until Landlord, in its sole and unreviewable
discretion, elects to be bound hereby by executing and unconditionally
delivering to Tenant an original counterpart hereof.
41.02. In every case in which Tenant is required by the terms of this
Lease to pay to Landlord a sum of money, and payment is not made within ten (10)
days after the same shall become due, interest shall 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 of interest one percentage (1%)
point higher than the prime lending rate of Chemical Bank, New York, New York.
ARTICLE 42
Tenant's Termination Option
42.01. Tenant shall have the option to cancel and terminate this
Lease, effective as of the last day of any calendar month occurring after
January, 1998 (such date is herein referred to as the "Early Termination Date"),
by written notice ("Tenant's Termination Notice"), delivered to Landlord no
later than three (3) months prior to such Early Termination Date. Upon timely
delivery of Tenant's Termination Notice, this Lease will expire on the Early
Termination Date as if such date were the Expiration Date set forth in the
Lease, and Tenant shall vacate the Demised Premises on or before the Early
Termination Date leaving the same in the condition otherwise required upon the
expiration or sooner termination of this Lease.
42.02. The effectiveness of the foregoing option is expressly
conditioned upon there not being any uncured default by Tenant under this Lease,
beyond notice and the expiration of any applicable cure period, at the time of
the exercise of said option and at the time of termination (unless Landlord, in
its sole discretion, elects to waive such condition).
- 54 -
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their duly authorized officers and their corporate seals to be
hereunto affixed the day and year first above written.
▇▇▇▇▇▇▇▇▇▇ ASSOCIATES LP.
A New York limited Partnership
By: CPI-767 Corporation, a
General Partner
By: /s/ CPI-767 Corporation
-----------------------------
RSL COM U S A., INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
EXHIBIT "A"
FLOOR PLAN
EXHIBIT "A"
[FLOOR PLAN]
EXHIBIT "B"
RULES AND REGULATIONS
1. The sidewalks, driveways, entrances, passages, courts, lobby,
esplanade areas, plazas, elevators, vestibules, stairways, corridors or halls
shall not be obstructed or encumbered by any tenant or used for purposes other
than ingress and egress to and from the Demised Premises and Tenant shall not
permit any of its employees, agents or invitees to congregate in any of said
areas No door mat of any kind whatsoever shall be placed or left in any public
hall or outside any entry door of the Demised Premises.
2. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, blinds, shades or screens shall be attached
to or hung in, or used in connection with, any window or door of the Demised
Premises, without the prior written consent of Landlord. Such curtains, blinds,
shades or screens must be of a quality, type, design and color, and attached in
the manner, approved by Landlord.
3. No sign, insignia, advertisement, object, notice or other lettering
shall be exhibited, inscribed, painted or affixed by any tenant on any part of
the outside or so as to be visible from the outside of the Demised Premises or
the Building. In the event of the violation of the foregoing by any tenant,
Landlord may remove the same without any liability, and may charge the expenses
incurred in such removal to the tenant or tenants violating this rule. Interior
signs and lettering on doors and directory tablet shall, if and when approved by
Landlord, be inscribed, painted or affixed for each tenant by Landlord at the
expense of such tenant, and shall be of a size, color and style acceptable to
Landlord.
4. The sashes, sash doors, skylights, windows, and doors that reflect
or admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by Tenant, nor shall any bottles,
parcels, or other articles be placed on the window ▇▇▇▇▇.
5. No showcases or other articles shall be put in front of or affixed
to any part of the exterior of the Building, nor placed in the halls, corridors
or vestibules.
6. The water and wash closets and other 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
thrown or deposited therein. All damages resulting from any misuse of the
fixtures shall be repaired at the expense of the tenant who, or whose servants,
employees, agents, visitors or licensees, shall have caused the same.
7. Except with respect to Tenant's Changes to be performed to
initially prepare the Demised Premises for Tenant's occupancy, no tenant shall
▇▇▇▇ or in any way deface any part of the Demised Premises or the Building. No
boring, cutting, or stringing of wires shall be permitted, except with the prior
written consent of Landlord, and as Landlord may direct. 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.
