1
EXHIBIT 10.44
--------------------------------------------------------------------------------
AGREEMENT OF LEASE
between
ELEVEN PENN PLAZA LLC
Landlord
and
PNV. NET, INC.
Tenant
Portion of the ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
PROSKAUER ROSE LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
2
TABLE OF CONTENTS
DEFINITIONS................................................................................ 1
ARTICLE 1
DEMISE, PREMISES, TERM, RENT...................................................... 8
ARTICLE 2
USE AND OCCUPANCY ................................................................ 9
ARTICLE 3
ALTERATIONS.......................................................................10
ARTICLE 4
REPAIRS-FLOOR LOAD................................................................13
ARTICLE 5
WINDOW CLEANING...................................................................14
ARTICLE 6
REQUIREMENTS OF LAW................................................................14
ARTICLE 7
SUBORDINATION .....................................................................16
ARTICLE 8
RULES AND REGULATIONS ............................................................19
ARTICLE 9
INSURANCE, PROPERTY LOSS OR DAMAGE; REIMBURSEMENT.................................19
ARTICLE 10
DESTRUCTION-FIRE OR OTHER CAUSE...................................................21
ARTICLE 11
EMINENT DOMAIN ...................................................................25
ARTICLE 12
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC..............................................26
ARTICLE 13
ELECTRICITY.......................................................................39
ARTICLE 14
ACCESS TO PREMISES................................................................43
ARTICLE 15
CERTIFICATE OF OCCUPANCY..........................................................45
3
ARTICLE 16
DEFAULT..........................................................................45
ARTICLE 17
REMEDIES AND DAMAGES ............................................................48
ARTICLE 18
LANDLORD FEES AND EXPENSES.......................................................51
ARTICLE 19
NO REPRESENTATIONS BY LANDLORD...................................................51
ARTICLE 20
END OF TERM......................................................................52
ARTICLE 21
QUIET ENJOYMENT..................................................................53
ARTICLE 22
FAILURE TO GIVE POSSESSION.......................................................53
ARTICLE 23
NO WAIVER........................................................................54
ARTICLE 24
WAIVER OF TRIAL BY JURY..........................................................54
ARTICLE 25
INABILITY TO PERFORM.............................................................55
ARTICLE 26
BILLS AND NOTICES................................................................55
ARTICLE 27
ESCALATION ......................................................................56
ARTICLE 28
SERVICES.........................................................................63
ARTICLE 29
PARTNERSHIP TENANT...............................................................66
ARTICLE 30
VAULT SPACE......................................................................67
ARTICLE 31
SECURITY.........................................................................67
4
ARTICLE 32
CAPTIONS........................................................................68
ARTICLE 33
PARTIES BOUND...................................................................69
ARTICLE 34
BROKER..........................................................................69
ARTICLE 35
INDEMNITY.......................................................................69
ARTICLE 36
ADJACENT EXCAVATION-SHORING.....................................................70
ARTICLE 37
MISCELLANEOUS...................................................................71
ARTICLE 38
RENT CONTROL ...................................................................73
Schedule A - Rules and Regulations
Schedule B - Cleaning Specifications
EXHIBIT "A" - Floor Plan
EXHIBIT "B" - Landlord's Work
5
AGREEMENT OF LEASE, made as of the 26th day of July, 1999, between
Landlord and Tenant.
WITNESSETH:
The parties hereto, for themselves, their legal representatives,
successors and assigns, hereby covenant as follows.
DEFINITIONS
"Affiliate" shall mean a Person which shall (1) Control, (2) be under
the Control of, or (3) be under common Control with the Person in question.
"Alteration Fee" shall have the meaning set forth in Section 3.2
hereof.
"Alterations" shall mean alterations, installations, improvements,
additions or other physical changes (other than decorations) in or about the
Premises.
"Applicable Rate" shall mean the lesser of (x) two (2) percentage
points above the then current Base Rate, and (y) the maximum rate permitted by
applicable law.
"Assessed Valuation" shall have the meaning set forth in Section 27.1
hereof.
"Assignment Proceeds" shall have the meaning set forth in Section 12.8
hereof.
"Assignment Statement" shall have the meaning set forth in Section 12.8
hereof.
"Assignment Termination" shall have the meaning set forth in Section
12.8 hereof.
"Bankruptcy Code" shall mean 11 U.S.C. Section 101 et seq., or any
statute of similar nature and purpose.
"Base Electric Rate" shall mean the Electric Rate as of the date
hereof.
"Base Electricity Inclusion Factor" shall have the meaning set forth in
Section 13.2 hereof.
"Base Operating Expenses" shall have the meaning set forth in Section
27.1 hereof.
"Base Operating Year" shall have the meaning set forth in Section 27.1
hereof.
6
"Base Rate" shall mean the rate of interest publicly announced from
time to time by The Chase Manhattan Bank, N.A., or its successor, as its "prime
lending rate" (or such other term as may be used by The Chase Manhattan Bank,
N.A., from time to time, for the rate presently referred to as its "prime
lending rate"), which rate was 7.75% on June 18, 1999.
"Base Taxes" shall have the meaning set forth in Section 27.1 hereof.
"Broker" shall have the meaning set forth in Article 34 hereof.
"Building" shall mean 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, and replacements thereof, additions thereto and substitutions
therefor, known by the address of ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
"Building Systems," shall mean the mechanical, gas, electrical,
sanitary, heating, air conditioning, ventilating, elevator, plumbing,
life-safety and other service systems of the Building.
"Business Days" shall mean all days, excluding Saturdays, Sundays and
all days observed by either the State of New York or the Federal Government and
by the labor unions servicing the Building as legal holidays.
"Commencement Date" shall mean the date on which Landlord's Work shall
be Substantially Completed; provided, however, if Landlord shall be delayed in
Substantially Completing Landlord's Work by reason of a delay due to the act or
omission of Tenant, Tenant's agents, employees, invitees, licensees or
contractors, the Commencement Date shall mean the date on which Landlord's Work
would have been Substantially Completed but for such delay.
"Control" or "control" shall mean direct or indirect ownership of more
than fifty percent (50%) of the outstanding voting stock of a corporation or
other majority equity and control interest if not a corporation and the
possession, directly or indirectly, of power to direct or cause the direction of
the management and policy of such corporation or other entity, whether through
the ownership of voting securities, by statute or according to the provisions of
a contract.
"Current Year" shall have the meaning set forth in Section 27.4 hereof.
"Deficiency" shall have the meaning set forth in Section 17.2 hereof.
"Electric Rate" shall have the meaning set forth in Section 13.2
hereof.
"Electricity Additional Rent" shall have the meaning set forth in
Section 13.3 hereof.
"Electricity Inclusion Factor" shall have the meaning set forth in
Section 13.2 hereof.
2
7
"Electricity Statement" shall have the meaning set forth in Section
13.2 hereof.
"Escalation Rent" shall mean, individually or collectively, the Tax
Payment and the Operating Payment.
"Event of Default" shall have the meaning set forth in Section 16.1
hereof.
"Expiration Date" shall mean the Fixed Expiration Date or such earlier
date on which the Term shall sooner end pursuant to any of the terms,
conditions or covenants of this Lease or pursuant to law.
"1st Rental Period" shall have the meaning set forth in Section 1.1
hereof.
"Fixed Expiration Date" shall have the meaning set forth in Section 1.1
hereof.
"Fixed Rent" shall have the meaning set forth in Section 1.1 hereof.
"Full Value" shall have the meaning set forth in Section 13.2 hereof.
"Governmental Authority (Authorities)" shall mean 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, or any quasi-governmental authority, now existing or
hereafter created, having jurisdiction over the Real Property or any portion
thereof.
"HVAC" shall mean heat, ventilation and air conditioning.
"HVAC Systems" shall mean the Building Systems providing HVAC.
"Indemnitees" shall mean Landlord, the members and partners comprising
Landlord and its and their members, partners, shareholders, officers, directors,
employees, agents and contractors, Lessors and Mortgagees.
"Initial Alterations" shall mean the Alterations to be made by Tenant
to initially prepare the Premises for Tenant's occupancy.
"Landlord", on the date as of which this Lease is made, shall mean
Eleven Penn Plaza LLC, a New York limited liability company, having an office
c/o MRC Management LLC, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, but
thereafter, "Landlord" shall mean only the fee owner of the Real Property or if
there shall exist a Superior Lease, the tenant thereunder.
"Landlord's Engineer" shall have the meaning set forth in Section 13.2
hereof.
3
8
"Landlord's Work" shall have the meaning set forth in Section 19.1
hereof.
"Lessor(s)" shall mean a lessor under a Superior Lease.
"Letter of Credit" shall have the meaning set forth in Article 31
hereof.
"Long Lead Work" shall mean any item which is not a stock item and must
be specially manufactured, fabricated or installed or is of such an unusual,
delicate or fragile nature that there is a substantial risk that
(i) there will be a delay in its manufacture, fabrication,
delivery or installation, or
(ii) after delivery, such item will need to be reshipped or
redelivered or repaired
so that in Landlord's reasonable judgment the item in question cannot be
completed when the standard items are completed even though the item of Long
Lead Work in question is (1) ordered together with the other items required and
(2) installed or performed (after the manufacture or fabrication thereof) in the
order and sequence that such Long Lead Work and other items are normally
installed or performed in accordance with good construction practice. In
addition, "Long Lead Work" shall include any standard item which in accordance
with good construction practice should be completed after the completion of any
item of work in the nature of the items described in the immediately preceding
sentence.
"Mortgage(s)" shall mean any trust indenture or mortgage 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(s)" shall mean any trustee, mortgagee or holder of a
Mortgage.
"Operating Expenses" shall have the meaning set forth in Section 27.1
hereof.
"Operating Payment" shall have the meaning set forth in Section 27.4
hereof.
"Operating Statement" shall have the meaning set forth in Section 27.1
hereof.
"Operating Year" shall have the meaning set forth in Section 27.1
hereof.
"Operation of the Property" shall mean the maintenance, repair and
management of the Real Property and the curbs, sidewalks and areas adjacent
thereto.
"Overtime Periods" shall have the meaning set forth in Section 28.3
hereof.
4
9
"Parties" shall have the meaning set forth in Section 37.2 hereof.
"Partner" or "partner" shall mean any partner of Tenant, any employee
of a professional corporation which is a partner comprising Tenant, and any
shareholder of Tenant if Tenant shall become a professional corporation.
"Partnership Tenant" shall have the meaning set forth in Article 29
hereof.
"Persons(s) or person(s)" shall mean any natural person or persons, a
partnership, a corporation and any other form of business or legal association
or entity.
"Premises" shall mean, subject to the provisions of Section 14.4
hereof, the portion of the twentieth (20th) floor of the Building as set forth
on the floor plan attached hereto and made a part hereof as Exhibit "A".
"Real Property" shall mean the Building, together with the plot of land
upon which it stands.
"Recapture Space" shall have the meaning set forth in Section 12.6
hereof.
"Recapture Sublease" shall have the meaning set forth in Section 12.6
hereof.
"Related Entity" shall have the meaning set forth in Section 12.4
hereof.
"Rent Commencement Date" shall mean the date which is three (3) months
after the Commencement Date.
"Rental" shall mean and be deemed to include Fixed Rent, Escalation
Rent, all additional rent and any other sums payable by Tenant hereunder.
