EXHIBIT 10.3
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AGREEMENT OF LEASE
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▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC
LANDLORD
AND
VIP CALLING, INC.
TENANT
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Premises: Portion of the Eighth (8th) Floor
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dated: August 7, 1998
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TABLE OF CONTENTS
Page
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DEFINITIONS ............................................................... 1
Article 1. Demise, Premises, Term, Rent ................................... 4
Article 2. Use And Occupancy .............................................. 5
Article 3. Alterations .................................................... 6
Article 4. Condition of the Premises ...................................... 8
Article 5. Repairs; Floor Load ............................................ 9
Article 6. Real Estate Taxes and Labor Rate Increases ..................... 10
Article 7. Legal Requirements ............................................. 15
Article 8. Subordination and Non-Disturbance; Estoppel Certificates ....... 16
Article 9. Services ....................................................... 17
Article 10. Insurance ..................................................... 26
Article 11. Destruction of the Premises; Property Loss or Damage .......... 28
Article 12. Eminent Domain ................................................ 29
Article 13. Assignment and Subletting ..................................... 30
Article 14. Access to Premises ............................................ 37
Article 15. Certificate of Occupancy ...................................... 38
Article 16. Default ....................................................... 39
Article 17. Remedies and Damages .......................................... 41
Article 18. Fees and Expenses ............................................. 43
Article 19. No Representations By Landlord ................................ 44
Article 20. End Of Term ................................................... 44
Article 21. Quiet Enjoyment ............................................... 45
Article 22. No Waiver; Non-Liability ...................................... 45
Article 23. Waiver Of Trial By Jury ....................................... 46
Article 24. Inability To Perform .......................................... 47
Article 25. Bills And Notices ............................................. 47
Article 26. Rules And Regulations ......................................... 48
Article 27. Broker ........................................................ 48
Article 28. Indemnity ..................................................... 48
Article 29. Landlord's Contribution ....................................... 49
Article 30. Security Deposit .............................................. 50
Article 31 Relocated or Reduced Premises ................................. 53
Article 32. Miscellaneous ................................................. 55
Exhibit A: Floor Plan of the Premises
Exhibit B: Rules and Regulations
Exhibit C: Approved Contractors
Exhibit D: Form of Letter of Credit
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AGREEMENT OF LEASE, made as of August 7, 1998, between ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ LLC, a Delaware limited liability company with an address c/o Taconic
Investment Partners LLC, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Landlord"),
and VIP CALLING, INC., a Delaware corporation having an address at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Tenant").
WITNESSETH:
The parties hereto, for themselves, their legal representatives,
successors and assigns, hereby covenant as follows.
DEFINITIONS
"Additional Rent" means Tenant's Tax Payment, Tenant's Labor Rate
Payment, and any and all other sums, other than Fixed Rent, payable by Tenant to
Landlord under this Lease.
"Affiliate" means, with respect to any Person, any other Person
that, directly or indirectly, through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such first Person.
"Alterations" means alterations, installations, improvements,
additions or other physical changes (other than decorations, movable fixtures
and equipment) in or about the Premises.
"Base Rate" means the annual rate of interest publicly announced
from time to time by Citibank, N.A., New York, New York (or any successor
thereto) as its "base rate", or such other term as may be used by Citibank, N.A.
from time to time for the rate presently referred to as its base rate.
"Building" means all the buildings, equipment and other
improvements and appurtenances of every kind and description now located or
hereafter erected, constructed or placed upon the land and any and all
alterations, renewals, replacements, additions and substitutions thereto,
presently known by the address of ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
"Building Systems" means the mechanical, electrical, heating,
ventilating, air conditioning, elevator, plumbing. sanitary, life-safety and
other service systems of the Building, but shall not include the portions of
such systems installed in the Premises by Tenant.
"Business Days" means all days, excluding Saturdays, Sundays, and
all days observed by either the State of New York, the Federal Government or by
the labor unions servicing the Building as legal holidays.
"Commencement Date" means the date of the full execution of the
Lease by Landlord and Tenant and unconditional delivery of the Lease by Landlord
to Tenant.
"Control" means: (i) the ownership, directly or indirectly, of more
than fifty per cent (50%) of the voting stock of a corporation, or (ii) the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person.
"Default Rate" means a rate at all times four (4) percentage points
above the Base Rate.
"Environmental Laws" means any Legal Requirements now or hereafter
in effect relating to the environment, health, safety or Hazardous Materials.
"Expiration Date" means the date which is the last day of the month
in which the day before the tenth (10th) anniversary of the Commencement Date
occurs.
"Governmental Authority" means any of the United States of America,
the State of New York, the City of New York, any political subdivision thereof
and any agency, department, commission, board, bureau or instrumentality of any
of the foregoing, now existing or hereafter created, having jurisdiction over
the Real Property or any portion thereof or the curbs, sidewalks, and areas
adjacent thereto.
"Hazardous Materials" means any substances, materials or wastes
regulated by any Governmental Authority or deemed or defined as a "hazardous
substance", "hazardous material", "toxic substance", "toxic pollutant",
"contaminant", "pollutant", "solid waste", "hazardous waste" or words of similar
import under applicable Legal Requirements, including oil and petroleum
products, natural or synthetic gas, polychlorinated biphenyls, asbestos in any
form, urea formaldehyde, radon gas, or the emission of non-ionizing radiation,
microwave radiation or electromagnetic fields at levels in excess of those (if
any) specified by any Governmental Authority or which may cause a health hazard
or danger to property, or the emission of any form of ionizing radiation.
"Initial Alterations" are defined in Section 4.2.
"Legal Requirements" means all present and future laws, rules,
orders, ordinances, regulations, statutes, requirements, codes, executive
orders, rules of common law, and any judicial interpretations thereof,
extraordinary as well as ordinary, of all Governmental Authorities, including
the Americans with Disabilities Act (42 U.S.C. ss. 12,101 et seq.), New York
City Local Law 58 of 1987, and any law of like import, and all rules,
regulations and government orders with respect thereto, and any of the foregoing
relating to environmental matters, Hazardous Materials, public health and safety
matters, and of any applicable fire rating bureau, or other body exercising
similar functions, affecting the Real Property or the maintenance, use or
occupation thereof, or any street or sidewalk comprising a part of or in front
thereof or any vault in or under the same.
"Mortgage" means any mortgage or trust indenture which may now or
hereafter affect the Real Property, the Building or any Superior Lease and the
leasehold interest created thereby, and all renewals, extensions, supplements,
amendments, modifications, consolidations and replacements thereof or thereto,
substitutions therefor, and advances made thereunder; "Mortgagee" means any
mortgagee, trustee or other holder of a Mortgage.
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"Permitted Use" means the use of the Premises by Tenant as a
telecommunications switching center, and other uses normally related thereto,
and office and support facilities in connection therewith, and for no other
purposes.
"Person" means any individual, corporation, partnership, limited
liability company, limited liability partnership, joint venture, estate, trust,
unincorporated association, business trust, tenancy-in-common or other entity,
or any Governmental Authority.
"Premises" means a portion of the eight (8th) floor of the Building,
as shown by cross-hatching on the floor plan attached to this Lease as Exhibit A
and made a part hereof.
"Real Property" means the Building, together with the plot of land
upon which it stands.
"Rentable Square Feet" is agreed to mean and is deemed to be the
rentable area of the Premises, consisting of a total of 4,372 rentable square
feet. Rentable Square Feet have been computed on the basis of the current
standard employed by Landlord with respect to the calculation of the deemed
rentable square foot area of the Building; provided, however, that in no event
shall such deemed Rentable Square Footage constitute or imply any representation
or warranty by Landlord as to the actual size of the Premises or any other
portion of the Building.
"Rules and Regulations" means the rules and regulations annexed
hereto and made a part hereof as Exhibit B, and such other and further rules and
regulations as Landlord may from time to time adopt.
"Setback Premises" means a portion of the roof setback of the
Building adjacent to the Premises, consisting of a portion of the roof above the
seventh (7th) floor as shown by shading on the plan attached to this Lease as
Exhibit A, as provided in Section 2.5.
"Substantial Completion" means, as to any construction performed by
any party in the Premises, including the Initial Alterations, any other
Alterations, that such work has been completed substantially in accordance with
(i) the provisions of this Lease applicable thereto, (ii) the plans and
specifications for such work, and (iii) all applicable Legal Requirements and
Insurance Requirements, except for minor details of construction, decoration and
mechanical adjustments, if any, the noncompletion of which does not materially
interfere with Tenant's use of the Premises, or which, in accordance with good
construction practice, should be completed after the completion of other work to
be performed in the Premises.
"Superior Lease(s)" means any ground or underlying lease of the Real
Property or any part thereof heretofore or hereafter made by Landlord and all
renewals, extensions, supplements, amendments and modifications thereof,
"Lessor" means a lessor under a Superior Lease.
"Tenant's Alterations" means all Alterations, including the Initial
Alterations, in and to the Premises which may be made by or on behalf of Tenant
prior to and during the Term, or any renewal thereof.
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"Tenant's Property" means Tenant's movable fixtures and movable
partitions, telephone and other communications equipment, computer systems,
furniture, trade fixtures, furnishings and other items of personal property
which are removable without material damage to the Premises or Building.
"Unavoidable Delays" are defined in Article 24.
"Term" means the term of this Lease, which shall commence on the
Commencement Date and shall expire on the Expiration Date.
ARTICLE 1. DEMISE, PREMISES, TERM, RENT
Section 1.1 Landlord hereby leases to Tenant, and Tenant hereby
hires from Landlord, the Premises, for the Term to commence on the Commencement
Date and to end on the Expiration Date, at an annual rent ("Fixed Rent") as
follows:
(a) One Hundred Eighteen Thousand Forty-Four and 00/100 Dollars
($118,044.00) per annum ($9,837.00 per month) for the period commencing on the
Commencement Date and ending on the date (the "Rent Increase Date") which is the
last day of the month which contains the day prior to the fifth (5th)
anniversary of the Commencement Date;
(b) One Hundred Thirty-One Thousand One Hundred Sixty and 00/100
Dollars ($131,160.00) per annum ($10,930.00 per month) for the period commencing
on the day following the Rent Increase Date and ending on the Expiration Date;
which Tenant agrees to pay to Landlord, without notice or demand, in lawful
money of the United States, in monthly installments in advance on the first
(1st) day of each calendar month during the Term, at the office of Landlord or
such other place as Landlord may designate, without any set-off, offset,
abatement or deduction whatsoever. Fixed Rent and Additional Rent shall be
payable by check drawn upon a bank which is a member of the New York
Clearinghouse Association, or on any other bank reasonably acceptable to
Landlord either having an office in New York City or which is chartered as a
national banking association, or by wire transfer of immediately available
funds.
Section 1.2 Notwithstanding anything to the contrary contained
herein, upon execution and delivery of this Lease, Tenant shall pay to Landlord
the sum of Nine Thousand Eight Hundred Thirty-Seven and 00/100 Dollars
($9,837.00) representing the installment of Fixed Rent for the first (1st) full
calendar month of the Term after the Commencement Date, to be credited against
the first installment of Fixed Rent becoming payable by Tenant under the Lease.
Section 1.3 Notwithstanding anything to the contrary set forth in
Section 1.1, so long as Tenant is not in default beyond applicable grace or
notice periods under any of the terms, covenants or conditions of the Lease on
Tenant's part to be observed or performed, Tenant shall have no obligation to
pay Fixed Rent on account of the period commencing on the Commencement Date and
ending on the date which is one day prior to the date which is six (6)
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months following the Commencement Date. Nothing contained herein shall affect
Tenant's obligation to make any other payment under this Lease during the
aforementioned period.
ARTICLE 2. USE AND OCCUPANCY
Section 2.1 Tenant shall use and occupy the Premises for the
Permitted Use and for no other purpose. Tenant shall not use or occupy or permit
the use or occupancy of any part of the Premises in any manner not permitted
hereunder, or which in Landlord's judgment would adversely affect (a) the proper
and economical rendition of any service required to be furnished to any tenant
or other occupant of the Building, (b) the use or enjoyment of any part of the
Building by any other tenant or other occupant, or (c) the appearance, character
or reputation of the Building.
Section 2.2 Tenant shall not use or permit the Premises or any part
thereof to be used: (a) for the business of printing or other manufacturing of
any kind, (b) as a retail branch of a bank or savings and loan association, or
as a retail loan company, as a retail stock broker's or dealer's office, (c) for
the storage of merchandise, (d) for the distribution, by mail-order or
otherwise, of merchandise, (e) as a restaurant or bar or for the sale of food or
beverages, (f) as a news or cigar stand, (g) as an employment agency, labor
union office, school, physician's or dentist's office, dance or music studio,
(h) as a ▇▇▇▇▇▇ shop or beauty salon, (i) for the sale, at retail or otherwise,
of any goods or products, (j) by the United States Government, the City or State
of New York, any Governmental Authority, any foreign government, the United
Nations or any agency or department of any of the foregoing or any Person having
sovereign or diplomatic immunity, (k) for the rendition of medical, dental or
other therapeutic or diagnostic services, or (l) for the conduct of an auction.
Section 2.3 Landlord shall not be subject to any liability for
failure to give possession of the Premises on the Commencement Date and the
validity of this Lease shall not be impaired under such circumstances, nor shall
the same be construed to extend the term of this Lease, except that Fixed Rent
and Additional Rent shall be abated until possession of the Premises shall be
delivered to Tenant. The foregoing shall constitute an express negation of
Section 223-a of the New York Real Property Law or any successor law or
ordinance, which shall be inapplicable hereto, and Tenant hereby waives any
right to rescind this Lease which Tenant might otherwise have thereunder.
Section 2.5 (a) Landlord hereby grants to Tenant the right to use
the Setback Premises for the installation and operation of Tenant's HVAC System
(as defined in Section 9.3(d)), subject to the terms and conditions of this
Lease and to all Legal Requirements, at no additional charge except as provided
in Section 2.5(c). Tenant covenants and agrees that the use of the Setback
Premises shall be at the sole risk of Tenant, and that Landlord makes no
representations as to whether such use is permitted by Legal Requirements, or
whether the Setback Premises are suitable for such use. Tenant shall maintain
general public liability insurance and other insurance coverages as required by
this Lease with respect to the Setback Premises.
(b) Except as otherwise set forth in this Lease, Tenant agrees to
accept the Setback Premises in their "as is" condition on the Commencement Date,
and Landlord shall have
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no obligation to make any alterations, improvements, repairs or decorations to
the Setback Premises or to incur any expense in order to prepare the Setback
Premises for Tenant's use thereof in accordance with Section 2.5(a). Landlord
shall not be obligated to supply any services of any kind whatsoever to the
Setback Premises. Tenant shall take good care of and shall maintain and repair
(including the prompt and diligent repair of any roof leaks) the Setback
Premises throughout the Term of this Lease all in accordance with the terms of
this Lease.
(c) Subject to all of the foregoing, and to compliance with the
provisions of Article 3 hereof, Tenant, at its sole cost and expense, shall have
the right to remove a portion of the existing windows separating the Setback
Premises from the Premises, and to furnish and install an access door in place
of the removed windows. Tenant and its employees and contractors shall have the
right, at all times, to enter upon and examine the Setback Premises and to make
such repairs, replacements and improvements as Tenant may deem necessary or
desirable, subject to the provisions of Article 3 hereof.
(d) The Setback Premises shall consist of an area of approximately
50 usable square feet of space at a location within the shaded area shown on
Exhibit A, to be designated by Tenant in its reasonable judgment by notice to
Landlord given within sixty (60) days following the Commencement Date (the
"Setback Notice"), subject to Landlord's approval, which shall not be
unreasonably withheld or delayed. In the event that Tenant shall determine, in
its reasonable judgment, that Tenant requires additional roof area adjacent to
the area of the Setback Premises, and shall so request in the Setback Notice,
then Landlord will make such additional roof space (the "Additional Setback
Area") available to Tenant for the uses set forth in Section 2.5(a), provided
that such area is then available and reasonably suitable for such uses. If
Landlord makes the Additional Setback Area available to Tenant pursuant hereto,
Tenant shall pay to Landlord, as Additional Rent, an annual amount equal to (i)
during the period from the date Landlord makes the Additional Setback Area
available to Tenant through the Rent Increase Date, the product of the usable
square foot area of the Additional Setback Area, multiplied by Fifteen and
00/100 Dollars ($15.00), and (ii) during the period from the Rent Increase Date
through the Expiration Date, the product of the usable square foot area of the
Additional Setback Area, multiplied by Eighteen and 00/100 Dollars ($18.00).
Such Additional Rent shall be payable by Tenant in equal monthly installments in
advance, on the first day of each month during the Term.
ARTICLE 3. ALTERATIONS
Section 3.1 Tenant shall not make any Alterations without Landlord's
prior written consent in each instance, provided that Tenant's changing of wall
coverings, carpeting or paint shall not be deemed to be Alterations requiring
such consent. Landlord's consent shall be granted or denied in Landlord's sole
discretion; provided, however, that Landlord shall not unreasonably withhold,
delay or condition its consent to Alterations proposed to be made by Tenant to
adapt the Premises for the Permitted Use provided that such Alterations (a) are
non-structural and do not affect the Building Systems or services, (b) are
performed only by contractors approved in writing by Landlord, (c) do not affect
any part of the Building other than the Premises, (d) do not adversely affect
any service required to be furnished by Landlord to Tenant or to any other
tenant or occupant of the Building, and (e) do not reduce the value or utility
of the Building.
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Section 3.2 (a) Prior to making any Alterations, Tenant shall (i)
submit to Landlord, for Landlord's written approval, detailed plans and
specifications therefor in form satisfactory to Landlord, (ii) if such
Alterations require a filing with Governmental Authority or require the consent
of such authority, then such plans and specifications shall (A) be prepared and
certified by a registered architect or licensed engineer, and (B) comply with
all Legal Requirements to the extent necessary for such governmental filing or
consent, (iii) at its expense, obtain all required permits, approvals and
certificates, (iv) furnish to Landlord duplicate original policies or
certificates of worker's compensation (covering all persons to be employed by
Tenant, and all contractors and subcontractors supplying materials or performing
work in connection with such Alterations) and comprehensive public liability
(including property damage coverage) insurance and Builder's Risk coverage
(issued on a completed value basis) all in such form, with such companies, for
such periods and in such amounts as Landlord may require, naming Landlord and
its employees and agents, and any Lessor and any Mortgagee as additional
insureds, and (v) with respect to any Alteration costing more than $50,000.00 to
complete, furnish to Landlord such evidence of Tenant's ability to complete and
to fully and completely pay for such Alteration as is satisfactory to Landlord.
All Alterations shall be performed by Tenant at Tenant's sole cost and expense
(A) in a good and workmanlike manner using new materials of first class quality,
(B) in compliance with all Legal Requirements, and (C) in accordance with the
plans and specifications previously approved by Landlord. Tenant shall at its
cost and expense obtain all approvals, consents and permits from every
Governmental Authority having or claiming jurisdiction prior to, during and upon
completion of such Alterations. Tenant shall promptly reimburse Landlord, as
Additional Rent and upon demand, for any and all costs and expenses incurred by
Landlord in connection with Landlord's review of Tenant's plans and
specifications for any such Alteration.
(b) Landlord shall not unreasonably withhold, condition or delay its
approval of the contractors proposed to be used by Tenant for Tenant's
Alterations, provided that in the case of the mechanical, electrical, plumbing
and fire safety trades, Tenant shall select its contractors and sub-contractors
from Landlord's list of approved contractors. Attached hereto as Exhibit C is a
list of contractors currently approved by Landlord for the performance of work
in the Building, which list may be modified by Landlord from time to time.