B-1
8. No bicycles, vehicles, animals, fish or birds or any kind shall be
brought into or kept in or about the premises.
9. No noise, including, but not limited to, music or the playing of
musical instruments, recordings, radio or television which, in the judgment of
Landlord, might disturb other tenants in the Building, shall be made or
permitted by any tenant. Nothing shall be done or permitted in the Demised
Premises by Tenant which would impair or interfere with the use or enjoyment by
any other tenant of any other space in the Building. No tenant shall throw
anything out of the doors, windows or skylights or down the passageways.
10. Tenant, its servants, employees, agents, visitors or licensees,
shall not at any time bring or keep upon the Demised Premises any explosive
fluid, chemical or substance, nor any inflammable or combustible objects or
materials except subject to the provisions of Section 11.02(a) of the foregoing
Lease.
11. Except in those areas designated by Tenant as "security areas",
additional locks or bolts of any kind which shall not be operable by the Grand
Master Key for the Building shall not be placed upon any of the doors or windows
by any tenant, nor shall any changes be made in locks or the mechanism thereof
which shall make such locks inoperable by said Grand Master Key. Each tenant
shall, upon the termination of its tenancy, turn over to Landlord all keys of
stores, offices and toilet rooms, either furnished to, or otherwise procured by,
such tenant and in the event of the loss of any keys furnished by Landlord, such
tenant shall pay to Landlord the cost thereof.
12. All removals, or the carrying in or out of any safes, freight,
furniture, packages, boxes, crates or any other object or matter of any
description must take place during such hours and in such elevators as Landlord
or its agent may determine from time to time. Landlord reserves the right to
inspect all objects and matter to be brought into the Building and to exclude
from the Building all objects and matter which violate any of these Rules and
Regulations or the Lease of which these Rules and Regulations are a part.
Landlord may require any person leaving the Building with any package or other
object or matter to submit a pass, listing such package or object or matter,
from the tenant from whose premises the package or object or matter is being
removed, but the establishment and enforcement of such requirement shall not
impose any responsibility on Landlord for the protection of any tenant against
the removal of property from the premises of such tenant. Landlord shall, in no
way, be liable to Tenant for damages or loss arising from the admission,
exclusion or ejection of any person to or from the Demised Premises or the
Building under the provisions of this Rule 12 or of Rule 16 hereof.
13. Tenant shall not occupy or permit any portion of the Demised
Premises to be occupied as an office for a public stenographer or public typist,
or for the possession, storage, manufacture, or sale or beer, wine or liquor
(except as permitted under Section 2.02(B) of the Lease), narcotics, dope,
tobacco in any form, or as a ▇▇▇▇▇▇, beauty or manicure shop, or as an
employment bureau. Tenant shall not engage or pay any employees on the Demised
Premises, except those actually working for Tenant on the Demised Premises, nor
advertise for laborers giving an address at the Demised Premises. Tenant shall
not use the Demised Premises or any part thereof, or permit the Demised Premises
or any part thereof to be used, for manufacturing, or for the sale at auction of
merchandise, goods or property of any kind.
14. Tenant shall not obtain, purchase or accept for
B-2
use in the Demised Premises ice, drinking water, food or beverage (it being
understood that Tenant and its employees shall have the right to have food and
beverages delivered to the Demised Premises by outside services), towel,
barbering, boot blacking, cleaning, floor polishing or other similar services
from any persons not authorized by Landlord in writing to furnish such services,
provided always that the charges for such services by persons authorized by
Landlord are not excessive. Such services shall be furnished only at such hours,
in such places within the Demised Premises, and under such regulations as may be
fixed by Landlord. Tenant shall not purchase or contract for waxing, rug
shampooing, venetian blind washing, furniture polishing, lamp servicing,
cleaning of electric fixtures, removal of garbage or towel service in the
Demised Premises except from contractors, companies or persons approved by the
Landlord.