"Requirements" shall mean all present and future laws, rules, orders,
ordinances, regulations, statutes, requirements, codes and executive orders,
extraordinary as well as ordinary, of all Governmental Authorities now existing
or hereafter created, and of any and all of their departments and bureaus, and
of any applicable fire rating bureau, or other body exercising similar
functions, affecting the Real Property or any portion thereof, or any street,
avenue or sidewalk comprising a part of or in front thereof or any vault in or
under the same, or requiring removal of any encroachment, or affecting the
maintenance, use or occupation of the Real Property or any portion thereof.
"Rules and Regulations" shall mean the rules and regulations annexed
hereto and made a part hereof as Schedule A and such other and further rules and
regulations as Landlord or Landlord's agents may from time to time adopt on not
less than ten (10) days prior notice to Tenant, subject to Tenant's right to
dispute the reasonableness thereof as provided in Article 8 hereof.
5
10
"Space Factor" shall mean Five Thousand Four Hundred Ten (5,410) as the
same may be increased or decreased pursuant to the terms hereof.
"Specialty Alterations" shall mean Alterations consisting of kitchens,
executive bathrooms, raised computer floors, computer installations, vaults,
libraries, internal staircases, dumbwaiters, pneumatic tubes, vertical and
horizontal transportation systems, and other Alterations of a similar character.
"Sublease Expenses" shall have the meaning set forth in Section 12.7
hereof.
"Sublease Profit" shall have the meaning set forth in Section 12.7
hereof.
"Sublease Rent" shall have the meaning set forth in Section 12.7
hereof.
"Substantial Completion" or "Substantially Completed" or words of
similar import shall mean that Landlord's Work has been substantially completed,
it being agreed that Landlord's Work shall be deemed substantially complete
notwithstanding the fact that (a) minor or insubstantial details of construction
or demolition and/or mechanical adjustment and/or decorative items remain to be
performed, and (b) any Long Lead Work remains to be performed.
"Superior Lease(s)" shall mean all ground or underlying leases of the
Real Property or the Building and all renewals, extensions, supplements,
amendments and modifications thereof.
"Taxes" shall have the meaning set forth in Section 27.1 hereof.
"Tax Payment" shall have the meaning set forth in Section 27.2 hereof.
"Tax Statement shall have the meaning set forth in Section 27.1 hereof.
"Tax Year" shall have the meaning set forth in Section 27.1 hereof.
"Tenant", on the date as of which this Lease is made, shall mean
▇▇▇.▇▇▇, Inc., a Delaware corporation, having an office at Eleven Penn Plaza,
New York, New York, but thereafter "Tenant" shall mean only the tenant under
this Lease at the time in question; provided, however, that the originally
named tenant and any assignee of this Lease shall not be released from
liability hereunder in the event of any assignment of this Lease.
"Tenant Statement" shall have the meaning set forth in Section 12.6
hereof.
"Tenant's Engineer" shall have the meaning set forth in Section 13.3
hereof.
"Tenant's Property" shall mean Tenant's movable fixtures and movable
partitions, telephone and other equipment, furniture, furnishings, decorations
and other items of personal property.
6
11
"Tenant's Share" shall mean Fifty-Five ten thousandths percent
(0.0055%) as the same may be increased or decreased pursuant to the terms
hereof.
"Tentative Monthly Escalation Charge" shall have the meaning set forth
in Section 27.4 hereof.
"Term" shall mean a term which shall commence on the Commencement Date
and shall expire on the Expiration Date.
"Termination Date" shall have the meaning set forth in Section 12.6
hereof.
"Third Engineer" shall have the meaning set forth in Section 13.3
hereof.
"Unavoidable Delays" shall have the meaning set forth in Article 25
hereof.
7
12
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 date (the "Fixed Expiration Date") which is the last day of the
month in which the day immediately preceding the fifth (5th) anniversary of the
Rent Commencement Date shall occur, at an annual rent (the "Fixed Rent") of:
(i) Two Hundred Thousand One Hundred Seventy Dollars
($200,170) per annum for the period (the "1st Rental Period") commencing on the
Rent Commencement Date and ending on the day immediately preceding the two (2)
year, six (6) month anniversary of the Rent Commencement Date, or if the Rent
Commencement Date shall occur other than on the first day of the month, ending
on the last day of the month in which the two (2) year, six (6) month
anniversary of the Rent Commencement Date shall occur ($16,680.83 per month),
and
(ii) Two Hundred Sixteen Thousand Four Hundred
Dollars ($216,400) per annum for the period commencing on the day next
succeeding the end of the 1st Rental Period and ending on the Fixed Expiration
Date ($18,033.33 per month),
(which Fixed Rent amounts include the Electricity Inclusion Factor) which Tenant
agrees to pay in lawful money of the United States which shall be legal tender
in payment of all debts and dues, public and private, at the time of payment, in
equal monthly installments in advance, on the first (1st) day of each calendar
month during the Term commencing on the Rent Commencement Date, at the office of
Landlord or such other place as Landlord may designate, without any set-off,
offset, abatement or deduction whatsoever, except that Tenant shall pay the
first full monthly installment on the execution hereof. At the request of
Landlord, Fixed Rent shall be payable when due by wire transfer of funds to an
account designated from time to time by Landlord.
Section 1.2. If the Rent Commencement Date shall occur on a date other
than the first (1st) day of any calendar month, then, on the Rent Commencement
Date, Tenant shall pay to Landlord an amount equal to Five Hundred Fifty-Six and
03/100 Dollars ($556.03), multiplied by the number of calendar days in the
period from the Rent Commencement Date to the last day of the month in which the
Rent Commencement Date shall occur, both dates inclusive.
Section 1.3. Tenant shall pay to Landlord, as additional rent, on
account of electricity consumed at the Premises, an amount equal to One Thousand
Three Hundred Fifty-two and 50/100 Dollars ($1,352.50) per month during the
period commencing on the Commencement Date and ending on the day immediately
preceding the Rent Commencement Date.
Section 1.4. Promptly after Landlord shall Substantially Complete
Landlord's Work, Landlord and Tenant shall enter into an agreement in form and
substance reasonably satisfactory to both parties, confirming the Commencement
Date and Fixed Expiration Date; provided,
8
13
however, that failure to execute and deliver such agreement shall not affect the
validity of the Commencement Date, the Rent Commencement Date and the Fixed
Expiration Date.
ARTICLE 2
USE AND OCCUPANCY
Section 2.1. Tenant shall use and occupy the Premises as general and
executive offices, uses incidental thereto and for no other purpose.
Section 2.2. (A) Tenant shall not use the Premises or any part
thereof, or permit the Premises or any part thereof to be used, (1) for the
business of photographic, multilith or multigraph reproductions or offset
printing, except in connection with, either directly or indirectly, Tenant's
own business and/or activities, (2) for a banking, trust company, depository,
guarantee or safe deposit business, (3) as a savings bank, a savings and loan
association, or as a loan company, (4) for the sale of travelers checks, money
orders, drafts, foreign exchange or letters of credit or for the receipt of
money for transmission, (5) as a stockbroker's or dealer's office or for the
underwriting or sale of securities, (6) by the United States government, the
City or State of New York, any foreign government, the United Nations or any
agency or department of any of the foregoing or any other Person having
sovereign or diplomatic immunity, (7) as a restaurant or bar or for the sale
of confectionery, soda or other beverages, sandwiches, ice cream or baked goods
or for the preparation, dispensing or consumption of food or beverages in any
manner whatsoever, except for consumption by Tenant's officers, employees and
business guests, (8) as an employment agency, executive search firm or similar
enterprise, labor union, school, or vocational training center (except for the
training of employees of Tenant intended to be employed at the Premises), or
(9) as a ▇▇▇▇▇▇ shop or beauty salon.
(B) In connection with, and incidental to, Tenant's use of
the Premises for general and executive offices as provided in this Article 2,
Tenant, at its sole cost and expense and upon compliance with all applicable
Requirements, may install a "▇▇▇▇▇" or similar unit in the Premises for the
purpose of warming food for the officers, employees and business guests of
Tenant (but not for use as a public restaurant), provided that Tenant shall
obtain all permits required by any Governmental Authorities for the operation
thereof and such installation shall comply with the provisions of this Lease,
including, without limitation, Article 3 hereof. Tenant may also install, at its
sole cost and expense and subject to and in compliance with the provisions of
Articles 3 and 4 hereof, vending machines for the exclusive use of the officers,
employees and business guests of Tenant, each of which vending machines (if it
dispenses any beverages or other liquids or refrigerates) shall have a
waterproof pan located thereunder, connected to a drain.
9
14
ARTICLE 3
ALTERATIONS
Section 3.1. (A) Tenant shall not make any Alterations without
Landlord's prior consent. Landlord shall not unreasonably withhold or delay its
consent to any proposed nonstructural Alterations, provided that such
Alterations (i) are not visible from the outside of the Building, (ii) do not
affect any part of the Building other than the Premises or require any
alterations, installations, improvements, additions or other physical changes to
be performed in or made to any portion of the Building or the Real Property
other than the Premises, (iii) do not affect any service required to be
furnished by Landlord to Tenant or to any other tenant or occupant of the
Building, (iv) do not affect the proper functioning of any Building System, (v)
do not reduce the value or utility of the Building, and (vi) do not affect the
certificate of occupancy for the Building or the Premises. Landlord shall not be
deemed to be unreasonable with respect to withholding its consent to any
proposed nonstructural Alteration which meets the criteria set forth in this
Section 3.1 (A) if the Lessor or Mortgagee, as the case may be, shall withhold
its consent.
(B) (1) Prior to making any Alterations (other than
Alterations performed by Landlord on behalf of Tenant for which Landlord is
responsible for preparing plans and specifications and for obtaining permits and
approvals), including, without limitation, the Initial Alterations, Tenant shall
(i) submit to Landlord detailed plans and specifications (including layout,
architectural, mechanical and structural drawings) for each proposed Alteration
and shall not commence any such Alteration without first obtaining Landlord's
approval of such plans and specifications, which, in the case of nonstructural
Alterations which meet the criteria set forth in Section 3.1 (A) above, shall
not be unreasonably withheld or delayed, (ii) at Tenant's expense, obtain all
permits, approvals and certificates required by any Governmental Authorities, it
being agreed that all filings with Governmental Authorities to obtain such
permits, approvals and certificates shall be made, at Tenant's expense, by a
Person designated by Landlord, and (iii) furnish to Landlord duplicate original
policies or certificates thereof of worker's compensation (covering all persons
to be employed by Tenant, and Tenant's contractors and subcontractors in
connection with such Alteration) and comprehensive public liability (including
property damage coverage) insurance in such form, with such companies, for such
periods and in such amounts as Landlord may reasonably approve, naming Landlord
and its agents, any Lessor and any Mortgagee, as additional insureds. Upon
completion of such Alteration, Tenant, at Tenant's expense, shall obtain
certificates of final approval of such Alteration required by any Governmental
Authority and shall furnish Landlord with copies thereof, together with the
"as-built" plans and specifications for such Alterations, it being agreed that
all filings with Governmental Authorities to obtain such permits, approvals and
certificates shall be made, at Tenant's expense, by a Person designated by
Landlord. All Alterations shall be made and performed substantially in
accordance with the plans and specifications therefor as approved by Landlord,
all Requirements, the Rules and Regulations, and all rules and regulations
relating to Alterations promulgated by Landlord in its reasonable judgment. All
materials and equipment to be incorporated in the Premises as a result of any
Alterations or a part thereof shall be first quality and no such materials or
equipment (other than Tenant's Property) shall be subject to any lien,
encumbrance, chattel mortgage or title retention or security agreement. In
addition, no
10
15
Alteration shall be undertaken prior to Tenant's delivering to Landlord either
(i) a performance bond and labor and materials payment bond (issued by a surety
company and in form reasonably satisfactory to Landlord), each in an amount
equal to one hundred twenty percent (120%) of the cost of such Alteration (as
reasonably estimated by Landlord's architect, engineer, or contractor), or (ii)
such other security as shall be reasonably satisfactory to Landlord or required
by any Mortgagee or Lessor. If, as a result of any Alterations performed by
Tenant, including, without limitation, the Initial Alterations, any alterations,
installations, improvements, additions or other physical changes are required to
be performed or made to any portion of the Building or the Real Property other
than the Premises in order to comply with any Requirement(s), which alterations,
installations, improvements, additions or other physical changes would not
otherwise have had to be performed or made pursuant to applicable Requirement(s)
at such time, Landlord, at Tenant's sole cost and expense, may perform or make
such alterations, installations, improvements, additions or other physical
changes and take such actions as Landlord shall deem reasonably necessary and
Tenant, within five (5) days after demand therefor by Landlord, shall provide
Landlord with such security as Landlord shall reasonably require, in an amount
equal to one hundred twenty percent (120%) of the cost of such alterations,
installations, improvements, additions or other physical changes, as reasonably
estimated by Landlord's architect, engineer or contractor. All Alteration(s)
shall be performed only under the supervision of an independent licensed
architect approved by Landlord, which approval shall not be unreasonably
withheld.
