EXHIBIT 10.16
OFFICE LEASE
between
75 BROAD LLC
Landlord,
and
BRIDGEPOINT INTERNATIONAL (CANADA) INC.
Tenant.
Premises: Portion of the l9th and 17th Floors
67 a/k/a ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
STANDARD FORM OF OFFICE LEASE
AGREEMENT OF LEASE, made as of this 18th day of January, 2000 between 75
BROAD LLC, a New York limited liability company, having an office at ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, party of the first
part, hereinafter referred to as LANDLORD, and BRIDGEPOINT INTERNATIONAL
(CANADA) INC., a Canadian corporation having an office at 1155 University, Suite
300, MLPQ party of the second part, hereinafter referred to as TENANT.
WITNESSETH: Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord, the portion of the nineteenth (19th) and seventeenth (17th) floors as
shown on the floor plans annexed hereto and made a part hereof as Exhibits A and
A-1 (the "Demised Premises" or "demised premises", whether capitalized or not)
in the building known as 67 a/k/a ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ in the Borough of Manhattan,
City of New York (the, "Building" or "Building" whether capitalized or not) for
the term of ten (10) years and six (6) months (or until such term shall sooner
cease and expire as hereinafter provided) which shall commence upon
unconditional execution of this Lease by Landlord and Tenant (the "Commencement
Date") and shall expire nevertheless on the last day of the one hundred
twenty-sixth (126th) calendar month following the Commencement Date (the
"Expiration Date"), both dates inclusive, at annual rental rates, as provided in
the Rent Schedule annexed hereto and made a part hereof as Exhibit B (the "fixed
rent" or "Fixed Rent" or "Fixed Annual Rent" whether capitalized or not) which
Tenant agrees to pay in lawful money of the United States which shall be legal
tender in payment of all debts and dues, public and private, at the time of
payment, in equal monthly installments in advance on the first day of each month
during said term, at the office of Landlord or such other place as Landlord may
designate, without any set off, counterclaim or deduction whatsoever except as
set forth herein. The first (1st) monthly installment of fixed rent shall be
paid upon execution of this Lease by Tenant.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
1. Rent. Tenant shall pay the rent as above and as hereinafter provided.
2. Occupancy. Tenant shall use and occupy the Demised Premises for
telecommunications switching equipment, fiber optics routing and related
administrative, general and executive offices and for no other purpose.
3. Alterations: Tenant shall make no changes in or to the Demised Premises
of any nature without Landlord's prior written consent provided, however, that
Tenant may make purely decorative changes such as painting and installation of
partitions and carpeting without Landlord's consent, but upon notice to
Landlord. Subject to the prior written consent of Landlord, not to be
unreasonably withheld or delayed and to the provisions of this Article Tenant at
Tenant's expense may make non-structural alterations, installations, additions
or improvements which do not affect utility services or plumbing and electrical
lines in or to the interior of the Demised Premises using licensed and reputable
contractors or mechanics first approved by Landlord. All labor employed by
Tenant shall be harmonious and compatible with the labor employed by Landlord
and other tenants in the Building, it being agreed that if such labor shall be
incompatible, Tenant shall forthwith on Landlord's demand withdraw such labor
from the Demised Premises. Notwithstanding the foregoing, Tenant must use
Landlord's base building contractor for any electrical work to or from the
Demised Premises provided said contractor is reasonably available (as per the
industry standard) and that the contractor's charges are industry competitive.
Tenant shall, at its expense, before making any alterations, additions,
installations or improvements obtain all permits, approval and certificates
required by any governmental or quasi-governmental bodies and (upon completion)
certificates of final approval thereof and shall deliver promptly duplicates of
all such permits, approvals and certificates to Landlord. Tenant agrees to carry
and will cause Tenant's contractors and sub-contractors to carry such ▇▇▇▇▇▇▇'▇
compensation, general liability, personal and property damage insurance as
Landlord may reasonably require. If any mechanic's lien is filed against the
Demised Premises or the Building for work claimed to have been done for, or
materials furnished to, Tenant, whether or not done pursuant to this Article,
the same shall be discharged by Tenant within thirty (30) days after Tenant
receives written notice thereof at Tenant's expense by filing the bond required
by law or otherwise. All fixtures and all paneling, partitions, railings and
like installations, installed in the Demised Premises at any time either by
Tenant or by Landlord on Tenant's behalf, shall, upon installation, become the
property of Landlord and shall remain upon and be surrendered with the Demised
Premises unless Landlord at the time Landlord approves Tenant's plans notifies
Tenant which installations shall be removed, in which event the same shall be
removed from the Demised Premises by Tenant at its expense on or before the
expiration of the Lease. Furthermore, Landlord hereby requires Tenant to remove
the Generator and all switching equipment and wiring and other equipment
appurtenant thereto, as defined below. Nothing in this Article shall be
construed to give Landlord title to or to prevent Tenant's removal of trade
fixtures, moveable office furniture and equipment, but upon removal of any such
furniture, fixtures and equipment from the Demised Premises or upon removal of
other installations as may be permitted hereunder, Tenant shall immediately and
at its expense, repair and restore the Demised Premises to the condition
existing prior to installation and repair any damage to the Demised Premises or
the Building due to such removal. All property required to be removed by Tenant
at the end of the term remaining in the Demised Premises after Tenant's removal
shall be deemed abandoned and may, at the election of Landlord, either be
retained as Landlord's property or removed from the Demised Premises by
Landlord, at Tenant's expense.
With respect to any proposed work, Tenant shall, submit (a) "load letter"
evidencing Tenant's proposed floor and electrical loads and (b) final "as built"
plans.
4. Repairs: Landlord shall maintain and repair the exterior of and the
public portions of the Building and all Building systems servicing the Demised
Premises and shall make all structural repairs to the Building and the Demised
Premises except when necessitated by the negligence of Tenant, its agents
employees, contractors, invitees or licensees. Tenant shall, throughout the term
of this lease, take good care of the Demised Premises including the interior
windows and interior window frames (and shall repair exterior windows or frames
solely to the extent that damage is caused by the negligence of Tenant or any
party claiming through or under Tenant) and, the fixtures and appurtenances
therein and at Tenant's sole cost and expense promptly make all repairs thereto
and to the Building except for reasonable wear and tear and damage for which
Tenant is not responsible pursuant to this Lease, whether structural or
non-structural in nature, only if the damage was caused by or resulting from the
carelessness, omission, neglect or improper conduct of Tenant, Tenant's
servants, employees, invitees, or licensees. Tenant shall also repair all damage
to the Building and the Demised Premises caused by the moving of Tenant's
fixtures, furniture or equipment. All the aforesaid repairs shall be of quality
or class equal to the original work or construction. If Tenant fails, after ten
(10) days notice, to proceed with due diligence to make repairs required to be
made by Tenant, the same may be made by the Landlord at the expense of Tenant,
and the expenses thereof incurred by Landlord shall be collectible, as
additional rent, after rendition of a ▇▇▇▇ or statement therefor. If the Demised
Premises be or become infested with vermin, Tenant shall, at its expense, cause
the same to be exterminated. Tenant shall give Landlord prompt notice of any
defective condition in any plumbing heating system or electrical lines located
in the Demised Premises and following such notice, Landlord shall remedy the
condition with due diligence but at the expense of Tenant, if repairs are
necessitated by damage or injury attributable to Tenant, Tenant's servants,
agents, employees, invitees or licensees as aforesaid. Landlord shall use best
efforts to ensure that no plumbing facilities will be constructed directly above
the switch area of the Demised Premises on the 20th Floor of the Building for
the duration of the term of this Lease and any renewals thereof. Except as
provided in Article 27 there shall be no allowance to the Tenant for a
diminution of rental value and no liability on the part of Landlord by reason of
inconvenience annoyance or injury to business arising from Landlord. Tenant or
others making or failing to make any repairs, alterations, additions or
improvements in or to any portion of the Building or the Demised Premises or in
and to the fixtures, appurtenances or equipment thereof. The provisions of this
Article 4 with respect to the making of repairs shall not apply in the case of
fire or other casualty with regard to which Article 9 shall apply.
5. Window Cleaning: Tenant will not clean nor require, permit, suffer or
allow any window in the Demised Premises to be cleaned from the outside in
violation of Section 202 of the New York State Labor Law or any other applicable
law or of the Rules of the Board of Standards and Appeals, or of any other Board
or body having or asserting jurisdiction.
6. Requirements of Law, Fire Insurance, Floor Loads: Prior to the
commencement of the lease term, if Tenant is then in possession, and at all
times thereafter, Tenant shall at Tenant's sole cost and expense, promptly
comply with all present and future laws, orders and regulations of all state,
federal, municipal and local governments, departments, commissions and boards
and any direction of any public officer pursuant to law, and all orders, rules
and regulations of the New York Board of Fire Underwriters, or the Insurance
Services Office, or any similar body which shall impose any violation, order or
duty upon Landlord or Tenant with respect to the Demised Premises, whether or
not arising out of Tenant's use or manner of use thereof, or, with respect to
the Building, if arising out of Tenant's use or manner of use of the Demised
Premises or the Building (including the use permitted under the lease). Nothing
herein shall require Tenant to make structural repairs or alterations unless
Tenant has, by its manner of use of the Demised Premises or method of operation
therein, violated any such laws, ordinances, orders, rules, regulations or
requirements with respect thereto Tenant shall not do not permit any act or
thing to be done in or to the Demised Premises which is contrary to law, or
which will invalidate or be in conflict with public liability, fire or other
policies of insurance at any time carried by or for the benefit of Landlord.
Tenant shall not keep anything in the Demised Premises except as now or
hereafter permitted by the Fire Department Board of Fire Underwriters, Fire
Insurance Rating Organization and other authority having jurisdiction, and then
only in such manner and such quantity so as not to increase the rate for fire
insurance applicable to the Building, nor use the Demised Premises in a manner
which will increase the insurance rate for the Building or any property located
therein over that in effect prior to the commencement of Tenant's occupancy. If
by reason of failure to comply with the foregoing the fire insurance rate shall,
at the beginning of this lease or at any time thereafter, be higher than it
otherwise would be, then Tenant shall reimburse Landlord, as additional rent
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hereunder, for that portion of all fire insurance premiums thereafter paid by
Landlord which shall have been charged because of such failure by Tenant. ln any
action or proceeding wherein Landlord and Tenant are parties, a schedule or
"make-up" or rate for the Building or Demised Premises issued by a body making
fire insurance rates applicable to said Demised Premises, shall be conclusive
evidence of the facts therein stated and of the items and changes in the fire
insurance rates applicable to the Demised Premises. Tenant shall not place a
load upon any floor of the Demised Premises exceeding the floor load per square
foot area which it was designed to carry and which is allowed by law, as
evidenced by the annexed Certificate of Occupancy unless the floor is properly
reinforced by Tenant at Tenant's sole cost and expense. Landlord reserves the
right to prescribe the weight and position of all safes, business machines and
mechanical equipment. Such installations shall be placed and maintained by
Tenant, at Tenant's expense, in settings sufficient, in Landlord's judgement, to
absorb and prevent vibration, noise and annoyance. Furthermore, Landlord shall
deliver a letter from Landlord's engineer stating which portion of the l9th
Floor consists of 100 pound floor loads.
7. Subordination: This lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or hereafter affect such
leases or the real property of which the Demised Premises form a part thereof,
and to all renewals, modifications, consolidations, replacements and extensions
of any such underlying leases and mortgages. This clause shall be self-operative
and no further instrument or subordination shall be required by any ground or
underlying lessor or by any mortgagee affecting any lease or the real property
of which the Demised Premises are a part. In confirmation of such subordination,
Tenant shall execute promptly any certificate that Landlord may request.
Landlord agrees that it shall use best efforts (at no cost or expense to
Landlord) to obtain and deliver to Tenant, as to the existing mortgage and shall
use all commercially reasonable efforts with respect to future mortgages
hereafter made covering the real property of which the Demised Premises form a
part, and/or any renewal, modification, consolidation, replacement and extension
of the existing mortgage, or future mortgagees non-disturbance agreements in
recordable form (or such agreement shall be contained in such mortgage or any
renewal modification consolidation extension or replacement thereof) from the
holder of any such existing mortgage, providing in substance that provided
Tenant is not in default in its obligations for the payment of fixed rent and
additional rent and in the performance of the other terms, covenants and
conditions to be performed on its part under this Lease beyond applicable notice
and cure periods, its possession of the Demised Premises will not be disturbed
during the term hereof notwithstanding the foreclosure of any such mortgage (or
the taking of a deed in lieu of foreclosure) or other exercise of remedies of
such holder, and Tenant will not be named as a party defendant in any
foreclosure proceedings brought for the recovery of possession or other
proceeding for the exercise of mortgage remedies, it being hereby covenanted and
agreed to by Tenant that the holder of any existing or future mortgage, or
anyone claiming by, through or under said holder shall not be: (a) liable for
any act or omission for any prior landlord (including Landlord), (b) subject to
any offsets or defenses which Tenant might have against any prior landlord
(including Landlord), (c) bound by any fixed rent or additional rent or other
charges which Tenant might have paid for more than the current month to a prior
landlord (including Landlord), or (d) bound by any modification of this Lease
made without the consent of such mortgagee.
The inability of Landlord to obtain such agreement shall not be deemed a
default on Landlord's part of its obligations hereunder, or impose any claim in
favor of Tenant against Landlord by reason thereof, or affect the validity of
this Lease. Tenant agrees to (i) execute and deliver to such mortgagee a
nondisturbance and attornment agreement in commercially reasonable form and
substance customarily adopted by such mortgagee and (ii) reimburse Landlord for
all reasonable expenses incurred by Landlord in connection therewith, including
legal expenses.
8. Property - Loss, Damage, Reimbursement, Indemnity: Landlord or its
agents shall not be liable for any damage to property of Tenant or of others
entrusted to employees of the Building, nor for loss of or damage to any
property of Tenant by theft or otherwise, nor for any injury or damage to
persons or property resulting from any cause of whatsoever nature, unless caused
by or due to the negligence or wilful acts of Landlord, its agents, servants or
employees. Landlord or its agents shall not be liable for any damage caused by
other tenants or persons in, upon or about said Building or caused by operations
in connection of any private, public or quasi public work. If at any time any
windows of the Demised Premises are temporarily closed, darkened or bricked up
(or permanently closed, darkened or bricked up, if required by law) for any
reason whatsoever including, but not limited to Landlord's own acts, Landlord
shall not be liable for any damage Tenant may sustain thereby and Tenant shall
not be entitled to any compensation therefor nor any abatement or diminution of
rent nor shall the same release Tenant from its obligations hereunder nor
constitute an actual or constructive eviction. Tenant shall indemnify and save
harmless Landlord against and from all liabilities, obligations, damages,
penalties, claims, costs and expenses for which Landlord shall not be reimbursed
by insurance, including reasonable attorney's fees, paid, suffered or incurred
as a result of any breach by Tenant, Tenant's agents, contractors, employees,
invitees, or licensees, of any covenant or condition of this lease or the
carelessness negligence or improper conduct of the Tenant, Tenant's agents
contractors, employees, invitees or licensees. Tenant's liability under this
lease extends to the acts and omissions of any sub-tenant and any sub-tenant,
agent, contractor, employee, invitee or licensee of any subtenant. In case any
action or proceeding is brought against Landlord by reason of any such claim,
Tenant,
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upon written notice from Landlord, will, at Tenant's expense, resist or defend
such action or proceeding by counsel approved by Landlord in writing, such
approval not to be unreasonably withheld.