15. Landlord shall have the right to prohibit any identifying sign by
any tenant which in Landlord's judgment tends to impair the reputation of the
Building or its desirability as a building for offices, and upon written notice
from Landlord, such tenant shall refrain from or discontinue such advertising,
or identifying sign.
16. Landlord reserves the right to exclude from the Building during
hours other than Business Hours (as defined in the foregoing Lease) all persons
who do not present a pass to the Building signed by Landlord. All persons
entering and/or leaving the Building during hours other than Business Hours may
be required to sign a register. Landlord will furnish passes to persons for whom
any tenant requests same in writing. Each tenant shall be responsible for all
persons for whom such tenant requests such pass and shall be liable to Landlord
for all acts or omissions of such persons.
17. Tenant, before closing and leaving the Demised Premises at any
time, shall see that all lights are turned out. All entrance doors in the
Demised Premises shall be left locked by Tenant when the Demised Premises are
not in use. Entrance doors shall not be left open at any time.
18. Unless Landlord shall furnish electrical energy hereunder as a
service included in the rent, Tenant shall, at Tenant's expense, provide
artificial light and electrical energy for the employees of Landlord and/or
Landlord's contractors while doing janitor service or other cleaning in the
Demised Premises and while making repairs or alterations in the Demised
Premises.
19. The Demised Premises shall not be used for lodging or sleeping
or for any immoral or illegal purposes.
20. The requirements of tenants will be attended to only upon
application at the office of the Building. Employees of Landlord shall not
perform any work or do anything outside of their regular duties, unless under
special instructions from Landlord.
21. Canvassing, soliciting and peddling in the Building are
prohibited and each tenant shall cooperate to prevent the same.
22. There shall not be used in any space, or in the public halls of
the Building, either by any tenant or by jobbers or any others, in the moving or
delivery or receipt of safes, freight, furniture, packages, boxes, crates,
paper, office material, or any other matter or thing, any hand trucks except
those equipped with rubber tires, side guards and such other safeguards as
Landlord shall require. No hand trucks shall be used in passenger elevators, and
no such passenger elevators
B-3
shall be used for the moving, delivery or receipt of the aforementioned
articles.
23. Tenant shall not cause or permit any odors of cooking or other
processes or any unusual or objectionable odors to emanate from the Demised
Premises which would annoy other tenants or create a public or private nuisance.
No cooking shall be done in the Demised Premises except as is expressly
permitted in the foregoing Lease.
24. Tenant shall cooperate with Landlord in obtaining maximum
effectiveness of the cooling system by lowering and closing venetian blinds
and/or drapes and curtains when the sun's rays fall directly on the windows of
the Demised Premises.
25. Landlord reserves the right to rescind, alter or waive any rule or
regulation at any time prescribed for the Building when, in its judgment, it
deems it necessary or desirable for the reputation, safety, care or appearance
of the Building or the equipment thereof, or the comfort of tenants or others in
the Building. No rescission, alteration or waiver of any rule or regulation in
favor of one tenant shall operate as a rescission, alteration or waiver in favor
of any other tenant.
B-4
EXHIBIT "C"
CLEANING SPECIFICATIONS
Office Areas - Nightly:
All linoleum, rubber, asphalt tile and other types of flooring (that
may be waxed or treated) to be swept nightly, using approved dust-down
preparation; wash such flooring once a month.
Carpet sweep carpeted areas and rugs four nights each week, and vacuum
clean once each week, moving light furniture other than desks, file cabinets,
etc.
Sweep private stairways; wash as necessary.
Empty and clean wastepaper baskets, ash trays, receptacles, etc; damp
dust as necessary and insert protective paper liners, if provided or required.
Empty and clean all ash trays and screen all sand urns nightly.
Remove wastepaper and waste materials to a designated area in the
Demised Premises, using special janitor carriages. Waste or rubbish bags are
supplied by the building.
Dust and wipe furniture, fixtures, desk equipment, displays,
telephones and window ▇▇▇▇▇ with impregnated cloths.
Damp wipe window sill coves where condensation occurs; dust as
necessary.
Dust baseboards, chair rails, trim, louvers, pictures, charts, etc.;
within reach.