(2) Landlord reserves the right to disapprove any plans
and specifications in part, to reserve approval of items shown thereon pending
its review and approval of other plans and specifications, and to condition its
approval upon Tenant making revisions to the plans and specifications or
supplying additional information. Any review or approval by Landlord of any
plans and/or specifications or any preparation or design of any plans by
Landlord's architect or engineer (or any architect or engineer designated by
Landlord) with respect to any Alteration is solely for Landlord's benefit, and
without any representation or warranty whatsoever to Tenant or any other Person
with respect to the compliance thereof with any Requirements, the adequacy,
correctness or efficiency thereof or otherwise.
(C) Tenant shall be permitted to perform Alterations during
the hours of 8:00 A.M. to 6:00 P.M. on Business Days, provided that such work
shall not interfere with or interrupt the operation and maintenance of the
Building or unreasonably interfere with or interrupt the use and occupancy of
the Building by other tenants in the Building. Otherwise, Alterations shall be
performed at such times and in such manner as Landlord may from time to time
reasonably designate. All Tenant's Property installed by Tenant and all
Alterations in and to the Premises which may be made by Tenant at its own cost
and expense prior to and during the Term, shall remain the property of Tenant.
Upon the Expiration Date, Tenant shall remove Tenant's Property from the
Premises and, at Tenant's option, Tenant also may remove, at Tenant's cost and
expense, all Alterations made by Tenant to the Premises, provided, however,
in any case, that Tenant shall repair and restore in a good and workerlike
manner to good condition any damage to the Premises or the Building caused by
such removal. Notwithstanding the foregoing, however, Landlord, upon notice
given at least thirty (30) days prior to the Fixed Expiration Date or upon
such shorter notice as is reasonable under the circumstances upon the earlier
expiration of the
11
16
Term, may require Tenant to remove any Alterations, and to repair and restore in
a good and workerlike manner to good condition any damage to the Premises or the
Building caused by such removal.
(D) (1) All Alterations shall be performed, at Tenant's sole
cost and expense, by Landlord's contractor(s) or by contractors, subcontractors
or mechanics approved by Landlord. Prior to making an Alteration, at Tenant's
request, Landlord shall furnish Tenant with a list of contractors who may
perform Alterations to the Premises on behalf of Tenant. If Tenant engages any
contractor set forth on the list, Tenant shall not be required to obtain
Landlord's consent for such contractor unless, prior to the earlier of (a)
entering into a contract with such contractor, and (b) the commencement of work
by such contractor, Landlord shall notify Tenant that such contractor has been
removed from the list.
(2) Notwithstanding the foregoing, with respect to any
Alteration affecting any Building System, (i) Tenant shall select a contractor
from a list of approved contractors furnished by Landlord to Tenant (containing
at least three (3) contractors) and (ii) the Alteration shall, at Tenant's cost
and expense, be designed by Landlord's engineer for the relevant Building
System.
(E) Any mechanic's lien filed against the Premises or the Real
Property for work claimed to have been done for, or materials claimed to have
been furnished to, Tenant shall be discharged by Tenant within thirty (30) days
after Tenant shall have received notice thereof (or such shorter period if
required by the terms of any Superior Lease or Mortgage), at Tenant's expense,
by payment or filing the bond required by law. 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 such employment would 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 of any adjacent property owned by Landlord. In the event of any
such interference or conflict, Tenant, upon demand of Landlord, shall cause all
contractors, mechanics or laborers causing such interference or conflict to
leave the Building immediately.
Section 3.2. Tenant shall pay to Landlord or to Landlord's agent, as
additional rent, all out-of pocket costs and expenses incurred by Landlord or
Landlord's agent in connection with any Alterations, including, without
limitation, the initial Alterations (the "Alteration Fee"). The Alteration Fee
shall be paid by Tenant within ten (10) Business Days after demand therefor.
Tenant also shall pay any fee charged by any Lessor or Mortgagee in reviewing
the plans and specifications for such Alterations or inspecting the progress of
completion of the same.
Section 3.3. Upon the request of Tenant, Landlord, at Tenant's cost
and expense, shall join in any applications for any permits, approvals or
certificates required to be obtained by Tenant in connection with any permitted
Alteration (provided that the provisions of the applicable Requirement shall
require that Landlord join in such application) and shall otherwise cooperate
with Tenant in connection therewith, provided that Landlord shall not be
obligated to
12
17
incur any cost or expense, including, without limitation, attorneys' fees and
disbursements, or suffer any liability in connection therewith.
ARTICLE 4
REPAIRS-FLOOR LOAD
Section 4.1. Landlord shall operate, maintain and make all necessary
repairs (both structural and nonstructural) to the part of Building Systems
which provide service to the Premises (but not to the distribution portions of
such Building Systems located within the Premises) and the public portions of
the Building, both exterior and interior, in conformance with standards
applicable to non-institutional first class office buildings in Manhattan.
Tenant, at Tenant's sole cost and expense, shall take good care of the Premises
and the fixtures, equipment and appurtenances therein and the distribution
systems and shall make all nonstructural 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 Article 10 hereof. Notwithstanding the foregoing, all
damage or injury to the Premises or to any other part of the Building and
Building Systems, or to its fixtures, equipment and appurtenances, whether
requiring structural of nonstructural repairs, caused by or resulting from
carelessness, omission, neglect or improper conduct of, or Alterations made by,
Tenant, Tenant's agents, employees, invitees or licensees, shall be repaired at
Tenant's sole cost and expense, by Tenant to the reasonable satisfaction of
Landlord (if the required repair are nonstructural in nature and do not affect
any Building System), or by Landlord (if the required repairs are structural in
nature or affect any Building System). All of the aforesaid repairs shall be of
first quality and of a class consistent with non-institutional first class
office building work or construction and shall be made in accordance with the
provisions of Article 3 hereof. If Tenant fails after ten (10) days' notice (or
such shorter period as Landlord may be permitted pursuant to any Superior Lease
or Mortgage or such shorter period as may be required due to an emergency) to
proceed with due diligence to make repairs required to be made by Tenant, the
same may be made by Landlord at the expense of Tenant, and the expenses thereof
incurred by Landlord, with interest thereon at the Applicable Rate, shall be
forthwith paid to Landlord as additional rent after rendition of a ▇▇▇▇ or
statement therefor. Tenant shall give Landlord prompt notice of any defective
condition in the Building or in any Building System, located in, servicing or
passing through the Premises.
Section 4.2. Tenant shall not place a load upon any floor of the
Premises exceeding one hundred twenty (120) pounds per square foot "live load".
Tenant shall not move any safe, heavy machinery, heavy equipment, business
machines (other than standard office machines), freight, bulky matter or
fixtures into or out of the Building without Landlord's prior consent, which
consent shall not be unreasonably withheld, and shall make payment to Landlord
of Landlord's costs in connection therewith. If such safe, machinery, equipment,
freight, bulky matter or fixtures requires special handling, Tenant shall employ
only persons holding a Master Rigger's license to do said work. All work in
connection therewith shall comply with all Requirements and the Rules and
Regulations, and shall be done during such hours as Landlord may reasonably
13
18
designate. Business machines and mechanical equipment shall be placed and
maintained by Tenant at Tenant's expense in settings sufficient in Landlord's
reasonable judgment to absorb and prevent vibration, noise and annoyance. Except
as expressly provided in this Lease, there shall be no allowance to Tenant for a
diminution of rental value and no liability on the part of Landlord by reason of
inconvenience, annoyance or injury to business arising from Landlord, Tenant or
others making, or failing to make, any repairs, alterations, additions or
improvements in or to any portion of the Building or the Premises, or in or to
fixtures, appurtenances or equipment thereof.
Section 4.3. Landlord shall use its reasonable efforts to minimize
interference with Tenant's 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 of labor at so-called
overtime or other premium pay rates or to incur any other overtime costs or
expenses whatsoever, except that Landlord, at its expense but subject to
recoupment pursuant to Article 27 hereof, shall employ contractors or labor at
so-called overtime or other premium pay rates if necessary to make any repair
required to be made by it hereunder to remedy any condition that either (i)
results in a denial of access to the Premises, (ii) threatens the health or
safety of any occupant of the Premises, or (iii) except in the case of a fire or
other casualty, materially interferes with Tenant's ability to conduct its
business in the Premises. In all other cases, at Tenant's request, Landlord
shall employ contractors or labor at so-called overtime or other premium pay
rates and incur any other overtime costs or expenses in making any repairs,
alterations, additions or improvements, and Tenant shall pay to Landlord, as
additional rent, within ten (10) Business Days after demand, an amount equal to
the difference between the overtime or other premium pay rates and the regular
pay rates for such labor and any other overtime costs or expenses so incurred.
ARTICLE 5
WINDOW CLEANING
Tenant shall not clean, nor require, permit, suffer or allow any
window in the Premises to be cleaned from the outside in violation of Section
202 of the Labor Law, or any other Requirement, or of the rules of the Board of
Standards and Appeals, or of any other board or body having or asserting
jurisdiction.