Destruction, Fire and Other Casualty: (a) if the Demised Premises or any
part thereof shall be damaged by fire or other casualty, Tenant shall give
immediate notice thereof to Landlord and this lease shall continue in full force
and effect except as hereinafter set forth. (b) If the Demised Premises are
partially damaged or rendered partially unusable by fire or other casualty, the
damages thereto shall be repaired by and at the expense of Landlord and the
rent, until such repair shall be substantially completed, shall be apportioned
from the day following the casualty according to the portion of the Demised
Premises which is usable. (c) If the Demised Premises are totally damaged or
rendered wholly unusable by fire or other casualty, then the rent shall be
proportionately paid up to the time of the casualty and thenceforth shall cease
until the date when the Demised Premises shall have been repaired and restored
by Landlord, subject to Landlord's right to elect not to restore the same as
hereinafter provided. (d) If the Demised Premises are rendered wholly unusable
or (whether or not the Demised Premises are damaged in whole or in part) if the
building shall be so damaged that Landlord shall decide to demolish, or to
rebuild it, then, in any such events, Landlord may elect to terminate this lease
by written notice to Tenant, given within 90 days after such fire or casualty,
specifying a date for the expiration of the leased which date shall not be more
than 60 days after the giving of such notice, and upon the date specified in
such notice the term of this lease shall expire as fully and completely as if
such date were the date set forth above for the termination of this lease and
Tenant shall forthwith quit, surrender and vacate the Demised Premises without
prejudice however, to Landlord's rights and remedies against Tenant under the
lease provisions in effect prior to such termination, and any rent owing shall
be paid up to such date and any payments of rent made by Tenant which were on
account of any period subsequent to such date shall be returned to Tenant.
Unless Landlord shall serve a termination notice as provided for herein,
Landlord shall make the repairs and restorations under the conditions of (b) and
(c) hereof with all reasonable expedition, subject to delays due to adjustment
of insurance claims, labor troubles and causes beyond Landlord's control. After
any such casualty, Tenant shall cooperate with Landlord's restoration by
removing from the Demised Premises as promptly as reasonably possible, all of
Tenant's salvageable inventory and movable equipment, furniture and other
property. Tenant's liability for rent shall resume five (5) days after written
notice from Landlord that the Demised Premises are substantially ready for
Tenant occupancy, (e) Nothing contained hereinabove shall relieve Tenant from
liability that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, each party shall look first to any insurance in
its favor before making any claim against the other party for recovery for loss
or damage resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible and to the extent permitted by law,
Landlord and Tenant each hereby releases and waives all right of recovery
against the other or any one claiming through or under each of them by way of
subrogation or otherwise. The foregoing release and waiver shall be in force
only if both releasors, insurance policies contain a clause providing that such
a release or waiver shall not invalidate the insurance. If, and to the extent,
that such waiver can be obtained only by the payment of additional premiums then
the party benefitting from the waiver shall pay such premium within ten (10)
days after written demand or shall be deemed to have agreed that the party
obtaining insurance coverage shall be free of any further obligation under the
provisions hereof with respect to waiver of subrogation. Tenant acknowledges
that Landlord will not carry insurance on Tenant's furniture and or furnishing
or any fixtures or equipment, improvements, or appurtenances removable by Tenant
and agrees that Landlord will not be obligated to repair any damage thereto or
replace the same. (f) Tenant hereby waives the provisions of Section 227 of the
Real Property Law and agrees that the provisions of this Article shall govern
and control in lieu thereof.
10. Eminent Domain: If the whole or any part of the Demised Premises shall
be acquired or condemned by eminent domain for any public or quasi public use or
purpose, then and in that event, the term of this lease shall cease and
terminate from the date of title vesting in such proceeding and Tenant shall
have no claim for the value of any unexpired term of said lease.
11. Assignment, Mortgage, Etc.: Tenant, for itself, its heirs,
distributees, executors, administrators, legal representatives, successors and
assigns, expressly covenants that it shall not assign, mortgage or encumber this
Lease, nor underlet, or suffer or permit the Demised Premises or any part
thereof to be used by others without the prior written consent of Landlord in
each instance. Transfer of the majority of the stock of a corporate Tenant shall
be deemed an assignment of this lease. If this lease be assigned, or if the
Demised Premises or any part thereof be underlet or occupied by anybody other
than Tenant, Landlord may, after default by Tenant, collect rent from the
assignee, under-tenant or occupant, and apply the net amount collected to the
rent herein reserved, but no such assignment, underletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of the
assignee, under-tenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Landlord to an assignment or underletting shall not in
anyway be constructed to relieve Tenant from obtaining the express consent in
writing of Landlord to any further assignment or underletting.
12. Electric Current: Tenant covenants and agrees that at all times its use
of electric current shall not exceed the capacity of existing feeders to the
Building or the risers or wiring installation and Tenant may not use any
electrical equipment which, in Landlord's opinion will overload such
installations or interfere with the use thereof by other tenants of the
Building. The change at any time of the character of
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electric service shall in no manner make Landlord liable or responsible to
Tenant, for any loss, damages or expenses which Tenant may sustain.
13. Access to Premises: Landlord or Landlord's agents shall have the right
(but shall not be obligated) to enter the Demised Premises in any emergency at
any time, and, at other reasonable times and upon one (1) day prior notice to
Tenant (oral or written), to examine the same and to make such repairs,
replacements and improvements as Landlord may deem necessary and reasonably
desirable to any portion of the Building or which Landlord may elect to perform
in the Demised Premises after Tenant's failure beyond applicable grace, notice,
and cure periods to make repairs or perform any work which Tenant is obligated
to perform under this lease, or for the purpose of complying with laws,
regulations and other directions of governmental authorities. Landlord shall
perform any work using all reasonable efforts to minimize interference and
interruption with Tenant's occupancy and the conduct of its business in the
Demised Premises. Tenant shall permit Landlord to use and maintain and replace
pipes and conduits in and through the Demised Premises and to erect new pipes
and conduits therein provided that when practicable or not mandated by
applicable legal requirements, such pipes and conduits are concealed behind
existing walls or above existing ceilings. Landlord may, during the progress of
any work in the Demised Premises, take all necessary materials and equipment
into the Demised Premises without the same constituting an actual or
constructive eviction nor shall the Tenant be entitled to any abatement of rent
while such work is in progress nor to any damages by reason of loss or
interruption of business or otherwise. Throughout the term hereof, Landlord
shall have the right to enter the Demised Premises at reasonable hours upon one
(1) day prior notice to Tenant (written or oral) for the purpose of showing the
same to prospective purchasers or mortgagees of the Building, and during the
last twelve (12) months of the term for the purpose of showing the same to
prospective tenants and may, during said twelve (12) months period, place upon
the Building the usual notices "To Let" and "For Sale" which notices Tenant
shall permit to remain thereon without molestation. If Tenant is not present to
open and permit an entry into the Demised Premises, Landlord or Landlord's
agents may enter the same whenever such entry may be necessary or permissible by
master key or forcibly and provided reasonable care is exercised to safeguard
Tenant's property, such entry shall not render Landlord or its agents liable
therefor, nor in any event shall the obligations of Tenant hereunder be
affected. If during the last month of the term Tenant shall have removed all or
substantially all of Tenant's property therefrom, Landlord may immediately
enter, alter, renovate or redecorate the Demised Premises without limitation or
abatement of rent, or incurring liability to Tenant for any compensation and
such act shall have no effect on this lease or Tenant's obligations hereunder.
14. Vault, Vault Space, Area: No Vaults, vault space or area, whether or
not enclosed or covered, not within the property line of the Building is leased
hereunder, anything contained in or indicated on any sketch, blue print or plan,
or anything contained elsewhere in this lease to the contrary not withstanding.
Landlord makes no representation as to the location of the property line of the
Building. All vaults and vault space and all such areas not within the property
line of the Building, which Tenant may be permitted to use and/or occupy, is to
be used and/or occupied under a revocable license, and if any such license be
revoked or if the amount of such space or area be diminished or required by any
federal, state or municipal authority or public utility, 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 an actual or constructive eviction. Any tax, fee or charge
of municipal authorities for such vault or area shall be paid by Tenant, solely
if leased hereunder or if actually used by Tenant.
15. Occupancy: Tenant will not at any time use or occupy the Demised
Premises in violation of the Certificate of Occupancy issued for the Building.
Tenant has inspected the Demised Premises and accepts them as is, subject to
Landlord's Work (as defined in Article 52). In any event, Landlord makes no
representation as to the condition of the Demised Premises and Tenant agrees to
accept the same subject to violations, whether or not of record provided that
any such violations do not prohibit or delay (a) Tenant's permitted use of the
Demised Premises as provided in Article 2 or (b) Tenant from commencing and
completing its work in the Demised Premises.
16. Bankruptcy: (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be canceled by Landlord by sending a ten (10)
day written notice to Tenant within a reasonable time after the happening of any
one or more of the following events: (1) the commencement of a case in
bankruptcy or under the laws of any state naming Tenant as the debtor, which, in
the case of an involuntary bankruptcy, is not dismissed within sixty (60) days
after the commencement thereof or (2) the making by Tenant of an assignment or
any other arrangement for the benefit of creditors under any state statute.
Neither Tenant nor any person claiming through or under Tenant, or by reason of
any statute or order of court, shall thereafter be entitled to possession of the
Demised Premises but shall forthwith quit and surrender the Demised Premises. If
this lease shall be assigned in accordance with its terms, the provisions of
this Article 16 shall be applicable only to the party then owning Tenant's
interest in this lease.
(b) It is stipulated and agreed that in the event of the termination of
this lease pursuant to (a) hereof, Landlord shall forthwith, notwithstanding any
other provisions of this lease to the contrary, be entitled to recover from
Tenant as and for liquidated damages an amount equal to the difference between
the rental reserved hereunder for the unexpired portion of the term and the fair
and reasonable rental value of the Demised Premises for the same period. In the
computation of such damages the difference
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between any installment of rent becoming due hereunder after the date of
termination and the fair and reasonable rental value of the Demised Premises for
the period for which such installment was payable shall be discounted to the
date of termination at the rate of four percent (4%) per annum. If the Demised
Premises or any part thereof be relet by Landlord for the unexpired term of said
lease, or any part thereof, before presentation of proof of such liquidated
damages to any court, commission or tribunal, the amount of rent reserved upon
such reletting shall be deemed to be the fair and reasonable rental value for
the part or the whole of the Demised Premises so re-let during the term of the
re-letting.
17. Default: A. lf Tenant defaults in fulfilling any of the covenants of
this lease other than the covenants for the payment of rent or additional rent;
or if the Demised Premises becomes vacant or deserted; or if any execution or
attachment shall be issued against Tenant or any of Tenant's property whereupon
the Demised Premises shall be taken or occupied by someone other than Tenant; or
if this lease be rejected under Section 235 of Title 11 of the U.S. Code
(bankruptcy code); or if Tenant shall fail to take posession of the Demised
Premises within thirty (30) days after the commencement of the terms of this [NO
COPY] Tenant specifying the nature of said default and upon the expiration of
said ten (10) days if Tenant shall have failed to comply with or remedy such
default, or if the said default or omission complained of shall be of a nature
that the same cannot be completely cured or remedied within said ten (10) day
period, and if Tenant shall not have diligently commenced curing such default
within such ten (10) day period, and shall not thereafter with reasonable
diligence and in good faith, proceed to remedy or cure such default, then
Landlord may serve a written five (5) days' notice of cancellation of this lease
upon Tenant, and upon the expiration of said five (5) days this lease and the
term thereunder shall end and expire as fully and completely as if the
expiration of such five (5) day period were the day herein definitely fixed for
the end and expiration of this lease and the term thereof and Tenant shall then
quit and surrender the Demised Premises to Landlord but Tenant shall remain
liable as hereinafter provided.
B. lf the notice provided for in (1) hereof shall have been given and the
term shall expire as aforesaid; or if Tenant shall make default in the payment
of any item of rent reserved herein or any item of additional rent herein
mentioned or any part of either or in making any other payment herein required
for a period of five (5) days after written notice, then and in any of such
events, Landlord may dispossess Tenant by summary proceedings or otherwise, and
the legal representative of Tenant or other occupant of the Demised Premises and
remove their effects and hold the Demised Premises as if this lease had not been
made and Tenant hereby waives the service of notice of intention to re-enter or
to institute legal proceedings to that end. If Tenant shall make default
hereunder prior to the date fixed as the commencement of any renewal or
extension of this lease, Landlord may cancel and terminate such renewal or
extension agreement by written notice.
18. Remedies of Landlord and Waiver of Redemption: In case of any such
default, re-entry expiration and/or dispossess by summary proceedings or
otherwise (a) the rent, and additional rent, shall become due thereupon and be
paid up to the time of such re-entry dispossess and/or expiration, (b) Landlord
may re-let the Demised Premises or any part or parts thereof, either in the name
of Landlord or otherwise, for a term or terms, which may at Landlord's option be
less than or exceed the period which would otherwise have constituted the
balance of the term of this lease and may grant concessions or free rent or
charge a higher rental than that in this lease, (c) Tenant or the legal
representatives of Tenant shall also pay Landlord as liquidated damages for the
failure of Tenant to observe and perform said Tenant's covenants herein
contained, any deficiency between the rent hereby reserved and or covenanted to
be paid and the net amount, if any, of the rents collected on account of the
subsequent lease or leases of the Demised Premises for each month of the period
which would otherwise have constituted the balance of the term of this lease.
The failure of Landlord to re-let the Demised Premises or any part or parts
thereof shall not release or affect Tenant's liability for damages hereunder. In
computing such liquidated damages there shall be added to the said deficiency
such expenses as Landlord may incur in connection with re-letting, such as legal
expenses, attorneys' fees, brokerage, advertising and for keeping the Demised
Premises in good order or for preparing the same for re-letting. Any such
liquidated damages shall be paid in monthly installments by Tenant on the rent
day specified in this lease and any suit brought to collect the amount of the
deficiency for any month shall not prejudice in any way the rights of Landlord
to collect the deficiency for any subsequent month by a similar proceeding.
Landlord, in putting the Demised Premises in good order or preparing the same
for re-rental may at Landlord's option, make such alterations, repairs,
replacements, and/or decorations in the Demised Premises as Landlord in
Landlord's sole judgment, considers advisable and necessary for the purpose of
re-letting the Demised Premises, and the making of such alterations, repairs,
replacements, and/or decorations shall not operate or be construed to release
Tenant from liability hereunder as aforesaid. Landlord shall in no event be
liable in any way whatsoever for failure to re-let the Demised Premises, or in
the event that the Demised Premises are re-let, for failure to collect the rent
thereof under such re-letting and in no event shall Tenant be entitled to
receive any excess, if any, of such net rents collected over the sums payable by
Tenant to Landlord hereunder. In the event of a breach or threatened breach by
Tenant of any of the covenants or provisions hereof, Landlord shall have the
right of injunction and the right to invoke any remedy allowed at law or in
equity as if re-entry summary proceedings and other remedies were not herein
provided for. Mention in this lease of any particular remedy, shall not preclude
Landlord from any other remedy, in law or in equity. Tenant hereby expressly
waives any and all rights of redemption granted by or under any present or
future laws.
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19. Fees and Expenses: If Tenant shall default in the observance or
performance of any term or covenant on Tenant's part to be observed or performed
under or by virtue of any of the terms or provisions in any Article of this
lease, then, unless otherwise provided elsewhere in this lease, Landlord may
immediately or at any time thereafter and without notice perform the obligations
of Tenant hereunder. If Landlord, in connection with the foregoing or in
connection with any default by Tenant in the covenant to pay rent hereunder,
makes any expenditures or incurs any obligations for the payment of money,
including but not limited to attorney's fees, in instituting, prosecuting or
defending any action or proceedings, then Tenant will reimburse Landlord for
such sums so paid or obligations incurred with interest and costs. The foregoing
expenses incurred by reason of Tenant's default shall be deemed to be additional
rent hereunder and shall be paid by Tenant to Landlord within five (5) days
after rendition of any ▇▇▇▇ or statement to Tenant therefor. If Tenant's lease
term shall have expired at the time of making of such expenditures or incurring
of such obligations, such sums shall be recoverable by Landlord as damages.