(c) Notwithstanding the foregoing provisions of this Article 3,
Tenant shall be permitted to make minor, non-structural alterations to the
Premises ("Minor Alterations") upon prior notice to Landlord, but without the
necessity of procuring Landlord's consent thereto, provided that the estimated
cost of each such Minor Alteration does not exceed $25,000.00 in any one
instance. The provisions of subsections 3.2(a) and (b) shall be applicable to
Minor Alterations. Prior to commencing any Minor Alteration, Tenant shall
furnish Landlord with (i) working drawings or plans for such Minor Alteration in
sufficient detail to permit Landlord to determine that such Alteration complies
with the requirements hereof, and (ii) the names of the contractors proposed to
be used by Tenant for such Minor Alteration.
(d) Upon completion of any Alterations, Tenant, at its expense,
shall promptly obtain certificates of final approval of such Alterations as may
be required by any Governmental Authority, and shall furnish Landlord with
copies thereof, together with "as-built" plans and specifications for such
Alterations prepared on an Autocad Computer Assisted Drafting and
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Design System (or such other system or medium as Landlord may accept) using
naming conventions issued by the American Institute of Architects in June, 1990
(or such other naming convention as Landlord may accept) and magnetic computer
media of such record drawings and specifications, translated into DXF format or
another format acceptable to Landlord.
Section 3.3 All Alterations in and to the Premises which may be made
by or on behalf of Tenant, prior to and during the Term or any renewal thereof,
shall become the property of Landlord upon the expiration or sooner termination
of this Lease, and upon the Expiration Date or earlier termination of the Term
or any renewal thereof (a) Tenant shall remove Tenant's Property from the
Premises, and (b) unless Landlord notifies Tenant no later than sixty (60) days
prior to the Expiration Date that any or all items of Tenant's Alterations shall
not be removed from the Premises, Tenant shall remove Tenant's Alterations from
the Premises, at Tenant's sole cost and expense. Tenant shall repair and restore
in a good and workmanlike manner (reasonable wear and tear excepted) any damage
to the Premises and the Building caused by such removal of Tenant's Property and
Tenant's Alterations. Any of Tenant's Alterations or Tenant's Property not so
removed by Tenant at or prior to the Expiration Date or earlier termination of
the Term shall be deemed abandoned and may, at the election of Landlord, either
be retained as Landlord's property or be removed from the Premises by Landlord
at Tenant's expense. The covenants and agreements set forth in this Section 3.3
shall survive the expiration or earlier termination of this Lease.
Section 3.4 If, because of any act or omission of Tenant, its
employees, agents, contractors, or subcontractors, any mechanic's lien, U.C.C.
financing statement or other lien, charge or order for the payment of money
shall be filed against Landlord, or against all or any portion of the Premises,
the Building or the Real Property, Tenant shall, at its own cost and expense,
cause the same to be discharged of record, by bonding or otherwise, within sixty
(60) days after the filing thereof, and Tenant shall indemnify, defend and save
Landlord harmless against and from all costs, expenses, liabilities, suits,
penalties, claims and demands (including reasonable attorneys' fees and
disbursements) resulting therefrom.
Section 3.5 Tenant shall not, at any time prior to or during the
Term, directly or indirectly employ, or permit the employment of, any
contractor, mechanic or laborer in the Premises, whether in connection with any
Alteration or otherwise, if in Landlord's sole judgment such employment will
interfere or cause any conflict with other contractors, mechanics, or laborers
engaged in the construction, maintenance or operation of the Building by
Landlord. Tenant or others, or the use and enjoyment of other tenants or
occupants of the Building.
ARTICLE 4. CONDITION OF THE PREMISES
Section 4.1 Tenant has examined the Premises and agrees to accept
possession of the Premises in their "as is" condition on the Commencement Date,
and further agrees that, except for the making of Landlord's Contribution as
expressly set forth in this Article 4, Landlord shall have no obligation to
perform any work, supply any materials, incur any expenses or make any
installations in order to prepare the Premises for Tenant's occupancy. The
taking of possession of the Premises by Tenant shall be conclusive evidence as
against Tenant that at the time such possession was so taken, the Premises were
in good and satisfactory condition.
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Section 4.2 Landlord acknowledges that Tenant intends to perform
certain Alterations in order to prepare the Premises for its occupancy, which
alterations shall be satisfactory to Landlord and shall comply with applicable
Legal Requirements (the "Initial Alterations"). Notwithstanding anything set
forth in this Article 4, Landlord agrees to make Landlord's Contribution toward
the cost of the Initial Alterations, subject to and in accordance with Article
30 of this Lease.
Section 4.3 Upon the request of Tenant, Landlord, at Tenant's cost
and expense, shall join in any applications for any permits, approvals or
certificates from any Governmental Authority required to be obtained by Tenant,
and shall sign such applications reasonably promptly after request by Tenant
(provided that (i) the provisions of the applicable Legal Requirement shall
require that Landlord join in such application, and (ii) such application is
acceptable to Landlord) and shall otherwise cooperate with Tenant in connection
therewith, provided that Landlord shall not be obligated to incur any cost or
expense, including attorneys' fees and disbursements, or suffer or incur any
liability, in connection therewith.
ARTICLE 5. REPAIRS; FLOOR LOAD
Section 5.1 Landlord shall maintain and repair the Building Systems
and the public portions of the Building, both exterior and interior, and the
structural elements thereof, including the roof, foundation and curtain wall.
Tenant, at Tenant's expense, shall take good care of the Premises and the
fixtures, systems, equipment and appurtenances therein, and make all
non-structural repairs thereto as and when needed to preserve them in good
working order and condition, except for reasonable wear and tear, obsolescence
and damage for which Tenant is not responsible pursuant to the provisions of
Articles 10 and 11 hereof. Notwithstanding the foregoing, all damage or injury
to the Premises or to any other part of the Building, or to its fixtures,
equipment and appurtenances, caused by or resulting from carelessness, omission,
neglect or improper conduct of, or Alterations made by Tenant, Tenant's agents,
employees or licensees, shall be repaired at Tenant's expense, (a) by Tenant to
the satisfaction of Landlord (if the required repairs are non-structural and do
not affect any Building System), or (b) by Landlord (if the required repairs are
structural or affect any Building System). Tenant also shall repair all damage
to the Building and the Premises caused by the making of any Alterations by
Tenant or by the moving of Tenant's Property. All of such repairs shall be of
quality or class equal to the original work or construction. If Tenant fails
after fifteen (15) days notice to proceed with due diligence to make repairs
required to be made by Tenant, Landlord may make such repairs at the expense of
Tenant, and Tenant shall pay the costs and expenses thereof incurred by
Landlord, with interest at the Default Rate, as Additional Rent within ten (10)
days after rendition of a ▇▇▇▇ or statement therefor.
Section 5.2 Tenant shall not place a load upon any floor of the
Premises exceeding the floor load per square foot which such floor was designed
to carry and which is allowed by law. Tenant shall not move any safe, heavy
equipment, business machines, freight, bulky matter or fixtures into or out of
the Building without Landlord's prior consent. If such safe, equipment, freight,
bulky matter or fixtures requires special handling, Tenant shall employ only
persons holding a Master Rigger's license to do such work.
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Section 5.3 There shall be no allowance to Tenant for a diminution
of rental value, no constructive eviction of Tenant and no liability on the part
of Landlord by reason of inconvenience, annoyance or injury to business arising
from Landlord making, or failing to make, any repairs, alterations, additions or
improvements in or to any portion of the Building or the Premises, or in or to
fixtures, appurtenances or equipment thereof. Landlord shall use reasonable
efforts to minimize interference with Tenant's access to and use and occupancy
of the Premises in making any repairs, alterations, additions or improvements;
provided, however, 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.
Section 5.4 Tenant shall not require, permit, suffer or allow the
cleaning of any window in the Premises from the outside in violation of Section
202 of the New York Labor Law or any successor statute thereto, or of any other
Legal Requirement.
ARTICLE 6. REAL ESTATE TAXES AND LABOR RATE INCREASES
Section 6.1 The following terms shall have the meanings set forth
below:
(a) "Taxes" shall include the aggregate amount of (i) all real
estate taxes, assessments (special or otherwise), sewer and water rents, rates
and charges and any other governmental levies, impositions or charges, whether
general, special, ordinary, extraordinary, foreseen or unforeseen, which may be
assessed, levied or imposed upon all or any part of the Real Property, and (ii)
any expenses (including attorneys' fees and disbursements and experts' and other
witness' fees) incurred in contesting any of the foregoing or the Assessed
Valuation (as defined in Section 6.1(d)) of all or any part of the Real
Property. If at any time after the date hereof the methods of taxation
prevailing at the date hereof shall be altered so that in lieu of or as an
addition to or as a substitute for the whole or any part of the taxes,
assessments, rents, rates, charges, levies or impositions now assessed, levied
or imposed upon all or any part of the Real Property, there shall be assessed,
levied or imposed (A) a tax, assessment, levy, imposition or charge based on the
rents received therefrom whether or not wholly or partially as a capital levy or
otherwise, (B) a tax. assessment, levy, imposition or charge measured by or
based in whole or in part upon all or any part of the Real Property and imposed
upon Landlord, (C) a license fee measured by the rents or (D) any other tax,
assessment, levy, imposition, charges or license fee however described or
imposed, then all such taxes, assessments, levies, impositions, charges or
license fees or the part thereof so measured or based shall be deemed to be
Taxes. Taxes shall not include franchise, gift, inheritance, estate, sales,
income or profit taxes imposed upon Landlord, any Lessor or any Mortgagee by any
Governmental Authority.
(b) "Tenant's Share" means 19/100 of one percent (.19%).
(c) "Base Taxes" means an amount equal to the sum of (i) one-half
(1/2) of the Taxes payable for the Tax Year commencing on July 1, 1997 and
ending on June 30, 1998 plus one-half (1/2) of the Taxes payable the Tax Year
commencing on July 1, 1998 and ending June 30, 1999.
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(d) "Assessed Valuation" means the amount for which the Real
Property is assessed pursuant to applicable provisions of the New York City
Charter and of the Administrative Code of the City of New York for the purpose
of imposition of Taxes.
(e) "Tax Year" means the period July 1 through June 30 (or such
other period as may be duly adopted by the City of New York as its fiscal year
for real estate tax purposes).
(f) "Comparison Year" means (i) with respect to Taxes, any Tax Year
commencing subsequent to 1997/1998 Tax Year, and (ii) with respect to Labor
Rates, any calendar year commencing subsequent to the Base Labor Year.
(g) "Landlord's Statement" means an instrument or instruments
containing a comparison of either (i) the Base Taxes and the Taxes payable for
any Comparison Year, or (ii) the Base Labor Rates and the Labor Rates applicable
to any Comparison Year.
(h) "Tenant's Projected Share of Taxes" means Tenant's Tax Payment
(as defined in Section 6.1(i)), if any, made by Tenant for the prior Comparison
Year, plus an amount equal to Landlord's estimate of the amount of increase in
Tenant's Tax Payment for the then current Comparison Year, divided by twelve
(12) and payable monthly by Tenant to Landlord as Additional Rent.
(i) "Tenant's Tax Payment" means Tenant's Share of the excess of the
Taxes payable for any Comparison Year over the Base Taxes.
Section 6.2 (a) If the Taxes payable for any Comparison Year (any
part or all of which falls within the Term) shall exceed the Base Taxes, Tenant
shall pay Tenant's Tax Payment to Landlord, as Additional Rent, within ten (10)
business days after demand from Landlord therefor, which demand shall be
accompanied by Landlord's Statement. Before or after the start of each
Comparison Year, Landlord shall furnish to Tenant a Landlord's Statement in
respect of Taxes. If there shall be any increase in Taxes payable for any
Comparison Year, whether during or after such Comparison Year or if there shall
be any decrease in the Taxes payable for any Comparison Year during such
Comparison Year, Landlord may furnish a revised Landlord's Statement for such
Comparison Year, and Tenant's Tax Payment for such Comparison Year shall be
adjusted and, within ten (10) business days after Tenant's receipt of such
revised Landlord's Statement, Tenant shall (i) with respect to any increase in
Taxes payable for such Comparison Year, pay such increase in Tenant's Tax
Payment to Landlord, or (ii) with respect to any decrease in Taxes payable for
such Comparison Year, Landlord shall credit such decrease in Tenant's Tax
Payment against the next installment of Tenant's Share of Taxes payable by
Tenant pursuant to this Section 6.2(a), provided that if such decrease in Taxes
is attributable to the final Comparison Year of the Term, Landlord shall pay the
amount of such decrease in Tenant's Tax Payment to Tenant. If, during the Term,
Landlord shall elect to collect Tenant's Tax Payments in full or in quarterly or
bi-annual or other installments on any other date or dates than as presently
required, then following Landlord's notice to Tenant, Tenant's Tax Payments
shall be correspondingly revised. The benefit of any discount for any early
payment or prepayment of Taxes relating to all or any part of the Real Property
shall accrue solely to the benefit of Landlord and Taxes shall be computed
without subtracting such discount.
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(b) With respect to each Comparison Year, on account of which
Landlord shall (or anticipates that it may) be entitled to receive Tenant's Tax
Payment, Tenant shall pay to Landlord, as Additional Rent for the then current
Tax Year, Tenant's Projected Share of Taxes. Upon each date that a Tax Payment
or an installment on account thereof shall be due from Tenant pursuant to the
terms of this Section 6.2, Landlord shall apply the aggregate of the
installments of Tenant's Projected Share of Taxes then on account with Landlord
against Tenant's Tax Payment or installment thereof then due from Tenant. In the
event that such aggregate amount shall not be sufficient to discharge such Tax
Payment or installment, Landlord shall so notify Tenant, and the amount of
Tenant's payment obligation with respect to such Tax Payment or installment
pursuant to this Section 6.2, shall be equal to the amount of the insufficiency
and shall be payable within ten (10) business days of demand by Landlord. If,
however, such aggregate amount shall be greater than the Tax Payment or
installment, Landlord shall credit the amount of such excess against the next
payment of Tenant's Projected Share of Taxes due hereunder.
(c) Only Landlord shall be eligible to institute Tax reduction or
other proceedings to reduce the Assessed Valuation of the Real Property, and the
filings of any such proceeding by Tenant without Landlord's prior written
consent shall constitute a default hereunder. If the Base Taxes are reduced by
final determination of legal proceedings, settlement or otherwise, then either
the 1997/1998 Tax Year or the 1998/1999 Tax year shall be correspondingly
revised, the Additional Rent theretofore paid or payable on account of Tenant's
Tax Payment hereunder for all Comparison Years shall be recomputed on the basis
of such reduction, and Tenant shall pay to Landlord, as Additional Rent within
ten (10) business days after being billed therefor, any deficiency between the
amount of such Additional Rent theretofore computed and paid by Tenant to
Landlord and the amount thereof due as a result of such recomputations. If the
Taxes payable for the Base Tax Year are increased by such final determination of
legal proceedings, settlement or otherwise, then, Landlord shall either pay to
Tenant, or at Landlord's election, credit against subsequent payments due under
this Section 6.2, an amount equal to the excess of the amounts of such
Additional Rent theretofore paid by Tenant over the amount thereof actually due
as a result of such recomputations. If Landlord shall receive a refund or
reduction of Taxes for any Comparison Year, Landlord shall, within a reasonable
time after such refund is actually received or such credit is actually applied
against Taxes then due and payable, either pay to Tenant, or, at Landlord's
election, credit against subsequent payments under this Section 6.2, an amount
equal to Tenant's Share of the refund or reduction, provided that such amount
shall not exceed Tenant's Tax Payment paid for such Comparison Year. Nothing
herein contained shall obligate Landlord to file any application or institute
any proceeding seeking a reduction in Taxes or Assessed Valuation.
(d) Tenant's Tax Payment shall be made as provided in this Section
6.2 regardless of the fact that Tenant may be exempt, in whole or in part, from
the payment of any taxes by reason of Tenant's diplomatic or other tax exempt
status or for any other reason whatsoever.
(e) Tenant shall pay to Landlord, as Additional Rent upon demand,
any occupancy tax or rent tax now in effect or hereafter enacted, if payable by
Landlord in the first instance or hereafter required to be paid by Landlord.
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(f) If the Commencement Date or the Expiration Date shall occur on a
date other than July 1 or June 30, respectively, any Additional Rent payable by
Tenant to Landlord under this Section 6.2 for the Comparison Year in which such
Commencement Date or Expiration Date shall occur, shall be apportioned in that
percentage which the number of days in the period from the Commencement Date to
June 30 or from July 1 to the Expiration Date, as the case may be, both
inclusive, shall bear to the total number of days in such Comparison Year. In
the event of a termination of this Lease, any Additional Rent under this Section
6.2 shall be paid or adjusted within thirty (30) days after submission of
Landlord's Statement. In no event shall Fixed Rent ever be reduced by operation
of this Section 6.2 and the rights and obligations of Landlord and Tenant under
the provisions of this Section 6.2 with respect to any Additional Rent shall
survive the expiration or earlier termination of this Lease.
Section 6.3 The following terms shall have the meanings set forth
below:
(a) "Comparison Year" shall mean any calendar year subsequent to the
Base Labor Year.
(b) "R.A.B." shall mean the Realty Advisory Board on Labor
Relations, Incorporated, or its successor.
(c) "Local 32B-32J" shall mean Local 32B-32J of the Building Service
Employees International Union, AFL-CIO, or its successor.
(d) "Class A Office Buildings" shall mean office buildings so
categorized under any agreement between R.A.B. and Local 32B-32J, regardless of
the designation given to such office buildings in any such agreement.
(e) "Labor Rates" shall mean a sum equal to the regular hourly wage
rate required to be paid to Others (hereinafter defined) employed in Class A
Office Buildings pursuant to an agreement between R.A.B. and Local 32B-32J;
provided, however, that:
(i) if, as of October 1st of any Comparison Year, any such agreement
shall require Others in Class A Office Buildings to be regularly employed on
days or during hours when overtime or other premium pay rates are in effect
pursuant to such agreement, then the term "regular hourly wage rate", as used in
this Section 6.3 shall mean the average hourly wage rate for the hours in a
calendar week during which Others are required to be regularly employed;
(ii) if no such agreement is in effect as of October 1st of any
Comparison Year with respect to Others, then the term "regular hourly wage
rate", as used in this Section 6.3 shall mean the regular hourly wage rate
actually paid to Others employed in the Building by Landlord or by an
independent contractor engaged by Landlord; and
(iii) the term "regular hourly wage rate" shall exclude all benefits
of any kind, including those payable directly to taxing authorities or others on
account of the employment and all welfare, pension and fringe employee benefits
and payments of any kind paid or given pursuant to such agreement.
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(f) "Others" shall mean that classification of employee engaged in
the general maintenance and operation of Class A Office Buildings most nearly
comparable to the classification now applicable to "others" in the current
agreement between R.A.B. and Local 32B-32J.
(g) "Base Labor Year" shall mean the calendar year 1998.
(h) "Base Labor Rates" shall mean the Labor Rates in effect for the
Base Labor Year.
(i) "Tenant's Labor Rate Payment" is defined in Section 6.4(a).
Section 6.4 (a) If the Labor Rates in effect for any Comparison Year
(any part or all of which falls within the Term) shall be greater than the Base
Labor Rates, then Tenant shall pay, as Additional Rent for such Comparison Year
and continuing thereafter until a new Landlord's Statement is rendered to
Tenant, an amount ("Tenant's Labor Rate Payment") equal to (i) 4,372 multiplied
by (ii) the number of cents (inclusive of any fractions of a cent) by which the
Labor Rates in effect for such Comparison Year exceed the Base Labor Rates.
(b) At any time prior to, during or after any Comparison Year
Landlord shall render to Tenant a Landlord's Statement showing (i) a comparison
of the Labor Rates for the Comparison Year with the Base Labor Rates, and (ii)
the amount of Tenant's Labor Rate Payment resulting from such comparison.
Landlord's failure to render a Landlord's Statement during or with respect to
any Comparison Year shall not prejudice Landlord's right to render a Landlord's
Statement during or with respect to any subsequent Comparison Year and shall not
eliminate or reduce Tenant's obligation to pay Tenant's Labor Rate Payment
pursuant to this Article 6 for such Comparison Year.