ARTICLE 6
REQUIREMENTS OF LAW
Section 6.1. Tenant, at its sole cost and expense, shall comply with
all Requirements applicable to the Premises including, without limitation, those
applicable to the making of any Alterations therein or the result of the making
thereof and those applicable by reason of the nature or type of business
operated by Tenant in the Premises. Tenant shall not do or permit to be done any
act or thing upon the Premises which will invalidate or be in conflict with a
standard
14
19
"all-risk" insurance policy; and shall not do, or permit anything to be done
in or upon the Premises, or bring or keep anything therein, except as now or
hereafter permitted by the ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ Board of Fire
Underwriters, the Insurance Services Office or other authority having
jurisdiction and then only in such quantity and manner of storage as not to
increase the rate for fire insurance applicable to the Building, or use the
Premises in a manner (as opposed to mere use as general "offices") which shall
increase the rate of fire insurance on the Building or on property located
therein, over that in similar type buildings or in effect on the Commencement
Date. If by reason of Tenant's failure to comply with the provisions of this
Article, the fire insurance rate shall be higher than it otherwise would be,
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 fire insurance premiums thereafter paid by Landlord which shall have been
charged because of such failure by Tenant, and shall make such reimbursement
upon demand by Landlord. In any action or proceeding wherein Landlord and Tenant
are parties, a schedule or "make up" of rates for the Building or the Premises
issued by the Insurance Services Office, or other body fixing such fire
insurance rates, shall be conclusive evidence of the facts therein stated and of
the several items and charges in the fire insurance rates then applicable to the
Building,
Section 6.2. Tenant, at its sole cost and expense and after notice to
Landlord, may contest by appropriate proceedings prosecuted diligently and in
good faith, the legality or applicability of any Requirement affecting the
Premises, provided that (a) Landlord (or any Indemnitee) shall not be subject to
imprisonment or to prosecution for a crime, nor shall the Real Property or any
part thereof be subject to being condemned or vacated, nor shall the certificate
of occupancy for the Premises or the Building be suspended or threatened to be
suspended by reason of non-compliance or by reason of such contest; (b) before
the commencement of such contest, if Landlord or any Indemnitee may be subject
to any civil fines or penalties or other criminal penalties or if Landlord may
be liable to any independent third party as a result of such noncompliance,
Tenant shall furnish to Landlord either (i) a bond of a surety company
satisfactory to Landlord, in form and substance reasonably satisfactory to
Landlord, and in an amount equal to one hundred twenty percent (120%) of the
sum of (A) the cost of such compliance, (B) the criminal or civil penalties or
fines that may accrue by reason of such non-compliance (as reasonably estimated
by Landlord), and (C) the amount of such liability to independent third parties
(as reasonably estimated by Landlord), and shall indemnify Landlord (and any
Indemnitee) against the cost of such compliance and liability resulting from
or incurred in connection with such contest or non-compliance (except that
Tenant shall not be required to furnish such bond to Landlord if it has
otherwise furnished any similar bond required by law to the appropriate
Governmental Authority and has named Landlord as a beneficiary thereunder) or
(ii) other security reasonably satisfactory in all respects to Landlord;
(c) such non-compliance or contest shall not constitute or result in a
violation (either with the giving of notice or the passage of time or both) of
the terms of any Mortgage or Superior Lease, or if such Superior Lease or
Mortgage shall condition such non-compliance or contest upon the taking of
action or furnishing of security by Landlord, such action shall be taken or
such security shall be furnished at the expense of Tenant; and (d) Tenant shall
keep Landlord regularly advised as to the status of such proceedings. Without
limiting the applicability of the foregoing, Landlord (or any Indemnitee)
15
20
shall be deemed subject to prosecution for a crime if Landlord (or any
Indemnitee), a Lessor, a Mortgagee or any of their officers, directors,
partners, shareholders, agents or employees is charged with a crime of any kind
whatsoever, unless such charges are withdrawn ten (10) days before Landlord (or
any Indemnitee), such Lessor or such Mortgagee or such officer, director,
partner, shareholder, agent or employee, as the case may be, is required to
plead or answer thereto.
ARTICLE 7
SUBORDINATION
Section 7.1. This Lease shall be subject and subordinate to each and
every Superior Lease and to each and every Mortgage. This clause shall be
self-operative and no further instrument of subordination shall be required
from Tenant to make the interest of any Lessor or Mortgagee superior to the
interest of Tenant hereunder; however, Tenant shall execute and deliver promptly
any instrument, in recordable form, that Landlord, any Mortgagee or Lessor may
request to evidence and confirm such subordination. If the date of expiration of
any Superior Lease shall be the same day as the Expiration Date, the Term shall
end and expire twelve (12) hours prior to the expiration of the Superior Lease.
Tenant shall not do anything that would constitute a default under any Superior
Lease or Mortgage, or omit to do anything that Tenant is obligated to do under
the terms of this Lease so as to cause Landlord to be in default thereunder. If,
in connection with the financing of the Real Property, the Building or the
interest of the lessee under any Superior Lease, or if in connection with the
entering into of a Superior Lease, any lending institution or Lessor shall
request reasonable modifications of this Lease that do not increase Tenant's
monetary obligations under this Lease, or materially adversely affect or
diminish the rights, or materially increase the other obligations of Tenant
under this Lease, Tenant shall make such modifications.
Section 7.2. If at any time prior to the expiration of the Term, any
Superior Lease shall terminate or be terminated for any reason or any Mortgagee
comes into possession of the Real Property or the Building or the estate created
by any Superior Lease by receiver or otherwise, Tenant agrees, at the election
and upon demand of any owner of the Real Property or the Building, or of the
Lessor, or of any Mortgagee in possession of the Real Property or the Building,
to attorn, from time to time, to any such owner, Lessor or Mortgagee or any
person acquiring the interest of Landlord as a result of any such termination,
or as a result of a foreclosure of the Mortgage or the granting of a deed in
lieu of foreclosure, upon the then executory terms and conditions of this Lease,
subject to the provisions of Section 7.1 hereof and this Section 7.2. for the
remainder of the Term, provided that such owner, Lessor or Mortgagee, or
receiver caused to be appointed by any of the foregoing, as the case may be,
shall then be entitled to possession of the Premises and provided further that
such owner, Lessor or Mortgagee, as the case may be, or anyone claiming by,
through or under such owner, Lessor or Mortgagee, as the case may be, including
a purchaser at a foreclosure sale, shall not be:
16
21
(1) liable for any act or omission of any prior
landlord (including, without limitation, the then defaulting landlord), or
(2) subject to any defense or offsets which Tenant may
have against any prior landlord (including, without limitation, the then
defaulting landlord), or
(3) bound by any payment of Rental which Tenant may
have made to any prior landlord (including, without limitation, the then
defaulting landlord) more than thirty (30) days in advance of the date upon
which such payment was due, or
(4) bound by any obligation to make any payment to or
on behalf of
(5) bound by any obligation to perform any work or to
make improvements to the Premises, except for (i) repairs and maintenance
pursuant to the provisions of Article 4, the need for which repairs and
maintenance first arises after the date upon which such owner, Lessor, or
Mortgagee shall be entitled to possession of the Premises, (ii) repairs to the
Premises or any part thereof as a result of damage by fire or other casualty
pursuant to Article 10 hereof, but only to the extent that such repairs can be
reasonably made from the net proceeds of any insurance actually made available
to such owner, Lessor or Mortgagee, and (iii) repairs to the Premises as a
result of a partial condemnation pursuant to Article 11 hereof, but only to the
extent that such repairs can be reasonably made from the net proceeds of any
award made available to such owner, Lessor or Mortgagee, or
(6) bound by any amendment or modification of this
Lease made without its consent, or
(7) bound to return Tenant's security deposit, if any,
until such deposit has come into its actual possession and Tenant would be
entitled to such security deposit pursuant to the terms of this Lease.
The provisions of this Section 7.2 shall ensure to the benefit of any such
owner, Lessor or Mortgagee, shall apply notwithstanding that, as a matter of
law, this Lease may terminate upon the termination of any Superior Lease, shall
be self-operative upon any such demand, and no further instrument shall be
required to give effect to said provisions. Tenant, however, upon demand of any
such owner, Lessor or Mortgagee, shall execute, at Tenant's expense, from time
to time, instruments, in recordable form, in confirmation of the foregoing
provisions of this Section 7.2, satisfactory to any such owner, Lessor or
Mortgagee, acknowledging such attornment and setting forth the terms and
conditions of its tenancy. Nothing contained in this Section 7.2 shall be
construed to impair any right otherwise exercisable by any such owner, Lessor or
Mortgagee. Notwithstanding the provisions of this Section 7.2, this Lease shall
not terminate by reason of the termination of any Superior Lease without the
prior written consent of the Mortgagee of the Mortgage which is a first mortgage
on Landlord's interest in the Real Property or the leasehold estate created by
such Superior Lease.
17
22
Section 7.3. From time to time, within ten (10) days next following
request by Landlord, any Mortgagee or any Lessor, Tenant shall deliver to
Landlord, such Mortgagee or such Lessor a written statement executed by Tenant,
in form satisfactory to Landlord, such Mortgagee or such Lessor, (1) stating
that this Lease is then in full force and effect and has not been modified (or
if modified, setting forth all modifications), (2) setting forth the date to
which the Fixed Rent, Escalation Rent and other items of Rental have been paid,
(3) stating whether or not, to the best knowledge of Tenant, Landlord is in
default under this Lease, and, if Landlord is in default, setting forth the
specific nature of all such defaults, and (4) as to any other matters reasonably
requested by Landlord, such Mortgagee or such Lessor. Tenant acknowledges that
any statement delivered pursuant to this Section 7.3 may be relied upon by any
purchaser or owner of the Real Property or the Building, or Landlord's interest
in the Real Property or the Building or any Superior Lease, or by any Mortgagee,
or by an assignee of any Mortgagee, or by any Lessor.
Section 7.4. From time to time, within ten (10) days next following
request by Tenant but not more frequently than twice in any twelve (12) month
period, Landlord shall deliver to Tenant a written statement executed by
Landlord (i) stating that this Lease is then in full force and effect and has
not been modified (or if modified, setting forth all modifications), (ii)
setting forth the date to which the Fixed Rent, Escalation Rent and any other
items of Rental have been paid, (iii) stating whether or not, to the best
knowledge of Landlord (but without having made any investigation), Tenant is in
default under this Lease, and, if Tenant is in default, setting forth the
specific nature of all such defaults, and (iv) as to any other matters
reasonably requested by Tenant and related to this Lease.
Section 7.5. As long as any Superior Lease or Mortgage shall exist,
Tenant shall not seek to terminate this Lease by reason of any act or omission
of Landlord until Tenant shall have given written notice of such act or omission
to all Lessors and Mortgagees at such addresses as shall have been furnished to
Tenant by such Lessors and Mortgagees and, if any such Lessor or Mortgagee, as
the case may be, shall have notified Tenant within ten (10) Business Days
following receipt of such notice of its intention to remedy such act or
omission, until a reasonable period of time shall have elapsed following the
giving of such notice, during which period such Lessors and Mortgagees shall
have the right, but not the obligation, to remedy such act or omission.
Section 7.6. Tenant hereby irrevocably waives any and all right(s) it
may have in connection with any zoning lot merger or transfer of development
rights with respect to the Real Property including, without limitation, any
rights it may have to be a party to, to contest, or to execute, any Declaration
of Restrictions (as such term is used in Section 12-10 of the Zoning Resolution
of The City of New York effective December 15, 1961, as amended) with respect to
the Real Property, which would cause the Premises to be merged with or unmerged
from any other zoning lot pursuant to such Zoning Resolution or to any document
of a similar nature and purpose, and Tenant agrees that this Lease shall be
subject and subordinate to any Declaration of Restrictions or any other document
of similar nature and purpose now or hereafter affecting the Real Property. In
confirmation of such subordination and waiver, Tenant shall execute and deliver
promptly any certificate or instrument that Landlord reasonably may request.
18
23
ARTICLE 8
RULES AND REGULATIONS
Tenant and Tenant's contractors, employees, agents, visitors,
invitees and licensees shall comply with the Rules and Regulations. Tenant
shall have the right to dispute the reasonableness of any additional Rule or
Regulation hereafter adopted by Landlord. If Tenant disputes the reasonableness
of any additional Rule or Regulation hereafter adopted by Landlord, the dispute
shall be determined by arbitration in the City of New York in accordance with
the rules and regulations then obtaining of the American Arbitration
Association or its successor. Any such determination shall be final and
conclusive upon the parties hereto. The right to dispute the reasonableness of
any additional Rule or Regulation upon Tenant's part shall be deemed waived
unless the same shall be asserted by service of a notice upon Landlord within
thirty (30) days after receipt by Tenant of notice of the adoption of any such
additional Rule or Regulation. Nothing in this Lease contained 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.