Tenant or Landlord shall reimburse the other, within five (5) days after demand,
for all reasonable expenditures (including reasonable attorneys' fees and
disbursements) made by, or damages, reasonable costs or fines sustained or
incurred by, Landlord or Tenant due to any default by the other under this Lease
from the date such expenditures were made, or damages costs or fines incurred,
until the date reimbursement is made.
20. Building Alterations and Management: Except as otherwise expressly
provided for herein, Landlord shall have the right at any time without the same
constituting an eviction and without incurring liability to Tenant therefor to
run pipes and conduits through the Demised Premises (concealed as aforesaid) and
other building areas, make other repairs and to change the arrangement and or
location of public entrances, passageways, doors, doorways, corridors,
elevators, stairs, toilets or other public parts of the Building so long as such
changes do not materially and adversely deny Tenant access to the Demised
Premises, materially and adversely change the Demised Premises or materially and
adversely alter Tenant's rights or obligations under this Lease and to change
the name, number or designation by which the Building may be known. Except as
otherwise expressly provided for herein, there shall be no allowance to Tenant
for diminution of rental value and no liability on the part of Landlord by
reason of inconvenience, annoyance or injury to business arising from Landlord
or other Tenant making any repairs in the Building or any such alterations,
additions and improvements. Furthermore, Tenant shall not have any claim against
Landlord by reason of Landlord's imposition of any controls (uniformly applied
in the Building) of the manner of access to the Building by Tenant's invitees as
the Landlord may deem necessary for the security of the Building and its
occupants.
21. No Representations by Landlord: Except as otherwise expressly provided
for herein, neither Landlord nor Landlord's agents have made any representations
or promises with respect to the physical condition of the Building, the land
upon which it is erected or the Demised Premises the rents, leases, expenses of
operation or any other matter or thing affecting or related to the Demised
Premises or the Building except as herein expressly set forth and no rights,
easements or licenses are acquired by Tenant by implication or otherwise except
as expressly set forth in the provisions of this lease. Tenant has inspected the
Building and the Demised Premises and is thoroughly acquainted with their
condition and agrees to take the same "as is" subject to Landlord's Work (as
provided in Article 52 herein) on the date possession is tendered and
acknowledges that the taking of possession of the Demised Premises by Tenant
shall be conclusive evidence that the said Demised Premises and the Building of
which the same form a part were in good and satisfactory condition at the time
such possession was so taken. All understandings and agreements heretofore made
between the parties hereto are merged in this contract, which alone fully and
completely expresses the agreement between Landlord and Tenant and any executory
agreement hereafter made shall be ineffective to change, modify, discharge or
effect an abandonment of it in whole or in part, unless such executory agreement
is in writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought. Notwithstanding the foregoing
Landlord represents, covenants and warrants that on the Commencement Date, all
the Building systems, i.e., plumbing, electrical and mechanical systems
servicing the Demised Premises will be in good working order, repair and
condition.
22. End of Term: Upon the expiration or sooner termination of the term of
this lease, Tenant shall quit and surrender to Landlord the Demised Premises,
broom clean, in good order and condition, ordinary wear and damages which Tenant
is not required to repair as provided elsewhere in this lease excepted, and
Tenant shall remove all its property from the Demised Premises, Tenant's
obligation to observe or perform this covenant shall survive the expiration or
other termination ofits lease. lf the last day of the term of this Lease or any
renewal thereof, falls on Sunday, this lease shall expire at noon on the
preceding Saturday unless it be a legal holiday in which case it shall expire at
noon on the preceding business day.
23. Quiet Enjoyment: Landlord covenants and agrees with Tenant that upon
Tenant paying the rent and additional rent and observing and performing all the
terms, covenants and conditions, on Tenant's part to be observed and performed,
Tenant may peaceably and quietly enjoy the Demised Premises hereby demised,
without hindrance by Landlord or any person claiming through or under Landlord,
subject, nevertheless, to the terms and conditions of this lease.
24. Failure to Give Possession: if Landlord is unable to give possession of
the Demised Premises on the date of the commencement of the term hereof, because
of the holding-over or
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retention of possession of any tenant, undertenant or occupants, or if Landlord
has not completed any work required to be performed by Landlord, 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 the lease shall not be impaired
under such circumstances, nor shall the same be construed in any manner to
extend the term of this lease, but the rent payable hereunder shall be abated
until after Landlord shall have given Tenant notice that the Demised Premises
are substantially ready for Tenant's occupancy. If permission is given to Tenant
to enter into the possession of the Demised Premises or to occupy any space in
the Building other than the Demised Premises prior to the date specified as the
commencement of the term of this lease, Tenant covenants and agrees that such
occupancy shall be deemed to be under all the terms, covenants, conditions and
provisions of this lease, except as to the covenant to pay rent. 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.
25. No Waiver: The failure of Landlord to seek redress for violation of, or
to insist upon the strict performance of any covenant or condition of this lease
or of any of the Rules or Regulations, set forth or hereafter adopted by
Landlord, shall not prevent a subsequent act which would have originally
constituted a violation from having all the force and effect of an original
violation. The receipt by Landlord of rent with knowledge of the breach of any
covenant of this lease shall not be deemed a waiver of such breach and no
provision of this lease shall be deemed to have been waived by Landlord unless
such waiver be in writing signed by Landlord. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent, nor shall
any endorsement or statement of any check, any letter accompanying any check or
payment of rent be deemed an accord and satisfaction and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy an this lease provided. All
checks tendered to Landlord as and for the rent of the Demised Premises shall be
deemed payments for the account of Tenant. Acceptance by Landlord of rent from
anyone other that Tenant shall not be deemed to operate as an attornment to
Landlord by the payor of such rent or as a consent by Landlord to an assignment
or subletting by Tenant of the Demised Premises to such payor, or as a
modification of the provisions of this lease. No act or thing done by Landlord
or Landlord's agents during the term hereby demised shall be deemed an
acceptance of a surrender of said Demised Premises and no agreement to accept
such surrender shall be valid unless in writing signed by Landlord. No employee
of Landlord or Landlord's agent shall have any power to accept the keys of said
Demised Premises prior to termination of the lease and the delivery of keys to
any such agent or employee shall not operate as a termination of the lease or a
surrender of the Demised Premises.
26. Waiver of Trial by Jury: It is mutually agreed by and between Landlord
and Tenant that the respective parties hereto shall and they hereby do waive
trial by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other (except for personal injury or property damage)
on any matters whatsoever arising out of or in any way connected with this
lease, the relationship of Landlord and Tenant, Tenant's use of or occupancy of
the Demised Premises, and any emergency statutory or any other statutory remedy.
It is further mutually agreed that in the event Landlord commences any summary
proceeding for possession of the Demised Premises, Tenant will not interpose any
counterclaim of whatever nature or description in any such proceeding (except
for statutory mandatory counterclaims or unless failure to impose such
counterclaim would preclude Tenant from asserting in a separate action the claim
which is the subject of such counterclaim).
27. Inability to Perform: This Lease and the obligation of Tenant to pay
rent hereunder and perform all of the other covenants and agreements hereunder
on part of Tenant to be performed shall in no manner be affected impaired, or
excused because Landlord is unable to fulfill any of its obligations under this
lease or to supply or is delayed in supplying any service expressly or impliedly
to be supplied or is unable to make, or is delayed in making any repair,
additions, alterations or decorations or is unable to supply or is delayed in
supplying any equipment or fixtures if Landlord is prevented or delayed from so
doing by reason of strike or labor troubles or any cause whatsoever beyond
Landlord's sole control including, but not limited to, government preemption in
connection with a National Emergency or by reason of any rule, order or
regulation of any department or subdivision thereof of any government agency or
by reason of the condition of supply and demand which have been or are affected
by war or other emergency.
Notwithstanding anything contained in this Lease to the contrary, if due to
any work or installation performed by Landlord under the Lease or failure by
Landlord to perform its obligations under the Lease, Tenant shall be unable for
at least ten (10) consecutive business days to operate its business in the
Demised Premises in substantially the same manner as such business was operated
prior to the performance of such work or installation or such failure and Tenant
notifies Landlord of such interruption, the Fixed Rent and the Additional Rent
shall be reduced on a per diem basis in the proportion in which the area of the
part of the Demised Premises which is unusable bears to the total area of the
Demised Premises for each day subsequent to the day Tenant notifies Landlord of
the aforesaid ten (10) consecutive business day period that such portion of the
Demised Premises remains unusable.
Notwithstanding anything to the contrary contained herein, if Landlord is
delayed or prevented from performing any of its obligations hereunder by reason
of force majeure (as said term is hereinafter defined), the period of such delay
or of such prevention shall be added to the time herein provided within
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which such obligation may be performed, except to the extent delayed by the
negligence of Landlord and Tenant shall have given Landlord notice of such
delay. The term "force majeure" as used in this Paragraph shall mean any period
of delay which arises from or through Acts of God; strikes, lockouts or labor
difficulty; explosion, sabotage, accident, riot or civil commotion; acts of war;
fire or other casualty; delays caused by Tenant; and other cases (not including
the lack of money) beyond the reasonable control of Landlord.
28. Notices: Except as otherwise expressly provided in this Lease or by any
Legal Requirement, every notice, demand, consent, approval, request or other
communication (collectively, "notices") which may be or is required to be given
under this Lease or by law shall be in writing and shall be sent by United
States certified or registered mail, postage prepaid, return receipt requested
and shall be addressed:
A. If to Landlord, to Landlord's address set forth on the cover page hereof
with a copy to Landlord's managing agent and attorney, respectively;
Newmark & Company Real Estate Co., Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, P.C.
c/o Olshan ▇▇▇▇▇▇▇▇ Frome ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
B. If to Tenant, to Tenant's address set forth on the cover page hereto.
▇▇▇▇▇ ▇▇▇▇▇▇ & Heckscher, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Notices shall be deemed delivered five (5) business days after being
deposited in the United States Mail. A notice given by counsel for either party
shall be deemed a valid notice if addressed and sent in accordance with the
provisions of this Paragraph. Either party may designate, by similar written
notice to the other party, any other address for such purposes. Each of the
parties hereto waives personal or any other service other than as provided for
in this Paragraph. Notwithstanding the foregoing, either party hereto may give
the other party telefax notice of the need of emergency repairs. If there occurs
any interruption of certified and registered mail service, lasting more than
five (5) consecutive business days notices may be given by telefax or personal
delivery but shall not be effective until personally received by an executive
officer of a party which is a corporation, or a member of a party which is a
partnership or joint venture, or a principal of any other entity.
29. Services Provided By Landlord: As long as Tenant is not in default
under any of the covenants of this lease, Landlord shall provide the following
services:
A. Elevator Service.
(i) Passenger Elevator Service. Landlord shall provide necessary passenger
elevator facilities twenty-four (24) hours a day, three hundred, sixty five
(365) days a year.
(ii) Freight Elevator Service. Landlord shall provide freight elevator
service to the Demised Premises on a first-come first-served basis (i.e. no
advance scheduling) on business days from 8:00 a.m. to 4:30 p.m. Freight
elevator service shall, provided same is available, be provided on a reserved
basis at all other times, upon the payment of Landlord's then established
charges therefor which shall constitute additional rent hereunder.
B. Cleaning Services.
(i) Tenant shall cause all areas of the Demised Premises, including the
executive and administrative portions thereof to be cleaned at its own expense
by a cleaning contractor reasonably approved by Landlord. To the extent Tenant
uses Landlord's cleaning contractor, the charges therefore shall be industry
competitive.
(ii) Tenant, at its expense, shall cause all portions of the Demised
Premises to be exterminated against infestation by vermin, roaches or rodents
regularly and, in addition, whenever there shall be evidence of any infestation.
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(iii) only Landlord or anyone or more persons, firms or corporations
authorized in writing by Landlord shall the permitted to act as maintenance
contractor for any waxing, polishing, cleaning and maintenance work in the
Demised Premises. Nothing herein contained shall prohibit Tenant from performing
such work for itself by use of its regular employees. Landlord may fix in its
absolute discretion, at any time and from time to time, the hours during which
and regulations under which such services are to be furnished. Landlord
expressly reserves the right to act as or to designate, at any time and from
time to time, an exclusive contractor for all or any one or more of such
services, provided that the quality thereof and the charges therefor are
reasonably comparable to that of other contractors, and Landlord expressly
reserves the right to exclude from the Building any unauthorized person, firm or
corporation attempting to furnish any of such services.
C. Water. Landlord shall provide water for ordinary lavatory and drinking
proposes only, but if Tenant uses or consumes water for any other purposes or
in unusual quantities, Landlord may install a water meter at Tenant's expense
which Tenant shall thereafter maintain at Tenant's expense in good working order
and repair to register such water consumption and Tenant shall pay for water
consumed as shown on said meter as additional rent as and when bills are
rendered.
D. Heat. See Article 54.
E. Landlord reserves the right, without same constituting an actual or
constructive eviction or entitling Tenant to any abatement and/or diminution of
fixed rent and/or additional rent, to stop services of the heating, elevators,
plumbing, air-conditioning, power systems or cleaning or other services, if any,
when necessary by reason of accident or for repairs, alterations, replacements
or improvements necessary or desirable in the judgment of Landlord for as long
as may be reasonably required by reason thereof. If the Building of which the
Demised Premises are a part supplies manually-operated elevator service,
Landlord at any time may substitute automatic-control elevator service and upon
ten days' written notice to Tenant, proceed with alterations necessary therefor
without in any manner affecting this lease or the obligation of Tenant
hereunder. The same shall be done with a minimum of inconvenience to Tenant and
Landlord shall pursue the alteration with due diligence.
F. Subject strikes or legal requirements and holidays. Landlord shall
maintain twenty-four (24) hour, seven (7) day a week security guard coverage
in the Building throughout the term of the Lease and any renewals hereof.
30. Captions: The Captions are inserted only as a matter of convenience
and for reference and in no way define, limit or describe the scope of this
lease nor the intent of any provision thereof.
31. Definitions: The term "Landlord" as used in this lease means only
the Landlord of the fee or of that leasehold of the Building, or the mortgagee
in possession, for the time being of the land and Building (or the Landlord of a
lease of the Building or of the land and Building) of which the Demised Premises
form a part, so that in the event of any sale or sales of said land and
Building or of said lease, or in the event of a lease of said Building, or of
the land and Building, Landlord shall be and hereby is entirely freed and
relieved of all covenants and obligations of Landlord hereunder and it shall be
deemed and construed without further agreement between the parties or their
successors in interest, or between the parties and the purchaser, at any such
sale, or the said lessee of the building, or of the land and Building, that the
purchaser or the lessee of the Building has assumed and agreed to carry out any
and all covenants and obligations of Landlord hereunder. Notwithstanding the
provisions of this Article 31 or of Artice 34, no sale, assignment or transfer
by Landlord of Tenant security deposit (in connection with the sale, transfer or
assignment by Landlord of its rights and obligations under this Lease and/or in
the Building) shall operate to release Landlord from its responsibility and
liability to Tenant for said security deposit, unless and until the party to
whom such security deposit has been assigned or transferred has acknowledged to
Tenant its receipt of such security deposit, and has assumed all of the
obligations of Landlord with respect thereto, The words "re-enter" and
"re-entry" as used in this lease are not restricted to their technical legal
meaning. The term "business days" as used in this lease, shall exclude
Saturdays, Sundays and all days observed by the State or Federal Government as
legal holidays and those designated as holidays by the applicable Building
service union employees service contract or by the applicable Operating
Engineers contract with respect to HVAC service.