(c) Tenant's Labor Rate Payment shall be payable by Tenant on the
first day of the month following the furnishing to Tenant of a Landlord's
Statement, in equal monthly installments, each such installment to be equal to
1/12th of Tenant's Labor Rate Payment for such Comparison Year multiplied by the
number of months (and any fraction thereof) of the Term then elapsed since the
commencement of such Comparison Year, continuing monthly thereafter until
rendition of the next succeeding Landlord's Statement.
(d) The provisions of this Section 6.4 shall be effective
irrespective of whether or not (i) the Building is classified as a Class A
office building from time to time, or (ii) any Building employees are members of
Local 32B-32J. Tenant acknowledges and agrees that the computation of Labor
Rates hereunder is intended to serve solely as a formula for an agreed rental
adjustment, rather than an actual operating expense calculation, and is not
intended to reflect the actual cost to Landlord of wages at the Building or any
increases or decreases in such cost.
Section 6.5 If the Commencement Date or the Expiration Date shall
occur on a date other than January 1 or December 31, respectively, any
Additional Rent under this Article 6 for the Comparison Year in which such
Commencement Date or Expiration Date shall occur shall be apportioned in that
percentage which the number of days in the period from the
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Commencement Date to December 31 or from January 1 to the Expiration Date, as
the case may be, both inclusive, shall bear to the total number of days in such
Comparison Year. In the event of a termination of this Lease, any Additional
Rent under this Article shall be paid or adjusted within thirty (30) days after
submission of a Landlord's Statement. In no event shall Fixed Rent ever be
reduced by operation of this Section 6.5 and the rights and obligations of
Landlord and Tenant under the provisions of this Article 6 with respect to any
Additional Rent shall survive the expiration or earlier termination of this
Lease.
Section 6.6 Landlord's failure to render a Landlord's Statement with
respect to any Comparison Year shall not prejudice Landlord's right to
thereafter render a Landlord's Statement with respect thereto or with respect to
any subsequent Comparison Year, nor shall the rendering of a Landlord's
Statement prejudice Landlord's right to thereafter render a corrected Landlord's
Statement for that Comparison Year. Nothing herein contained shall restrict
Landlord from issuing a Landlord's Statement at any time there is an increase in
Taxes or Labor Rates during any Comparison Year or any time thereafter.
Section 6.7 If any capital improvement is made to the Real Property
during any calendar year during the Term in compliance with any Legal
Requirements, then Tenant shall pay to Landlord, immediately upon demand
therefor, Tenant's Proportionate Share of the reasonable annual amortization,
with interest, of the cost of such improvement in each calendar year during the
Term during which such amortization occurs.
ARTICLE 7. LEGAL REQUIREMENTS
Section 7.1 Tenant, at its sole expense, shall comply with all Legal
Requirements applicable to the Premises or the use and occupancy thereof by
Tenant, and make all repairs or Alterations required thereby, whether structural
or nonstructural, ordinary or extraordinary, unless otherwise expressly provided
herein. Tenant shall not do or permit to be done any act or thing upon the
Premises which will invalidate or be in conflict with Landlord's insurance
policies, and shall not do or permit anything to be done in or upon the
Premises, or use the Premises in a manner, or bring or keep anything therein,
which shall increase the rates for casualty or liability insurance applicable to
the Building. If, as a result of any act or omission by Tenant or by reason of
Tenant's failure to comply with the provisions of this Article, the insurance
rates for the Building shall be increased, then Tenant shall desist from doing
or permitting to be done any such act or thing and shall reimburse Landlord, as
Additional Rent hereunder, for that part of all insurance premiums thereafter
paid by Landlord which shall have been charged because of such act, omission or
failure by Tenant, and shall make such reimbursement upon demand by Landlord.
Section 7.2 Tenant, at its expense, shall comply with all
Environmental Laws and with any directive of any Governmental Authority which
shall impose any violation, order or duty upon Landlord or Tenant under any
Environmental Laws with respect to the Premises or the use or occupation
thereof. Tenant's obligations hereunder with respect to Hazardous Materials
shall extend only to those matters directly or indirectly based on, or arising
or resulting from (a) the actual or alleged presence of Hazardous Materials on
the Premises or in the Building which is
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caused or permitted by Tenant, and (b) any Environmental Claim (defined below)
relating in any way to Tenant's operation or use of the Premises or the
Building.
Section 7.3 Tenant shall provide Landlord with copies of all
communications and related materials regarding the Premises which Tenant shall
receive from or send to (a) any Governmental Authority relating in any way to
any Environmental Laws, or (b) any Person with respect to any claim based upon
any Environmental Laws or relating in any way to Hazardous Materials (any such
claim, an "Environmental Claim"). Landlord or its agents may perform an
environmental inspection of the Premises at any time during the Term, upon prior
notice to Tenant except in an emergency.
ARTICLE 8. SUBORDINATION AND NON-DISTURBANCE; ESTOPPEL CERTIFICATES
Section 8.1 This Lease, and all rights of Tenant hereunder, are and
shall be subject and subordinate in all respects to all Mortgages and Superior
Leases. This Section 8.1 shall be self-operative and no further instrument of
subordination shall be required. In confirmation of such subordination, Tenant
shall promptly execute and deliver any instrument that Landlord or any Lessor or
Mortgagee may reasonably request to evidence such subordination.
Section 8.2 In the event of any act or omission of Landlord which
would give Tenant the right, immediately or after lapse of a period of time, to
cancel or terminate this lease, or to claim a partial or total eviction, Tenant
shall not exercise such right (a) until it has given written notice of such act
or omission to each Mortgagee and Lessor whose name and address shall previously
have been furnished to Tenant in writing, and (b) unless such act or omission
shall be one which is not capable of being remedied by Landlord or such
Mortgagee or Lessor within a reasonable period of time, until a reasonable
period for remedying such act or omission shall have elapsed following the
giving of such notice and following the time when such Mortgagee or Lessor shall
have become entitled under such Mortgage or Superior Lease, as the case may be,
to remedy the same (which reasonable period shall in no event be less than the
period to which Landlord would be entitled under this Lease or otherwise, after
similar notice, to effect such remedy), provided such Mortgagee or Lessor shall
with due diligence give Tenant written notice of its intention to remedy such
act or omission, and such Mortgagee or Lessor shall commence and thereafter
continue with reasonable diligence to remedy such act or omission. If more than
one Mortgagee or Superior Lessor shall become entitled to any additional cure
period under this Section 8.2, such cure periods shall run concurrently, not
consecutively.
Section 8.3 If a Mortgagee or Lessor shall succeed to the rights of
Landlord under this Lease, whether through possession or foreclosure action or
delivery of a new lease or deed, then at the request of such party so succeeding
to Landlord's rights ("Successor Landlord") and upon Successor Landlord's
written agreement to accept Tenant's attornment, Tenant shall attorn to and
recognize Successor Landlord as Tenant's landlord under this Lease, and shall
promptly execute and deliver any instrument that Successor Landlord may
reasonably request to evidence such attornment. Upon such attornment this Lease
shall continue in full force and effect as, or as if it were, a direct lease
between Successor Landlord and Tenant upon all of the
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terms, conditions and covenants as are set forth in this Lease and shall be
applicable after such attornment except that Successor Landlord shall not:
(a) be liable for any previous act or omission of Landlord
under this Lease;
(b) be subject to any offset, not expressly provided for in
this Lease, which shall have theretofore accrued to Tenant against
Landlord; or
(c) be bound by any previous modification of this Lease, not
expressly provided for in this Lease, or by any previous prepayment of
more than one month's fixed rent, unless such modification or prepayment
shall have been expressly approved in writing by such Mortgagee or Lessor.
Section 8.4 Each party agrees, at any time and from time to time, as
requested by the other party, upon not less than ten (10) days' prior notice, to
execute and deliver to the other a written statement executed and acknowledged
by such party (a) stating that this Lease is then in full force and effect and
has not been modified (or if modified, setting forth all modifications), (b)
setting forth the then annual Fixed Rent, (c) setting forth the date to which
the Fixed Rent and Additional Rent have been paid, (d) stating whether or not,
to the best knowledge of the signatory, the other party is in default under this
Lease, and if so, setting forth the specific nature of all such defaults, (e)
stating the amount of the Security Deposit, (f) stating whether there are any
subleases affecting the Premises, (g) stating the address of the signatory to
which all notices and communication under the Lease shall be sent, the
Commencement Date and the Expiration Date, and (i) as to any other matters
reasonably requested by the party requesting such certificate. The parties
acknowledge that any statement delivered pursuant to this Section 8.4 may be
relied upon by others with whom the party requesting such certificate may be
dealing, including any purchaser or owner of the Real Property or the Building,
or of Landlord's interest in the Real Property or the Building or any Superior
Lease, or by any Mortgagee or Lessor, or by any prospective or actual sublessee
of the Premises or assignee of this Lease, or permitted transferee of or
successor to Tenant.
ARTICLE 9. SERVICES
Section 9.1 Landlord shall provide, at Landlord's expense, except as
otherwise set forth herein, the following services:
Section 9.2 Electricity. (a) Landlord, at Landlord's expense,
subject to the provisions of this Article 9, shall furnish electrical energy to
Tenant for use in the Premises during the Term by making available to Tenant,
from the existing bus duct on the eighth (8th) floor of the Building, AC
electric capacity at a level of not less than 200 amperes, 480 volts, 3-phase,
4-wire, dedicated to Tenant. Tenant shall pay Landlord a one-time fee of
$34,250.00 for the installation of such electrical capacity. Tenant covenants
that Tenant's use and consumption of electric current shall not at any time
exceed such amount, nor exceed the capacity of any of the electrical facilities
and installations in or otherwise serving or being used in the Premises. Tenant
shall pay Landlord, as Additional Rent, at any time and from time to
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time, but no more frequently than monthly, for its consumption of electrical
energy at the Premises, as provided herein.
(b) In the event that Tenant's total power requirements at the
Premises, based on an annual review of Tenant's consumption following the first
anniversary of the Commencement Date, shall be less than the 200 ampere, 480
volt service described above, Tenant shall pay to Landlord an annual sum equal
to the fee, if any, which Landlord is obligated to pay to the Electricity
Provider (as hereinafter defined), commonly known as a "use it or lose it" fee,
for the availability of such capacity, presently payable by Landlord to the
Electricity Provider at the rate of $12.50 per unused ampere per annum. Further,
if as of the third (3rd) anniversary of the Commencement Date, Tenant shall
continue to require less than the 200 ampere, 480 volt service described above,
then Landlord shall have the right to reduce the level of electric power
supplied to the Premises to Tenant's actual power requirements.
(c) The calculations and determinations of the charges for electric
energy consumed by Tenant shall be based on the readings of one or more
submeters to be installed by Landlord at Tenant's sole expense, applied to
Landlord's Electricity Cost, as defined in Section 9.2(d). Tenant shall pay for
electricity consumed as determined thereunder as measured and calculated from
time to time by such submeter or submeters, such payment to be equal to the
amount Tenant would pay for such consumption of electricity if it purchased that
amount of electricity from the public utility servicing the Building under the
rate structure and/or classification as set forth in this Section 9.2(c)
pursuant to which Landlord would purchase that quantity of electricity for the
entire Building, plus Landlord's charge for overhead and supervision, which
charge shall not exceed seven percent (7%) of such payment by Tenant. In
addition, Tenant shall pay to Landlord, as Additional Rent (i) the fees and
expenses of Landlord's electrical contractor for services rendered by such
contractor in the maintenance and repair of such submeter(s), and (ii) the
amount of any taxes imposed by any Governmental Authority on Landlord's receipts
from the sale of electricity to Tenant. In the event that more that one submeter
is used to measure Tenant's consumption of electricity in the Premises, Tenant
shall be billed only on the basis of the "totalized" demand, i.e., as though a
single meter were measuring such usage.
(d) "Landlord's Electricity Cost" means the cost per kilowatt hour
and cost per kilowatt demand, adjusted by time of day factors, fuel adjustment
charges and other applicable rate adjustments, to Landlord for the purchase of
electricity from the public utility or other electricity provider furnishing
electricity service to the Building from time to time (the "Electricity
Provider"), including sales and other taxes imposed by any Governmental
Authority on Landlord's purchase of electricity. If at any time during the Term
the cost elements comprising Landlord's Electricity Cost shall be increased by
the Electricity Provider, or Landlord's Electricity Cost shall be increased for
any other reason, then effective as of the date of such increase, Tenant's
payment for submetered electricity under this Section 9.2 shall be
proportionately increased. Landlord reserves the right to contract with
different Electricity Providers from time to time in its sole judgment. and
without reference to whether any Electricity Provider selected by Landlord
provides lower rates than any other electricity supplier. Currently, Landlord's
Electricity Cost is based upon Consolidated Edison Company's Service
Classification rate schedule S.C. #4 Rate I as in effect on the Commencement
Date.
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(e) During the period beginning on the Commencement Date and ending
on the date upon which the submeters to be installed by Landlord in the Premises
become operational, Tenant shall pay to Landlord a fixed fee for electric energy
supplied to the Premises of (i) during the period prior to the date upon which
Tenant first occupies all or any portion of the Premises for the conduct of its
business, an amount per annum equal to One and 00/100 Dollar ($1.00) multiplied
by the number of Rentable Square Feet in the Premises, in equal monthly
installments on the first (1st) day of each month during such period, and (ii)
from and after the date upon which Tenant first occupies all or any portion of
the Premises for the conduct of its business, an amount per annum equal to Four
and 00/1 00 Dollars ($4.00) multiplied by the number of Rentable Square Feet in
the Premises, in equal monthly installments on the first (1st) day of each month
during such period, through the date upon which such submeters become
operational. Tenant shall have the right to install a dedicated MCM ground
connected to the main Building ground.
(f) Tenant covenants that Tenant's use and consumption of electric
current shall not at any time exceed the capacity of any of the electrical
facilities and installations in or otherwise serving or being used in the
Premises and Tenant shall, upon the submission by Landlord to Tenant of written
notice, promptly cease the use of any of Tenant's electrical equipment which
Landlord believes will cause Tenant to exceed such capacity. Any additional
feeders, risers, electrical facilities and other such installations required for
electric service to the Premises will be supplied by Landlord, at Tenant's
expense, upon Landlord's prior consent in each instance, provided that, in
Landlord's judgment, such additional electrical facilities and installations,
feeders or risers are necessary and are permissible under Legal Requirements
(including the New York State Energy Conservation Construction Code) and
insurance regulations and the installation of such feeders or risers will not
cause permanent damage or injury to the Building or the Premises or cause or
create a dangerous or hazardous condition or entail excessive or unreasonable
alterations or repairs or interfere with, or disturb, other tenants or occupants
of the Building. In addition, Landlord shall have no obligation to consent to
such additional feeders, risers, electrical facilities and installations if in
Landlord's judgment, the same would give Tenant a disproportionate amount of the
electrical current supplied to the Building at the expense of, or in derogation
of the needs of other tenants or occupants of the Building.
(g) Landlord shall not in any way be liable or responsible to Tenant
for any loss, damage or expense which Tenant may sustain or incur as a result of
the unavailability of or interruption in the supply of electric current to the
Premises or a change in the quantity or character or nature of such current and
such change, interruption or unavailability shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent (except that Tenant's liability to pay Landlord for
electricity under this Section 9.2 shall cease as of the date of such
disturbance), or relieve Tenant from any of its obligations under this Lease, or
impose any liability upon Landlord, or its agents, by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant's business, or
otherwise.
(h) Landlord reserves the right to discontinue furnishing
electricity to Tenant in the Premises on not less than sixty (60) days' notice
to Tenant. If Landlord exercises such right to discontinue, or is compelled to
discontinue furnishing electricity to Tenant, this Lease
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shall continue in full force and effect and shall be unaffected thereby, except
only that from and after the effective date of such discontinuance, Landlord
shall not be obligated to furnish electricity to Tenant, and Tenant shall have
no further obligation to pay Landlord for electricity supplied to the Premises.
If Landlord so discontinues furnishing electricity to Tenant, Tenant shall
arrange to obtain electricity directly from the Electricity Provider. Such
electricity may be furnished to Tenant by means of the then existing electrical
facilities serving the Premises to the extent that the same are available,
suitable and safe for such purposes. All meters and all additional panel boards,
feeders, risers, wiring and other equipment which may be required by Tenant to
obtain electricity directly from the public utility shall be installed by
Landlord, at Tenant's sole cost and expense.
(i) If submetering of electricity in the Building is hereafter
prohibited by any Legal Requirement, or by any order or ruling of the Public
Service Commission of the State of New York, then Tenant shall apply, within ten
(10) days of Tenant's receiving notice thereof, to the Electricity Provider in
order to obtain direct electric service, and Tenant shall bear all costs and
expenses, as set forth in Section 9.2(h), necessary to comply with all rules and
regulations of the Electricity Provider pertinent thereto, and from and after
the date upon which Tenant procures direct electric service, Landlord shall be
relieved of any further obligation to furnish electricity to Tenant pursuant to
this Section 9.2. Such electricity may be furnished to Tenant by means of the
then existing electrical facilities serving the Premises, including Building
feeders and risers, to the extent that the same are suitable and safe for such
purposes.
Section 9.3 Heat. (a) Landlord shall provide heat to the Premises on
Business Days during the Term from 8:00 A.M. to 6:00 P.M., when required in
Landlord's judgment for the comfortable use and occupancy of the Premises,
through use of the Building standard heating system (the "Building Heating
System).
(b) Anything in this Section 9.3 to the contrary notwithstanding,
Landlord shall not be responsible if the normal operation of the Building
Heating System shall fail to provide heat at reasonable temperatures uniformly
to all interior portions of the Premises. Tenant at all times shall cooperate
fully with Landlord and shall abide by the regulations and requirements which
Landlord may prescribe for the proper functioning and protection of the Building
Heating System.
(c) Landlord shall not be required to furnish heat during periods
other than the hours and days set forth in Section 9.3(a) for the furnishing and
distributing of such services ("Overtime Periods"), unless Landlord has received
advance notice from Tenant requesting such service not less than twenty-four
(24) hours prior to the time when such service shall be required. Accordingly,
if Landlord shall furnish heat to the Premises at the request of Tenant during
Overtime Periods, Tenant shall pay Landlord, as Additional Rent within ten (10)
days after demand, for such services at the standard rate then fixed by Landlord
for the Building. Failure by Landlord to furnish or distribute heat or any other
services during Overtime Periods shall not constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution
of Fixed Rent or Additional Rent, or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Landlord or its agents by reason
of
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inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business or otherwise.
(d) Landlord shall have no obligation to provide air-conditioning or
ventilation services to the Premises. Landlord agrees that if Tenant desires to
install a supplemental air-conditioning system, as part of the Initial
Alterations or otherwise, and if Landlord shall approve such an Alteration
pursuant to Article 3 hereof, then Tenant may install a self-contained
air-conditioning unit ("Tenant's HVAC System") on the Setback Premises. Upon the
expiration or sooner termination of the Term of this Lease, at Landlord's
request, Tenant shall remove Tenant's HVAC System from the Setback Premises, and
restore any damage to the Building and the Premises resulting from such removal.
Section 9.4 Elevators. Landlord shall provide passenger elevator
service to the Premises on Business Days from 8:00 A.M. to 6:00 P.M. and freight
elevator facilities on a non-exclusive basis, on Business Days from 8:00 A.M. to
4:45 P.M., and shall have one passenger elevator available at all other times.
Such elevator service shall be subject to such rules and regulations as Landlord
may promulgate from time to time with respect thereto. Landlord shall have the
right to change the operation or manner of operation of any of the elevators in
the Building and/or to discontinue, temporarily or permanently, the use of any
one or more cars in any of the passenger, freight or truck elevator banks.
Section 9.5 Cleaning. Tenant shall, at Tenant's sole cost, provide
cleaning services at the Premises pursuant to reasonable rules and regulations
established by Landlord from time to time, and use a cleaning contractor
approved by Landlord.