ARTICLE 9
INSURANCE, PROPERTY LOSS OR DAMAGE; REIMBURSEMENT
Section 9.1. (A) 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. Neither Landlord nor its agents shall be liable
for any injury (or death) to persons or damage to property, or interruption of
Tenant's business, resulting from fire or other casualty; nor shall Landlord or
its agents be liable for any such injury (or death) to persons or damage 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
injury (or death) to persons or damage to property or improvements, or
interruption of Tenant's business, resulting from any latent defect in the
Premises or in the Building (provided that the foregoing shall not relieve
Landlord from its obligations, if any, to repair such latent defect pursuant to
the provisions of Article 4 hereof.
(B) If at any time any windows of the Premises are temporarily
closed, darkened or bricked-up due to any Requirement or by reason of repairs,
maintenance, alterations, or improvements to the Building, or any of such
windows are permanently closed, darkened or bricked-up due to any Requirement,
Landlord shall not be liable for any damage Tenant may sustain thereby and
Tenant shall not be entitled to any compensation therefor, nor abatement or
diminution of Fixed Rent or any other item of Rental, nor shall the same
release Tenant from its obligations hereunder, nor constitute an actual or
constructive eviction, in whole or in part, by
19
24
reason of inconvenience or annoyance to Tenant, or injury to or interruption of
Tenant's business, or otherwise, nor impose any liability upon Landlord or its
agents. If at any time the windows of the Premises are temporarily closed,
darkened or bricked-up, as aforesaid, then, unless Tenant is required pursuant
to the Lease to perform the repairs, maintenance, alterations, or improvements,
or to comply with the Requirements, which resulted in such windows being
closed, darkened or bricked-up, Landlord shall perform such repairs,
maintenance, alterations or improvements and comply with the applicable
Requirements with reasonable diligence and otherwise take such action as may be
reasonably necessary to minimize the period during which such windows are
temporarily closed, darkened, or bricked-up.
(C) Tenant shall immediately notify Landlord of any fire
or accident in the Premises.
Section 9.2. Tenant shall obtain and keep in full force and effect (i)
an "all risk" insurance policy for Tenant's Specialty Alterations and Tenant's
Property at the Premises in an amount equal to one hundred percent (100%) of
the replacement value thereof, and (ii) a policy of commercial general
liability and property damage insurance on an occurrence basis, with a broad
form contractual liability endorsement. Such policies shall provide that Tenant
is named as the insured. Landlord, Landlord's managing agent, Landlord's agents
and any Lessors and any Mortgagees (whose names shall have been furnished to
Tenant) shall be added as additional insureds, as their respective interests may
appear, with respect to the insurance required to be carried pursuant to
clauses (i) and (ii) above. Such policy with respect to clause (ii) above shall
include a provision under which the insurer agrees to indemnify, defend and
hold Landlord, Landlord's managing agent, Landlord's agents and such Lessors
and Mortgagees harmless from and against, subject to the limits of liability
set forth in this Section 9.2, all cost, expense and liability arising out of,
or based upon, any and all claims, accidents, injuries and damages mentioned in
Article 35. In addition, the policy required to be carried pursuant to clause
(ii) above shall contain a provision that (a) no act or omission of Tenant
shall affect or limit the obligation of the insurer to pay the amount of any
loss sustained and (b) the policy shall be non-cancellable with respect to
Landlord, Landlord's managing agent, Landlord's agents and such Lessors and
Mortgagees (whose names and addresses shall have been furnished to Tenant)
unless thirty (30) days' prior written notice shall have been given to Landlord
by certified mail, return receipt requested, which notice shall contain the
policy number and the names of the insured and additional insureds. In
addition, upon receipt by Tenant of any notice of cancellation or any other
notice from the insurance carrier which may adversely affect the coverage of
the insureds under such policy of insurance, Tenant shall immediately deliver
to Landlord and any other additional insured hereunder a copy of such notice.
The minimum amounts of liability under the policy of insurance required to be
carried pursuant to clause (ii) above shall be a combined single limit with
respect to each occurrence in an amount of $5,000,000 for injury (or death) to
persons and damage to property, which amount shall be increased from time to
time to that amount of insurance which in Landlord's reasonable judgment is
then being customarily required by prudent landlords of non-institutional first
class buildings in New York City. 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
20
25
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
general policyholder rating of "A" and a financial rating of at least "XIII".
Section 9.3. On or prior to the Commencement Date, Tenant shall
deliver to Landlord appropriate certificates of insurance, including evidence
of waivers of subrogation required pursuant to Section 10.5 hereof, required to
be carried by Tenant pursuant to this Article 9. 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 9.4. Tenant acknowledges that Landlord shall not carry
insurance on, and shall not be responsible for damage to, Tenant's Property or
Specialty Alterations, and that Landlord shall not carry insurance against, or
be responsible for any loss suffered by Tenant due to, interruption of Tenant's
business.
Section 9.5. If notwithstanding the recovery of insurance proceeds by
Tenant for loss, damage or destruction of its property (or rental value or
business interruptions) Landlord is liable to Tenant with respect thereto or is
obligated under this Lease to make replacement, repair or restoration, then, at
Landlord's option, either (i) the amount of the net proceeds of Tenant's
insurance against such loss, damage or destruction shall be offset against
Landlord's liability to Tenant therefor, or (ii) shall be made available to
Landlord to pay for replacement repair or restoration.
ARTICLE 10
DESTRUCTION-FIRE OR OTHER CAUSE
Section 10.1. (A) If the Premises (including Alterations other than
Specialty Alterations) shall be damaged by fire or other casualty, and if
Tenant shall give prompt notice thereof to Landlord, the damage, with such
modifications as shall be required in order to comply with Requirements shall
be diligently repaired by and at the expense of Landlord to substantially the
condition prior to the damage, and until such repairs which are required to be
performed by Landlord (excluding Long Lead Work) shall be substantially
completed (of which substantial completion Landlord shall promptly notify
Tenant) the Fixed Rent, Escalation Rent and Space Factor shall be reduced in
the proportion which the area of the part of the Premises which is not usable
by Tenant, as determined by Landlord in its reasonable discretion, bears to the
total area of the Premises immediately prior to such casualty. Upon the
substantial completion of such repairs (excluding Long Lead Work), Landlord
shall diligently prosecute to completion any items of Long Lead Work remaining
to be completed. Landlord shall have no obligation to repair any damage to, or
to replace, any Specialty Alterations or Tenant's Property, which Tenant shall
complete promptly after substantial completion of Landlord's repair obligations
under this Article 10. In addition, Landlord shall not be obligated to repair
any damage to, or to replace, any Alterations installed by Tenant unless Tenant
shall have notified Landlord of the completion of such Alterations and the cost
thereof, and shall have maintained adequate records with respect to
21
26
such Alterations. Tenant shall make all necessary repairs to the Specialty
Alterations and same shall be completed promptly after substantial completion
of Landlord's repair obligations under this Article 10. Landlord shall use its
reasonable efforts to minimize interference with Tenant's use and occupancy in
making any repairs pursuant to this Section. Anything contained herein to the
contrary notwithstanding, if the Premises including any Alterations) are
damaged by fire or other casualty at any time prior to the completion of the
Initial Alterations, Landlord's obligation to repair the Premises (and any
Alterations) shall be limited to repair of the part of the Building Systems
serving the Premises on the Commencement Date, but not the distribution
portions of such Building Systems located within the Premises, the floor and
ceiling slabs of the Premises and the exterior walls of the Premises, all to
substantially the same condition which existed on the Commencement Date, with
such modifications as shall be required in order to comply with Requirements.
(B) Prior to the substantial completion of Landlord's
repair obligations set forth in Section 10.1 (A) hereof, Landlord shall
provide Tenant and Tenant's contractor, subcontractors and materialmen access
to the Premises to perform Specialty Alterations (or Alterations, if Landlord
is not obligated to repair the same pursuant to the provisions hereof), on the
following terms and conditions (but not to occupy the same for the conduct of
business):
(1) Tenant shall not commence work in any
portion of the Premises until the date specified in a notice from Landlord to
Tenant stating that the repairs required to be made by Landlord have been or
will be completed to the extent reasonably necessary, in Landlord's discretion,
to permit the commencement of the Specialty Alterations (or Alterations, if
Landlord is not obligated to repair same pursuant to the provisions hereof)
then prudent to be performed in accordance with good construction practice in
the portion of the Premises in question without interference with, and
consistent with the performance of, the repairs remaining to be performed.
(2) Such access by Tenant shall be deemed to be
subject to all of the applicable provisions of this Lease, including, without
limitation, Tenant's obligation to pay to Landlord an amount equal to the
Electricity Inclusion Factor, or, if applicable, the Electricity Additional
Rent except that there shall be no obligation on the part of Tenant solely
because of such access to pay any Fixed Rent or Escalation Rent with respect to
the affected portion of the Premises for any period prior to substantial
completion of the repairs.
(3) It is expressly understood that if Landlord
shall be delayed from substantially completing the repairs due to any acts of
Tenant, its agents, servants, employees or contractors, including, without
limitation, by reason of the performance of any Specialty Alteration (or
Alteration, if Landlord is not obligated to repair same pursuant to the
provisions hereof), by reason of Tenant's failure or refusal to comply or to
cause its architects, engineers, designers and contractors to comply with any
of Tenant's obligations described or referred to in this Lease, or if such
repairs are not completed because under good construction scheduling practice
such repairs should be performed after completion of any Specialty Alteration
(or Alteration, if Landlord is not obligated to repair the same pursuant to the
provisions hereof), then
22
27
such repairs shall be deemed substantially complete on the date when the
repairs would have been substantially complete but for such delay and the
expiration of the abatement of the Tenant's obligations hereunder shall not be
postponed by reason of such delay. Any additional costs to Landlord to complete
any repairs occasioned by such delay shall be paid by Tenant to Landlord within
ten (10) days after demand, as additional rent.
Section 10.2. Anything contained in Section 10.1 hereof to the
contrary notwithstanding, 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 Landlord, at Landlord's
option, may, not later than ninety (90) days following the damage, give Tenant
a notice in writing terminating this Lease, provided that if the Premises are
not substantially damaged or rendered substantially untenantable, Landlord may
not terminate this Lease unless it shall elect to terminate leases (including
this Lease), affecting at least fifty percent (50%) of the rentable area of the
Building (excluding any rentable area occupied by Landlord or its Affiliates).
If Landlord elects to terminate this Lease, the Term shall expire upon a date
set by Landlord, but not sooner than the tenth (10th) day after such notice
is given, and Tenant shall vacate the Premises and surrender the same to
Landlord in accordance with the provisions of Article 20 hereof. Upon the
termination of this Lease under the conditions provided for in this Section
10.2, the Fixed Rent and Escalation Rent shall be apportioned and any prepaid
portion of Fixed Rent and Escalation Rent for any period after such date shall
be refunded by Landlord to Tenant.