32. Estoppel Certificate: Tenant or Landlord shall execute, acknowledge
and deliver to the other party, within five (5) business days after Tenant's or
Landlord's request, a certificate stating; (a) that this lease is unmodified and
in full force and effect (or, if there have been modifications, that this lease
is in full force and effect, as modified, and identifying the modifications);
(b) the commencement and expiration dates of the term of this lease; (c) the
dates through which fixed rent and additional rent have been paid; (d) whether
or not there is any existing default by Landlord or Tenant with respect to which
a notice of default has been delivered, and if there is any such default,
specifying the nature and extent thereof; (e) that this lease is subordinate to
any existing or future mortgage placed by Landlord on the Building; and (f)
whether or not there are any setoffs, defenses or counterclaims against the
enforcement of any of the agreements, terms, covenants or conditions of this
lease to be paid, complied with or performed by either party. Any such
certificate may be relied upon by the other party and any mortgagee,
purchaser or other person with whom either party may deal. In the event that
either party fails to deliver the certificate required
-10-
under this Article 32, same shall be deemed a default hereunder. Tenant's only
liability under this Article 32 is to be estopped from any claim contrary to the
certificate executed therein.
33. Rules and Regulations: Tenant and Tenant's servants, employees, agents,
visitors, and licensees shall observe faithfully, and comply strictly with, the
Rules and Regulations annexed hereto and made a part hereof as Exhibit C and
such other and further reasonable Rules and Regulations as Landlord or
Landlord's agents may from time to time adopt. Notice of additional rules or
regulations shall be given in writing to Tenant in accordance with the
provisions of Article 28 of this Lease. In case Tenant disputes the
reasonableness of any additional Rule or Regulation hereafter made or adopted by
Landlord or Landlord's agents, the parties hereto agree to submit the question
of the reasonableness of such Rule or Regulation for decision to the New York
office of the American Arbitration Association, whose determination shall be
final and conclusive upon the parties hereto. The right to dispute the
reasonableness of any additional Rule or Regulation upon Tenant's part shall be
deemed waived unless the same shall be asserted by service of a notice, in
writing upon Landlord within ten (10) days after the giving of notice thereof.
The Rules and Regulations shall be applied in a non-discriminatory manner
against Tenant.
34. Security. Tenant shall, upon execution of this lease, deposit with
Landlord the sum of FOUR HUNDRED FIFTY-TWO THOUSAND FOUR HUNDRED SIXTY-SIX AND
64/100 ($452,466.64) DOLLARS security for the faithful performance and
observance by Tenant of the terms, provisions and conditions of this lease; it
is agreed that in the event Tenant defaults in respect of any of the terms,
provisions and conditions of this lease, including, but not limited to, the
payment of rent and additional rent, and fails to cure the same within any
applicable grace and/or notice periods, then, Landlord may use, apply or retain
the whole or any part of the security so deposited to the extent required for
the payment of any rent and additional rent or any other sum as to which tenant
is in default or for any sum which Landlord may expend or may be required to
expend by reason of Tenant's default in respect of any of the terms, covenants
and conditions of this lease, including but not limited to, any damages or
deficiency in the re-letting of the Demised Premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Landlord. If Landlord applies or retains all or any portion of the Security
(whether in cash or Letter of Credit) Tenant shall immediately upon Landlord's
demand restore the amount so applied so that Landlord has on deposit the full
amount of Security. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this lease, the
security shall be promptly returned to Tenant. In the event of a sale of the
land and Building or leasing of the Building, of which the Demised Premises form
a part, Landlord shall have the right to transfer the security to the vendee or
lessee and Landlord shall thereupon be released by Tenant from all liability for
the return of such security and Tenant agrees to look to the new Landlord solely
for the return of said security; and it is agreed that the provisions hereof
shall apply to every transfer or assignment made of the security to a new
Landlord. Tenant further covenants that it will not assign or encumber or
attempt to assign or encumber the monies deposited herein as security and that
neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance. The
Security shall be deposited into an interest-bearing account with interest
accruing to the benefit of Tenant annually minus the one (1%) percent per annum
administrative fee allowed by law to be retained by Landlord.
In lieu of the cash security provided for above, Tenant may deliver to
Landlord, an irrevocable, clean, commercial letter of credit in the amount of
FOUR HUNDRED FIFTY TWO THOUSAND FOUR HUNDRED SIXTY-SIX AND 64/100 ($452,466.64)
DOLLARS (the "Letter"), issued by a bank which is authorized by the State of New
York to conduct banking business in New York State and is a member of the New
York Clearing House Association, which shall permit Landlord (a) to draw thereon
up to the full amount of the credit evidenced thereby in the event of any
default by Tenant in the terms provisions, covenants or conditions of this Lease
beyond applicable grace, notice and/or cure periods or (b) to draw the full
amount thereof to be held as cash security pursuant to Article 34 hereof if for
any reason the Letter is not renewed within forty five (45) days prior to its
expiration date The Letter (and each renewal thereof) shall (i) be for a term of
not less than one (1) year (except that the last Letter shall be for a term
expiring forty five (45) days after the Expiration Date) (ii) expressly provide
for the issuing bank to notify Landlord in writing not less than thirty (30)
days prior to its expiration as to its renewal or non-renewal, as the case may
be, and (iii) if not so renewed each year (or later period of expiration) shall
be immediately available for Landlord to draw up to the full amount of such
credit (to be held as cash security). Not less than forty-five (45) days prior
to the expiration date of each Letter (and every renewal thereof). Tenant shall
deliver to Landlord a renewal or new Letter subject to all of the conditions
aforesaid, Failure by Tenant to comply with the provisions of this Article
beyond applicable grace, notice and/or cure periods shall be deemed a material
default hereunder entitling Landlord to exercise any and all remedies as
provided in this Lease for default in the payment of fixed rent and, to draw on
the existing Letter up to its full amount.
Provided Tenant is not then in default under the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed and
provided Tenant can document to Landlord's satisfaction that it has spent in
excess of $3,000,000.00 on Tenant leasehold improvements and installations in
the Demised Premises, exclusive of soft costs, provided, however that Tenant may
include as permissible soft costs the cost of its equipment installed in the
Demised Premises (which shall be deemed to include equipment owned by customers
of Tenant but not at a value in excess of ONE MILLION DOLLARS), then on the
forty-third (43rd) month of the term of this Lease, the security shall be
reduced to ONE HUNDRED
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FIFTY-THOUSAND EIGHT HUNDRED TWENTY-TWO AND 21/100 ($150,822.21) DOLLARS, which
shall remain the security for the balance of the term hereof.
35. Adjacent Excavation-Shoring: If an excavation shall be made upon
land adjacent to the Demised Premises, or shall be authorized to be made, Tenant
shall afford to the person causing or authorized to cause such excavation,
license to enter upon the demises Demised Premises for the purpose of doing such
work as said person shall deem necessary to preserve the wall or the Building of
which Demised Premises form a part from injury or damage and to support the same
by proper foundations without any claim for damages or indemnity against
Landlord, or diminution or abatement of rent.
35. Successors and Assigns: The covenants, conditions and agreements
contained in this lease shall bind and inure to the benefit of Landlord and
Tenant and their respective heirs, distributees, executors, administrators,
successors, and except as otherwise provided in this lease, their assigns.
SEE RIDER ANNEXED HERETO AND MADE A PART HEREOF.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and
sealed this lease as of the day and year first above written.
LANDLORD:
73 BROAD, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: A Member
TENANT:
BRIDGEPOINT INTERNATIONAL (CANADA) INC.
By: /s/ Yves Grou
-----------------------------
Name: Yves Grou
Title: CFO
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RIDER ANNEXED TO
LEASE FOR 67 A/K/A ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
TENANT:BRIDGEPOINT INTERNATIONAL (CANADA) INC.
SPACE: PORTION OF THE 19TH AND 17TH FLOORS
--------------------------------------------------------------------------------
37. RIDER PROVISIONS PREVAIL:
If and to the extent that any of the provisions of this Rider conflict or
are otherwise inconsistent with any of the preceding printed provisions of this
Lease, or of the Rules and Regulations attached to this Lease, whether or not
such inconsistency is expressly noted in this Rider, the provisions of this
Rider shall prevail, and in case of inconsistency with said Rules and
Regulations, the Rider shall govern and control.
38. ADDITIONAL DEFINITIONS:
For the purposes of this Lease and all agreements supplemental to this
Lease, and all communications with respect thereto, unless the context otherwise
requires:
1. The term "fixed rent" or "Fixed Rent" shall mean rent at the annual
rental rate or rates provided for in Schedule B annexed hereto and made a part
hereof.
2. The term "additional rent" shall mean all sums of money, other than
fixed rent, and which become due and payable from Tenant to Landlord hereunder,
and Landlord shall have the same remedies therefor as for a default in payment
of fixed rent.
3. The term "rent" and "rents" shall mean and include fixed rent and/or
additional rent hereunder.
4. The terms "Commencement Date" and "Expiration Date" shall mean the dates
fixed in this Lease, or to be determined pursuant to the provisions of this
Lease, respectively, as the beginning and the end of the term for which the
Demised Premises are hereby leased.
5. The term "Lease Year" shall mean the twelve (12) month period commencing
on the Commencement Date and each successive twelve (12) month period
thereafter.
6. The term "Superior Lessee" or "Superior Mortgagee" shall mean any party
then holding a ground lease or mortgage encumbering the land and/or Building.
39. ESCALATION FOR INCREASE IN REAL ESTATE TAXES:
A. As used herein:
1. "Taxes" shall mean real estate taxes payable (adjusted after protest or
litigation, if any) for any part of the term of this lease on the Building
and/or the land (the "Land"), (i) any taxes which shall be levied in lieu of any
such taxes or which shall be levied on the gross rentals of the Building and/or
the Land and (ii) any special assessments against the Building and/or the Land
which shall be required to be paid during the fiscal year in respect to which
taxes are being determined; provided that in the case of special assessments,
same shall be payable in the maximum number of installments permitted by law,
subject to the then current mortgagee's consent or approval. The term "Taxes"
shall not include any income, franchise, transfer, inheritance, capital stock,
estate, profit or succession tax levied against Landlord or the Land and shall
not include any penalties, interest, or late charges.
2. "Tax Year" shall mean each period of twelve (12) months, commencing on
the first day of July of each such period, in which occurs any part of the term
of this Lease or such other period of twelve (12) months occurring during the
term of this Lease as hereafter may be duly adopted as the fiscal year for real
estate tax purposes of the City of New York.
3. "Base Tax" shall mean the Taxes for the fiscal tax year commencing July
1, 1999 and ending June 30, 2000 (the "Base Tax Year").
4. "Tenant's Proportionate Share" shall mean 1.57%.
B. If the Taxes for any Tax Year shall be greater than the Base Tax, then
Tenant shall pay as additional rent for such Tax Year, a sum equal to Tenant's
Proportionate Share of the amount by which the
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Taxes for such Tax Year are greater than the Base Tax (which amount is
hereinafter called the "Tax Payment"). Notwithstanding the foregoing and the
Base Tax Year, the first of Tenant's Tax Payments shall not be due and payable
until January 1, 2001. Should this Lease commence or terminate prior to the
expiration of a Tax Year, such Tax Payment shall be prorated to, and shall be
payable on, or as and when ascertained after, the Commencement Date or the
Expiration Date as the case may be. Tenant's obligation to pay such additional
rent and Landlord's obligation to refund pursuant to Paragraph C below, as the
case may be, shall survive the termination of this Lease. If the Taxes for any
Tax Year subsequent to the Base Tax Year, or an Installment thereof, shall be
reduced before such Taxes or such installment shall be paid, the amount of
Landlord's reasonable costs and expenses of obtaining such reduction (but not
exceeding the amount of such reduction) shall be added to Taxes. Payment of
additional rent for any Tax Payment due from Tenant shall be made as and subject
to the conditions hereinafter provided in this Article.
C. Only Landlord shall be eligible to institute proceedings to contest the
Taxes or reduce the assessed valuation of the land and Building. Landlord shall
be under no obligation to contest the Taxes or the assessed valuation of the
Land and the Building for any Tax Year and may settle any such contest on such
terms as Landlord in its sole judgment considers proper. If Landlord shall
receive a refund for any Tax Year for which a Tax Payment shall have been made
by Tenant pursuant to Paragraph B above, Landlord shall repay to Tenant, with
reasonable promptness, Tenant's Proportionate Share of such refund. If the
assessment for the Base Tax Year shall be reduced from the comparative statement
(as provided In Paragraph D below) to Tenant with respect to a Tax Year, the
amount of the Tax Payment shall be adjusted in accordance with such change and
Tenant, on Landlord's demand, shall pay any increase in additional rent
resulting from such adjustment.
D. Landlord shall furnish to Tenant, prior to the commencement of any Tax
Year, a written statement setting forth the Tax Payment for such Tax Year.
Tenant shall pay to Landlord on the first day of each month during such Tax Year
an amount equal to one-twelfth (1/12th) of the Tax Payment for such Tax Year.
If, however, Landlord shall furnish any such statement for Tax Year subsequent
to the commencement thereof, then (i) until the first day of the month following
the month in which such statement is furnished to Tenant, Tenant shall pay to
Landlord on the first day of each month an amount equal to the monthly sum
payable by Tenant to Landlord under this Paragraph in respect of the last month
of the immediately preceding Tax Year; (ii) promptly after such statement is
furnished to Tenant, Landlord shall give notice to Tenant stating whether the
installments of the Tax Payment previously made for such Tax Year were greater
or less than the Installments of the Tax Payment to be made for such Tax Year in
accordance with such statement, and (a) if there shall be a deficiency, Tenant
shall pay the amount thereof within ten (10) days after demand therefor, or (b)
if there shall have been an overpayment, Landlord shall promptly either refund
to Tenant the amount thereof or permit Tenant to credit the amount thereof
against subsequent payments under this Article; and (iii) on the first day of
the month following the month in which such statement is furnished to Tenant,
and monthly thereafter throughout the remainder of such Tax Year, Tenant shall
pay to Landlord an amount equal to one-twelfth (1/12th) of the Tax Payment shown
on such statement.
E. Landlord's failure during the lease term to prepare and deliver any tax
statements or bills, or Landlord's fallure to make a demand under this Article
or under any other provision of this Lease shall not in any way waive Landlord's
right to collect any such amounts due hereunder. Tenant's liability for the
additional rent due under this Article shall survive the expiration or sooner
termination of this Lease.
F. In no event shall any adjustment of Tax Payments hereunder result in a
decrease in the fixed rent or additional rent payable pursuant to any other
provision of the lease, it being agreed that the payment of additional rent
under this Article 39 is an obligation supplemental to Tenant's obligation to
pay fixed rent.
40. lNTENTIONALLY OMITTED.
41. FREE RENT:
Provided Tenant is not in default under the terms, covenants and conditions
of this lease beyond notice and applicable grace periods, Tenant shall have the
right to use and occupy the Demised Premises free of fixed rent for the first
six (6) months following the Commencement Date, except that Tenant shall pay to
Landlord all sums due under Article 46 hereof representing reimbursement to
Landlord for the furnishing to Tenant of electric current during said period.
Except for the free fixed rent allowance as herein provided, Tenant shall use
and occupy the Demised Premises pursuant to all of the other terms, covenants
and conditions of this lease.
42. AMENDING ARTICLE 11:
Notwithstanding the provisions of Article 11, and in modification and
amplification thereof:
A. If Tenant shall desire to assign this Lease or to sublet all or a
portion of the Demised Premises, Tenant shall submit to Landlord a written
request for Landlord's consent to such assignment or subletting, which request
shall contain or be accompanied by the following information: (i) the name and
address of the proposed assignee or subtenant; (ii) a duplicate original or
photocopy of the proposed
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assignment agreement or sublease or a true and correct photocopy of the offer
from the proposed assignee or subtenant signed by such proposed assignee or
subtenant; (iii) the nature and character of the business of the proposed
assignee or subtenant and its proposed use of the Demised Premises; and (iv)
banking, financial and other credit information with respect to the proposed
assignee or subtenant reasonably sufficient to enable Landlord to determine the
financial responsibility of the proposed assignee or subtenant.
Except as provided in paragraphs I and L hereof, Landlord shall then have
the option, solely in the case of either a subletting of the entire Demised
Premises or in an assignment of the Lease, to be exercised by written notice
given to Tenant within thirty (30) days after receipt of Tenant's request for
consent to require a surrender of the Demised Premises, upon the terms and
conditions hereinafter provided.