Section 9.6 Emergency Generator.
(a) Landlord shall provide 200 amperes of emergency electric power
service ("EPS") to Tenant for use in the Premises from the Building emergency
electric generator (the "Generator") as provided in this Section 9.6. Landlord
shall install, within sixty (60) days after the complete execution and delivery
of this Lease by Landlord and Tenant, at Tenant's sole cost and expense (i) an
automatic transfer switch (the "Transfer Switch"), in the Premises at a location
to be designated by Landlord, sufficient to supply a total connected load of 200
amperes of EPS at 460 volts to the Premises. and (ii) a connection from the
Generator to the Transfer Switch. Tenant shall pay to Landlord the actual
out-of-pocket costs incurred by Landlord for the installation of the Transfer
Switch and the connection from the Generator to the Transfer Switch.
(b) Tenant shall pay to Landlord an annual fee (the "EPS Fee") for
the period commencing on the date on which Landlord makes EPS available to the
Premises through the Expiration Date of this Lease, irrespective of whether or
not emergency power is ever required or used by Tenant, in the amount of $100.00
per ampere per year, subject to increase pursuant to Section 9.6(c) below. The
EPS Fee shall be payable by Tenant to Landlord as Additional Rent in advance in
equal monthly installments on the first day of each month during the Term.
Tenant shall be responsible for the payment of any occupancy tax, or any other
tax (other than Landlord's income tax) imposed upon the Additional Rent paid by
Tenant pursuant to this Section 9.6.
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(c) For purposes of this Lease, (i) the term "CPI" means the
Consumer Price Index for All Urban Consumers, New York, N.Y. - Northeastern,
N.J., l982-84=100; provided, however, that if the CPI or any successor index
shall cease to be published, Landlord shall substitute therefor such other
comparable index as Landlord shall reasonably determine, and (ii) the term "CPI
Fraction" means, as of each January 1st during the Term (an "Adjustment Date"),
a fraction (A) the numerator of which is the sum of (1) the CPI in effect on the
immediately previous Adjustment Date (the "Base Index") plus (2) the amount by
which the CPI in effect on the Adjustment Date exceeds the Base Index, and (B)
the denominator of which is the Base Index. If, as of each Adjustment Date, the
CPI then in effect is greater than the Base Index, then the EPS Fee shall be
increased as of such Adjustment Date to an amount equal to the product of (I)
the EPS Fee then in effect for the immediately previous calendar year,
multiplied by (II) the CPI Fraction. In no event shall the EPS Fee ever be
reduced pursuant to this Section 9.6(c).
(d) Tenant understands and agrees that EPS will be supplied to
Tenant only if there is an interruption or failure in the supply of electric
current to the Premises, and under no other circumstances. The privilege of
using the EPS service described in this Section 9.6 cannot be transferred or
assigned by Tenant except with the express written consent of Landlord, which
may be withheld in Landlord's sole discretion, and under no circumstances can
this privilege be transferred or assigned to any party who is not a tenant under
this Lease.
(e) Landlord shall have the right, in Landlord's sole discretion, at
any time and from time to time during the term of this Lease, upon not less than
thirty (30) days prior written notice to Tenant, to relocate the Generator to
another area of the Building, and/or to substitute another Building generator in
lieu of the Generator, provided that there shall be no interruption in the
availability of EPS to Tenant at the level provided in Section 9.6(a). Tenant
shall cooperate with Landlord to effectuate any such relocation or substitution
of the Generator. All costs involved in such relocation or substitution shall be
borne by Landlord. Tenant acknowledges that the Generator (and any replacement
or substitute therefor), the Transfer Switch, and all connections thereto, are
and shall remain the sole property of Landlord and may not be removed by Tenant.
(f) Upon and subject to the provisions of this Lease, Landlord shall
maintain and repair the Generator. Landlord shall maintain all service contracts
and take such other actions as may be necessary to keep the Generator in good
working order. Landlord shall not be liable in any way to Tenant for any delay,
interruption, failure, variation or defect in or with regard to the Generator
and/or EPS, except to the extent arising from the gross negligence or willful
misconduct or Landlord, and in no event shall Landlord be liable to Tenant for
special, indirect or consequential damages which may result from any such delay,
interruption, failure, variation or defect.
Section 9.7 Water. Landlord shall furnish hot and cold water in such
quantities as Landlord deems sufficient for ordinary drinking, lavatory and
cleaning purposes to the Premises. If Tenant requires, uses or consumes water
for any purpose in addition to ordinary lavatory, cleaning and drinking
purposes, Landlord may install a hot water meter and a cold water meter and
thereby measure Tenant's consumption of water for all purposes. Tenant shall
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(a) pay to Landlord the cost of any such meters and their installation, (b) at
Tenant's sole cost and expense, keep any such meters and any such installation
equipment in good working order and repair, and (c) pay to Landlord, as
Additional Rent, as and when billed therefor for water consumed, together with a
charge for any required pumping or heating thereof, all sewer rents, charges or
any other taxes, rents, levies or charges which now or hereafter are assessed,
imposed or shall become a lien upon the Premises or the Real Property pursuant
to law, order or regulation made or issued in connection with any such metered
use, consumption, maintenance or supply of water, water system, or sewage or
sewage connection or system, and in default in making such payment Landlord may
pay such charges and collect the same from Tenant.
Section 9.8 Rubbish and Removal. Tenant shall, at Tenant's sole
cost, provide refuse and rubbish removal service at the Premises at times, and
pursuant to regulations, established by Landlord from time to time.
Section 9.9 No Warranty of Landlord. Landlord does not warrant that
any of the services to be provided by Landlord to Tenant hereunder, or any other
services which Landlord may supply (a) will be adequate for Tenant's particular
purposes or as to any other particular need of Tenant or (b) will be free from
interruption, and Tenant acknowledges that any one or more such services may be
interrupted or suspended by reason of Unavoidable Delays. In addition, Landlord
reserves the right to stop, interrupt or reduce service of the Building Systems
by reason of Unavoidable Delays, or for repairs, additions, alterations,
replacements, decorations or improvements which are, in the judgment of
Landlord, necessary to be made, until said repairs, alterations, replacements or
improvements shall have been completed. Any such interruption or discontinuance
of service, or the exercise of such right by Landlord to suspend or interrupt
such service shall not (i) constitute an actual or constructive eviction, or
disturbance of Tenant's use and possession of the Premises, in whole or in part,
(ii) entitle Tenant to any compensation or to any abatement or diminution of
Fixed Rent or Additional Rent, (iii) relieve Tenant from any of its obligations
under this Lease, or (iv) impose any responsibility or liability upon Landlord
or its agents by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise. Landlord shall use reasonable
efforts to minimize interference with Tenant's access to and use and occupancy
of the Premises in making any repairs, alterations, additions, replacements,
decorations or improvements; provided, however, 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.
Landlord shall not be required to furnish any services except as expressly
provided in this Article 9.
Section 9.10 GPS Antenna. (a) Subject to the provisions of this
Section 9.10, Landlord will grant to Tenant, for Tenant's own use and not for
resale purposes, a non-exclusive license of sufficient space on the roof of the
Building, as reasonably determined by Landlord, for a Global Positioning System
satellite antenna for use in conjunction with Tenant's equipment and facilities
in the Premises (the "GPS Antenna"), at a location reasonably designated by
Landlord, taking into account any reasonable "line of sight" requirements of
Tenant. In connection therewith, and subject to the rights of other tenants in
the Building, Landlord shall make available to Tenant reasonable access to the
roof for the construction, installation, upgrade, maintenance, repair, operation
and use of the GPS Antenna. If Tenant requires riser space for
-23-
electrical and telecommunications conduits connecting the Premises to the GPS
Antenna, then, subject to reasonable availability of such space in the Building
at that time, Landlord shall make available to Tenant, for Tenant's use,
sufficient space in the Building, at a location reasonably determined by
Landlord, for two (2) risers each not exceeding four inches (4") in diameter,
connecting the GPS antenna to a location to be designated by Tenant and approved
by Landlord, such approval not to be unreasonably withheld or delayed. All work
in connection with the installation of such riser, including core drilling, if
required, shall be performed at Tenant's sole cost and expense, including the
cost of a fire watch and related supervisory costs relating to any core
drilling, which shall be performed in such a manner and at such times as
Landlord shall prescribe. References herein to the GPS Antenna shall be deemed
to include such riser and the electrical and telecommunications conduits
therein. If Tenant requires any additional riser space for electrical and
telecommunications conduits, then upon request by Tenant, subject to
availability of riser space in the Building, Landlord will make available riser
space at the following rates: (i) for riser space not exceeding two inches (2")
in diameter, a one- time charge of $2.50 per lineal foot, and (ii) for riser
space in excess of two inches (2") in diameter but not exceeding four inches
(4") in diameter, a one-time charge of $5.00 per lineal foot.
(b) The installation of the GPS Antenna shall constitute an
Alteration and shall be performed at Tenant's sole cost and expense (including
any costs and expenses in connection with reinforcing the roof of the Building,
if required) in accordance with and subject to the provisions of Article 3
hereof. Tenant shall pay a license fee to Landlord for the GPS Antenna, as
Additional Rent, in advance, on the first day of each month during the Term, an
amount equal to one-twelfth (1/12) of the product of (a) $25.00, multiplied by
(b) the total square footage of roof area, calculated by determining the
smallest square or rectangle on the roof of the Building encompassing the
largest portion of the GPS Antenna (and based upon that portion of the roof
actually used for the GPS Antenna), from the time of the installation of the GPS
Antenna until the removal thereof. All of the provisions of this Lease shall
apply to the installation, use and maintenance of the GPS Antenna, including all
provisions relating to compliance with Legal Requirements (including all FCC
rules and regulations), insurance, indemnity, repairs and maintenance. The
license granted to Tenant in this Section 9.10 shall not be assignable by Tenant
separately from this Lease. The GPS Antenna shall be treated for all purposes of
this Lease as Tenant's Property.
(c) Landlord retains the right to use the portion of the roof on
which the GPS Antenna is located for any purpose whatsoever. Tenant shall have
reasonable access to at all times, and Landlord shall not interfere with, the
use of the GPS Antenna so as to cause the transmission or reception of
communication signals to be materially interrupted or impaired. Tenant shall use
the GPS Antenna so as not to cause any interference to Landlord's use of the
roof, including the use by Landlord or other tenants or occupants of the
Building of data transmission equipment thereon, or damage to or interference
with the operation of the Building or the Building Systems. If the GPS Antenna
interferes with or disturbs the reception or transmission or communication
signals by or from any antennas, satellite dishes or similar equipment
previously installed by Landlord or any other tenant in the Building, or
interferes with the operation of the Building or the Building Systems, then
Tenant, at its sole cost and expense, shall construct all necessary shielding,
or if shielding shall fail to eliminate such disturbance or
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interference, relocate Tenant's GPS Antenna to another area on the roof
designated by Landlord. If such interference or disturbance still occurs despite
such relocation, or if Landlord determines in its reasonable judgment that the
GPS Antenna (i) may cause a health hazard or danger to property, (ii) may not be
in accordance with governmental or quasi-governmental standards for non-ionizing
radiation for occupational and/or general public levels, then Tenant, at its
sole cost and expense, shall promptly remove the GPS Antenna from the roof of
the Building. In the event Tenant fails to relocate or remove the GPS Antenna,
Landlord may do so, and Tenant shall promptly reimburse Landlord for any costs
incurred by Landlord in connection therewith.
(d) If Tenant fails to comply with any of the conditions set forth
in this Section 9.10, then, without limiting the rights and remedies Landlord
may otherwise have under this Lease, Tenant, upon written notice from Landlord,
at Landlord's option, shall immediately discontinue its use of the GPS Antenna,
and either (i) remove the GPS Antenna, or (ii) reposition the GPS Antenna to a
location designated by Landlord, all at Tenant's sole cost and expense.
Notwithstanding the foregoing, Landlord may at its option, at any time during
the Term after reasonable prior notice to Tenant (except in the event of an
emergency) relocate the GPS Antenna to another area on the roof designated by
Landlord, provided that such relocation of the GPS Antenna does not cause the
transmission or reception of communication signals to be materially interrupted
or impaired other than temporarily, and except as set forth in Section 9.10(c)
with respect to interference or disturbance with the reception or transmission
of communication signals to or from existing antennas, satellite dishes or
similar equipment, such relocation is performed at Landlord's sole cost and
expense.
(e) Landlord shall not have any obligations with respect to the GPS
Antenna or compliance with any Legal Requirements (including the obtaining of
any required permits or licenses, or the maintenance thereof) relating thereto,
nor shall Landlord be responsible for any damage that may be caused to Tenant or
the GPS Antenna by any other tenant or occupant of the Building. Landlord makes
no representation that the GPS Antenna will be able to receive or transmit
communication signals without interference or disturbance (whether or not by
reason of the installation or use of similar equipment by others on the roof)
and Tenant agrees that Landlord shall not be liable to Tenant therefor.
(f) Tenant shall (i) be solely responsible for any damage caused as
a result of the use of the GPS Antenna, (ii) promptly pay any tax, license,
permit or other fees or charges imposed pursuant to any Legal Requirements
relating to the installation, maintenance or use of the GPS Antenna, (iii)
promptly comply with all precautions and safeguards recommended by Landlord's
insurance company and all Governmental Authorities, and (iv) perform all
necessary repairs or replacements to, or maintenance of, the GPS Antenna,
provided, however, that if Tenant's failure after notice from Landlord to so
repair, replace or maintain the GPS Antenna jeopardizes in any way Landlord's or
any other tenant's property located on the roof or within the Building, Landlord
may, at Landlord's option, elect to perform such repairs, replacements or
maintenance at Tenant's sole cost and expense. Landlord shall give Tenant
reasonable prior notice of its election to perform such repairs, except in an
emergency.
(g) The privileges granted Tenant under this Section 9.10 merely
constitute a license and shall not, now or at any time after the installation of
the GPS Antenna, be deemed to
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grant Tenant a leasehold or other real property interest in the Building or any
portion thereof, including, but not limited to, the Building's roof. The license
granted to Tenant in this Section 9.10 shall automatically terminate and expire
upon the expiration or earlier termination of this Lease and the termination of
such license shall be self-operative and no further instrument shall be required
to effect such termination. Notwithstanding the foregoing upon request by
Landlord, Tenant, at Tenant's sole cost and expense, shall promptly execute and
deliver to Landlord, in recordable form, any certificate or other document
required by Landlord confirming the termination of Tenant's right to use the
roof of the Building.
ARTICLE 10. INSURANCE
Section 10.1 Tenant, at its expense, shall obtain and keep in full
force and effect a policy of commercial general liability insurance under which
Tenant is named as the insured and Landlord, Landlord's managing agent for the
Building, and any Lessors and any Mortgagees (whose names shall have been
furnished to Tenant) are named as additional insureds, which insurance shall
provide primary coverage without contribution from any other insurance carried
by or for the benefit of Landlord, Landlord's managing agent or any Lessors or
Mortgagees named as additional insureds. Tenant's primary commercial general
liability policy shall contain a provision that the policy shall be
noncancellable unless twenty (20) days' written notice shall have been given to
Landlord and Landlord shall similarly receive twenty (20) days' notice of any
material change in coverage. The minimum limits of liability shall be a combined
single limit with respect to each occurrence in an amount of not less than
$5,000,000 per location general aggregate limit; provided, however, that
Landlord shall retain the right to require Tenant to increase said coverage to
that amount of insurance which in Landlord's reasonable judgment is then being
customarily required by prudent landlords of comparable buildings in the City of
New York, and provided further that Landlord shall require similar increases of
other tenants of space in the Building comparable to the Premises, to the extent
Landlord shall then have the right to do so under applicable leases. Tenant
shall also obtain and keep in full force and effect during the Term, (a)
insurance against loss or damage by fire, and such other risks and hazards as
are insurable under then available standard forms of "all risk" insurance
policies with extended coverage, to Tenant's Property and Tenant's Alterations
for the full insurable value thereof or on a replacement cost basis; (b)
Workers' Compensation Insurance, as required by law; (c) New York Disability
Benefits Law Policy; and (d) such other insurance in such amounts as Landlord,
any Mortgagee or Lessor may reasonably require from time to time. All insurance
required to be carried by Tenant pursuant to the terms of this Lease shall be
effected under valid and enforceable policies issued by reputable and
independent insurers permitted to do business in the State of New York, and
rated in Best's Insurance Guide, or any successor thereto (or if there be none,
an organization having a national reputation) as having a Best's Rating" of "A-"
and a "Financial Size Category" of at least "XI" or if such ratings are not then
in effect, the equivalent thereof.
Section 10.2 (a) The parties hereto do hereby waive, any and all
rights of recovery against the other, or against the officers, employees,
partners, agents and representatives of the other, for loss of or damage to the
property of the waiving party to the extent such loss or damage is insured
against under any insurance policy carried by Landlord or Tenant hereunder. In
addition, the parties hereto shall procure an appropriate clause in, or
endorsement on, any fire
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or extended coverage insurance covering the Premises, the Building and personal
property, fixtures and equipment located thereon or therein, pursuant to which
the insurance companies waive subrogation or consent to a waiver of right of
recovery and subject to obtaining such clauses or endorsements of waiver of
subrogation or consent to a waiver of right of recovery, hereby agree not to
make any claim against or seek to recover from the other for any loss or damage
to its property or the property of others resulting from fire or other hazards
covered by such fire and extended coverage insurance; provided, however, that
the release, discharge, exoneration and covenant not to ▇▇▇ herein contained
shall be limited by and coextensive with the terms and provisions of the waiver
of subrogation clause or endorsements or clauses or endorsements consenting to a
waiver of right of recovery. If the payment of an additional premium is required
for the inclusion of such waiver of subrogation or consent to waiver provision,
each party shall advise the other of the amount of any such additional premiums
and the other party at its own election may, but shall not be obligated to, pay
the same. If such other party shall not elect to pay such additional premium,
the first party shall not be required to obtain such waiver of subrogation or
consent to waiver provision. Tenant acknowledges that Landlord shall not carry
insurance on and shall not be responsible for damage to, Tenant's Alterations
(if any) or Tenant's Property, and that Landlord shall not carry insurance
against, or be responsible for any loss suffered by Tenant due to, interruption
of Tenant's business.
(b) As to each party hereto, provided such party's right of full
recovery under the applicable insurance policy is not adversely affected, such
party hereby releases the other (its servants, agents, contractors, employees
and invitees) with respect to any claim (including a claim for negligence) which
it might otherwise have against the other party for loss, damages or destruction
of the type covered by such insurance with respect to its property by fire or
other casualty i.e. in the case of Landlord, as to the Building, and, in the
case of Tenant, as to Tenant's Property and Tenant's Alterations (including
rental value or business interruption, as the case may be) occurring during the
Term of this Lease.
Section 10.3 On or prior to the Commencement Date. Tenant shall
deliver to Landlord appropriate certificates of insurance required to be carried
by Tenant pursuant to this Article 10, including evidence of waivers of
subrogation required pursuant to Section 10.2. Evidence of each renewal or
replacement of a policy shall be delivered by Tenant to Landlord at least twenty
(20) days prior to the expiration of such policy.
Section 10.4 Landlord agrees to maintain (a) insurance against loss
or damage to the Building by fire and such other risks and hazards as are
insurable under then available forms of "all risk" insurance policies with
extended coverage, and (b) a policy of commercial general liability insurance
with minimum limits of liability in amounts comparable to insurance maintained
by other prudent landlords of comparable office buildings in the City of New
York.
ARTICLE 11. DESTRUCTION OF THE PREMISES; PROPERTY LOSS OR DAMAGE
Section 11.1 (a) If the Premises shall be damaged by fire or other
casualty, or if the Building shall be so damaged that Tenant shall be deprived
of reasonable access to the Premises, Tenant shall give prompt notice thereof to
Landlord, and the damage shall be repaired by and at the expense of Landlord to
substantially the condition prior to the damage, including
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Tenant's Alterations, but excluding Tenant's Property. Until such repairs shall
be substantially completed, Fixed Rent and Additional Rent shall, so long as
Tenant shall not be in default beyond applicable grace or notice provisions in
the payment or performance of its obligations under this Section 11.1, be
reduced in the proportion which the area of the part of the Premises which is
neither usable nor used by Tenant bears to the total area of the Premises.