Section 10.3. (A) Within forty-five (45) days after notice to Landlord
of any damage described in Section 10.1 hereof, Landlord shall deliver to Tenant
a statement prepared by a reputable contractor setting forth such contractor's
estimate as to the time required to repair such damage, exclusive of time
required to repair any Specialty Alterations (which are Tenant's obligation to
repair) or to perform Long Lead Work. If the estimated time period exceeds
twelve (12) months from the date of such statement, Tenant may elect to
terminate this Lease by notice to Landlord not later than thirty (30) days
following receipt of such statement. If Tenant makes such election, the Term
shall expire upon the thirtieth (30th) day after notice of such election is
given by Tenant, and Tenant shall vacate the Premises and surrender the same to
Landlord in accordance with the provisions of Article 20 hereof. If Tenant shall
not have elected to terminate this Lease pursuant to this Article 10 (or is not
entitled to terminate this Lease pursuant to this Article 10), the damages shall
be diligently repaired by and at the expense of Landlord as set forth in Section
10.1 hereof.
(B) Notwithstanding the foregoing, if the Premises shall
be substantially damaged during the last year of the Term, Landlord may elect
by notice, given within thirty (30) days after the occurrence of such damage,
to terminate this Lease and if Landlord makes such election, the Term shall
expire upon the thirtieth (30th) day after notice of such election is given by
Landlord and Tenant shall vacate the Premises and surrender the same to
Landlord in accordance with the provisions of Article 20 hereof.
23
28
(C) Except as expressly set forth in this Section 10.3,
Tenant shall have no other options to cancel this Lease under this Article 10.
Section 10.4. This Article 10 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.
Section 10.5. The parties hereto shall procure an appropriate clause
in, or endorsement on, any fire 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 having obtained such clauses or
endorsements of waiver of subrogation or consent to a waiver of right of
recovery, will not 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 be 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
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 provision. If either party shall be unable to obtain the
inclusion of such clause even with the payment of an additional premium, then
such party shall attempt to name the other party as an additional insured (but
not a loss payee) under the policy. If the payment of an additional premium is
required for naming the other party as an additional insured (but not a loss
payee), each party shall advise the other of the amount of any such additional
premium 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 or if it shall not be possible to have the other party named as an
additional insured (but not loss payee), even with the payment of an
additional premium, then (in either event) such party shall so notify the
first party and the first party shall not have the obligation to name the other
party as an additional insured. Tenant acknowledges that Landlord shall not
carry insurance on and shall not be responsible for damage to, Tenant's
Property or Specialty Alterations or any other Alteration prior to the
completion of the Initial Alterations, and that Landlord shall not carry
insurance against, or be responsible for any loss suffered by Tenant due to,
interruption of Tenant's business.
24
29
ARTICLE 11
EMINENT DOMAIN
Section 11.1. if the whole of the Real Property, the Building or the
Premises shall be LEASE AND THE TERM acquired or condemned for any public or
quasi-public use or purpose, this shall end as of the date of the vesting of
title with the same effect as if said date were the Expiration Date. If only a
part of the Real Property and not the entire Premises shall be so acquired or
condemned then, (1) except as hereinafter provided in this Section 11.1, this
Lease and the Term shall continue in force and effect, but, if a part of the
Premises is included in the part of the Real Property so acquired or condemned,
from and after the date of the vesting of title, the Fixed Rent and the Space
Factor 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 and Tenant's Share shall
be redetermined based upon the proportion in which the ratio between the
rentable area of the Premises remaining after such acquisition or condemnation
bears to the rentable area of the Building remaining after such acquisition or
condemnation; (2) whether or not the Premises shall be affected thereby,
Landlord, at Landlord's option, may give to Tenant, within sixty (60) days next
following the date upon which Landlord shall have received notice of vesting of
title, a thirty (30) days' notice of termination of this Lease if Landlord
shall elect to terminate leases (including this Lease), affecting at least
fifty percent (50%) of the rentable area of the Building (excluding any
rentable area leased by Landlord or its Affiliates); and (3) if the part of the
Real Property so acquired or condemned shall contain more than fifteen percent
(15%) of the total area of the Premises immediately prior to such acquisition
or condemnation, or if, by reason of such acquisition or condemnation, Tenant
no longer has reasonable means of access to the Premises, Tenant, at Tenant's
option, may give to Landlord, within sixty (60) days next following the date
upon which Tenant shall have received notice of vesting of title, a thirty (30)
days' notice of termination of this Lease. If any such thirty (30) days'
notice of termination is given by Landlord or Tenant, this Lease and the Term
shall come to an end and expire upon the expiration of said thirty (30) days
with the same effect as if the date of expiration of said thirty (30) days were
the Expiration Date. If a part of the Premises shall be so acquired or condemned
and this Lease and the Term shall not be terminated pursuant to the foregoing
provisions of this Section 11.1, Landlord, at Landlord's expense, shall restore
that part of the Premises not so acquired or condemned to a self-contained
rental unit inclusive of Tenant's Alterations (other than Specialty
Alterations), except that if such acquisition or condemnation occurs prior to
completion of the Initial Alterations, Landlord shall only be required to
restore that part of the Premises not so acquired or condemned to a
self-contained rental unit exclusive of Tenant's Alterations. Upon the
termination of this Lease and the Term pursuant to the provisions of this
Section 11.1, the Fixed Rent and Escalation Rent shall be apportioned and any
prepaid portion of Fixed Rent and Escalation Rent for any period after such
date shall be refunded by Landlord to Tenant.
Section 11.2. 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 and Tenant hereby expressly assigns to Landlord
25
30
all of its right in and to any such award. Nothing contained in this Section
11.2 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.
Section 11.3. If the whole or any part of the Premises shall be
acquired or condemned temporarily during the Term for any public or
quasi-public use or purpose, Tenant shall give prompt notice thereof to
Landlord and the Term shall not be reduced or affected in any way and Tenant
shall continue to pay in full all items of Rental payable by Tenant hereunder
without reduction or abatement, and Tenant shall be entitled to receive for
itself any award or payments for such use, provided, however, that:
(i) if the acquisition or condemnation is for a
period not extending beyond the Term and if such award or
payment is made less frequently than in monthly installments,
the same shall be paid to and held by Landlord as a fund
which Landlord shall apply from time to time to the Rental
payable by Tenant hereunder, except that, if by reason of
such acquisition or condemnation changes or alterations are
required to be made to the Premises which would necessitate
an expenditure to restore the Premises, then a portion of
such award or payment considered by Landlord as appropriate
to cover the expenses of the restoration shall be retained by
Landlord, without application as aforesaid, and applied
toward the restoration of the Premises as provided in Section
11.1 hereof; or
(ii) if the acquisition or condemnation is for a
period extending beyond the Term, such award or payment shall
be apportioned between Landlord and Tenant as of the
Expiration Date; Tenant's share thereof, if paid less
frequently than in monthly installments, shall be paid to
Landlord and applied in accordance with the provisions of
clause (i) above, provided, however, that the amount of any
award or payment allowed or retained for restoration of the
Premises shall remain the property of Landlord if this Lease
shall expire prior to the restoration of the Premises.
ARTICLE 12
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC.
Section 12.10 (A) Except as expressly permitted herein, Tenant,
without the prior consent of Landlord in each instance, shall not (a) assign
its rights or delegate its duties under this Lease (whether by operation of
law, transfers of interests in Tenant or otherwise), mortgage or encumber its
interest in this Lease, in whole or in part, (b) sublet, or permit the
subletting of, the Premises or any part thereof, or (c) permit the Premises or
any part thereof to be occupied or used for desk space, mailing privileges or
otherwise, by any Person other than Tenant.
26
31
(B) If this Lease is assigned to any person or entity
pursuant to the provisions of the Bankruptcy Code, any and all monies or other
consideration payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant or
of the estate of Tenant within the meaning of the Bankruptcy Code. Any and all
monies or other consideration constituting Landlord's property under the
preceding sentence not paid or delivered to Landlord shall be held in trust for
the benefit of Landlord and shall be promptly paid to or turned over to
Landlord.
Section 12.2. (A) If Tenant's interest in this Lease is assigned in
violation of the provisions of this Article 12, such assignment shall be void
and of no force and effect against Landlord; provided, however, that Landlord
may collect an amount equal to the then Fixed Rent plus any other item of
Rental from the assignee as a fee for its use and occupancy, and shall apply
the net amount collected to the Fixed Rent and other items of Rental reserved
in this Lease. If the Premises or any part thereof are sublet to, or occupied
by, or used by, any Person other than Tenant, whether or not in violation of
this Article 12, Landlord, after default by Tenant under this Lease, including,
without limitation, a subletting or occupancy in violation of this Article 12,
may collect any item of Rental or other sums paid by the subtenant, user or
occupant as a fee for its use and occupancy, and shall apply the net amount
collected to the Fixed Rent and other items of Rental reserved in this Lease.
No such assignment, subletting, occupancy or use, whether with or without
Landlord's prior consent, nor any such collection or application of Rental or
fee for use and occupancy, shall be deemed a waiver by Landlord of any term,
covenant or condition of this Lease or the acceptance by Landlord of such
assignee, subtenant, occupant or user as tenant hereunder. The consent by
Landlord to any assignment, subletting, occupancy or use shall not relieve
Tenant from its obligation to obtain the express prior consent of Landlord to
any further assignment, subletting, occupancy or use.
(B) Tenant shall reimburse Landlord on demand for any
out-of-pocket costs that may be incurred by Landlord in connection with any
proposed assignment of Tenant's interest in this Lease or any proposed
subletting of the Premises or any part thereof, including, without limitation,
any reasonable processing fee, reasonable attorneys' fees and disbursements and
the reasonable costs of making investigations as to the acceptability of the
proposed subtenant or the proposed assignee.
(C) Neither any assignment of Tenant's interest in this
Lease nor any subletting, occupancy or use of the Premises or any part thereof
by any Person other than Tenant, nor any collection of Rental by Landlord from
any Person other than Tenant as provided in this Section 12.2, nor any
application of any such Rental as provided in this Section 12.2 shall, in any
circumstances, relieve Tenant of its obligations under this Lease on Tenant's
part to be observed and performed.
(D) Any Person to which this Lease is assigned pursuant
to the provisions of the Bankruptcy Code shall be deemed without further act or
deed to have assumed all of the obligations arising under this Lease on and
after the date of such assignment. Any such assignee
27
32
shall execute and deliver to Landlord upon demand an instrument confirming such
assumption. No assignment of this Lease shall relieve Tenant of its obligations
hereunder and, subsequent to any assignment, Tenant's liability hereunder shall
continue notwithstanding any subsequent modification or amendment hereof or the
release of any subsequent tenant hereunder from any liability, to all of which
Tenant hereby consents in advance.
Section 12.3. (A) If Tenant assumes this Lease and proposes to assign
the same pursuant to the provisions of the Bankruptcy Code to any Person who
shall have made a bona fide offer to accept an assignment of this Lease on
terms acceptable to Tenant, then notice of such proposed assignment shall be
given to Landlord by Tenant no later than twenty (20) days after receipt by
Tenant, but in any event no later than ten (10) days prior to the date that
Tenant shall make application to a court of competent jurisdiction for
authority and approval to enter into such assignment and assumption. Such
notice shall set forth (a) the name and address of such Person, (b) all of the
terms and conditions of such offer, and (c) adequate assurance of future
performance by such Person under the Lease as set forth in Paragraph (B) below,
including, without limitation, the assurance referred to in Section 365(b)(3)
of the Bankruptcy Code. Landlord shall have the prior right and option, to be
exercised by notice to Tenant given at any time prior to the effective date of
such proposed assignment, to accept an assignment of this Lease upon the same
terms and conditions and for the same consideration, if any, as the bona fide
offer made by such Person, less any brokerage commissions which would otherwise
be payable by Tenant out of the consideration to be paid by such Person in
connection with the assignment of this Lease.