B. If Landlord shall exercise its option to require a surrender of the
entire Demised Premises as provided above, then upon the proposed rent
commencement date of the subletting specified in Tenant's notice to Landlord,
the Demised Premises shall be surrendered to Landlord in accordance with the
provisions of the Lease pertinent to surrender, and this Lease shall cease and
terminate on the rent commencement date of said proposed sublease with the same
force and effect as though such proposed commencement date were the Expiration
Date.
C. In lieu of effectuating a surrender as aforesaid, Landlord shall have
the option to sublet from Tenant the Demised Premises ("Leaseback Area"), and
upon Landlord exercising said option Tenant shall be deemed to have subleased
the Leaseback Area to Landlord for the term ("Backleasing or " Backlease") for
the term ("Backlease Term") of the proposed sublease referred to in Tenant's
notice to Landlord, at a sublease rent equal to the lesser of (on a per square
foot basis) (a) the fixed rent payable under this lease or (b) rent specified in
the sublease proposed by Tenant. All other terms and conditions of this Lease
shall remain applicable to the Leaseback Area, except such as by their nature or
purport are applicabie or inappropriate to such Backleaslng, or are inconsistent
wlth the further provisions of the following subsections of this paragraph,
which further provisions shall be deemed to be part of the terms, covenants, and
conditions of such Backleasing.
In addition, the following provisions shall be applicable to any
Backleasing:
(i) Landlord shall have the unqualified and unrestricted right, without
Tenant's permission or consent, to underlet the Leaseback Area in whole or in
part to any person or entity, including Tenant's proposed subtenant, for any
period or periods of time not extending beyond one (1) day before the expiration
of the Backlease Term, at such rentals and on such terms and conditions
(includlng any alterations required to render the Leaseback Area suitable for
occupancy by an undertenant of Landlord) as Landlord shall determine. Landlord
may underlet the Leaseback Area or parts thereof separately or in combinations,
as Landlord deems appropriate. The Backlease may be assigned by Landlord to any
person, including Tenant's proposed subtenant, without Tenant's consent but such
assignment shall not be effective unless the transferee executes and delivers to
Tenant a written agreement assuming all of Landlord's obligations under the
Backlease, and in such event Landlord shallcontinue to be fully responsible
jointly and severally with such assignee for all of Landlord's obligations under
the Backlease.
(ii) Tenant shall furnish to Landlord or its assignee or subtenant under
the Backlease any consents or approvals requested under the Backlease so long as
(a) Landlord furnishes such consents or approvals to Tenant and, (b) Tenant
incurs no expense by reason of any such consent or approval; and
(iii) Landlord and Tenant expressly negate any intention that any estate
created by or under the Backlease shall be merged with any other estate held by
either of them. At the request of either party, Landlord and Tenant shall
mutually execute, acknowledge, and deliver an instrument or instruments of
sublease and/or assignment to confirm and separately set forth the rent, terms,
conditions and other provisions of the Backleasing or any Leaseback Area as may
be appropriate.
(a) If Landlord exercises its option to sublet the Leaseback Area, Landlord
shall indemnify and save Tenant harmless from all non-monetary obligations under
the Lease as to the Leaseback Area only (and with regard to monetary
obligations, only to the extent of the respective sublease), and for any act or
omission to act on the part of Landlord and/or its designee.
(b) Performance by Landlord, or its designee, under a sublease of the
Leaseback Area shall be deemed performance by Tenant of any similar obligation
under this Lease and any default under any such sublease shall not give rise to
a default under a similar obligation contained in this Lease, nor shall Tenant
be liable for any default under this Lease or deemed to be in default hereunder
if such default is occasioned by or arises from any act or omission of the
tenant under such sublease or is occasioned by or arises from any act or
omission of any occupant holding under or pursuant to any such sublease.
(c) Subject to Tenant's restoration obligations pursuant to Article 3
hereof, Tenant shall not be obligated to remove any equipment, fixtures or
installations made or installed by Landlord in the Leaseback Area.
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D. If Landlord does not exercise any of its options specified above or if
the subletting is for less than the entire Demised Premises, then Landlord's
consent to a subletting of all or a portion of the Demised Premises or an
assignment of Tenant's interest in this lease shall not be unreasonably withheld
or delayed on further condition that:
1. The proposed subtenant or assignee shall not be a school of any kind, or
an employment or placement agency or governmental or quasi governmental agency,
medical office or executive recruitment office;
2. The subletting or assignment shall be to a tenant whose occupancy will
be in keeping with the dignity and character of the then use and occupancy of
the Building and whose occupancy will not be more objectionable or more
hazardous than that of Tenant herein or impose any additional burden upon
Landlord in the operation of the Building;
3. No space shall be advertised or openly promoted to the general public
utilizing the name of the Landlord or any principal or partner thereof, or
stating or otherwise characterizing a rental rate;
4. The proposed sublessee or assignee shall not be an occupant of any space
in the Building or a party who dealt with Landlord or Landlord's agent (directly
or through a broker) with respect to space in the Building during the six (6)
months immediately preceding Tenant's request for Landlord's consent;
5. Tenant shall reimburse Landlord on demand for any reasonable costs that
may be incurred in connection with any assignment or sublease, including,
without limitation, the reasonable costs of making investigations as to the
acceptability of the proposed assignee or subtenant, and reasonable legal costs
incurred in connection with the granting of any requested consent;
6. In case of a subletting, it shall be expressly subject to all of the
obligations of Tenant under this Lease and the further condition and restriction
that the subleased Demised Premises shall not be further sublet by the sublessee
in whole or in part, or any part thereof suffered or permitted by the sublessee
to be used or occupied by others, without the prior written consent of Landlord
in each instance;
7. Tenant, at Tenant's expense, shall provide and permit reasonably
appropriate means of ingress to and egress from the space sublet by Tenant; and
8. Tenant is not then in default under the terms, covenants and conditions
of this lease on Tenant's part to be observed and performed.
E. No permitted or consented to assignment or subletting shall be effective
or valid for any purpose whatsoever unless and until a counterpart of the
assignment or a counterpart or reproduced copy of the sublease shall have been
first delivered to the Landlord, and, in the event of an assignment, the Tenant
shall deliver to Landlord a written agreement executed and acknowledged by the
Tenant and such assignee in recordable form wherein such assignee shall assume
jointly and severally with Tenant the due performance of this Lease on Tenant's
part to be performed for the balance of the term of this Lease notwithstanding
any other or further assignment.
F. Any transfer by operation of law or otherwise, of Tenant's interest in
this Lease or of a fifty (50%) percent or greater interest in Tenant (whether
stock, partnership interest or otherwise) shall be deemed an assignment of this
Lease for purposes of this Article except that the transfer of the outstanding
capital stock of any corporate tenant shall be deemed not to include the sale of
such stock by persons or parties through the "over-the-counter-market" or
through any recognized stock exchange, other than those deemed "insiders" within
the meaning of the Securities Exchange Act of 1934, as amended.
G. Neither any assignment of Tenant's interest in this Lease nor any
subletting, occupancy or use of the Demised Premises or any part thereof by any
person other than Tenant, nor any collection of rent by Landlord from any person
other than Tenant as provided in Article 11 hereof, nor any application of any
such rent as provided in said Article 11 shall, in any circumstances, relieve
Tenant of its obligations fully to observe and perform the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed.
H. Notwithstanding anything to the contrary contained herein, if Landlord
shall consent to any assignment or subletting, then (i) in the case of an
assignment, if Tenant shall receive any consideration from its assignee in
connection with the assignment of this Lease, Tenant shall pay over to Landlord,
as additional rent, a sum equal to seventy-five (75%) percent of any such
consideration (including sums designated by the assignee as paid for the purpose
of Tenant's property in the Demised Premises), as shall exceed the brokerage
commissions, alterations expenses and attorneys' fees and disbursements
reasonably incurred by Tenant for such assignment or (ii) if Tenant shall sublet
the Demised Premises or any portion thereof to anyone for rents, additional
charges or other consideration which for any period shall exceed the rents
payable for the subleased space under this Lease for the same period, Tenant
shall pay Landlord, as additional rent, a sum equal to seventy-five (75%)
percent of any such excess less brokerage commissions, and attorneys'
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fees and disbursements reasonably incurred by Tenant for such subletting. All
sums payable to Landlord pursuant to subdivision (i) of this Paragraph H shall
be paid on the effective date of such assignment and all sums payable to
Landlord pursuant to subdivision (ii) of this Paragraph H shall be paid on the
date or dates such sums are actually paid to Tenant by the subtenant.
I. Tenant may, without Landlord's prior written consent, but upon prior
written notice to Landlord, assign or transfer its entire interest in this Lease
and the leasehold estate hereby created or sublet a part or the whole of the
Demised Premises to a related entity of Tenant (as hereinafter defined);
provided, however, that (i) Tenant shall not be in default after the expiration
of applicable notice and cure periods in any of the terms of this Lease; (ii)
the proposed occupancy shall not increase, in more than a de-minimis manner, the
office cleaning requirements (if any) or impose an extra burden upon the
building equipment or building services and (iii) the proposed subtenant or
assignee shall not be entitled, directly or indirectly, to diplomatic or
sovereign immunity and shall be subject to the service of process in, and the
jurisdiction of the courts of, New York State. A "related entity", as used in
this Section shall mean an entity that controls or is controlled by or is under
common control with Tenant. For the purposes hereof, "control" shall be deemed
to mean ownership of not less than fifty (50%) percent of all of the voting
stock of such corporation or not less than fifty (50%) percent of all of the
legal and equitable interest in any other business entities. Any such subletting
shall not be deemed to vest in any such related corporation or other related
entity any right or interest in this Lease or the Demised Premises nor shall it
relieve, release, impair or discharge any of Tenant's obligations hereunder.
J. Each sublease shall provide that it is subject and subordinate to this
Lease and to the matters to which this Lease is or shall be subordinate and that
in the event of default by Tenant under this Lease Landlord may, at its option,
take over all of the right, title and interest of Tenant, as sublessor, under
such sublease, and such sublessee shall, at Landlord's option, attorn to
Landlord pursuant to the then executory provisions of such sublease, except that
Landlord shall not (i) be liable for any previous act or omission of Tenant
under such sublease or, (ii) be subject to any offset not expressly provided in
such sublease which theretofore accrued to such sublease to which Landlord has
not specifically consented in writing or by any previous prepayment of more than
one month's rent.
K. Landlord acknowledges and agrees that Tenant may enter into agreements
with Tenant's customers and users of voice, video, data, computer, telco, and
other communication equipment and systems ("Collocation Agreements") that
provide for the physical location of such equipment within the Demised Premises.
Such Collocation Agreements shall not be deemed a subletting or assignment under
this lease and Landlord shall not be entitled to any fee or additional rental
therefore. Landlord further acknowledges that Tenant shall be allowed to
interconnect such equipment to Tenant's equipment within the Demised Premises
and shall also be allowed to interconnect such equipment with telco services
provided by other third party local telephone providers at no additional charge
or cost. Tenant represents and warrants that it will require such customers to
obtain appropriate property and general liability insurance covering the full
value of said customer's equipment. Tenant agrees to indemnify and hold Landlord
harmless from and against any damage or loss to such customer's equipment.
L. Tenant may, without Landlord's consent, but upon prior written notice to
Landlord, assign or transfer its entire interest in this Lease and the leasehold
estate hereby created or sublet the Demised Premises to a successor corporation
or other successor related entity of Tenant (as hereinafter defined); provided,
however, that (i) Tenant shall not be in default in any of the terms of this
Lease beyond applicable grace notice and/or cure periods, (ii) the proposed
occupancy shall not unreasonably increase the office cleaning requirements (if
any) or impose an unreasonably extra burden upon the building equipment or
building services and (iii) the proposed subtenant or assignee shall not be
entitled, directly or indirectly, to diplomatic or sovereign immunity and shall
be subject to the service of process in, and the jurisdiction of the courts of,
New York State. A "successor corporation" or other successor related entity, as
used in this Section shall mean (a) a corporation or other successor related
entity into which or with which Tenant, its corporate successors or assigns, is
merged or consolidated, in accordance with applicable statutory provisions for
the merger or consolidation of corporations or other successor related entities,
provided that by operation of law or by effective provisions contained in the
instruments of merger or consolidation, the liabilities of the corporations or
other related entities participating in such merger or consolidation are assumed
by the corporation or other entity surviving such merger or consolidation, or
(b) a corporation or entity acquiring this lease and the term hereof and the
estate hereby granted, the goodwill and all or substantially all of the other
property and assets (other than capital stock of such acquiring corporation or
entity) of Tenant, its corporate successors or assigns and assuming all or
substantially all of the liabilities of Tenant, its corporate successors and
assigns, or (c) any corporate successor or other entity to a successor
corporation becoming such by either of the methods described in subdivisions (a)
and (b) above; provided that, immediately after giving effect to any such merger
or consolidation or such acquisition and assumption, as the case may be, the
corporation or other entity surviving such merger or created by such
consolidation or acquiring such assets and assuming such liabilities, as the
case may be, shall have assets, capitalization and a net worth, as determined in
accordance with generally accepted accounting principles, at least equal to the
net worth similarly determined, of Tenant, its corporate successors or assigns,
immediately prior to such merger or consolidation or such acquisition and
assumption, as the case may be.
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43. ADDENDUM TO ARTlCLE 3:
In connection with Landlord's agents' review, modification, approval,
supervision and/or coordination of plans and specifications for any Tenant work,
Tenant shall, promptly upon demand, reimburse Landlord's agent for any
reasonable out-of-pocket fees, expenses and other charges incurred by Landlord
in connection with the review, modification and/or approval of such plans and
specifications (including, but not limited to, reasonable fees charged by
Landlord's architect or other agents for attending meetings with Tenant and/or
its agents in connection with said review or alterations).
In performing any alterations or installations Tenant shall be responsible
for the cost of compliance with all applicable governmental rules and
regulations including without limitation The Americans With Disabilities Act of
1990, Public Law 101-336 42 U.S.C. Secs. 12101 et seq. together with all
amendments thereto which may be adopted from time to time, and all regulations
and rules promulgated thereunder.
44. LiMITATION OF LIABILITY:
Tenant agrees that the liability of Landlord under this Lease and all
matters pertaining to or arising out of the tenancy and the use and occupancy of
the Demised Premises, shall be limited to Landlord's interest in the Building
and insurance and condemnation proceeds. In no event shall Tenant make any claim
against or seek to impose any personal liability upon any general or limited
partner of Landlord, or any principal of any firm or corporation that may
hereafter be or become the Landlord.
45 INDEMNIFICATIQN AND lNSURANCE:
A. Tenant shall indemnify and save harmless Landlord and its agents against
and from any and all claims arising from any work or thing whatsoever done, or
any condition created in or about the Demised Premises during the term hereof or
arising from any negligent or wrongful acts or omission of Tenant or any of its
subtenants or licensees or its or their employees, agents visitors, invitees or
contractors or subcontractors.
B. Tenant covenants to provide on or before the Commencement Date and to
keep in force during the term hereof the following insurance coverage:
(i) For the benefit of Landlord, Tenant, and all Superior Mortgagees and
Superior Lessees a comprehensive policy of liability insurance protecting and
indemnifying Landlord, Tenant all Superior Mortgagees and Superior Lessees
against claims for personal injury, death or property damage occurring upon in
or about the Demised Premises, and the public portions of the Building used by
Tenant, its employees, agents, contractors, customers, invitees and visitors
including without limitation personal injury, death or property damage resulting
from any work performed by or on behalf of Tenant, with coverage of not less
than Three Million ($3,000,000.00) Dollars combined single limit for personal
injury, death and property damage. The paid liability insurance shall include a
broad form contractual liability endorsement protecting Tenant against loss
arising out of liabilities assumed by Tenant by indemnity or otherwise.
(ii) Fire and extended coverage in an amount adequate to cover the cost of
replacement of all personal property, fixtures, furnishing and equipment,
including Tenant's work, located in the Demised Premises.