Wash drinking fountains and coolers.
Keep locker and service closet rooms in clean and orderly condition.
Lavatories - Nightly:
Sweep and wash flooring with approved germicidal detergent solution,
using spray tank method.
Wash and polish mirrors, powder shelves, bright work, etc., including
flushometers, piping and toilet seat hinges.
Wash both sides of toilet seats; wash basins, bowls and urinals with
approved germicidal detergent solution.
Hand dust and clean partitions, tile walls, dispensers and
receptacles, washing where necessary.
Fill toilet tissue holders (tissue to be furnished by Landlord).
Empty sanitary disposal receptacles.
If directed by Tenant, fill soap dispensers and paper towels
dispensers (soap and paper towels to be furnished by Tenant at Tenant's expense)
Empty paper towels receptacles, and transport wastepaper from the
demised premises.
C-1
Entrance Lobbies and Plaza - Nightly:
Sweep and wash flooring.
Wash floor mats.
Clean cigarette urns and replace sand or water as necessary.
Properly maintain floors of elevator cars. If carpeted, spots are
removed as possible and shampooed as necessary.
Dust and rub down elevator doors.
Dust and rub down mail chutes, mail depository, etc.
Dust and rub down walls, metal work and saddles in elevator cabs.
Keep escalators in clean and polished condition.
Dust walls up to 12 feet and keep free of fingermarks, smudges, etc.
Office Areas - Periodic Cleaning:
Wipe clear all brass hardware and brass fixtures and other bright work
nightly.
Remove all scuffs and fingermarks from doors. Clean and polish
herculite doors in reception areas.
Hand dust all doors and other ventilating louvers within reach, as
necessary.
On multiple tenancy floors, dust and clean electric fixtures and any
other fittings in public corridors as necessary.
Lavatories - Periodic Cleaning:
Machine scrub flooring with approved germicidal detergent solution as
necessary.
Wash partitions, tile walls and enamel surfaces with approved
germicidal detergent solution not less than once every two weeks - more often if
necessary.
Dust exterior of lighting fixtures once each month.
High dust once each month.
Entrance Lobbies and Plaza - Periodic Cleaning:
Machine scrub plaza and sidewalk areas as often as necessary, using
approved cleansers, rinse with clear water.
Clean lights, globes and fixtures as necessary.
Dust down walls once each month.
Rub down metal and other high level bright work as necessary.
C-2
Office Areas - High Dusting and Cleaning:
High dust once every three months which includes:
Dust pictures, frames, charts, graphs and similar wall hangings not
reached in nightly cleaning.
Dust vertical surfaces such as walls, partitions, ventilating louvers
and other surfaces not reached in nightly cleaning.
Dust exterior of lighting fixtures.
Dust overhead pipes, sprinklers, etc.
Dust window frames.
General Services - Duties of Porters and Matrons:
Necessary regular porters will be assigned to the building for the
following services:
Service all public and operating space throughout the building.
Check condition of elevator cars during the day.
Dust and rub down all elevator doors, frames, telephone booths,
directory, etc., daily.
Sweep sidewalks and ramp daily
Hose sidewalks each morning, weather permitting.
Remove snow when necessary.
Lay and remove lobby rubber runners as necessary.
Insert toilet tissue in lavatories (tissues to be furnished by
Landlord).
Keep fan rooms, motor rooms and air conditioning rooms in clean
condition.
Check condition of staircases during the day.
Maintain exterior marble; exterior metal work along with metal in
building entrance doors and store front trim. To clean stand-pipes and sprinkler
siamese connections and hose bibs.
Matrons will be assigned to the building in order to service all
ladies rooms during the day. Matron will insert tissue (tissue to be furnished
by Landlord). Matron will also service sanitary napkin coin dispensers.
Window Cleaning:
Clean windows, inside, not less than eight times per annum.
Clean interior glass and a normal amount of partition glass, glass
doors and fan lights approximately once every five weeks.
Clean entrance doors daily.
C-3
Clean lobby glass daily.
Clean directory glass daily.
Clean mail chute glass as necessary.
C-4