Tenant shall pay to Landlord all proceeds of insurance policies covering
Tenant's Alterations, and such proceeds shall be used by Landlord in the repair
of Tenant's Alterations. Landlord shall have no obligation to repair any damage
to, or to replace, any of Tenant's Property.
(b) Concurrently with the collection of any insurance proceeds
attributable to damage to Tenant's Alterations (or the payment by the Tenant to
Landlord of an amount equal to such insurance proceeds, pending collection of
such proceeds from its insurer), and as a condition precedent to Landlord's
obligation to commence those repairs to Tenant's Alterations required to be
performed by Landlord pursuant to this Section 11.1, Tenant shall pay to
Landlord (i) the amount of any deductible under the policy insuring Tenant's
Alterations, and (ii) the amount, if any, by which the cost of repairing and
restoring Tenant's Alterations, as estimated by a reputable independent
contractor designated by Landlord, exceeds the available insurance proceeds
therefor. The amounts due in accordance with the preceding sentence constitute
Additional Rent under this Lease and shall be payable by Tenant to Landlord upon
demand.
Section 11.2 (a) Anything contained in Section 11.1 to the contrary
notwithstanding, if the Premises are totally damaged or are rendered wholly
untenantable, and if Landlord shall decide not to restore the Premises, or if
the Building shall be so damaged by fire or other casualty that, in Landlord's
opinion, substantial alteration, demolition, or reconstruction of the Building
shall be required (whether or not the Premises shall have been damaged or
rendered untenantable), then in any of such events, Landlord may, not later than
sixty (60) days following the date of the damage, give Tenant a notice in
writing terminating this Lease. If this Lease is so terminated, the Term shall
expire upon the tenth (10th) day after such notice is given, and Tenant shall
vacate the Premises and surrender the same to Landlord. Upon the termination of
this Lease under the conditions provided for in this Section 11.2, Tenant's
liability for Fixed Rent and Additional Rent shall cease as of the date of such
fire or other casualty, and any prepaid portion of Fixed Rent or Additional Rent
for any period after such date shall be refunded by Landlord to Tenant.
(b) If this Lease is terminated pursuant to the provisions of this
Article 11, then Landlord shall collect the insurance proceeds of policies
providing coverage for Tenant's Alterations as provided in Section 11.1(a)
hereof. Landlord shall retain such proceeds to the extent of sums, if any,
advanced by Landlord to Tenant with respect to any of Tenant's Alterations. The
balance of such proceeds, if any, shall be paid to Tenant.
Section 11.3 If the Premises are damaged by fire or other casualty
and are rendered wholly untenantable thereby, or if the Building shall be so
damaged that Tenant shall be deprived of reasonable access to the Premises, and
if Landlord shall elect to restore the Premises, Landlord shall, within sixty
(60) days following the date of the damage, cause a contractor or architect
selected by Landlord to give notice (the "Restoration Notice") to Tenant of the
date by which such contractor or architect believes the restoration of the
Premises shall be substantially
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completed. If the Restoration Notice shall indicate that the restoration shall
not be substantially completed on or before the date which shall be twelve (12)
months following the date of such damage or destruction, Tenant shall have the
right to terminate this Lease by giving written notice (the "Termination
Notice") to Landlord not later than thirty (30) days following receipt of the
Restoration Notice. If Tenant gives a Termination Notice, this Lease shall be
deemed cancelled and terminated as of the date of the giving of the Termination
Notice as if such date were the Expiration Date, and Fixed Rent and Additional
Rent shall be apportioned and shall be paid or refunded, as the case may be up
to and including the date of such damage or destruction. Notwithstanding
anything set forth to the contrary in this Article 11, in the event that a fire
or other casualty rendering the Premises wholly untenantable shall occur during
the final year of the Term, either Landlord or Tenant may terminate this Lease
by giving the other party a Termination Notice as set forth herein.
Section 11.4 This Article 11 constitutes an express agreement
governing any case of damage or destruction of the Premises or the Building by
fire or other casualty, and Section 227 of the Real Property Law of the State of
New York, which provides for such contingency in the absence of an express
agreement, and any other law of like nature and purpose now or hereafter in
force shall have no application in any such case.
ARTICLE 12. EMINENT DOMAIN
Section 12.1 If (a) all of the floor area of the Premises, or so
much thereof as shall render the Premises wholly untenantable, shall be acquired
or condemned for any public or quasi-public use or purpose, or (b) a portion of
the Real Property, not including the Premises, shall be so acquired or
condemned, but by reason of such acquisition or condemnation, Tenant no longer
has means of access to the Premises, then this Lease and the Term shall end as
of the date of the vesting of title with the same effect as if that date were
the Expiration Date. In the event of any termination of this Lease and the Term
pursuant to the provisions of this Article 12, Fixed Rent and Additional Rent
shall be apportioned as of the date of sooner termination and any prepaid
portion of Fixed Rent or Additional Rent for any period after such date shall be
refunded by Landlord to Tenant.
Section 12.2 In the event of any such acquisition or condemnation of
all or any part of the Real Property. Landlord shall be entitled to receive the
entire award for any such acquisition or condemnation. Tenant shall have no
claim against Landlord or the condemning authority for the value of any
unexpired portion of the Term or Tenant's Alterations, and Tenant hereby
expressly assigns to Landlord all of its right in and to any such award. Nothing
contained in this Section 12.2 shall be deemed to prevent Tenant from making a
separate claim in any condemnation proceedings for the then value of any
Tenant's Property included in such taking and for any moving expenses, provided
such award shall be made by the condemning authority in addition to, and shall
not result in a reduction of, the award made by it to Landlord.
Section 12.3 If only a part of the Real Property shall be so
acquired or condemned then, subject to Section 12.1, this Lease and the Term
shall continue in force and effect. If a part of the Premises shall be so
acquired or condemned and this Lease and the Term shall not be terminated,
Landlord, at Landlord's expense, shall restore that part of the Premises
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not so acquired or condemned so as to constitute tenantable Premises. From and
after the date of the vesting of title, Fixed Rent and Additional Rent shall be
reduced in the proportion which the area of the part of the Premises so acquired
or condemned bears to the total area of the Premises immediately prior to such
acquisition or condemnation.
ARTICLE 13. ASSIGNMENT AND SUBLETTING
Section 13.1 Except as otherwise expressly provided herein, Tenant,
for itself, its heirs, distributees, executors, administrators, legal
representatives, successors and assigns, expressly covenants that it shall not
assign, mortgage, pledge, encumber, or otherwise transfer this Lease, nor sublet
(nor underlet), nor suffer, nor permit the Premises or any part thereof to be
used or occupied by others (whether for desk space, mailing privileges or
otherwise), without the prior written consent of Landlord in each instance. If
this Lease is assigned, or if the Premises or any part thereof are sublet or
occupied by anybody other than Tenant, or if this Lease or the Premises or
Tenant's personal property are encumbered (whether by operation of law or
otherwise) without Landlord's consent, then Landlord may, after default by
Tenant, collect rent from the assignee, subtenant or occupant, and apply the net
amount collected to Fixed Rent and Additional Rent, but no assignment,
subletting, occupancy or collection shall be deemed a waiver by Landlord of the
provisions hereof, the acceptance by Landlord of the assignee, subtenant or
occupant as a tenant, or a release by Landlord of Tenant from the further
performance by Tenant its obligations under this Lease, and Tenant shall remain
fully liable therefor. The consent by Landlord to any assignment or subletting
shall not in any way be construed to relieve Tenant from obtaining the express
consent in writing of Landlord to any further assignment or subletting. In no
event shall any permitted subtenant assign or encumber its sublease or further
sublet all or any portion of its sublet space, or otherwise suffer or permit the
sublet space or any part thereof to be used or occupied by others, without
Landlord's prior written consent in each instance. Any assignment, sublease,
mortgage, pledge, encumbrance or transfer in contravention of the provisions of
this Article 13 shall be void.
Section 13.2 If Tenant shall, at any time or from time to time,
during the Term desire to assign this Lease or sublet all or part of the
Premises, Tenant shall give notice (a "Tenant's Notice") thereof to Landlord,
which Tenant's Notice shall set forth: (a) with respect to an assignment of this
Lease, the date Tenant desires the assignment to be effective and any
consideration Tenant would receive under such assignment, (b) with respect to a
sublet of all or a part of the Premises (i) the dates upon which Tenant desires
the sublease term to commence and expire, (ii) the rental rate and other
material business terms upon which Tenant would sublet such premises, and (iii)
a description of the Premises showing the portion to be sublet, the effective or
commencement date of which shall be not less than sixty (60) nor more than one
hundred and eighty (180) days after the giving of such notice, (c) a statement
setting forth in reasonable detail the identity of the proposed assignee or
subtenant, the nature of its business and its proposed use of the Premises, (d)
current financial information with respect to the proposed assignee or
subtenant, including its most recent financial report, (e) a true and complete
copy of the proposed assignment or sublease and any other agreements relating
thereto, and (f) an agreement by Tenant to indemnify Landlord against liability
resulting from any claims that may be made against Landlord by the proposed
assignee or subtenant or by any brokers or other Persons claiming a commission
or similar compensation in connection with the proposed assignment or
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sublease. Tenant's Notice shall be deemed an offer from Tenant to Landlord
whereby Landlord (or Landlord's designee) may, at its option, (I) sublease such
space (the "Leaseback Space") from Tenant upon the terms and conditions set
forth in Section 13.4, or terminate the Lease with respect to only the Leaseback
Space, or (II) if the proposed transaction is (1) an assignment of this Lease or
(2) a subletting of fifty percent (50%) or more of the rentable area of the
Premises, terminate this Lease. Said options may be exercised by Landlord by
notice given to Tenant at any time within sixty (60) days after Tenant's Notice
has been given by Tenant to Landlord, and during such sixty-day period, Tenant
shall not assign this Lease nor sublet such space to any Person other than
Landlord.
Section 13.3 If Landlord exercises its option to terminate this
Lease with respect to all or a portion of the Premises pursuant to Section 13.2
hereof, then this Lease shall end and expire on the date that such assignment or
sublease was to be effective or commence, as the case may be, and the Fixed Rent
and Additional Rent due hereunder shall be paid and apportioned to such date. In
such event, Landlord and Tenant, upon request of either party, shall enter into
an amendment of this Lease ratifying and confirming such total or partial
termination, and setting forth appropriate modifications, if any, to the terms
and provisions hereof. Following such termination, Landlord shall be free to and
shall have no liability to Tenant if Landlord should lease the Premises (or any
part thereof) to Tenant's prospective assignee or subtenant.
Section 13.4 If Landlord exercises its option to sublet the
Leaseback Space, such sublease to Landlord or its designee (as subtenant) shall
be at a rental rate equal to the product of (i) the lesser of (A) the rental
rate per rentable square foot of Fixed Rent and Additional Rent then payable
pursuant to this Lease, or (B) the rental rate per rentable square foot of rent
and additional rent set forth in Tenant's Notice, multiplied by (ii) the number
of rentable square feet of the Leaseback Space, and shall be for the same term
as that of the proposed subletting, and such sublease shall:
(a) be upon such other terms and conditions as are contained
in Tenant's Notice, and be expressly subject to all of the covenants,
agreements, terms, provisions and conditions of this Lease, except such as
are irrelevant or inapplicable, and except as expressly set forth in this
Article 13 to the contrary;
(b) give the subtenant the unqualified and unrestricted right,
without Tenant's permission, to assign such sublease or any interest
therein and/or to sublet the space covered by such sublease or any part or
parts of such space and to make any and all changes, alterations and
improvements in the space covered by such sublease, and if the proposed
sublease will result in all or substantially all of the Premises being
sublet, grant Landlord or its designee the option to extend the term of
such sublease for the balance of the Term of this Lease less one day;
(c) provide that any assignee or further subtenant of Landlord
or its designee, may, at Landlord's option, be permitted to make
alterations, decorations and installations in such space or any part
thereof and shall also provide in substance that any such alterations,
decorations and installations in such space therein made by any assignee
or subtenant of Landlord or its designee may be removed, in whole or in
part, by such
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assignee or subtenant, at its option, prior to or upon the expiration or
other termination of such sublease; provided, however, that such assignee
or subtenant shall, at its sole cost and expense, repair any damage and
injury caused by such removal; and
(d) provide that (i) the parties to such sublease expressly
negate any intention that any estate created under such sublease be merged
with any other estate held by either of said parties, (ii) any assignment
or sublease by Landlord or its designee (as the subtenant) may be for any
purpose or purposes that Landlord, in Landlord's uncontrolled discretion,
shall deem suitable or appropriate, (iii) Tenant shall, at Tenant's sole
cost and expense, at all times provide and permit reasonably appropriate
means of ingress to and egress from such space so sublet by Tenant to
Landlord or its designee, (iv) Landlord may, at Tenant's sole cost and
expense, make such alterations as may be required or deemed necessary by
Landlord to physically separate the subleased space from the balance of
the Premises and to comply with any legal or insurance requirements
relating to such separation, and (v) that at the expiration of the term of
such sublease, Tenant will accept the space covered by such sublease in
its then existing condition, subject to the obligations of the subtenant
to make such repairs thereto as may be necessary to preserve the premises
demised by such sublease in good order and condition.
Section 13.5 (a) If Landlord exercises its option to sublet the
Leaseback Space, Landlord shall indemnify and save Tenant harmless from all
obligations under this Lease as to the Leaseback Space during the period of time
it is so sublet to Landlord, except as to any obligation which arises out of or
results from the negligence or willful misconduct of Tenant, or any of its
agents, servants or employees.
(b) Performance by Landlord, or its designee, under a sublease of
the Leaseback Space 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) Tenant shall have no obligation, at the expiration or earlier
termination of the Term, to remove any alteration, installation or improvement
made in the Leaseback Space by Landlord (or Landlord's designee).
(d) Any consent required of Tenant, as Landlord under the sublease,
shall be deemed granted if consent with respect thereto is granted by Landlord
under this Lease, and any failure of Landlord (or its designee) to comply with
the provisions of the sublease other than with respect to the payment of Fixed
Rent and Additional Rent to Tenant, shall not constitute a default thereunder or
hereunder if Landlord shall have consented to such non-compliance.
Section 13.6 In the event Landlord does not exercise either option
provided to it pursuant to Section 13.2 hereof, and provided that no Event of
Default shall have occurred and be continuing under this Lease as of the time
Landlord's consent is requested by Tenant, Landlord's consent (which must be in
writing and in form and substance satisfactory to
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Landlord) to the proposed assignment or sublease shall not be unreasonably
withheld or delayed; provided, however, that:
(a) Tenant shall have complied with the provisions of Section
13.2 hereof and Landlord shall not have exercised any of its options
thereunder within the time permitted therefor;
(b) In Landlord's judgment, the proposed assignee or subtenant
is engaged in a business or activity, and the Premises, or the relevant
part thereof, will be used in a manner, which (i) is in keeping with the
then standards of the Building, and (ii) does not violate the restrictions
set forth in Article 2 hereof;
(c) The proposed assignee or subtenant is a reputable Person
with sufficient financial worth considering the responsibility involved,
and Landlord has been furnished with evidence thereof;
(d) In the event Landlord has space in the Building available
for lease, then (i) neither the proposed assignee or subtenant nor any
Person which, directly or indirectly, controls, is controlled by, or is
under common control with, the proposed assignee or subtenant, is then an
occupant of any part of the Building, and (ii) the proposed assignee or
subtenant is not a Person (or Affiliate of a Person) with whom Landlord or
Landlord's agent is then, or has been within the previous six (6) month
period, negotiating in connection with rental of space in the Building;
(e) The form of the proposed sublease or instrument of
assignment shall be satisfactory to Landlord and shall comply with the
applicable provisions of this Article 13, and Tenant shall deliver a true
and complete original, fully executed counterpart of such sublease or
other instrument to Landlord promptly upon the execution and delivery
thereof;
(f) Tenant and its proposed subtenant or assignee, as the case
may be, shall execute and deliver to Landlord an agreement, in form and
substance satisfactory to Landlord, setting forth the terms and conditions
upon which Landlord shall have granted its consent to such assignment or
subletting, and the agreement of Tenant and such subtenant or assignee, as
the case may be, to be bound by the provisions of this Article 13;
(g) There shall not be more than two occupants of the Premises
(including Tenant);
(h) The amount of the aggregate rent to be paid by the
proposed subtenant shall not be less than the then current market rent per
rentable square foot for the Premises, determined as though the Premises
were vacant, and the rental and other terms and conditions of the sublease
shall be substantially the same as those contained in Tenant's Notice;
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(i) Tenant shall reimburse Landlord, as Additional Rent upon
demand, for (A) the costs and expenses incurred by Landlord in connection
with the assignment or sublease, including the costs of making
investigations as to the acceptability of the proposed assignee or
subtenant and the cost of reviewing plans and specifications proposed to
be made in connection therewith, and (B) Landlord's legal fees and
disbursements incurred in connection with the granting of any requested
consent and the preparation of Landlord's written consent to the sublease
or assignment;
(j) Tenant shall not have (i) advertised or publicized in any
way the availability of the Premises without prior notice of and approval
by Landlord, or (ii) listed the Premises for sublease or assignment with a
broker, agent or otherwise at a rental rate less than the fixed rent and
additional rent at which Landlord is then offering to lease comparable
space in the Building;
(k) The proposed occupancy shall not impose an extra burden
upon services to be supplied by Landlord to Tenant, unless Tenant and such
proposed subtenant or assignee shall agree with Landlord in writing to pay
the costs of such additional services; and
(l) 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.
Except for any sublease by Tenant to Landlord or its designee pursuant to this
Article 13, each sublease pursuant to this Section 13.6 shall be subject to all
of the covenants, agreements, terms, provisions and conditions contained in this
Lease. Notwithstanding any such sublease to Landlord or any such sublease to any
other subtenant, or any acceptance of Fixed Rent or Additional Rent by Landlord
from any subtenant, Tenant will remain fully liable for the payment of the Fixed
Rent and Additional Rent due and to become due hereunder and for the performance
of all the covenants, agreements, terms, provisions and conditions contained in
this Lease on Tenant's part to be observed and performed, and for all acts and
omissions of any licensee or subtenant or anyone claiming under or through any
subtenant which shall be in violation of any of the obligations of this Lease,
and any such violation shall be deemed to be a violation by Tenant. If Landlord
shall decline to give its consent to any proposed assignment or sublease, or if
Landlord shall exercise either of its options under Section 13.2 hereof, Tenant
shall indemnify, defend and hold harmless Landlord against and from any and all
losses, liabilities, damages, costs, and expenses (including attorneys' fees and
disbursements) resulting from any claims that may be made against Landlord by
the proposed assignee or subtenant arising from or in connection with such
proposed assignment or subletting, or by any brokers or other Persons (with whom
Tenant or its proposed assignee or subtenant may have dealt) claiming a
commission or similar compensation in connection with the proposed assignment or
sublease.
Section 13.7 In the event that (a) Landlord fails to exercise either
of its options under Section 13.2 hereof and consents to a proposed assignment
or sublease, and (b) Tenant fails to execute and deliver the assignment or
sublease to which Landlord consented within one hundred twenty (120) days after
the giving of such consent, then, Tenant shall again comply with
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all of the provisions and conditions of Section 13.2 hereof before assigning
this Lease or subletting all or part of the Premises.