Tenant waives all rights (to the extent covered by insurance) of recovery
against Landlord or Landlords, agents, employees or other representatives, for
any loss, damages or injury of any nature whatsoever to all personal property,
fixtures, furnishing and equipment, including Tenant's installations. Tenant
shall obtain from Tenant's insurance carrier and will deliver to Landlord
evidence of the Waiver of Subrogation Rights.
On or before the Commencement Date, Tenant shall deliver to Landlord
duplicate originals of the aforesaid policies or certificates evidencing the
aforesaid insurance coverage, and renewal policies or certificates shall be
delivered to Landlord at least thirty (30) days prior to the expiration date of
each policy with proof of payment of the premiums thereof.
C. All policies of insurance procured by Tenant shall be issued in form
reasonably acceptable to Landlord by insurance companies with general policy
holder's ratings of not less than A and in a Financial Size Category of not less
than XII, as rated in the most current available "Best's" insurance reports, and
licensed to do business in the State of New York and authorized to issue such
policy or policies;
D. All insurance procured by Tenant shall be issued in the names and for
the benefit of Landlord (and each member thereof in the event Landlord is a
partnership or joint venture), Landlord's managing agent, Tenant, and, unless
Landlord otherwise requests, any Superior Lessee and the Superior Mortgagee, as
their respective interests may appear and shall contain an endorsement that each
of Landlord, the Superior Lessee and Superior Mortgagee, although named as an
insured, nevertheless shall be entitled to recover under said policies for any
loss or damage occasioned to it, its agents, employees, contractors, directors,
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shareholders, partners and principals (disclosed and undisclosed) by reason of
the negligence of Tenant, its servants, agents, employees, and contractors. In
the case of insurance against damage by fire or other casualty, the policy or
policies shall provide that loss shall be adjusted with Landlord, and shall be
payable to Landlord and/or the Superior Mortgagee and/or Superior Lessee as
directed by the Landlord, to be held and disbursed by Landlord and/or the
Superior Mortgagee under a standard mortgage clause;
E. All policies of insurance procured by Tenant shall contain endorsements
providing as follows: (i) that such policies may not be materially changed,
amended, reduced, canceled (including for non-payment of premium) or allowed to
lapse with respect to Landlord or the Superior Lessor or the Superior Mortgagee
except after thirty (30) days' prior notice from the insurance company to each,
sent by registered mail: and (ii) that Tenant shall be solely responsible for
the payment of all premiums under such policies and that Landlord or any other
party named therein shall have no obligation for the payment thereof
notwithstanding that Landlord or certain other parties may be named as an
insured. Each party hereby releases the other party (which term as used in this
paragraph includes the employees, agents, officers and directors of the other
party) from all liability whether for negligence or otherwise, in connection
with loss covered by any insurance policies which the releasor carries with
respect to the Demised Premises or any interest or property therein or, thereon
(whether or not such insurance is required to be carried under this Lease), but
only to the extent that such loss is collected under said insurance policies.
Such release is also conditioned upon the inclusion in the policy or policies of
a provision whereby any such release shall not adversely affect said policies or
prejudice any right of the releasor to recover thereunder. Each party agrees
that its insurance policies, aforesaid, will include such a provision so long as
the same shall be obtainable without extra cost, or if extra cost shall be
charged therefor, each party shall advise the other thereof of the amount of the
extra cost, and the other party, at its election, may pay the same, but shall
not be obligated to do so.
46. ELECTRIC CURRENT:
A. Definitions
For purposes of this Article 46, the following term shall have the
following meanings:
The term "Landlord's Cost", shall mean, the then going cost per kilowatt
hour and kilowatt to Landlord of purchasing electricity, from the Electricity
Providers (herein defined) as adjusted from time to time for fuel adjustment
charges, rate adjustment charges, sales tax, and/or any other factors.
The term "Electricity Provider" shall mean any utility and any other energy
services company or companies that is supplying electric energy and capacity
including but not limited to generation, transmission, distribution and other
ancillary services, to the building and the Demised Premises, or directly to
Tenant, regardless of whether such Electricity Provider generates its own
electricity at or near the building or delivers such electricity over
transmission and distribution equipment owned by the Electricity Provider, the
local utility or any other Electricity Provider. Landlord may purchase such
services from more than one Electricity Provider.
B. Method of Furnishing Electric Current to the Demised Premises
Tenant agrees that Landlord, that subject to Paragraph 5 hereof, shall
furnish electricity to Tenant on a "submetering" basis.
1. Submetering: Landlord shall, at Tenant's sole cost and expense,
install a meter or meters (collectively the "Submeter") at a location
designated by Landlord. If and so long as electric current is supplied
by Landlord to the Demised Premises or other Tenant controlled areas
to service Tenant's equipment and the air conditioning units and other
appurtenant equipment contained therein or elsewhere in the Building,
Tenant will pay Landlord or Landlord's designated agent, as additional
rent for such service, the amounts, as determined by the Submeter for
the purpose of measuring Tenant's consumption and demand. Such service
shall be computed at Landlord's Cost, plus a fee (the "Overhead
Charge") equal to twelve (12%) percent of such charge to Landlord,
representing administrative/overhead costs to Landlord. The amounts
computed from the Submeter together with the Overhead Charge are
herein collectively called the "Electricity Additional Rent". Landlord
may from time to time increase the Electricity Additional Rent based
upon any increase in Landlord's Cost. Where more than one meter
measures the electric service to Tenant (including such electric
energy as is consumed in connection with the operation of the
ventilation and air conditioning equipment servicing the Demised
Premises), the electric service rendered through each meter may be
computed and billed separately as above set forth. Bills for the
Electricity Additional Rent (the "Bills") shall be rendered to Tenant
at such time as Landlord may elect. In the event that such Bills are
not paid within thirty (30) days after the same are rendered, Landlord
may upon ten (10) days additional notice and Tenant's failure to pay
the Bills within said ten (10) day period, discontinue the service of
electric current to the Demised Premises without releasing Tenant from
any liability under this Lease and without Landlord or Electrical
Providers incurring any liability for any damage or loss sustained by
Tenant as the result of
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such discontinuance. If any tax is imposed upon Landlord's receipts
from the sale or resale of electric current to Tenant by any Federal,
state or municipal authority, Tenant agrees that, unless prohibited by
law, Tenant's Percentage of such taxes shall be passed on to, and
included in the ▇▇▇▇ of, and paid by Tenant to Landlord as additional
rent.
2. Tenant agrees not to connect any additional electrical equipment of
any type to the building electric distribution system, without
Landlord's prior written consent, which consent shall not be
unreasonably withheld. Any additional risers, feeders, or other
equipment proper or necessary to supply Tenant's electrical
requirements, upon written request of Tenant, will be installed by
Landlord, at the sole cost and expense of Tenant, if, 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, repair or expense or interfere with or
disturb other tenants or occupants.
3. Tenant's use of electric current in the Demised Premises shall not at
any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Demised Premises which will be
335 amps 208 volt 3 phase service upon occupancy of the Demised
Premises by Tenant. At the expense and wrltten request of Tenant,
Landlord shall provide additional 208 volt 3 phase service at $350.00
per each additional amp. In addition, the electric current serving the
Demised Premises can be "stepped up" to 480 volt service at Tenant's
sole cost and expense by the installation of a transformer in the
basement or sub-basement of the Building. Accordingly, upon Tenant's
request, Landlord shall provide at the then going rental rate, space
in the basement or sub-basement of the Building for the installation
of Tenant's transformer and other ancillary equipment used in
connection therewith. In such event, Tenant's Proportionate Share (as
defined in Article 39) will be adjusted to reflect the addition of the
besement space for Tenant's transformer.
Tenant shall not make or perform or permit the making or performing
of, any alterations to wiring, installations or other electrical
facilities in or serving the Demised Premises without the prior
written consent of Landlord in each instance (which shall not be
unreasonably withheld). Should Landlord grant any such consent, all
additional risers or other equipment required therefor shall be
installed by Landlord and the cost thereof shall be paid by Tenant
upon Landlord's demand.
4. Neither Landlord nor its Electrical Providers shall be liable in any
way to Tenant for any failure or defect in the supply or character of
electric energy furnished to the Demised Premises by reason of any
requirement, act or omission of the utility serving the building with
electricity or for any other reason except if attributable to the
negligence of Landlord or any of its agents or a breach of its
obligations under this Lease. Landlord shall use reasonable efforts to
minimize interference with Tenant's use and occupancy of the Demised
Premises as a result of any such failure, defect or interruption or,
or change in the supply, character and/or quantity of, electric
service, provided that Landlord shall have no obligation to employ
contractors or labor at overtime or other premium pay rates or to
incur any other overtime costs or additional expenses whatsoever.
5. Landlord reserves the right to discontinue furnishing electric energy
to Tenant at any time upon ninety (90) days' written notice to Tenant
if Landlord discontinues furnishing electricity to at least 2/3rds of
the other tenants (including Tenant and determined by rentable areas)
or is required to do so under applicable Legal Requirements, and from
and after the effective date of such termination, Landlord shall no
longer be obligated to furnish Tenant with electric energy, provided,
however, that such termination date may be extended for a time
reasonably necessary for Tenant to make arrangements to obtain
electric service directly from the Electrical Provider approved by
Landlord. If Landlord exercises such right of termination, this Lease
shall remain unaffected thereby and shall continue in full force and
effect and thereafter Tenant shall diligently arrange to obtain
electric service directly from the Electrical Provider approved by
Landlord servicing the building, and may utilise the then existing
electric feeders, risers and wiring serving the Demised Premises to
the extent available and safely capable of being used for such purpose
and only to the extent of Tenant's then authorized connected load.
Landlord shall be obligated to pay no part of any cost required for
Tenant's direct electric service.
6. Notwithstanding the foregoing, all equipment which may be required to
obtain electricity of substantially the same quantity, quality and
character shall be installed by Landlord at the sole cost and expense
of (i) Landlord, if Landlord voluntarily discontinues such service, or
(ii) Tenant, if such discontinuance arises out of Legal Requirements
or acts or omissions of Tenant. Provided Tenant is not in default
under the Lease beyond applicable notice and grace periods, Landlord
will not voluntarily discontinue furnishing electricity to Tenant
until Tenant is to receive electricity directly from the Electricity
Provider servicing the Building.
-20-
7. In the event of a temporary discontinuance of furnishlng electric
energy, Landlord shall provide Tenant thirty (30) days' notice (or
such shorter notice period as may be reasonable under the
circumstances) prior to voluntarily discontinuing such service, and
Tenant shall have the right to turn on and use its Generator during
such time that Landlord's furnishing of electric energy is temporarily
suspended.
8. Notwithstanding any provisions of this Article 46, in no event shall
(a) the fixed rent under this Lease be reduced by virtue of this
Article 46 except as specifically provided herein and (b) the cost to
Tenant for electric energy be less than 112% of Landlord's Cost
47. BROKER:
Landlord and Tenant represent and warrant to the other that neither
consulted nor negotiated with any broker or finder wlth regard to the rental of
the Demised Premises from Landlord other than Newmark & Company Real Estate,
Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLC I (the "Broker") Landlord and Tenant agree
to indemnify and hold the other harmless from any claims, suits, damages, costs
and expenses suffered by the other by reason of any breach of the foregoing
representation. Landlord shall pay any commission due both brokers in
accordance with Landlord's separate agreement wlth said brokers.
48. BINDING EFFECT:
It is specifically understood and agreed that this Lease may be offered to
Tenant for signature by the leasing or managing agent and is subject to
Landlord's acceptance and approval, and that Tenant shall have affixed its
signature hereto with the understanding that such act shall not, in any way,
bind Landlord or its agent until such time as this Lease shall have been
approved and executed by Landlord and delivered to Tenant.
49. MISCELLANEOUS:
A. Without incurring any liability to Tenant, Landlord may upon one (1) day
prior notice (written or oral) if practicable under the circumstances, permit
access to the Demised Premises and open the same, whether or not Tenant shall be
present, upon demand of any receiver, trustee, assignee for the benefit of
creditors, sheriff, ▇▇▇▇▇▇▇▇ or court officer entitled to, or reasonably
purporting to be entitled to, such access for the purpose of taking possession
of, or removing, Tenant's property or for any other lawful purpose (but this
provision and any action by Landlord hereunder shall not be deemed a recognition
by Landlord that the person or official making such demand has any right or
interest in or to this Lease, or in or to the Demised Premises), or upon demand
of any representative of the fire, police, Building, sanitation or other
department of the city, state or federal governments.
B. No receipt of monies by Landlord from Tenant, after any reentry or after
the cancellation or termination of this Lease in any lawful manner, shall
reinstate the lease; and after the service of notice to terminate this Lease, or
after the commencement of any action, proceeding or other remedy, Landlord may
demand, receive and collect any monies due, and apply them on account of
Tenant's obligations under this Lease but without in any respect affecting such
`notice, action, proceeding or remedy, except that if a money judgment is being
sought in any such action or proceeding, the amount of such judgment shall be
reduced by such payment.
C. If Tenant is in arrears in the payment of fixed rent or additional rent,
Tenant waives its right, if any, to designate the items in arrears against which
any payments made by Tenant are to be credited and Landlord may apply any of
such payments to any such items in arrears as Landlord, in its sole discretion,
shall determine, irrespective of any designation or request by Tenant as to the
items against which any such payments shall be credited.
D. No payment by Tenant nor receipt by Landlord of a lesser amount than may
be required to be paid hereunder shall be deemed to be other than on account of
any such payment, nor shall any endorsement or statement on any check or any
letter accompanying any check tendered as payment be deemed an accord and
satisfaction and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such payment due or pursue any other
remedy in this Lease provided.
E. In the event Tenant claims or asserts that Landlord has violated or
failed to perform a covenant of Landlord not to unreasonably withhold or delay
Landlord's consent or approval, or in any case where Landlord's reasonableness
in exercising its judgment is in issue, Tenants sole remedy shall be an action
for specific performance, declaratory judgment or injunction, and in no event
shall Tenant be entitled to any money damages for a breach of such covenant, and
in no event shall Tenant claim or assert any claims in money damages in any
action or by way of set-off, defense or counterclaim, and Tenant hereby
specifically waives the right to any money damages or other remedies, provided,
however, that Tenant also shall have the right to determine any dispute between
Landlord and Tenant arising under this Lease as to whether Landlord has violated
or failed to perform a covenant of Landlord not unreasonably withhold or delay
-21-
Landlord's consent or in any other case under where Landlord's reasonableness in
exercising its judgment is in issue by expedited arbitration in the City of New
York in accordance with the provisions of this Section. Within ten (10) Business
Days next following the giving of any notice by Tenant to Landlord stating that
it wishes such dispute to be so determined, Landlord and Tenant shall each give
notice to each other setting forth the name and address of an arbitrator
designated by the party giving notice. If either party shall fail to give notice
of such designation within said ten (10) Business Days, then the arbitrator
chosen by the other side shall make the determination alone. The two arbitrators
shall endeavor to make a determination. If the two arbitrators shall fail to
agree upon a determination within five (5) Business Days then the two
arbitrators shall designate an impartial third arbitrator. If the two
arbitrators shall fail to agree upon the designation of a third arbitrator
within five (5) Business Days after the decision is made to designate a third
arbitrator, then either party may apply to the Supreme Court of the State of New
York or to any other court having jurisdiction, requesting the designation of
such arbitrator. All arbitrators shall be persons who shall have had at least
ten (10) years continuous experience in the business of managing real estate or
acting as real estate agents or brokers in the Borough of Manhattan. The three
arbitrators shall conduct such hearings as they deem appropriate, making their
determination in writing and give notice to Landlord and Tenant of their
determination as soon as practicable and if possible within five (5) Business
Days after the designation of the third arbitrator; the concurrence of any two
of said arbitrators shall be deemed to be the determination of such arbitrators.