(B) The term "adequate assurance of future performance"
as used in this Lease shall mean that any proposed assignee shall, among other
things, (a) deposit with Landlord on the assumption of this Lease the sum of
the then Fixed Rent as security for the faithful performance and observance by
such assignee of the terms and obligations of this Lease, which sum shall be
held by Landlord in accordance with the provisions of Article 31 hereof, (b)
furnish Landlord with financial statements of such assignee for the prior three
(3) fiscal years, as finally determined after an audit and certified as correct
by a certified public accountant, which financial statements shall show a net
worth of at least six (6) times the then Fixed Rent for each of such three (3)
years, (c) grant to Landlord a security interest in such property of the
proposed assignee as Landlord shall deem necessary to secure such assignee's
future performance under this Lease, and (d) provide such other information or
take such action as Landlord, in its reasonable judgment shall determine is
necessary to provide adequate assurance of the performance by such assignee of
its obligations under the Lease.
Section 12.4. (A) As long as ▇▇▇.▇▇▇, Inc. is Tenant, Tenant shall
have the privilege, subject to the terms and conditions hereinafter set forth,
without the consent of Landlord but subject to Tenant's satisfaction of
conditions set forth in clauses (1), (4) and (5) of Section 12.8(A) hereof, and
without Landlord having the right granted in Section 12.8(B) hereof to
recapture, to assign its interest in this Lease (i) to any corporation which
is a successor to Tenant either by merger or consolidation, (ii) to a purchaser
of all or substantially all of Tenant's assets (provided such purchaser shall
have also assumed substantially all of Tenant's liabilities) or (iii)
28
33
to a Person which shall (1) Control, (2) be under the Control of, or (3) be
under common Control with Tenant (any such Person referred to in this clause
(iii) being a "Related Entity"). As long as ▇▇▇.▇▇▇, Inc. is Tenant, Tenant
also shall have the privilege, subject to the terms and conditions hereinafter
set forth, without the consent of Landlord but subject to Tenant's satisfaction
of conditions set forth in clauses (3), (6) through (8) and (10) of Section
12.6(A) and without Landlord having the right granted in Section 12.6(B)
hereof to recapture, to sublease all or any portion of the Premises to a
Related Entity. Any assignment or subletting described above may only be made
upon the condition that (a) any such assignee or subtenant shall continue to
use the Premises for the conduct of the same business as Tenant was conducting
prior to such assignment or sublease, (b) the principal purpose of such
assignment or sublease is not the acquisition of Tenant's interest in this
Lease or to circumvent the provisions of Section 12.1 of this Article (except
if such assignment or sublease is made to a Related Entity and is made for a
valid intracorporate business purpose and is not made to circumvent the
provisions of Section 12.1 of this Article), and (c) in the case of an
assignment, any such assignee shall have a net worth and annual income and cash
flow, determined in accordance with generally accepted accounting principles,
consistently applied, after giving effect to such assignment equal to the
greater of Tenant's net worth and annual income and cash flow, as so
determined, on (i) the date immediately preceding the date of such assignment,
and (ii) the Commencement Date. Tenant shall, within ten (10) Business Days
after execution thereof, deliver to Landlord either (x) a duplicate original
instrument of assignment in form and substance reasonably satisfactory to
Landlord, duly executed by Tenant, together with an instrument in form and
substance reasonably satisfactory to Landlord, duly executed by the assignee,
in which such assignee shall assume observance and performance of, and agree to
be personally bound by, all of the terms, covenants and conditions of this
Lease on Tenant's part to be observed and performed, or (y) a duplicate
original sublease in form and substance reasonably satisfactory to Landlord,
duly executed by Tenant and the subtenant.
(B) If Tenant is a partnership, the admission of new
Partners, the withdrawal, retirement, death, incompetency or bankruptcy of any
Partner, or the reallocation of partnership interests among the Partners shall
not constitute an assignment of this Lease, provided the principal purpose of
any of the foregoing is not to circumvent the restrictions on assignment set
forth in the provisions of this Article 12. The reorganization of Tenant from a
professional corporation into a partnership or the reorganization of a Tenant
from a partnership into a professional corporation, shall not constitute an
assignment of this Lease, provided that immediately following such
reorganization the Partners of Tenant shall be the same as the shareholders of
Tenant existing immediately prior to such reorganization, or the shareholders
of Tenant shall be the same as the Partners of Tenant existing immediately
prior to such reorganization, as the case may be. If Tenant shall become a
professional corporation, each individual shareholder in Tenant and each
employee of a professional corporation which is a shareholder in Tenant shall
have the same personal liability as such individual or employee would have
under this Lease if Tenant were a partnership and such individual or employee
were a Partner in Tenant. If any individual Partner in Tenant is or becomes an
employee of a professional corporation, such individual shall have the same
personal liability under this Lease
29
34
as such individual would have if he and not the professional corporation were a
Partner of Tenant.
(C) Except as set forth above, either a transfer
(including the issuance of treasury stock or the creation and issuance of new
stock or a new class of stock) of a controlling interest in the shares of
Tenant or of any entity which holds an interest in Tenant through one or more
intermediaries (if Tenant or such entity is a corporation or trust) or a
transfer of a majority of the total interest in Tenant or of any entity which
holds an interest in Tenant through one or more intermediaries (if Tenant or
such entity is a partnership or other entity) at any one time or over a period
of time through a series of transfers, shall be deemed an assignment of this
Lease and shall be subject to all of the provisions of this Article 12,
including, without limitation, the requirement that Tenant obtain Landlord's
prior consent thereto. The transfer of shares of Tenant or of any entity which
holds an interest in Tenant through one or more intermediaries (if Tenant or
such entity is a corporation or trust) for purposes of this Section 12.4 shall
not include the sale of shares by persons other than those deemed "insiders"
within the meaning of the Securities Exchange Act of 1934, as amended, which
sale is effected through the "over-the-counter market" or through any
recognized stock exchange.
Section 12.5. If, at any time after the originally named Tenant herein
may have assigned Tenant's interest in this Lease, this Lease shall be
disaffirmed or rejected in any proceeding of the types described in paragraph
(E) of Section 16.1 hereof, or in any similar proceeding, or in the event of
termination of this Lease by reason of any such proceeding or by reason of
lapse of time following notice of termination given pursuant to said Article 16
based upon any of the Events of Default set forth in such paragraph, any prior
Tenant, including, without limitation, the originally named Tenant, upon
request of Landlord given within thirty (30) days next following any such
disaffirmance, rejection or termination (and actual notice thereof to Landlord
in the event of a disaffirmance or rejection or in the event of termination
other than by act of Landlord), shall (1) pay to Landlord all Fixed Rent,
Escalation Rent and other items of Rental due and owing by the assignee to
Landlord under this Lease to and including the date of such disaffirmance,
rejection or termination, and (2) as "tenant", enter into a new lease with
Landlord of the Premises for a term commencing on the effective date of such
disaffirmance, rejection or termination and ending on the Expiration Date,
unless sooner terminated as in such lease provided, at the same Fixed Rent and
upon the then executory terms, covenants and conditions as are contained in
this Lease, except that (a) Tenant's rights under the new lease shall be
subject to the possessory rights of the assignee under this Lease and the
possessory rights of any person claiming through or under such assignee or by
virtue of any statute or of any order of any court, (b) such new lease shall
require all defaults existing under this Lease to be cured by Tenant with due
diligence, and (c) such new lease shall require Tenant to pay all Escalation
Rent reserved in this Lease which, had this Lease not been so disaffirmed,
rejected or terminated, would have accrued under the provisions of Article 27
hereof after the date of such disaffirmance, rejection or termination with
respect to any period prior thereto. If any such prior Tenant shall default in
its obligation to enter into said new lease for a period of ten (10) days next
following Landlord's request therefor, then, in addition to all other rights
and remedies by reason of such default, either at law or in equity, Landlord
shall have the same rights and remedies against such Tenant as if such Tenant
had
30
35
entered into such new lease and such new lease had thereafter been terminated
as of the commencement date thereof by reason of such Tenant's default
thereunder.
Section 12.6. (A) Notwithstanding the provisions of Section 12.1
hereof, if Landlord shall not exercise its rights pursuant to paragraph (B) of
this Section 12.6, Landlord shall not unreasonably withhold its consent to any
subletting of the Premises, provided that:
(1) the Premises shall not, without Landlord's prior
consent, have been listed or otherwise publicly advertised for subletting at a
rental rate less than the prevailing rental rate set by Landlord for comparable
space in the Building or if there is no comparable space, the prevailing rental
rate reasonably determined by Landlord;
(2) Intentionally Omitted Prior to Execution;
(3) no Event of Default shall have occurred and be
continuing;
(4) upon the date Tenant delivers the Tenant Statement to
Landlord and upon the date immediately preceding the commencement date of any
sublease approved by Landlord, the proposed subtenant shall have a financial
standing (taking into consideration the obligations of the proposed subtenant
under the sublease) satisfactory to Landlord, be of a character, be engaged in
a business, and propose to use the Premises in a manner in keeping with the
standards in such respects of the other tenancies in the Building;
(5) the proposed subtenant (or any Person who directly or
indirectly, Controls, is Controlled by or is under common Control with the
proposed subtenant) shall not be a tenant or subtenant of any space in the
Building, nor shall the proposed subtenant (or any Person who directly or
indirectly, Controls, is Controlled by or is under common Control with the
proposed subtenant) be a Person with whom Landlord is negotiating or discussing
to lease space in the Building; if Tenant shall propose to sublease space and
is about to commence negotiations with a tenant, subtenant or prospective
subtenant, Tenant shall advise Landlord of the identity of such prospective
subtenant and Landlord shall promptly advise Tenant if the execution of a
sublease with such tenant, subtenant or prospective subtenant would violate the
provisions of this clause (5);
(6) the character of the business to be conducted or the
proposed use of the Premises by the proposed subtenant shall not (a) be likely
to increase Landlord's operating expenses beyond that which would be incurred
for use by Tenant or for use in accordance with the standards of use of other
tenancies in the Building; (b) increase the burden on existing cleaning
services or elevators over the burden prior to such proposed subletting; (c)
violate any provision or restrictions herein relating to the use or occupancy
of the Premises; (d) require any alterations, installations, improvements,
additions or other physical changes to be performed in or made to any portion
of the Building or the Real Property other than the Premises; or (e) violate
any provision or restrictions in any other lease for space in the Building or
in any Superior Lease or Mortgage; if Landlord shall have consented to a
sublease and, as a result of the use and
31
36
occupancy of the subleased portion of the Premises by the subtenant, operating
expenses are increased, then Tenant shall pay to Landlord, within ten (10) days
after demand, as additional rent, all resulting increases in operating
expenses;
(7) the subletting shall be expressly subject to all of
the terms, covenants, conditions and obligations on Tenant's part to be
observed and performed under this Lease and the further condition and
restriction that the sublease shall not be modified without the prior written
consent of Landlord, which consent shall not be unreasonably withheld, or
assigned (by operation of law or otherwise; for purposes of this clause (7),
the transfer of a majority of the issued and outstanding capital stock of any
corporate subtenant or the transfer of a majority of the total interest in a
subtenant (if a partnership or other entity), however accomplished, whether in
a single transaction or in a series of related or unrelated transactions, shall
be deemed an assignment of the sublease, except that the transfer of the
outstanding capital stock of a corporate subtenant shall be deemed not to
include the sale of such stock by persons other than those deemed "insiders"
within the meaning of the Securities Exchange Act of 1934, as amended, which
sale is effected through the "over-the-counter market" or through any
recognized stock exchange) encumbered or otherwise transferred or the subleased
premises further sublet by the subtenant in whole or in part, or any part
thereof suffered or permitted by the subtenant to be used or occupied by
others, without the prior written consent of Landlord in each instance;
(8) the subletting shall end no later than one (1) day
before the Expiration Date and shall not be for a term of less than one (1)
year unless it commences less than one (1) year before the Expiration Date;
(9) no subletting shall be for less than Two Thousand
Seven Hundred Five (2,705) contiguous rentable square feet and at no time shall
there be more than two (2) occupants, including Tenant, in the Premises; and
(10) such sublease shall expressly provide that in the
event of termination, re-entry or dispossess of Tenant by Landlord under this
Lease, Landlord may, at its option, take over all of the right, title and
interest of Tenant, as sublessor under such sublease, and such subtenant, at
Landlord's option, shall attorn to Landlord pursuant to the then executory
provisions of such sublease, except that Landlord shall not be:
(i) liable for any act or omission of Tenant
under such, sublease, or
(ii) subject to any defense or offsets which
such subtenant may have against Tenant or,
(iii) bound by any previous payment which such
subtenant may have made to Tenant more than thirty (30) days in advance of the
date upon which such payment was due, unless previously approved by Landlord,
or
32
37
(iv) bound by any obligation to make any payment
to or on behalf of such subtenant, or
(v) bound by any obligation to perform any work
or to make improvements to the Premises, or portion thereof demised by such
sublease, or
(vi) bound by any amendment or modification of
such sublease made without its consent, or
(vii) bound to return such subtenant's security
deposit, if any, until such deposit has come into its actual possession and
such subtenant would be entitled to such security deposit pursuant to the terms
of such sublease.