Section 13.8 With respect to each and every sublease authorized by
Landlord under the provisions of this Lease, it is further agreed that:
(a) No sublease shall be for a term ending later than one day
prior to the Expiration Date of this Lease;
(b) No sublease shall be delivered, and no subtenant shall
take possession of the Premises or any part thereof, until an executed
counterpart of such sublease has been delivered to Landlord and approved
in writing by Landlord; and
(c) Each sublease shall be subject and subordinate to this
Lease and to the matters to which this Lease is or shall be subordinate,
and each subtenant by entering into a sublease is deemed to have agreed
that in the event of termination, re-entry or dispossession by Landlord
under this Lease, Landlord may, at its option, take over all of the right,
title and interest of Tenant, as sublandlord, under such sublease, and
such subtenant 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, (ii) be subject to any counterclaim, offset or defense, not
expressly provided in such sublease, which theretofore accrued to such
subtenant against Tenant, (iii) be bound by any previous modification of
such sublease or by any previous prepayment of more than one month's Fixed
Rent or of any Additional Rent, or (iv) be obligated to perform any work
in the subleased space or to prepare it for occupancy, and in connection
with such attornment, the subtenant shall execute and deliver to Landlord
any instruments Landlord may reasonably request to evidence and confirm
such attornment. Each subtenant or licensee of Tenant shall be deemed,
automatically upon and as a condition of its occupying or using the
Premises or any part thereof, to have agreed to be bound by the terms and
conditions set forth in this Article 13. The provisions of this Article 13
shall be self-operative and no further instrument shall be required to
give effect to this provision.
Section 13.9 If Landlord shall consent to any assignment of this
Lease or to any sublease, or if Tenant shall enter into any other assignment or
sublease permitted hereunder, Tenant shall, in consideration therefor, pay to
Landlord, as Additional Rent:
(a) In the case of an assignment, on the effective date of the
assignment, an amount equal to fifty percent (50%) of (i) all sums and
other consideration paid to Tenant by the assignee for or by reason of
such assignment (including sums paid for Tenant's Property, less, in the
case of a sale thereof, the then net unamortized or undepreciated cost
thereof, determined on the basis of Tenant's federal income tax returns)
less (ii) all expenses reasonably and actually incurred by Tenant on
account of brokerage commissions and attorneys' fees in connection with
such assignment; or
(b) In the case of a sublease, an amount equal to fifty
percent (50%) of (i) all rents, additional charges or other consideration
payable to Tenant under the
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sublease in excess of the Fixed Rent and Additional Rent accruing during
the term of the sublease in respect of the subleased space (at the rate
per square foot payable by Tenant hereunder) pursuant to the terms hereof
(including sums paid for the sale or rental of Tenant's Property, less, in
the case of the sale thereof, the then net unamortized or undepreciated
cost thereof, determined on the basis of Tenant's federal income tax
returns) less (ii) all expenses reasonably and actually incurred by Tenant
on account of brokerage commissions and attorneys' fees in connection with
such sublease. The sums payable under this clause shall be paid by Tenant
to Landlord as Additional Rent as and when payable by the subtenant to
Tenant.
Section 13.10 (a) If Tenant is a corporation (but not a public
corporation), the provisions of Section 13.1 hereof shall apply to a transfer
(by one or more transfer(s)), of a majority of the stock of Tenant as if such
transfer of a majority of the stock of Tenant were an assignment of this Lease.
It is expressly understood that the term "transfer(s)" shall be deemed to
include the issuance of new stock which results in a majority of the stock of
Tenant being held by Persons which do not hold a majority of the stock of Tenant
on the date hereof. The foregoing shall not apply to transactions with a
corporation into or with which Tenant is merged or consolidated or to which
substantially all of Tenant's assets are transferred; provided, however, that
(i) such transfer shall have been made for a legitimate independent business
purpose and not for the principal purpose of transferring this Lease, (ii) the
successor to Tenant shall have a net worth, computed in accordance with
generally accepted accounting principles, at least equal to the greater of (A)
the net worth of Tenant immediately prior to such merger, consolidation or
transfer, or (B) the net worth of Tenant herein named on the date of this Lease,
and (iii) proof satisfactory to Landlord of such net worth shall have been
delivered to Landlord at least ten (10) days prior to the effective date of any
such transaction.
(b) If Tenant is a partnership, the provisions of Section 13.1
hereof shall apply to a transfer (by one or more transfers) of a majority
interest in the partnership, as if such transfer were an assignment of this
Lease.
(c) The limitations set forth in this Section 13.10 shall be deemed
to apply to subtenant(s), assignee(s) and guarantor(s) of this Lease, if any,
and any transfer by any such Person in violation of this Section 13.10 shall be
deemed to be a transfer in violation of Section 13.1.
(d) A modification, amendment or extension of a sublease shall be
deemed a sublease for the purposes of Section 13.1 hereof, and a takeover
agreement shall be deemed a transfer of this Lease for the purposes of Section
13.1 hereof.
Section 13.11 Tenant may, without Landlord's consent, but upon not
less than ten (10) days' prior notice to Landlord, permit any Affiliate of
Tenant to sublet all or part of the Premises for any Permitted Use, or assign
this Lease to any Affiliate, subject however to compliance with Tenant's
obligations under this Lease. Such sublease shall not be deemed to vest in any
such Affiliate any right or interest in this Lease or the Premises nor shall it
relieve, release, impair or discharge any of Tenant's obligations hereunder.
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Section 13.12 (a) Any assignment or transfer, whether made with
Landlord's consent pursuant to Section 13.1 hereof or without Landlord's consent
to the extent permitted under Sections 13.10 and 13.11 hereof, shall be made
only if, and shall not be effective until, the assignee shall execute,
acknowledge and deliver to Landlord an agreement in form and substance
satisfactory to Landlord whereby the assignee shall assume the obligations of
this Lease on the part of Tenant to be performed or observed from and after the
effective date of such assignment or transfer, and whereby the assignee shall
agree that the provisions in Section 13.1 hereof shall, notwithstanding such
assignment or transfer, continue to be binding upon it in respect of all future
assignments and transfers.
(b) The joint and several liability of Tenant and any immediate or
remote successor in interest of Tenant and the due performance of the
obligations of this Lease on Tenant's part to be performed or observed shall not
be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord, or any grantee or assignee of Landlord by way of
mortgage or otherwise, extending the time, or modifying any of the obligations
of this Lease, or by any waiver or failure of Landlord, or any grantee or
assignee of Landlord by way of mortgage or otherwise, to enforce any of the
obligations of this Lease.
(c) The listing of any name other than that of Tenant, whether on
the doors of the Premises or the Building directory, or otherwise, shall not
operate to vest any right or interest in this Lease or in the Premises, nor
shall it be deemed to be the consent of Landlord to any assignment or transfer
of this Lease or to any sublease of Premises or to the use or occupancy thereof
by others. Any such listing shall constitute a privilege extended by Landlord,
revocable at Landlord's will by notice to Tenant, provided that Landlord shall
not unreasonably revoke such privilege as to any Affiliate of Tenant, or any
subtenant of Tenant or assignee of this Lease approved by Landlord pursuant to
this Article 13.
ARTICLE 14. ACCESS TO PREMISES
Section 14.1 Tenant shall permit Landlord, Landlord's agents and
public utilities servicing the Building to erect, use and maintain concealed
ducts, pipes and conduits in and through the Premises. Landlord or Landlord's
agents shall have the right to enter the Premises at all reasonable times upon
reasonable prior notice (except no such prior notice shall be required in case
of emergency), which notice may be oral, to examine the same, to show them to
prospective purchasers, Mortgagees, Lessors or lessees of the Building and their
respective agents and representatives or prospective tenants of the Premises,
and to make such repairs, alterations, improvements or additions (a) as Landlord
may deem necessary or desirable to the Premises or to any other portion of the
Building, or (b) which Landlord may elect to perform following Tenant's failure
to make repairs or perform any work which Tenant is obligated to make or perform
under this Lease, or (c) for the purpose of complying with Legal Requirements,
and Landlord shall be allowed to take all material into and upon the Premises
that may be required therefor without the same constituting an eviction or
constructive eviction of Tenant in whole or in part and Fixed Rent and
Additional Rent will not be abated while said repairs, alterations, improvements
or additions are being made, by reason of loss or interruption of business of
Tenant, or otherwise.
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Section 14.2 If Tenant shall not be present when for any reason
entry into the Premises shall be necessary or permissible, Landlord or
Landlord's agents may enter the same without rendering Landlord or such agents
liable therefor (if during such entry Landlord or Landlord's agents shall accord
reasonable care to Tenant's property), and without in any manner affecting this
Lease. Nothing herein contained, however, shall be deemed or construed to impose
upon Landlord any obligation, responsibility or liability whatsoever for the
care, supervision or repair of the Building or any part thereof, other than as
herein provided.
Section 14.3 Landlord shall have the right from time to time to
alter the Building and, without the same constituting an actual or constructive
eviction and without incurring any liability to Tenant therefor, to change the
arrangement or location of entrances or passageways, doors and doorways, and
corridors, elevators, stairs, toilets, or other public parts of the Building and
to change the name, number or designation by which the Building is commonly
known. All parts (except surfaces facing the interior of the Premises) of all
walls, windows and doors bounding the Premises (including exterior Building
walls, exterior core corridor walls, exterior doors and entrances other than
doors and entrances solely servicing the Premises), all balconies, terraces and
roofs adjacent to the Premises, all space in or adjacent to the Premises used
for shafts, stacks, stairways, chutes, pipes, conduits, ducts, fan rooms,
heating, air cooling, plumbing and other mechanical facilities, service closets
and other Building facilities are not part of the Premises, and Landlord shall
have the use thereof, as well as access thereto through the Premises for the
purposes of operation, maintenance, alteration and repair.
ARTICLE 15. CERTIFICATE OF OCCUPANCY
Tenant shall not at any time use or occupy the Premises in violation
of the certificate of occupancy at such time issued for the Premises or for the
Building and in the event that any department of the City or State of New York
shall hereafter contend or declare by notice, violation, order or in any other
manner whatsoever that the Premises are used for a purpose which is a violation
of such certificate of occupancy, Tenant shall, upon five (5) days' written
notice from Landlord or any Governmental Authority, immediately discontinue such
use of the Premises. Failure by Tenant to discontinue such use after such notice
shall be considered a default in the fulfillment of a material covenant of this
Lease and Landlord shall have the right to terminate this Lease immediately, and
in addition thereto shall have the right to exercise any and all rights and
privileges and remedies given to Landlord by and pursuant to the provisions of
Articles 16 and 17 hereof.
ARTICLE 16. DEFAULT
Section 16.1 Each of the following events shall be an "Event of
Default" hereunder:
(a) if Tenant defaults in the payment when due of any
installment of Fixed Rent or Additional Rent, and such default continues
for a period of five (5) days after notice thereof from Landlord;
provided, however, that if Tenant shall default in the timely payment of
Fixed Rent or Additional Rent, and any such default shall occur more than
two times in any period of twelve (12) consecutive months, then,
notwithstanding that such defaults shall have each been cured within the
applicable period provided
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above, upon any further similar default, Landlord may serve a three days'
notice of termination upon Tenant without affording to Tenant an
opportunity to cure such further default; or
(b) if Tenant's interest in this Lease is transferred in
violation of Article 13 hereof; or
(c) if the Premises or a substantial portion thereof becomes
vacant or abandoned; or
(d) (i) if Tenant admits in writing its inability to pay its
debts as they become due; or
(ii) if Tenant commences or institutes any case,
proceeding or other action (A) seeking relief as a debtor, or to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts under
any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, or (B) seeking appointment of a receiver, trustee,
custodian or other similar official for it or for all or any
substantial part of its property; or
(iii) if Tenant makes a general assignment for the
benefit of creditors; or
(iv) if any case, proceeding or other action is
commenced or instituted against Tenant (A) seeking to have an order
for relief entered against it as debtor or to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, or (B)
seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its
property, which either (1) results in any such entry of an order for
relief, adjudication of bankruptcy or insolvency or such an
appointment or the issuance or entry of any other order having a
similar effect, or (2) remains undismissed for a period of one
hundred twenty (120) days; or
(v) if any case, proceeding or other action is commenced
or instituted against Tenant seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or
any substantial part of its property which results in the entry of
an order for any such relief which has not been vacated, discharged,
or stayed or bonded pending appeal within one hundred twenty (120)
days from the entry thereof; or
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(vi) if Tenant takes any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of
the acts set forth in clauses (ii), (iii), (iv) or (v) of this
subsection 16.1(d); or
(vii) if a trustee, receiver or other custodian is
appointed for any substantial part of the assets of Tenant, which
appointment is not vacated or effectively stayed within seven (7)
Business Days, or if any such vacating or stay does not thereafter
remain in effect; or
(e) if Tenant defaults in the observance or performance of any
other term, covenant or condition of this Lease on Tenant's part to be
observed or performed and Tenant fails to remedy such default within
thirty (30) days after notice by Landlord to Tenant of such default, or,
if such default is of such a nature that it cannot be completely remedied
within said period of thirty (30) days, if Tenant fails to commence to
remedy such default within such thirty-day period, or fails thereafter to
diligently prosecute to completion all steps necessary to remedy such
default;
(f) if Tenant or any Affiliate of Tenant defaults beyond
applicable grace and notice periods in the payment of any fixed rent or
additional rent under any other lease of space in the Building, or if any
such lease is terminated by Landlord as a result of a default by the
tenant thereunder; or
Section 16.2 (a) If an Event of Default occurs, Landlord may at any
time thereafter give written notice to Tenant stating that this Lease and the
Term shall expire and terminate on the date specified in such notice, which date
shall not be less than seven (7) days after the giving of such notice. If
Landlord gives such notice, this Lease and the Term and all rights of Tenant
under this Lease shall expire and terminate as if the date set forth in such
notice were the Fixed Expiration Date and Tenant immediately shall quit and
surrender the Premises, but Tenant shall remain liable as hereinafter provided.
Anything contained herein to the contrary notwithstanding, if such termination
shall be stayed by order of any court having jurisdiction over any proceeding
described in Section 16.1(d), or by federal or state statute, then, following
the expiration of any such stay, or if the trustee appointed in any such
proceeding, Tenant or Tenant as debtor-in-possession shall fail to assume
Tenant's obligations under this Lease within the period prescribed therefor by
law or within one hundred twenty (120) days after entry of the order for relief
or as may be allowed by the court, or if said trustee, Tenant or Tenant as
debtor-in-possession shall fail to provide adequate protection of Landlord's
right, title and interest in and to the Premises or adequate assurance of the
complete and continuous future performance of Tenant's obligations under this
Lease, Landlord, to the extent permitted by law or by leave of the court having
jurisdiction over such proceeding, shall have the right, at its election, to
terminate this Lease on seven (7) days' notice to Tenant, Tenant as
debtor-in-possession or said trustee and upon the expiration of said seven (7)
day period this Lease shall cease and expire as set forth above and Tenant,
Tenant as debtor-in-possession or said trustee shall immediately quit and
surrender the Premises as aforesaid.
Section 16.3 If, at any time, (a) Tenant shall comprise two (2) or
more Persons, (b) Tenant's obligations under this Lease shall have been
guaranteed by any Person other than
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Tenant, or (c) Tenant's interest in this Lease shall have been assigned, the
word "Tenant," as used in Section 16.1(d), shall be deemed to mean any one or
more of the Persons primarily or secondarily liable for Tenant's obligations
under this Lease. Any monies received by Landlord from or on behalf of Tenant
during the pendency of any proceeding of the types referred to in Section
16.1(d) shall be deemed paid as compensation for the use and occupation of the
Premises and the acceptance of any such compensation by Landlord shall not be
deemed an acceptance of Fixed Rent and/or Additional Rent or a waiver on the
part of Landlord of any rights under this Lease.
ARTICLE 17. REMEDIES AND DAMAGES
Section 17.1 (a) If an Event of Default shall occur, and this Lease
and the Term shall expire and come to an end as provided in Article 16:
(i) Tenant shall quit and peacefully surrender the Premises to
Landlord, and Landlord and its agents may immediately, or at any time after such
Event of Default or after the date upon which this Lease and the Term shall
expire and come to an end, re-enter the Premises or any part thereof, without
notice, either by summary proceedings, or by any other applicable action or
proceeding, or by legal force or other legal means (without being liable to
indictment, prosecution or damages therefor), and may repossess the Premises and
dispossess Tenant and any other Persons from the Premises and remove any and all
of their property and effects from the Premises; and
(ii) Landlord, at Landlord's option, may relet the whole or any part
or parts of the Premises from time to time, either in the name of Landlord or
otherwise, to such tenant or tenants, for such term or terms ending before, on
or after the Expiration Date, at such rental or rentals and upon such other
conditions, which may include concessions and free rent periods, as Landlord, in
its sole discretion, may determine; provided, however, that Landlord shall have
no obligation to relet the Premises or any part thereof and shall in no event be
liable for refusal or failure to relet the Premises or any part thereof, or, in
the event of any such reletting, for refusal or failure to collect any rent due
upon any such reletting, and no such refusal or failure shall operate to relieve
Tenant of any liability under this Lease or otherwise affect any such liability,
and Landlord, at Landlord's option, may make such repairs, replacements,
alterations, additions, improvements, decorations and other physical changes in
and to the Premises as Landlord, in its sole discretion, considers advisable or
necessary in connection with any such reletting or proposed reletting, without
relieving Tenant of any liability under this Lease or otherwise affecting any
such liability.
(b) Tenant hereby waives the service of any notice of intention to
re-enter or to institute legal proceedings to that end which may otherwise be
required to be given under any present or future law. Tenant, on its own behalf
and on behalf of all Persons claiming through or under Tenant, including all
creditors, does further hereby waive any and all rights which Tenant and all
such Persons might otherwise have under any present or future law to redeem the
Premises, or to re-enter or repossess the Premises, or to restore the operation
of this Lease, after (i) Tenant shall have been dispossessed by a judgment or by
warrant of any court or judge, (ii) any re-entry by Landlord, or (iii) any
expiration or termination of this Lease and the Term,
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whether such dispossess, re-entry, expiration or termination shall be by
operation of law or pursuant to the provisions of this Lease. The words
"re-enter," re-entry" and "re-entered" as used in this Lease shall not be deemed
to be restricted to their technical legal meanings. In the event of a breach or
threatened breach by Tenant, or any Persons claiming through or under Tenant, of
any term, covenant or condition of this Lease, Landlord shall have the right to
enjoin such breach and the right to invoke any other remedy allowed by law or in
equity as if re-entry, summary proceedings and other special remedies were not
provided in this Lease for such breach. The rights to invoke the remedies
hereinbefore set forth are cumulative and shall not preclude Landlord from
invoking any other remedy allowed at law or in equity.
Section 17.2 (a) If this Lease and the Term shall expire and come to
an end as provided in Article 16, or by or under any summary proceeding or any
other action or proceeding, or if Landlord shall re-enter the Premises as
provided in Section 17.1, or by or under any summary proceeding or any other
action or proceeding, then, in any of such events:
(i) Tenant shall pay to Landlord all Fixed Rent and Additional
Rent payable under this Lease by Tenant to Landlord to the date upon which
this Lease and the Term shall have expired and come to an end or to the
date of re-entry upon the Premises by Landlord, as the case may be;
(ii) Tenant also shall be liable for and shall pay to
Landlord, as damages, any deficiency (the "Deficiency") between (A) Fixed
Rent and Additional Rent for the period which otherwise would have
constituted the unexpired portion of the Term (conclusively presuming the
Additional Rent for each year thereof to be the same as was payable for
the year immediately preceding such termination or re-entry), and (B) the
net amount, if any, of rents collected under any reletting effected
pursuant to the provisions of Section 17.1(a)(ii) for any part of such
period (first deducting from the rents collected under any such reletting
all of Landlord's expenses in connection with the termination of this
Lease, Landlord's re-entry upon the Premises and with such reletting
including all repossession costs, brokerage commissions, legal expenses,
attorneys' fees and disbursements, alteration costs and other expenses of
preparing the Premises for such reletting). Tenant shall pay the
Deficiency in monthly installments on the days specified in this Lease for
payment of installments of Fixed Rent, and Landlord shall be entitled to
recover from Tenant each monthly Deficiency as the same shall arise. No
suit to collect the amount of the Deficiency for any month shall prejudice
Landlord's right to collect the Deficiency for any subsequent month by a
similar proceeding; and
(iii) whether or not Landlord shall have collected any monthly
Deficiency as aforesaid, Landlord shall be entitled to recover from
Tenant, and Tenant shall pay to Landlord, on demand, in lieu of any
further Deficiency as and for liquidated and agreed final damages, a sum
equal (A) to the amount by which the Fixed Rent and Additional Rent for
the period which otherwise would have constituted the unexpired portion of
the Term (conclusively presuming the Additional Rent for each year thereof
to be the same as was payable for the year immediately preceding such
termination or re-entry) exceeds (B) the then fair and reasonable rental
value of the Premises, including Additional Rent for the same period, both
discounted to present value at the rate of four
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percent (4%) per annum less (C) the aggregate amount of Deficiencies
previously collected by Landlord pursuant to the provisions of Section
17.2(a)(ii) for the same period. If, before presentation of proof of such
liquidated damages to any court, commission or tribunal, Landlord shall
have relet the Premises or any part thereof for the period which otherwise
would have constituted the unexpired portion of the Term, or any part
thereof, the amount of net rents collected in connection with such
reletting shall be deemed, prima facie, to be the fair and reasonable
rental value for the part or the whole of the Premises so relet during the
term of the reletting.