The sole question to be determined shall be whether or not Landlord has
unreasonably withheld or delayed its consent or approval, and the sole remedy
shall be the determination that such consent or approval must be granted. Each
party shall pay its own counsel fees and expenses, if any, in connection with
any arbitration under this Section including the expenses and fees of any
arbitrator selected by it in accordance with provisions of this Section, and the
parties shall share all other expenses and fees of any such arbitration. The
arbitrators shall be bound by the provisions of this Lease, and shall not add
to, subtract from or otherwise modify such provisions.
F. If payment of any Fixed Rent or Additional Rent shall not have been paid
by the fifth day after the date on which such amount was due and payable on more
than one occasion in any 12 month period, then in addition to and without
waiving or releasing any other remedies of Landlord, a late charge of four cents
($.04) for each dollar overdue shall be payable on demand by Tenant to Landlord
as damages for Tenant's failure to make prompt payment. In default of payment of
any late charges, Landlord shall have (in addition to all other remedies) the
same rights as provided in this Lease for nonpayment of Fixed Rent. Nothing in
this Section contained and no acceptance of late charges by Landlord shall be
deemed to extend or change the time for payment of Fixed Rent or Additional
Rent.
G. If the Expiration Date or the date of sooner termination of this Lease
shall fall on a day which is not a business day, then Tenant's obligations
pursuant to Article 22 hereof shall be performed on or prior to the next
succeeding business day. Tenant expressly waives, for itself and for any person
claiming through or under Tenant any rights which Tenant or any such person may
have under the provisions of Section 2201 of the New York Civil Practice Law and
Rules and of any similar or successor law of same import then in force, in
connection with any holdover proceedings which Landlord may institute to enforce
the provisions of this Lease. If the Demised Premises are not surrendered upon
the termination of this Lease, Tenant hereby indemnifies Landlord against
liability resulting from delay by Tenant in so surrendering the Demised
Premises, including any claims made by any succeeding tenant or prospective
tenant founded upon such delay. In the event Tenant remains in possession of the
Demised Premises after the termination of this Lease without the execution of a
new lease, Tenant, at the option of Landlord, shall be deemed to be occupying
the Demised Premises as a tenant from month to month, at a monthly rental equal
to 300% times the fixed rent and additional rent payable during the last month
of the term subject to all of the other terms of this Lease insofar as the same
are applicable to a month-to-month tenancy. Tenant's obligations under this
Paragraph shall survive the expiration or sooner termination of this Lease.
H. This Lease shall be governed in all respects by the laws of the State of
New York. Tenant hereby specifically consents to jurisdiction in the State of
New York in any action or proceeding arising out of this Lease and/or the use
and occupation of the Demised Premises.
I. Tenant shall not cause or permit any Hazardous Materials (hereinafter
defined) to be used, stored, transported, released, handled, produced or
installed in, on or from the Demised Premises or the Building in violation of
applicable law. As part of Landlord's Work, but on or prior to execution of this
Lease by Landlord, Landlord shall deliver an ACP-5 Certificate for the Demised
Premises to Tenant. "Hazardous Materials", as used herein, shall mean any
flammables, explosives, radioactive materials, hazardous wastes, hazardous and
toxic substances or related materials, asbestos or any material containing
asbestos, or any other substance or material included in the definition of
"hazardous substances", "hazardous wastes", "hazard materials", "toxic
substances", "contaminants" or any other pollutant, or otherwise regulated by
any Federal, state or local environmental laws, ordinance, rule or regulation
including, without limitation, the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, the Hazardous Materials
Transportation Act, as amended, the Resource Conservation and Recovery Act, as
amended, and in the regulations adopted and publications promulgated pursuant to
each of the foregoing. In the event of a violation of any of the foregoing
provisions of this Paragraph, Landlord may, upon ten (10) days prior written
notice, take all remedial action deemed necessary by Landlord to correct such
condition and Tenant shall reimburse Landlord for the cost thereof, upon demand,
as additional rent. At lease one (1) year prior to the
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Expiration Date, Tenant shall identify and forward written notice of any
Hazardous Materials brought into the Demised Premises by Tenant or any other
party claiming through or under Tenant.
J. The individual signatories to this lease each represent that they are
duly authorized to execute this document. Upon Landlord's request, Tenant will
execute and deliver to Landlord a Secretary's Certificate setting forth the
authority of the officer executing the lease by and on Tenant's behalf.
K. Any representations made by any other party other than Landlord itself
shall not be binding upon Landlord.
L. To the extent that Tenant required use of any riser space i.e.,
vertical or horizontal running of piping, conduit, wire or fiber optics whether
or (not encased in conduit) the following charges (subject to adjustment) shall
apply.
1. $2.00 per linear foot per annum for 2" conduits.
2. $4.00 per linear foot per annum for 4" conduits.
3. $6.00 per linear foot per annum for 6" conduits.
The aforesaid charges shall increase 3% per annum.
50. DOWNTOWN TAX APPLICATION:
Landlord and Tenant hereby acknowledge and agree that Tenant, at Tenant's
sole cost and expense, may make application (the Application") after the
Commencement Date of this Lease to the appropriate governmental authority in
order to receive certain tax abatements (the "Tax Abatement") for the Building
pursuant to "The Lower Manhattan commercial Revitalization Program") ("the
Program") created by Title 4A of Article 4 of the real Property Tax Law,
ss.ss.499-a et. seq. (the "Law"); provided, however, Tenant shall not make the
Application (nor continue with its being processed) unless all of the following
are and remain true and correct, (and all of which are in any event hereby
agreed to and acknowledged by Tenant), (whereby, if all of the following are and
remain true and correct, Landlord shall cooperate with Tenant in Tenant's
attempt to obtain the Tax Abatement for the Building by joining in the
Application): (i) Tenant shall file the Application, and all related
documentation in accordance with all time frames and schedules as may be
required by the law (and all related rules and regulations) and the Program;
(ii) Tenant meets all eligibility requirements for the Program with respect to
the Premises (and, in this regard, upon request, Tenant shall deliver to
Landlord upon demand all information and documentation requested by Landlord
with respect to the Program, and Tenant's eligibility thereunder with respect to
the Premises); (iii) Landlord shall incur no cost or expense in connection with
the Application or the Tax Abatement (as well as in connection with its being
obtained); (iv) Tenant shall subject to the foregoing reimburse Landlord for all
of Landlord's reasonable costs and expenses incurred in connection with the
Application (and related documentation) and the Tax Abatement and its being
obtained) (including, without limitation, all of Landlord's attorneys' and
consultants' costs, expenses and fees in connection with the review of any
documentation concerning the Application (and related documentation) and the Tax
Abatement the amount of all administrative charges or fees which may be imposed
by the Department of Finance of the City of New York in connection with the
Application (and all related documentation), and in connection with ongoing
compliance related to the Program, as well as all such costs, expenses and fees
which may incurred in attending any and all hearings and/or meetings), which
reimbursement shall be payable to Landlord by Tenant on demand; (v) Landlord has
not made, nor will Landlord be making, any representations or warranties
whatsoever regarding the feasibility of obtaining the Tax Abatement (or any
facts or circumstances related thereto), or whether any Tax Abatement which may
be received will subsequently be reduced or eliminated, or regarding Tenant's
eligibility for receiving the Tax Abatement, or whether this Lease properly
conforms with requirements imposed by the Program, or whether the appropriate
expenditures as may be imposed by the Program will be made at the Premises and
the Building (and Landlord is not required to perform any other work other than
as may expressly be set forth in this Lease other than minor non structural work
costing less than Five Hundred ($500.00) Dollars; (vi) all information which may
be or is set forth on the Application as well as on all related documentation
shall be true and correct in all respects and in this regard, Tenant shall
indemnify and hold Landlord harmless from any and all claims, losses expenses or
liabilities in connection with any inaccuracy; (vii) Landlord shall incur no
liability whatsoever (except to the extent caused by Landlord's negligence or
breach of its obligations under this Lease) in connection with the Application,
or any other related documentation, the Program, or the Tax Abatement (or in
connection with its being obtained) and, in this regard, Tenant shall indemnify
and hold Landlord harmless from any and all claims, losses expenses or
liabilities in connection therewith; and (viii) Tenant complies, and continues
to comply, at all times with all of the provisions and requirements, of the
Program, including without limitation, all eligibility requirements together
with the rules promulgated thereunder and, in this regard, Tenant shall
indemnify and hold Landlord harmless from any claims, losses, expenses or
liabilities in connection with Tenant's failure to so comply.
Notwithstanding the above, Landlord, upon written request made by Tenant,
agrees to join with Tenant in signing the Application (to the extent Landlord is
required by the Program to do so), provided, however, Landlord shall not be
required to join in if any of the terms or conditions set forth above are untrue
in any respect, or if Tenant is in default under this Lease (and, in this
regard, to the extent Landlord does so
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join in it shall not be deemed to be an acknowledgment by Landlord that any of
the applicable provisions or requirements set forth above are necessarily true,
nor shall the joining in ever be deemed to be a waiver of any such provisions or
requirements).
Provided all of the terms and conditions set forth above in this Article
are fully complied with by Tenant and Tenant is not otherwise in default under
this Lease (including, without limitation, (as provided in this Paragraph
above), then, in such event, Landlord shall provide Tenant with a credit (the
"Tax Credit") against the Tax Amount payable by Tenant under this Lease in an
amount for any applicable Tax Year occurring during the Term which equals (but
does not exceed) the full amount of such particular Tax Year of the Tax
Abatement which is exclusively attributable to the Premises pursuant to the
Program and which is actually received by Landlord (with such amount being
called the "Actual Benefits").
Tenant shall pay to Landlord upon demand, as Additional Rent, the amount of
the Actual Benefits that have been credited against the Tax Amount becoming due
hereunder if such Tax Abatement related to the Actual Benefit is thereafter
revoked for any reason caused by Tenant (such as, for example, and without
otherwise limiting, as a result of the exercise by Tenant of a right to
terminate this Lease, or assignment of this Lease or subleasing of the Premises,
or for Tenant's failure to meet and continue to meet any of the eligibility
requirements under the Program or Tenant's breach under this Lease) together
with any interest at the highest rate allowed by law commencing upon the date
such payment is to be made, along with all penalties which may be imposed
against Landlord in connection with such Actual Benefits.
In addition, as set forth in the Law, all abatements granted under the
Program with respect to the Building pursuant to the Program will automatically
be revoked (without notice) if, during the benefit period, real estate taxes or
water or sewer charges or other lienable charges are unpaid for more than one
year, unless such delinquent amounts are paid as provided in the Law. Subject to
any protest rights Landlord may have, Landlord will pay such charges so as to
avoid a forfeiture of the tax benefits hereunder.
The provisions of this Article shall survive the expiration or earlier
termination of this Lease.
Pursuant to and in connection with the foregoing, Landlord and Tenant agree
to the following:
(1) Borough of ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇
(2) Floor Numbers 19 and 17.
(3) Lease execution date as of: Jan 18, 2000.
(4) Lease commencement date: Lease execution date.
(5) Rent commencement date: Six (6) months after Commencement Date.
(6) Lease expiration date: last day of the 126th calendar month
following the Commencement Date.
(7) Tenant's Proportionate Share: 1.57%.
Landlord hereby informs the Tenant that:
(1) An application for abatement of real property taxes will be made
for the premises;
(2) The rent including amounts payable by the Tenant for real
property taxes will accurately reflect any abatement of real
property taxes;
(3) Certain stipulated sums must be spent on improvements to the
Demised Premises and the common areas, the amount being dependent
upon the length of the lease and whether it is a new, renewal or
expansion lease.
(4) All abatements granted will be revoked if, during the benefit
period, real estate taxes, water or sewer charges or other
lienable charges are unpaid for more than one (1) year, unless
such delinquent amounts are paid as provided in the relevant law.
Notwithstanding anything set forth herein to the contrary, nothing set
forth in this Article 50 shall impose any obligation on Landlord to make any
alterations or improvements to the Demised Premises, common areas, or any other
part of the Building.
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51. LANDLORD'S CONTRIBUTION:
A. In consideration of Tenant performing all of the work (other than
Landlord's Work pursuant to Article 52) necessary for its occupancy of the
Demised Premises and for Tenant completing such work therein, Landlord agrees
that if Tenant shall have submitted to Landlord (a) a detailed itemization of
the leasehold improvements installed and completed by Tenant in the Demised
Premises, i.e., exclusive of soft costs except as hereinafter provided, (b)
together with receipted paid bills therefor, (c) partial and final lien waivers
to the effect that there has not been filed with respect to the Building and/or
the Demised Premises or any part thereof or upon Tenant's leasehold interest
therein any vendor's, mechanic's, laborer's, materialman's or other lien which
has not been discharged of record, Landlord shall reimburse or cause to be
reimbursed to Tenant an amount equal to the lesser of (i) the actual cost of the
leasehold improvements performed and completed by Tenant in the Demised Premises
or (ii) ONE HUNDRED SEVENTY-TWO THOUSAND ONE HUNDRED TWENTY AND 00/100
($172,120.00) DOLLARS, representing "Landlord's Contribution" to such work it
being understood and agreed that Landlord's Contribution shall not exceed the
sum of ONE HUNDRED SEVENTY-TWO THOUSAND ONE HUNDRED TWENTY AND 00/100
($172,120.00) DOLLARS and that all costs and expenses in excess of said sum
shall be borne solely by Tenant.
52. LANDLORD'S WORK:
Notwithstanding that the Commencement Date shall occur on the date of
execution and delivery of this Lease by Landlord and Tenant, Landlord shall, on
or prior to the date which is sixty (60) days following the Commencement Date
(except for item 3 below which may be completed after such date), perform the
following work ("Landlord's Work") to prepare the Demised Premises for Tenant's
occupancy.
1. Provide means to tie into the Building Class E system;
2. Deliver the Demised Premises demolished and in broom clean condition;
3. Provide any demising walls for the hallway of the 19th Floor of the
Building and substantially complete a Building standard common
corridor on the 19th floor, within sixty (60) days following
substantial completion of Tenant's installation and Tenant's occupancy
of the Demised Premises; provided that Landlord shall commence and
diligently pursue construction of the common corridor immediately
after substantial completion of Tenant's installations and occupancy
of the Demised Premises; and
4. Deliver an ACP-5 for the Demised Premises.
53. GENERATOR USE:
A. Subject to all applicable provisions of the Lease, Tenant hereby leases
from Landlord certain space on the 17th floor of the Building, as delineated on
the Generator Plan attached hereto as Exhibit A-1, and install in a portion of
said floor a diesel powered electric generator having a capacity of up to 350 KW
and other related equipment including mountings and support (collectively the
"Generator"). Landlord reserves the right to relocate the space for the
Generator prior to the installation thereof by Tenant. The Generator and all
equipment appurtenant thereto and all code mandated requirements shall be
installed by Tenant at its sole cost and expense free and clear of all liens.
Tenant shall have the right to connect Generator to the Building's fuel
supply system as designated by Landlord and Landlord shall reserve ample fuel as
reasonable determined by Landlord for Tenant's use from such fuel tank for the
Generator. Tenant shall pay to Landlord a one time connection fee of $60.00
multiplied by the number of kilowatts of Generator capacity as additional rent
upon demand by Landlord. In addition, Tenant shall reimburse Landlord for
Landlord's actual cost for diesel fuel consumed by Generator as indicated on a
meter to be installed by Tenant and maintained by Tenant at its expense at a
point designated by Landlord along the fuel line connecting such fuel tank to
the Generator, Tenant shall also pay Landlord's charge for overhead and
supervision in connection with the foregoing, in an amount equal to 12% of
Tenant's payment for diesel fuel consumption by the Generator. Tenant shall
reimburse Landlord promptly upon demand for all fuel lines, pumps, piping meters
and other equipment or installations necessary for the operation of Tenant's
Generator. Subject to the rights of other tenants or occupants in the Building
Landlord shall make available to Tenant reasonable access to the 17th Floor (or
other floor designated by Landlord) for the construction, installation,
maintenance, repair operation and use of the Generator. If Tenant requires riser
space for electrical conduits connecting the Generator to the Demised Premises
or for fuel lines connecting the Generator to the Building fuel supply system
then subject to availability of riser space in the Building, (it being
understood and agreed that any riser space in the Building cannot be reserved by
Tenant for future purchase), Landlord shall make such riser space, as designated
by Landlord, available to Tenant subject to the conduit rental charges
consistent with the Buildings then published payment schedule (i.e., presently
as follows: $2.00 per linear foot per annum for 2 inch conduits $4.00 per linear
foot per annum for 4 inch conduits; and $6.00 per linear foot per annum for 6
inch conduits, subject to the 3% per annum increase). References herein to the
Generator shall be deemed to include such riser and the electrical conduits
appurtenant thereto. Tenant's Generator shall be treated for all purposes of
this Lease as a Tenant alteration subject to the provisions of Article 3 hereof.
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1. Landlord shall provide an area around the Generator (to be subject to
the payment of the license fee hereinbefore provided) to include code
required and maintenance clearances around equipment, controls,
electrical boxes, conduit, piping, fuel system components, etc.;
2. Steel dunnage or reinforcement to be installed by Tenant and may be
attached to structural supports spanning from base building structural
members as necessary to support the generator system;
3. Landlord to allow Tenant to install generator support steel as
required, fasten to structural members of roof and to perform
waterproofing, if necessary. Tenant not responsible for leaks in roof
due to age of existing roof and/or ability of existing roofing to
accept new waterproofing repair;
4. Intentionally Omitted
5. All maintenance and repairs to the Generator shall be performed by
Tenant at Tenant's sole cost and expense; and
6. Tenant acknowledges and agrees that Landlord has advised Tenant that
there will be certain other Building tenants or telecommunications
suppliers installing generators and to facilitate orderly installation
of all generators, Tenant shall schedule in advance with Landlord as
to when it intends to install the Generator. The installation of the
Generator shall be at a time or times which shall not interfere with
other tenants and/or telecommunications suppliers installing their
respective generators and otherwise in a time and manner reasonably
satisfactory to Landlord.
B. Tenant shall also have the ability, subject to availability, at its sole
cost and expense, to connect to a Building owned generator ("House Generator")
on the 17th Floor providing a minimum of 200 amps, 2,208 volts of electrical
power. In consideration of connecting to the House Generator, Tenant shall pay
an amount equal to $125.00 for each amp of electrical power provided by the
House Generator, per annum. Additionally, Tenant shall pay all costs and
expenses incurred in connection with Tenant's use of the House Generator,
including without limitation, payment of conduit rental fees pursuant to
paragraph 49L hereof and payment for fuel consumption pursuant to paragraph A
ofthis Article 53 (i.e., connection fee and overhead charge). Furthermore,
Tenant's connection to the House Generator shall be for a term of not less than
one year.
54. HEATING, VENTILATlON AND AIR CONDITIONING:
Subject to Article 3 hereof, Tenant shall install its own internal HVAC
system (air, water or glycol cooled) in the Demised Premises (i.e., not on any
other portion of the Building) and/or condensers to service the Demised Premises
it being agreed that Landlord shall have no responsibility to furnish any HVAC
to the Demised Premises. Furthermore, Landlord shall have no responsibility
regarding repair, maintenance or replacement of Tenant's internal HVAC unit, all
such repairs, maintenance and service being Tenant's sole responsibility. At the
Tenant's option Tenant, may have system fully enclosed by partition walls.
Tenant's HVAC system may be vented outdoors (at Tenant's sole cost and expense)
by installing Building standard louvers and replacing windows on the Beaver
Street and ▇▇▇▇▇▇▇▇ Street sides of the Building in accordance with the standard
quality and quantity adopted by Landlord for the Building.
55. ROOF R1GHTS:
Subject to (i) availability of space on the roof of the Building, (ii)
review and approval of Tenant's plans by Landlord, (iii) the then applicable
rental rates for space on the roof (which is presently $2,500.00 per month
subject to a 3% increase per annum), (iv) to all applicable legal requirements,
(v) Article 3 hereof, (vi) the Building Rules and Regulations and (vii) to the
provisions of this Article 55, Tenant, at its sole cost and expense, may install
upon the roof of the Building in a specific location designated by Landlord in
its sole discretion (the "Roof Location"), one (1) G.P.S. antennae ("Tenant's
Telecommunications Equipment"). Tenant may run in, and through the Building's
shafts reasonably approved by Landlord such lines and cables (collectively, the
"Connecting Equipment") necessary for the operation of Tenant's
Telecommunications Equipment from the Roof Location to the Demised Premises.
Additionally, and subject to conduit charge payments, as specified in Article
49L herein the rights afforded Tenant pursuant to the preceding sentence are
subject to and are granted upon the express conditions that (1) if approved
pursuant to the preceding sentence, any such alteration shall be conducted as if
it were a structural alteration within the meaning and subject to the provisions
of Article 3 hereof (including without limitation, obtaining all required
operating permits and approvals from the Federal Communications Commission); (2)
Tenant, at its sole cost and expense shall install and maintain the Tenant's
Telecommunications Equipment and the Connecting Equipment; (3) Tenant shall
promptly repair any damage caused to the Building (including, without
limitation, the roof or any exterior portions thereof) by reason of the
installation, maintenance, operation, removal and replacementofany of Tenant's
Telecommunications Equipment and/or the Connecting Equipment; (4) Tenant shall
remove the applicable Tenant's Telecommunications Equipment and the Connecting
Equipment upon
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the expiration or sooner termination of the term of this lease; and (5) Tenant
shall repair any resulting damage to the Building (including, without
limitation, the roof or any exterior portions thereof) and restore the Building
(including, without limitation, the roof or any exterior portions thereof) to
the condition which existed prior to any such installation, ordinary wear and
tear and damages beyond the reasonable control of Tenant excepted. The parties
agree that Tenant's use of the roof of the Building is a non-exclusive use and
Landlord may permit the use of any other portion of the roof by any other person
or entity for any use, including installation of other antennae, dishes and
similar telecommunications equipment so long as any such equipment which is
installed after the date on which the applicable piece of Tenant's
Telecommunications Equipment is installed does not unreasonably interfere with
such piece of Tenant's Telecommunications Equipment. The first monthly
installment of the Roof Rights rent shall be paid upon execution of this Lease
by Tenant.
56. EXTENTION OF TERM:
A. Subject to the provisions of Paragraph E hereof, Tenant shall have the right
to extend the term of this Lease for two (2) additional terms of five (5)
years each, the first additional term (the "First Extension Term") commencing on
the day following the expiration of the initial term of this Lease (hereinafter
called the "Commencement Date of the First Extension Term") and the second
additional term (the "Second Extension Term") commencing on the day following
the expiration of the First Extension Term (hereinafter called the "Commencement
Date of the Second Extension Term") provided that:
1. Tenant shall give Landlord notice (hereinafter called the "Extension
Notice") of its election to extend the term of this Lease at least twelve
(12) months prior to the expiration of the (a) initial term of this Lease
with respect to the First Extension Term and (b) First Extension Term with
respect to the Second Extension Term, and
2. Tenant is not in default (after the expiration of applicable grace
periods, if any) under this Lease as of the time of the giving of the
Extension Notice and the Commencement Date of the First Extension Term and
the Commencement Date of the Second Extension Term, as the case may be, and
3. With respect to the Second Extension Term, Tenant shall have exercised
the First Extension Term.
4. Tenant shall be in actual physical occupancy of not less than 75% of the
rentable area of the Demised Premises.
B. The Fixed Rent payable by Tenant to Landlord during the First Extension
Term and the Second Extension Term shall be a sum equal to the fair market rent
for the Demised Premises as determined as of the date occurring six (6) months
prior to the Commencement Date of the First Extension Term and the Commencement
Date of the Second Extension Term, as the case may be (each such date is
hereinafter called a "Determination Date") and which determination shall be made
within a reasonable period of time after the occurrence of the Determination
Date pursuant to the provisions of Paragraph C hereof, but such Fixed Rent shall
in no event be less than the Fixed Rent and additional rent (i.e. not less than
Tenant's fully escalated rent) in effect under this Lease for the last month of
the immediately preceding term hereof (without giving effect to any temporary
abatement of Fixed Rent under the provisions of Article 9 or any other Article
of this Lease). In determining the fair market rent, the provisions of Article
39 of this Lease shall remain in effect during the First Extension Term and the
Second Extension Term with the same base year as set forth therein.
C. 1. Landlord and Tenant shall endeavor to agree as to the amount of the
fair market rent for the Demised Premises pursuant to the provisions of
Paragraph B hereof, during the thirty (30) day period following a Determination
Date. In the event that Landlord and Tenant can not agree as to the amount of
the fair market rent within such thirty (30) day period following a
Determination Date, then Landlord or Tenant may initiate the appraisal process
provided for herein by giving notice to that effect to the other, and the party
so initiating the appraisal process (such party hereinafter called the
"Initiating Party") shall specify in such notice the name and address of the
person designated to act as an arbitrator on its behalf. Within thirty (30) days
after the designation of such arbitrator, the other party (hereinafter called
the "Other Party") shall give notice to the Initiating Party specifying the name
and address of the person designated to act as an arbitrator on its behalf. If
the Other Party fails to notify the Initiating Party of the appointment of its
arbitrator within the time above specified, then 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. The two
arbitrators so chosen shall meet within ten (10) days after the second
arbitrator is appointed and if, within sixty (60) days after the second
arbitrator is appointed, the two arbitrators shall not agree, they shall
together appoint a third arbitrator. In the event of their being unable to agree
upon such appointment within eighty (80) 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 fifteen (15)
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 organization successor thereto) in New York City in accordance
with its rules then prevailing.
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2. 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 (not including the attorneys
fees, witness fees and similar expenses of the parties which shall be borne
separately by each of the parties) of the arbitration shall be borne by the
parties equally.
3. The majority of the arbitrators shall determine the fair market rent of
the Demised Premises and render a written certified report of their
determination to both Landlord and Tenant within sixty (60) days of the
appointment of the first two arbitrators or sixty (60) days from the appointment
of the third arbitrator if such third arbitrator is appointed pursuant to this
Paragraph; and the fair market rent, so determined, shall be applied to
determine the Fixed Rent pursuant to Paragraph B hereof.
4. Each of the arbitrators selected as herein provided shall have at least
ten (10) years experience in the leasing and renting of office space in first
class office buildings in the Borough of Manhattan.
5. If Landlord notifies Tenant that the Fixed Rent for the First Extension
Term or the Second Extension Term, as the case may be, shall be equal to
Tenant's fully escalated rent for the immediately preceding term, then the
provisions of Subsection 1 of this Paragraph C shall be inapplicable and have no
force or effect.
6. In the event Landlord or Tenant initiates the appraisal process and as
of the Commencement Date of the First Extension Term or Commencement Date of the
Second Extension Term. as the case may be, the amount of the fair market rent
has not been determined, Tenant shall continue to pay the fixed rent and
additional rent in effect under this Lease for the last month of the immediately
preceding term and when such determination has been made, an appropriate
retroactive adjustment shall be made as of the Commencement Date of the First
Extension Term or Commencement Date of the Second Extension Term, as the case
may be.
D. Except as provided in Paragraphs A and B hereof, Tenant's occupancy of
the Demised Premises during the First Extension Term and Second Extension Term,
as the case may be, shall be on the same terms and conditions as are in effect
immediately prior to the expiration of the immediately preceding term of this
Lease, provided, however, Tenant shall have no further right to extend the term
of this Lease pursuant to this Article.
E. If Tenant does not send an Extension Notice pursuant to the provisions
of Paragraph A hereof, this Article shall have no force or effect and shall be
deemed deleted from this Lease.
F. If this Lease is renewed in accordance with the provisions of this
Article, then Landlord or Tenant can request the other party hereto to execute
an instrument in form for recording setting forth the exercise of Tenant's right
to extend the terms of this Lease and the last day of the relevant Extension
Term.
G. If Tenant exercises its right to extend the term of this Lease for an
Extension Term pursuant to this Article, the phrases "the term of this Lease" or
the "term hereof" as used in this Lease, shall be construed to include, when
practicable, the relevant Extension Term.
57. LIFE SAFETY:
Tenant shall, at its sole cost and expense, subject to Building standard
rules and regulations, have the right to install in the Demised Premises a
preaction sprinkler system independent of the Building System. Landlord's fire
alarm system will be used to interconnect for Building alarm annunciation within
the Demised Premises.
58. SIGNAGE/DIRECTORY:
(a) Tenant shall have the right to install its standard sign ("Tenant's Sian")
in the public areas of the floor on which the Premises are located, subject to
Landlord's prior written consent, not to be unreasonably withheld or delayed.
(b) Landlord shall, at the request of Tenant, and at no cost to Tenant maintain
ten (10) listings on the Building directory in the Building lobby of the names
of Tenant and any officers or employees of Tenant. Tenant shall deliver to
Landlord, on or prior to the Commencement Date, a list of all names to be
included in the directory. Tenant may deliver revised listings to Landlord from
time to time throughout the Term which Landlord shall enter accordingly.
59. CONSENTS/APPROVALS/REQESTS, ETC.:
Notwithstanding anything to the contrary in this Lease, whenever the consent or
approval of a party is required under any provision of this Lease or a matter is
subject to the satisfaction, judgment, determination, election, opinion or
discretion of a party under any provision of this Lease, such party shall not
unreasonably withhold or delay such consent or approval and shall not be
unreasonable in deciding whether such matter is
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satisfactory or in making such judgment, determination or election or in forming
such opinion, and such party's discretion shall be reasonable; whenever a party
may deem that something is necessary under this Lease, such party shall deem it
reasonably necessary; and whenever a party may request or require something of
the other party under this Lease, such request or requirement shall be
reasonable.
60. MAINTENANCE/REPAIRS:
(a) Notwithstanding anything to the contrary in this Lease, in making any
repairs, replacements changes alterations or any other work in the Demised
Premises or the Building, Landlord shall exercise reasonable diligence so as to
minimize any interference with Tenant's business operations and use and
occupancy of the Demised Premises, but shall not be required to perform the same
on an overtime or premium pay basis. All repairs, replacements, changes or
alterations shall be free of defects and done in a good and workmanlike manner.
Landlord shall diligently conduct and complete any maintenance, repairs,
replacements, changes, alterations or any other work required due to the
negligence of Landlord, its agents, employees or contractors or due to
Landlord's breach under this Lease. Landlord shall assign all warranties if any
of Landlord's Work in the Demised Premises to Tenant, but shall have the right
to enforce such warranties to the extent Landlord is required to make any repair
pursuant to this Lease.
(b) The parties hereto agree to coordinate and cooperate in the performance
of their respective work in the Demised Premises in order to avoid interference
with the other party and its work. Upon Tenant's request, Landlord shall at no
cost to Landlord reasonably cooperate with Tenant in obtaining any permits,
approvals or certificates required to be obtained by Tenant in connection with
any permitted alteration.
61. INDEMNIFICATION/LIABILITY:
(a) Notwithstanding anything to the contrary in this Lease, no provision in
this lease shall be construed to exculpate the Landlord or any of its agents,
contractors or employees or to make Tenant responsible for any loss, damage,
liability cost, claim or expense resulting from or caused by the negligence of
the Landlord or any of its agents.
(b) Notwithstanding anything to the contrary in this Lease, no provision in
this lease shall be construed to exculpate the Tenant or any of its agents,
contractors or employees or to make Landlord responsible for any loss, damage,
liability cost, claim or expense resulting from or caused by the negligence of
Tenant or any of its agents.
LANDLORD:
75 BROAD, LLC
By: /s/ DRU
----------------------------------------
Name:
Title: A Member
TENANT:
BRIDGEPOINT INTERNATIONAL (CANADA) INC.
By: /s/ Yves Grow
----------------------------------------
Name: YVES GROW
Title: CFO
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