(b) If Landlord shall relet the Premises, or any part thereof,
together with other space in the Building, the net rents collected under any
such reletting and the expenses of any such reletting shall be equitably
apportioned for the purposes of this Section 17.2. Tenant shall in no event be
entitled to any rents collected or payable under any reletting, whether or not
such rents shall exceed the Fixed Rent reserved in this Lease. Nothing contained
in Article 16 or this Article 17 shall be deemed to limit or preclude the
recovery by Landlord from Tenant of the maximum amount allowed to be obtained as
damages by any statute or rule of law, or of any sums or damages to which
Landlord may be entitled in addition to the damages set forth in this Section
17.2.
ARTICLE 18. FEES AND EXPENSES
Section 18.1 If an Event of Default shall occur under this Lease or
if Tenant shall do or permit to be done any act or thing upon the Premises which
would cause Landlord to be in default under any Superior Lease or Mortgage, or
if Tenant shall fail to comply with its obligations under this Lease and the
preservation of property or the safety of any tenant, occupant or other person
is threatened, Landlord may, after reasonable prior notice to Tenant except in
an emergency, perform the same for the account of Tenant or make any expenditure
or incur any obligation for the payment of money for the account of Tenant. All
amounts expended by Landlord in connection with the foregoing, including
reasonable attorneys' fees and disbursements in instituting, prosecuting or
defending any action or proceeding or recovering possession, and the cost
thereof, with interest thereon at the Default Rate, shall be deemed to be
Additional Rent hereunder and shall be paid by Tenant to Landlord within ten
(10) days of rendition of any ▇▇▇▇ or statement to Tenant therefor.
Section 18.2 If Tenant shall fail to pay any installment of Fixed
Rent and/or Additional Rent when due, Tenant shall pay to Landlord, in addition
to such installment of Fixed Rent and/or Additional Rent, as the case may be, as
a late charge and as Additional Rent, a sum equal to interest at the Default
Rate on the amount unpaid, computed from the date such payment was due to and
including the date of payment.
ARTICLE 19. NO REPRESENTATIONS BY LANDLORD
Landlord and Landlord's agents have made no warranties,
representations, statements or promises with respect to (a) the rentable and
usable areas of the Premises or the Building, (b) the amount of any current or
future Labor Rates or Taxes, (c) the compliance with applicable Requirements of
the Premises or the Building, or (d) the suitability of the Premises for any
particular use or purpose. No rights, easements or licenses are acquired by
Tenant under this
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Lease, by implication or otherwise, except as expressly set forth herein. This
Lease (including any Exhibits referred to herein and all supplementary
agreements provided for herein) contains the entire agreement between the
parties and all understandings and agreements previously made between Landlord
and Tenant are merged in this Lease, which alone fully and completely expresses
their agreement. Tenant is entering into this Lease after full investigation,
and is not relying upon any statement or representation made by Landlord not
embodied in this Lease.
ARTICLE 20. END OF TERM
Section 20.1 Upon the expiration or other termination of this Lease,
Tenant shall quit and surrender to Landlord the Premises, vacant, broom clean,
in good order and condition, ordinary wear and tear and damage for which Tenant
is not responsible under the terms of this Lease excepted, and Tenant shall
remove all of Tenant's Property from the Premises, and this obligation shall
survive the expiration or sooner termination of the Term. If the last day of the
Term or any renewal thereof falls on Saturday or Sunday, this Lease shall expire
on the Business Day immediately preceding. 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 successor law of like import then in
force in connection with any holdover summary proceedings which Landlord may
institute to enforce the foregoing provisions of this Article 20.
Section 20.2 Tenant acknowledges that Tenant or any subtenant of
Tenant remaining in possession of the Premises after the expiration or earlier
termination of this Lease would create an unusual hardship for Landlord and for
any prospective tenant. Tenant, therefore, covenants that if for any reason
Tenant or any subtenant of Tenant shall fail to vacate and surrender possession
of the Premises or any part thereof on or before the expiration or earlier
termination of this Lease and the Term, then Tenant's continued possession of
the Premises shall be as a "month-to-month" tenant, during which time, without
prejudice and in addition to any other rights and remedies Landlord may have
hereunder or at law, Tenant shall pay to Landlord for each month and for each
portion of any month during which Tenant holds over, an amount equal to two (2)
times the total monthly amount of Fixed Rent and Additional Rent payable
hereunder. The provisions of this Section 20.2 shall not in any way be deemed to
(a) permit Tenant to remain in possession of the Premises after the Expiration
Date or sooner termination of this Lease or (b) imply any right of Tenant to use
or occupy the Premises upon expiration or termination of this Lease and the
Term, and no acceptance by Landlord of payments from Tenant after the Expiration
Date or sooner termination of the Term shall be deemed to be other than on
account of the amount to be paid by Tenant in accordance with the provisions of
this Article 20. Tenant's obligations under this Article shall survive the
expiration or earlier termination of this Lease.
ARTICLE 21. QUIET ENJOYMENT
Provided no Event of Default has occurred and is continuing, Tenant
may peaceably and quietly enjoy the Premises without hindrance by Landlord or
any Person lawfully claiming through or under Landlord, subject, nevertheless,
to the terms and conditions of this Lease.
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ARTICLE 22. NO WAIVER; NON-LIABILITY
Section 22.1 No act or thing done by Landlord or Landlord's agents
during the Term shall be deemed an acceptance of a surrender of the Premises,
and no agreement to accept such surrender shall be valid unless in writing and
signed by Landlord. No employee of Landlord or of Landlord's agents shall have
any power to accept the keys of the Premises prior to the termination of this
Lease. The delivery of keys to any employee of Landlord or of Landlord's agents
shall not operate as a termination of this Lease or a surrender of the Premises.
Any Building employee to whom any property shall be entrusted by or on behalf of
Tenant shall be deemed to be acting as Tenant's agent with respect to such
property and neither Landlord nor its agents shall be liable for any damage to
property of Tenant or of others entrusted to employees of the Building, nor for
the loss of or damage to any property of Tenant by theft or otherwise.
Section 22.2 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 any of the Rules and Regulations set forth or hereafter adopted
by Landlord, shall not prevent a subsequent act, which would have originally
constituted a violation, from having all of the force and effect of an original
violation. The receipt by Landlord of Fixed Rent and/or Additional Rent with
knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. The failure of Landlord to enforce any of the Rules and
Regulations set forth, or hereafter adopted, against Tenant or any other tenant
in the Building shall not be deemed a waiver of any such Rules and Regulations.
Landlord shall not enforce the Rules and Regulations against Tenant in a
discriminatory manner. 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
Fixed Rent or any Additional Rent shall be deemed to be other than on account of
the next installment of Fixed Rent or Additional Rent, as the case may be, or as
Landlord may elect to apply same, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as Fixed Rent or
Additional 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 Fixed Rent or Additional Rent or pursue any other remedy in this
Lease provided. Any executory agreement hereafter made shall be ineffective to
change, modify, discharge or effect an abandonment of this Lease 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. All references in this Lease to the consent or approval of Landlord
shall be deemed to mean the written consent or approval of Landlord and no
consent or approval of Landlord shall be effective for any purpose unless such
consent or approval is set forth in a written instrument executed by Landlord.
Section 22.3 (a) Subject to the provisions of Section 28.1(b),
Neither Landlord nor its agents shall be liable for any injury or damage to
persons or property or interruption of Tenant's business resulting from fire,
explosion, falling plaster, steam, gas, electricity, water, rain or snow or
leaks from any part of the Building or from the pipes, appliances or plumbing
works or from the roof, street or subsurface or from any other place or by
dampness or by any other cause of whatsoever nature; nor shall Landlord or its
agents be liable for any such damage
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caused by other tenants or persons in the Building or caused by construction of
any private, public or quasi-public work; nor shall Landlord be liable for any
latent defect in the Premises or in the Building (except that Landlord shall be
required to repair the same to the extent provided in Article 5). Nothing in the
foregoing shall affect any right of Landlord to the indemnity from Tenant to
which Landlord may be entitled under Article 28 in order to recoup for payments
made to compensate for losses of third parties.
(b) If, at any time or from time to time, any windows of the
Premises are temporarily closed, darkened or bricked-up for any reason
whatsoever, or any of such windows are permanently closed, darkened or
bricked-up if required by any Legal Requirement or related to any construction
upon property adjacent to the Real Property by parties other than Landlord,
Landlord shall not be liable for any damage Tenant may sustain thereby and
Tenant shall not be entitled to any compensation therefor nor abatement of Fixed
Rent or Additional Rent nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction or constructive eviction of Tenant from the
Premises.
ARTICLE 23. WAIVER OF TRIAL BY JURY
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 or occupancy of the
Premises, or for the enforcement of any remedy under any statute, emergency or
otherwise. If Landlord commences any summary proceeding against Tenant, Tenant
will not interpose any counterclaim of whatever nature or description in any
such proceeding (unless failure to impose such counterclaim would preclude
Tenant from asserting in a separate action the claim which is the subject of
such counterclaim), and will not seek to consolidate such proceeding with any
other action which may have been or will be brought in any other court by
Tenant.
ARTICLE 24. INABILITY TO PERFORM
This Lease and the obligation of Tenant to pay Fixed Rent and
Additional Rent hereunder and perform all of the other covenants and agreements
hereunder on the part of Tenant to be performed will not be affected, impaired
or excused because Landlord is unable to fulfill any of its obligations under
this Lease expressly or impliedly to be performed by Landlord or because
Landlord is unable to make, or is delayed in making any repairs, additions,
alterations, improvements 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 strikes or labor troubles or by accident, or by any cause
whatsoever reasonably beyond Landlord's control, including laws, governmental
preemption in connection with a national emergency or by reason of any Legal
Requirements or by reason of the conditions of supply and demand which have been
or are affected by war or other emergency ("Unavoidable Delays").
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ARTICLE 25. BILLS AND NOTICES
Except as otherwise expressly provided in this Lease, any bills,
statements, consents, notices, demands, requests or other communications given
or required to be given under this Lease shall be in writing and shall be deemed
sufficiently given or rendered if delivered by hand (against a signed receipt),
sent by a nationally recognized overnight courier service, or sent by registered
or certified mail (return receipt requested) and addressed:
if to Tenant, (a) at Tenant's address at the Premises, or (b)
at any place where Tenant or any agent or employee or Tenant may be found
if mailed subsequent to Tenant's abandoning or surrendering the Premises;
or
if to Landlord, as follows: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC, c/o
Taconic Investment Partners LLC, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇, with a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇, Esq.
Any such ▇▇▇▇, statement, consent, notice, demand, request or other
communication given as provided in this Article 25 shall be deemed to have been
rendered or given (i) on the date when it shall have been hand delivered, (ii)
three (3) Business Days from the date when it shall have been mailed, or (iii)
one (1) Business Day from the date when it shall have been sent by overnight
courier service.
ARTICLE 26. RULES AND REGULATIONS
Landlord reserves the right, from time to time, to adopt additional
reasonable and non-discriminatory Rules and Regulations and to amend the Rules
and Regulations then in effect. Tenant and Tenant's contractors, employees,
agents, and licensees shall comply with the Rules and Regulations, as so
supplemented or amended. Nothing contained in this Lease shall be construed to
impose upon Landlord any duty or obligation to enforce the Rules and Regulations
or terms, covenants or conditions in any other lease against any other tenant,
and Landlord shall not be liable to Tenant for violation of the same by any
other tenant, its employees, agents, visitors or licensees. If there shall be
any inconsistencies between this Lease and the Rules and Regulations, the
provisions of this Lease shall prevail.
ARTICLE 27. BROKER
Section 27.1 Each of Landlord and Tenant represents and warrants to
the other that it has not dealt with any broker in connection with this Lease
other than Insignia/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Company, Inc. ("Broker") and that to the
best of its knowledge and belief, no other broker, finder or similar Person
procured or negotiated this Lease or is entitled to any fee or commission in
connection herewith.
Section 27.2 Each of Landlord and Tenant shall indemnify, defend,
protect and hold the other party harmless from and against any and all losses,
liabilities, damages, claims, judgments, fines, suits, demands, costs, interest
and expenses of any kind or nature (including reasonable attorneys' fees and
disbursements) which the indemnified party may incur by reason
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of any claim of or liability to any broker, finder or like agent (other than
Broker) arising out of any dealings claimed to have occurred between the
indemnifying party and the claimant in connection with this Lease, or the above
representation being false. The provisions of this Article 27 shall survive the
expiration or earlier termination of the Term of this Lease.
ARTICLE 28. INDEMNITY
Section 28.1 (a) Tenant shall not do or permit any act or thing to
be done upon the Premises which may subject Landlord to any liability or
responsibility for injury, damages to persons or property or to any liability by
reason of any violation of law or of any Legal Requirement, but shall exercise
such control over the Premises as to fully protect Landlord against any such
liability. Tenant shall defend, indemnify and save harmless Landlord from and
against (i) all claims of whatever nature against Landlord arising from any act,
omission or negligence of Tenant, its contractors, licensees, agents, servants,
employees, invitees or visitors, (ii) all claims against Landlord arising from
any accident, injury or damage whatsoever caused to any person or to the
property of any person and occurring during the Term in or about the Premises,
(iii) all claims against Landlord arising from any accident, injury or damage
occurring outside of the Premises but anywhere within or about the Real
Property, where such accident, injury or damage results or is claimed to have
resulted from an act, omission or negligence of Tenant or Tenant's agents,
employees, and (iv) any breach, violation or nonperformance of any covenant,
condition or agreement in this Lease set forth and contained on the part of
Tenant to be fulfilled, kept, observed and performed. This indemnity and hold
harmless agreement shall include indemnity from and against any and all
liability, fines, suits, demands, costs and expenses of any kind or nature
(including attorneys' fees and disbursements) incurred in or in connection with
any such claim or proceeding brought thereon, and the defense thereof.
(b) Subject to Section 10.2(b) hereof, Landlord shall indemnify,
defend and hold harmless Tenant from and against all claims against Tenant
arising from any accident, injury or damage whatsoever caused to any person or
the property of any person in or about the common or public areas of the
Building for which Tenant shall not be liable in accordance with Section 28.1(a)
above (specifically excluding the Premises). This indemnity and hold harmless
agreement shall include indemnity from and against any and all liability, fines,
suits, demands, costs and expenses of any kind or nature (including attorneys'
fees and disbursements) incurred in or in connection with any such claim or
proceeding brought thereon, and the defense thereof.
Section 28.2 Tenant agrees to defend, indemnify and hold harmless
Landlord and any partner, shareholder, director, officer, principal, employee or
agent. directly and indirectly, of Landlord, from and against all obligations
(including removal and remedial actions), losses, claims, suits, judgments,
liabilities, penalties, damages (including consequential and punitive damages),
costs and expenses (including attorneys' and consultants' fees and expenses) of
any kind or nature whatsoever that may at any time be incurred by, imposed on or
asserted against Landlord or any such party directly or indirectly based on, or
arising or resulting from (a) the actual or alleged presence of Hazardous
Materials on the Premises or in the Building which is caused or permitted by
Tenant, and (b) any Environmental Claim relating in any way to Tenant's
operation or use of the Premises or the Building. The provisions of this Section
28.2 shall survive the expiration or sooner termination of this Lease.
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ARTICLE 29. LANDLORD'S CONTRIBUTION
Section 29.1 (a) Landlord shall contribute toward the actual cost of
the Initial Alterations (including carpeting, wall covering, furniture,
furnishing, movable fixtures, telephone and computer installations, and "soft
costs" incurred in connection with such alterations, including architectural,
consulting, engineering and legal fees, provided that such "soft costs" shall
not exceed ten percent (10%) of Landlord's Contribution) an amount ("Landlord's
Contribution") equal to the lesser of (a) One Hundred Nine Thousand Three
Hundred and 00/100 Dollars ($109,300.00), or (b) the aggregate amount of all
costs and expenses actually incurred by Tenant in connection with the Initial
Alterations; provided, however, that this Lease shall be in full force and
effect and no Event of Default shall have occurred and be continuing hereunder.
(b) Any cost of the Initial Alterations in excess of Landlord's
Contribution shall be paid by Tenant. Tenant shall not be entitled to receive
any portion of Landlord's Contribution not actually expended by Tenant in the
performance of the Initial Alterations, nor shall Tenant have any right to apply
any unexpended portion of Landlord's Contribution as a credit against Fixed
Rent, Additional Rent or any other obligation of Tenant hereunder. No part of
Landlord's Contribution may be assigned by Tenant prior to actual payment
thereof by Landlord to Tenant.
Section 29.2 Landlord shall make progress payments to Tenant on a
monthly basis, for the work performed during the previous month, less a
retainage of 10% of each progress payment (the "Retainage"). Each of Landlord's
progress payments will be limited to an amount equal to (a) the aggregate
amounts (reduced by the Retainage) theretofore paid by Tenant (as certified by
an authorized officer of Tenant and by Tenant's independent, licensed architect)
to Tenant's contractors, subcontractors and material suppliers (excluding any
payments for which Tenant has previously been reimbursed out of previous
disbursements from Landlord's Contribution), multiplied by (b) a fraction, the
numerator of which is the amount of Landlord's Contribution, and the denominator
of which is the total contract price (or, if there is no specified or fixed
contract price for the Initial Alterations, then Landlord's estimate thereof)
for the performance of all of the Initial Alterations shown on all plans and
specifications approved by Landlord. Provided that Tenant delivers requisitions
to Landlord on or prior to the first (1st) day of any month, such progress
payments shall be made within thirty (30) days next following the delivery to
Landlord of requisitions therefor, signed by a financial officer of Tenant,
which requisitions shall set forth the names of each contractor and
subcontractor to whom payment is due, and the amount thereof, and shall be
accompanied by (i) with the exception of the first requisition, copies of
partial waivers of lien from all contractors, subcontractors and material
suppliers covering all work and materials which were the subject of previous
progress payments by Landlord and Tenant, (ii) a written certification from
Tenant's architect that the work for which the requisition is being made has
been completed substantially in accordance with the plans and specifications
approved by Landlord, and (iii) such other documents and information as Landlord
may reasonably request. Any requisitions made following the first (1st) day of
any month shall be paid no later than the last day of the month following the
month in which such requisitions are made. Landlord shall disburse the Retainage
upon submission by Tenant to Landlord of a requisition therefore, accompanied by
all documentation required under this Section 29.2, together with (A) proof of
the satisfactory completion of all required inspections
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and issuance of any required approvals, permits and sign-offs for the Initial
Alterations by all Governmental Authorities having jurisdiction thereover, (B)
final "as-built" plans and specifications for the Initial Alterations as
required pursuant to Section 3.2(d), and (C) the issuance of final lien waivers
by all contractors, subcontractors and material suppliers covering all of the
Initial Alterations. Notwithstanding anything to the contrary set forth in this
Section 29.2, if Tenant fails to pay when due any sums due and payable to any of
Tenant's contractors or material suppliers, Landlord shall have the right, but
not the obligation, to promptly pay to such contractor or supplier all sums so
due from Tenant, and sums so paid by Landlord shall be deemed Additional Rent
and shall be paid by Tenant within ten (10) days after Landlord delivers to
Tenant an invoice therefor.
ARTICLE 30. SECURITY DEPOSIT.
Section 30.1 Tenant has deposited with Landlord the sum of One
Hundred Twenty-Five Thousand and 00/100 Dollars ($125,000.00) as security for
the full and faithful performance of every provision of this Lease to be
performed by Tenant (all or any part of such amount, the "Security Deposit"). If
an Event of Default shall occur, Landlord may use, apply or retain all or any
part of this Security Deposit for the payment of any Fixed or Additional Rent or
any other sum in default or for the payment of any other amount which Landlord
may spend or become obligated to spend by reason of such Event of Default, or to
compensate Landlord for any other loss, cost or damage which Landlord may suffer
by reason of such Event of Default. Tenant shall, within five (5) days after
notice from Landlord of the use or application of any portion of the Security
Deposit, deposit with Landlord cash in an amount sufficient to restore the
Security Deposit to the amount then required pursuant to the terms of this
Article 30 and Tenant's failure to do so shall be a breach of this Lease.
Landlord shall not, unless otherwise required by Legal Requirements, pay
interest to Tenant on the Security Deposit, and if Landlord is required to
maintain the Security Deposit in an interest bearing account, Landlord will
retain the maximum amount permitted under Legal Requirements as a bookkeeping
and administrative charge. Tenant shall not assign or encumber any part of the
Security Deposit, and no assignment or encumbrance by Tenant of all of any part
of the Security Deposit shall be binding upon Landlord. whether made prior to,
during, or after the Term. Landlord shall not be required to exhaust its
remedies against Tenant or against the Security Deposit before having recourse
to any other form of security held by Landlord and recourse by Landlord to any
Security Deposit shall not affect any remedies of Landlord which are provided in
this Lease or which are available to Landlord in law or in equity. If Tenant
shall fully and faithfully perform every covenant and provision of this Lease to
be performed and observed by Tenant, the Security Deposit or any balance thereof
shall be returned to Tenant reasonably promptly after the expiration or sooner
termination (other than a termination pursuant to Article 16 hereof) of the Term
and Tenant's surrender to Landlord of the Premises. In the event the Building is
sold, Landlord shall transfer the Security Deposit to the new owner and Landlord
shall thereupon be released by Tenant from all liability for the return of the
Security Deposit; and Tenant agrees to look to the new owner solely for the
return of the Security Deposit. A lease of the entire Building shall be deemed a
transfer within the meaning of the foregoing sentence. Landlord shall use
reasonable efforts to notify or cause Tenant to be notified in the event of any
transfer of the Building.
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Section 30.2 In lieu of a cash deposit, Tenant may deliver to
Landlord a clean, irrevocable, non-documentary and unconditional Letter of
Credit issued by and drawn upon any commercial bank, trust company, national
banking association or savings and loan association having offices for banking
purposes in the City of New York and which is a member of the New York
Clearinghouse Association (the "Issuing Bank") and which (or the parent company
of which) shall have outstanding unsecured, uninsured and unguaranteed
indebtedness, or shall have issued a letter of credit or other credit facility
that constitutes the primary security for any outstanding indebtedness (which is
otherwise uninsured and unguaranteed), that is then rated, without regard to
qualification of such rating by symbols such as "+" or "-" or numerical
notation, "Aa" or better by ▇▇▇▇▇'▇ Investors Service and "AA" or better by
Standard & Poor's Corporation, and has combined capital, surplus and undivided
profits of not less than $500,000,000.00, which Letter of Credit shall have a
term of not less than one year, be in form and content satisfactory to Landlord
(and substantially as shown on Exhibit D annexed hereto and made a part hereof),
be for the account of Landlord, be in the amount of the Security Deposit then
required to be deposited hereunder, and be fully transferable by Landlord to
successor owners of the Building without the payment of any fees or charges, it
being agreed that if any such fees or charges shall be so imposed, then such
fees or charges, shall be paid by Tenant. The Letter of Credit shall provide
that it shall be deemed automatically renewed, without amendment, for
consecutive periods of one year each thereafter during the term of this Lease,
unless the Issuing Bank sends notice (the "Non-Renewal Notice") to Landlord by
certified mail, return receipt requested, not less than thirty (30) days next
preceding the then expiration date of the Letter of Credit that it elects not to
have such Letter of Credit renewed. Additionally, the Letter of Credit shall
provide that Landlord shall have the right, exercisable within twenty (20) days
of its receipt of the Non-Renewal Notice, by sight draft on the Issuing Bank, to
receive the monies represented by the existing Letter of Credit and to hold such
proceeds pursuant to the terms of this Section 30.2 as a cash security pending
the replacement of such Letter of Credit. If an Event of Default shall have
occurred and be continuing with respect to any provision of this Lease,
including but not limited to the provisions relating to the payment of Fixed
Rent and Additional Rent, Landlord may apply or retain the whole or any part of
the cash security so deposited or may notify the Issuing Bank and thereupon
receive all the monies represented by the Letter of Credit and use, apply, or
retain the whole or any part of such proceeds, as provided in this Section 30.2.
Any portion of the cash proceeds of the Letter of Credit not so used or applied
by Landlord in satisfaction of the obligations of Tenant as to which such Event
of Default shall have occurred shall be deposited by Landlord and retained in an
interest-bearing account as provided in Section 30.1. If Landlord applies or
retains any part of the cash security or proceeds of the Letter of Credit, as
the case may be, Tenant shall, within five (5) days after written demand
therefor, deposit with Landlord the amount so applied or retained so that
Landlord shall have the full Security Deposit required pursuant to Section 30.1
hereof on hand at all times during the Term. If Tenant shall fully and
faithfully comply with all of the terms, provisions, covenants and conditions of
this Lease, the Letter of Credit shall be returned to Tenant after the
Expiration Date and after delivery of possession of the Premises to Landlord. In
the event of a sale of Landlord's interest in the Premises, within thirty (30)
days of notice of such sale or leasing, Tenant, at Tenant's sole cost and
expense, shall arrange for the transfer of the Letter of Credit to the new
landlord, as designated by Landlord, or have the Letter of Credit reissued in
the name of the new landlord and Landlord shall thereupon be released by Tenant
from all liability for the return of
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the Letter of Credit; provided, however, that if the Letter of Credit is
reissued, Landlord shall return the original Letter of Credit issued in
Landlord's name to Tenant.
Section 30.3 Notwithstanding anything set forth in this Article 30
to the contrary, and provided that no Event of Default under Sections 16.1(a) or
16.1(d) shall have occurred at any time during the Term, then after notice from
Tenant to Landlord (a "Reminder Notice") given not less than thirty (30) days
prior to each of the anniversaries of the Commencement Date from and after the
third (3rd) anniversary of the Commencement Date (the "Reduction Dates"), the
Security Deposit shall be reduced in the amount of $15,625.00 on each Reduction
Date, to the following amounts:
Reduction Date Security Deposit
-------------- ----------------
3rd anniversary of the Commencement Date $109,375.00
4th anniversary of the Rent Commencement Date $93,750.00
5th anniversary of the Rent Commencement Date $78,125.00
6th anniversary of the Rent Commencement Date $62,500.00
7th anniversary of the Rent Commencement Date $46,875.00
8th anniversary of the Rent Commencement Date $31,250.00
9th anniversary of the Rent Commencement Date $15,625.00
No failure by Tenant to give Landlord a Reminder Notice prior to any Reduction
Date shall operate to waive or discharge Landlord's obligation to so reduce the
Security Deposit, but such Reduction Date shall be deemed delayed until fifteen
(15) days after Tenant shall give the Reminder Notice with respect to such
Reduction Date. If Tenant has deposited the Security Deposit in cash, and not in
the form of a Letter of Credit pursuant to Section 34.2, Landlord shall refund
to Tenant the amounts by which the Security Deposit is reduced pursuant hereto,
within fifteen (15) days after each Reduction Date. If Tenant has provided the
Letter of Credit, then, provided that Tenant tenders to Landlord a replacement
Letter of Credit or an amendment thereof on or about each Reduction Date in the
appropriately reduced amount of the Security Deposit, Landlord shall exchange
the Letter of Credit then held by Landlord for the Letter of Credit tendered by
Tenant, or countersign such amendment, if required.
ARTICLE 31 RELOCATED OR REDUCED PREMISES.
Section 31.1 Landlord shall have the right at any time during the
Term, upon giving Tenant not less than one hundred twenty (120) days prior
written notice (a "Relocation Notice"), to provide and furnish Tenant with space
elsewhere in the Building of approximately the same size as the Premises (the
"Substitute Premises"), effective on the date specified by Landlord in the
Relocation Notice (the "Relocation Date"). In connection with such relocation,
Landlord will, at Landlord's cost and expense, (i) provide moving personnel to
move Tenant and Tenant's furniture and furnishings, personal property and
equipment to the Substitute Premises on the Relocation Date, and (ii) cooperate
with Tenant in obtaining necessary permits from Governmental Authorities to
reinstall Tenant's equipment in the Substitute Premises, and pay the reasonable
costs of obtaining any such permits, and (iii) reimburse Tenant for the actual,
reasonable, out-of-pocket costs incurred by Tenant which are directly related to
the relocation of Tenant's telecommunications equipment to the Substitute
Premises, including the cost of
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(A) moving and installing such equipment, (B) relocation of power conduits and
generator feeds, and (C) temporarily operating duplicate or substantially
duplicate and additional equipment, if necessary, in accordance with accepted
industry standards, to ensure that no disruption or unreasonable interference
with the business operations theretofore conducted by Tenant in the Premises
occurs during such relocation to the Substitute Premises. In all instances the
foregoing costs shall be reasonable and competitive.
(b) Landlord agrees to use commercially reasonable efforts in good
faith to provide that the Substitute Premises shall have substantially
equivalent usable area, suitability for the for the Permitted Use, and
connections to building systems and services as the Premises. If Landlord moves
Tenant to the Substitute Premises, Tenant shall vacate and surrender the
Premises to Landlord on the Relocation Date, free and clear of any leases,
tenancies or rights of occupancy of anyone claiming by or through Tenant. From
and after the Relocation Date, the Lease and all of its terms, covenants and
conditions shall remain in full force and effect and be deemed applicable to the
Substitute Premises, and the Substitute Premises shall thereafter be deemed to
be the Premises as though Landlord and Tenant had entered into an express
written amendment of this Lease with respect thereto. Notwithstanding the
foregoing, if Tenant determines, in the exercise of its reasonable judgment,
that the Substitute Premises is not reasonably comparable to the Premises
(taking into account the factors described in the first sentence of this Section
31.1(b)), then Tenant shall have the right, exercisable by notice to Landlord
within thirty (30) days after the giving of a Relocation Notice as provided in
Section 31.1 (a), to terminate the Lease with respect to the Premises only,
rather than relocate to the Substitute Premises. If the Lease is so terminated,
the term hereof shall expire as to the Premises on the Relocation Date, and
Tenant shall vacate and surrender the Premises to Landlord on the Relocation
Date, free and clear of any leases, tenancies or rights of occupancy of anyone
claiming by or through Tenant. Upon the termination of the Lease as to the
Premises as provided in this Section 31.1 (b), then provided Tenant timely
surrenders possession of the Premises to Landlord as provided herein, Tenant's
liability for Fixed Rent and Additional Rent with respect to the Premises shall
cease and any prepaid portion of such basic annual rent or additional rent for
any period after such date shall be refunded by Landlord to Tenant.
(c) In the event Tenant fails or refuses to surrender possession of
the Premises to Landlord on or before the Relocation Date as provided in Section
31.1(b), Tenant shall pay to Landlord, for each day or fraction thereof that
Tenant shall fail to surrender possession of the Premises, a daily amount equal
to the sum of(i) one-thirtieth of the total monthly Fixed Rent and Additional
Rent payable under this Lease with respect to the Substitute Premises, plus (ii)
one-thirtieth of the total monthly Fixed Rent and Additional Rent payable under
this Lease payable under this Lease with respect to the Premises immediately
prior to the Relocation Date. The provisions of this Section 31.1(c) shall not
in any way be deemed to permit Tenant to remain in possession of the Premises
after the Relocation Date, and no acceptance by Landlord of payments from Tenant
after the Relocation Date or sooner termination of the Term shall be deemed to
be other than on account of the amount to be paid by Tenant in accordance with
the provisions of this Section 31.1(c).
Section 31.2 Throughout the Term of this Lease, including renewals
and extensions, Tenant agrees that Landlord shall have the right, upon
Landlord's giving Tenant not
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less than thirty (30) days prior written notice, to recapture a portion or
portions of the Premises solely for the purpose of (a) installing additional
elevator(s) in the Building, together with such space as may be required for
lobbies and other common areas, (b) improving the Building Systems, or (c)
constructing public corridors to create access to rentable space now existing or
to be constructed in the future on the floor on which the Premises are located
(any or all of the foregoing work, "Building Improvements"). The amount of such
recaptured space which may be taken by Landlord pursuant to this Section 31.2
shall be limited to such space as is reasonably and actually required for the
proper installation, access and operation of such Building Improvements. Tenant
shall provide Landlord with access to the Premises to perform the work to
install and maintain the Building Improvements, including the right to take all
necessary materials and equipment into the Premises, without the same
constituting an eviction, and Tenant shall not be entitled to any abatement of
rent while such work is in progress or any damages by reason of loss or
interruption of business or otherwise. Landlord shall use reasonable efforts to
minimize interference with Tenant's access to and use and occupancy of the
Premises in making any Building Improvements; provided, however, 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. Promptly following the completion of any Building Improvements,
Landlord shall make such repairs to and restoration of the Premises as may be
reasonably required as a direct result thereof. Upon the date set forth for such
recapture in Landlord's notice described above, the Lease shall be deemed
automatically amended by the deletion of such recaptured space from the
Premises, Fixed Rent and Additional Rent shall be reduced in the proportion
which the area of the part of the Premises so recaptured bears to the total area
of the Premises immediately prior thereto, and Tenant shall promptly vacate and
surrender such portion of the Premises to Landlord, and except as otherwise
specifically set forth in this Section 31.2, the terms and conditions of this
Lease shall not be modified by reason of any such Building Improvements or the
maintenance thereof.
ARTICLE 32. MISCELLANEOUS
Section 32.1 (a) The obligations of Landlord under this Lease shall
not be binding upon Landlord named herein after the sale, conveyance, assignment
or transfer by such Landlord (or upon any subsequent landlord after the sale,
conveyance, assignment or transfer by such subsequent landlord) of its interest
in the Building or the Real Property, as the case may be, and in the event of
any such sale, conveyance, assignment or transfer, Landlord shall be and hereby
is entirely freed and relieved of all covenants and obligations of Landlord
hereunder, and the transferee of Landlord's interest in the Building or the Real
Property, as the case may be, shall be deemed to have assumed all obligations
under this Lease. Prior to any such sale, conveyance, assignment or transfer,
the liability of Landlord for Landlord's obligations under this Lease shall be
limited to Landlord's interest in the Real Property and Tenant shall not look to
any other property or assets of Landlord or the property or assets of any of the
Exculpated Parties (defined below) in seeking either to enforce Landlord's
obligations under this Lease or to satisfy a judgment for Landlord's failure to
perform such obligations.
(b) Notwithstanding anything contained herein to the contrary,
Tenant shall look solely to Landlord to enforce Landlord's obligations hereunder
and no partner, shareholder, director, officer, principal, employee or agent,
directly and indirectly, of Landlord (collectively,
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the "Exculpated Parties") shall be personally liable for the performance of
Landlord's obligations under this Lease. Tenant shall not seek any damages
against any of the Exculpated Parties.
Section 32.2 Wherever in this Lease Landlord's consent or approval
is required, if Landlord shall refuse such consent or approval, Tenant in no
event shall be entitled to make, nor shall Tenant make, any claim, and Tenant
hereby waives any claim, for money damages (nor shall Tenant claim any money
damages by way of set-off, counterclaim or defense) based upon any claim or
assertion by Tenant that Landlord unreasonably withheld or unreasonably delayed
its consent or approval. Tenant's sole remedy shall be an action or proceeding
to enforce any such provision, for specific performance, injunction or
declaratory judgment.
Section 32.3 (a) All of the Exhibits attached to this Lease are
incorporated in and made a part of this Lease, but, in the event of any
inconsistency between the terms and provisions of this Lease and the terms and
provisions of the Exhibits hereto, the terms and provisions of this Lease shall
control. This Lease may not be changed, modified, terminated or discharged, in
whole or in part, except by a writing, executed by the party against whom
enforcement of the change, modification, termination or discharge is to be
sought. Wherever appropriate in this Lease, personal pronouns shall be deemed to
include the other genders and the singular to include the plural. The captions
hereof 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. All Article and Section references set forth herein shall,
unless the context otherwise specifically requires, be deemed references to the
Articles and Sections of this Lease. Whenever the words "include", "includes",
or "including" are used in this Lease, they shall be deemed to be followed by
the words "without limitation".
(b) This Lease shall be governed in all respects by the laws of the
State of New York applicable to agreements executed in and to be performed
wholly within the State of New York.
(c) If any term, covenant, condition or provision of this Lease, or
the application thereof to any person or circumstance, shall ever be held to be
invalid or unenforceable, then in each such event the remainder of this Lease or
the application of such term, covenant, condition or provision to any other
person or any other circumstance (other than those as to which it shall be
invalid or unenforceable) shall not be thereby affected, and each term,
covenant, condition and provision hereof shall remain valid and enforceable to
the fullest extent permitted by law.
(d) If at the commencement of, or at any time or times during the
Term of this Lease, the Fixed Rent and Additional Rent reserved in this Lease
shall not be fully collectible by reason of any Legal Requirement, Tenant shall
enter into such agreements and take such other steps (without additional expense
to Tenant) as Landlord may request and as may be legally permissible to permit
Landlord to collect the maximum rents which may from time to time during the
continuance of such legal rent restriction be legally permissible (and not in
excess of the amounts reserved therefor under this Lease). Upon the termination
of such legal rent restriction prior to the expiration of the Term, (i) Fixed
Rent and Additional Rent shall become and thereafter be payable hereunder in
accordance with the amounts reserved in this Lease for the
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periods following such termination, and (ii) Tenant shall pay to Landlord, if
legally permissible, an amount equal to (A) the items of Fixed Rent and
Additional Rent which would have been paid pursuant to this Lease but for such
legal rent restriction less (B) the rents paid by Tenant to Landlord during the
period or periods such legal rent restriction was in effect.
(e) The covenants, conditions and agreements contained in this
Lease shall bind and inure to the benefit of Landlord and Tenant and their
respective legal representatives, successors, and, except as otherwise provided
in this Lease, their assigns.
Section 32.4 Except as expressly provided to the contrary in this
Lease, Tenant agrees that all disputes arising, directly or indirectly, out of
or relating to this Lease, and all actions to enforce this Lease, shall be dealt
with and adjudicated in the state courts of New York or the Federal courts
sitting in New York City; and for that purpose hereby expressly and irrevocably
submits itself to the jurisdiction of such courts. Tenant hereby irrevocably
appoints the Secretary of the State of New York as its authorized agent upon
which process may be served in any such action or proceeding.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed
this Lease as of the day and year first above written.
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By: Taconic Investment Partners LLC,
Authorized Signatory
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
Title:
VIP CALLING, INC., Tenant
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
Tenant's Federal Tax Identification Number:
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