If Tenant proposes to sublet a portion of the Premises then, unless the context
otherwise requires, references in this Section 12.6 to the Premises shall be
deemed to refer to the portion of the Premises proposed to be sublet by Tenant.
(B) At least fifteen (15) Business Days prior to any
proposed subletting of the Premises, Tenant shall submit a statement to
Landlord (a "Tenant Statement") containing the following information: (a)
the name and address of the proposed subtenant, (b) the terms and conditions of
the proposed subletting, including, without limitation, the rent payable and
the value (including cost, overhead and supervision) of any improvements
(including any demolition to be performed) to the Premises for occupancy by
such subtenant, (c) the nature and character of the business of the proposed
subtenant, (d) a description of the portion of the Premises to be sublet, and
(e) any other information that Landlord may reasonably request, together with a
statement specifically directing Landlord's attention to the provisions of this
Section 12.6(B) requiring Landlord to respond to Tenant's request within
fifteen (15) Business Days after Landlord's receipt of the Tenant Statement.
Landlord shall have the right, exercisable by notice to Tenant within fifteen
(15) Business Days after Landlord's receipt of the Tenant Statement, at
Landlord's sole option, either (i) if the proposed subletting is for all or
substantially all of the Premises for all or substantially all of the remaining
Term of this Lease, to terminate this Lease on a date specified in Landlord's
notice to Tenant (the "Termination Date"), which date shall not be earlier than
one (1) day before the effective date of the proposed subletting, nor later
than sixty-one (61) days after said effective date, or (ii) to sublet (in its
own name or that of its designee) such portion of the Premises ("Recapture
Space") from Tenant on the terms and conditions set forth in the Tenant
Statement, subject to the further provisions of paragraph (C) of this Section
12.6. If Landlord shall fail to notify Tenant within said fifteen (15) Business
Day period of Landlord's intention to exercise its rights pursuant to this
Section 12.6(B) or of Landlord's consent to or disapproval of the proposed
subletting pursuant to the Tenant Statement as contemplated by Section 12.6(A)
hereof, or if Landlord shall have consented to such subletting as provided in
Section 12.6(A) hereof, Tenant shall have the right to sublease that portion of
the Premises to such proposed subtenant on the same terms and conditions set
forth in the Tenant Statement, subject to the terms and conditions of this
Lease, including, without limitation, paragraph (A) of this Section 12.6. If
Tenant shall not enter into such sublease within ninety (90)
33
38
days after the delivery of the Tenant Statement to Landlord, then the
provisions of Section 12.1 hereof and this Section 12.6 shall again be
applicable to any other proposed subletting. If Tenant shall enter into such
sublease within ninety (90) days as aforesaid, Tenant shall deliver a true,
complete and fully executed counterpart of such sublease to Landlord within
five (5) days after execution thereof.
(C) If Landlord exercises its option to terminate this
Lease as aforesaid, Tenant shall vacate and surrender the Premises on or before
the Termination Date in accordance with Article 20 hereof and the Term shall
end on the Termination Date as if it were the Expiration Date. If Landlord
exercises its option to sublet the Recapture Space, such sublease to Landlord
or its designee as subtenant (each, a "Recapture Sublease") shall:
(1) be at a rental equal to the lesser of (x)
the Rent Per Square Foot multiplied by the number of rentable square feet of
the Recapture Space and (y) the sublease rent set forth in the Tenant Statement
and otherwise be upon the same terms and conditions as those contained in this
Lease (as modified by the Tenant Statement), except such as are irrelevant or
inapplicable and except as otherwise expressly set forth to the contrary in
this paragraph (C);
(2) give the subtenant the unqualified and
unrestricted right, without Tenant's permission, to assign such sublease and to
further sublet the Recapture Space or any part thereof and to make any and all
changes, alterations, and improvements in the Recapture Space;
(3) provide in substance that any such changes,
alterations, and improvements made in the Recapture Space may be removed, in
whole or in part, prior to or upon the expiration or other termination of the
Recapture Sublease provided that any material damage and injury caused thereby
shall be repaired;
(4) 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)
prior to the commencement of the term of the Recapture Sublease, Tenant, at its
sole cost and expense (unless the Tenant Statement provides otherwise), shall
make such alterations as may be required or reasonably deemed necessary by the
subtenant to physically separate the Recapture Space, if such Space constitutes
a portion of the Premises, from the balance of the Premises and to provide
appropriate means of ingress to and egress thereto and to the public portions
of the balance of the floor such as toilets, janitor's closets, telephone and
electrical closets, fire stairs, elevator lobbies, etc., and (iii) at the
expiration of the term of such Sublease, Tenant shall accept the Recapture
Space in its then existing condition, broom clean;
(5) provide that the subtenant or occupant may
use and occupy the Recapture Space for any lawful purpose (without regard to
any limitation set forth in the Tenant Statement); and
(6) not require the subtenant thereunder to post
a security deposit.
34
39
(D) Performance by Landlord, or its designee, under a
Recapture Sublease shall be deemed performance by Tenant of any similar
obligation under this Lease and Tenant shall not 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 subtenant under the
Recapture Sublease or is occasioned by or arises from any act or omission of
any occupant under the Recapture Sublease.
(E) If Landlord is unable to give Tenant possession of
the Recapture Space at the expiration of the term of the Recapture Sublease by
reason of the holding over or retention of possession of any tenant or other
occupant, then (w) Landlord shall continue to pay all charges previously
payable, and comply with all other obligations, under the Recapture Sublease
until the date upon which Landlord shall give Tenant possession of the
Recapture Space free of occupancies, (x) neither the Expiration Date nor the
validity of this Lease shall be affected, (y) Tenant waives any rights under
Section 223-a of the Real Property Law of New York, or any successor statute of
similar import, to rescind this Lease and further waives the right to recover
any damages from Landlord which may result from the failure of Landlord to
deliver possession of the Recapture Space at the end of the term of the
Recapture Sublease, and (z) Landlord, at Landlord's expense, shall use its
reasonable efforts to deliver possession of the Recapture Space to Tenant and
in connection therewith, if necessary, shall institute and diligently and in
good faith prosecute holdover and any other appropriate proceedings against the
occupant of such Space; if Landlord fails to prosecute such proceedings in such
manner and such failure continues after reasonable notice thereof by Tenant,
Tenant may prosecute such proceedings in Landlord's name and at Landlord's
expense.
(F) The failure by Landlord to exercise its option under
Section 12.6(B) with respect to any subletting shall not be deemed a waiver of
such option with respect to any extension of such subletting or any subsequent
subletting of the Premises affected thereby.
Section 12.7. (A) In connection with any subletting of the Premises,
Tenant shall pay to Landlord an amount equal to seventy percent (70%) of any
Sublease Profit derived therefrom. Anything contained herein to the contrary
notwithstanding Tenant shall not be entitled to any proceeds derived from or
relating to (directly or indirectly) any subletting of the Recapture Space by
Landlord or its designee to a subtenant. All sums payable hereunder by Tenant
shall be calculated on an annualized basis, but shall be paid to Landlord, as
additional rent, within ten (10) days after receipt thereof by Tenant.
(B) For purposes of this Lease:
(1) "Rent Per Square Foot" shall mean the sum of
the then Fixed Rent, Escalation Rent, and, if applicable, Electricity
Additional Rent, divided by the Space Factor.
(2) "Sublease Profit" shall mean the product of
(x) the Sublease Rent Per Square Foot, less the Rent Per Square Foot, and (y)
the number Of rentable square feet constituting the portion of the Premises
sublet by Tenant.
35
40
(3) "Sublease Rent" shall mean any rent or other
consideration paid to Tenant directly or indirectly by any subtenant or any
other amount received by Tenant from or in connection with any subletting
(including, but not limited to, sums paid for the sale or rental, or
consideration received on account of any contribution, of Tenant's Property or
sums paid in connection with the supply of electricity or HVAC) less the
Sublease Expenses.
(4) "Sublease Expenses" shall mean: (i) in the
event of a sale of Tenants Property, the then unamortized or undepreciated cost
thereof determined on the basis of Tenant's federal income tax returns, (ii)
the reasonable out-of-pocket costs and expenses of Tenant in making such
sublease, such as broker's fees, attorneys' fees, and advertising fees paid to
unrelated third parties, (iii) any sums paid to Landlord pursuant to Section
12.2(B) hereof, (iv) the cost of improvements or alterations made by Tenant
expressly and solely for the purpose of preparing that portion of the Premises
for such subtenancy if not used by Tenant subsequent to the expiration of the
term of the sublease, and (v) the unamortized or undepreciated cost of any
Tenant's Property leased to and used by such subtenant. In determining Sublease
Rent, the costs set forth in clauses (ii), (iii) and (iv) shall be amortized on
a straight-line basis over the term of such sublease and the costs set forth
in clause (v) shall be amortized on a straight line basis over the greater of
the longest useful life of such improvements, alterations or Property (as
permitted pursuant to the Internal Revenue Code of 1986, as amended) and the
term of such sublease.
(5) "Sublease Rent Per Square Foot" shall mean
the Sublease Rent divided by the rentable square feet of the space damaged
under the sublease in question.
(6) Sublease Profit shall be recalculated from
time to time to reflect any corrections in the prior calculation thereof due to
(i) subsequent payments received or made by Tenant, (ii) the final adjustment of
payments to be made by or to Tenant, and (iii) mistake. Promptly after receipt
or final adjustment of any such payments or discovery of any such mistake,
Tenant shall submit to Landlord a recalculation of the Sublease Profit, and an
adjustment shall be made between Landlord and Tenant, on account of prior
payments made or credits received pursuant to this Section 12.7. In addition,
if Sublease Expenses utilized for the purpose of calculating Sublease Profit
included an amount attributable to the cost of the improvements made by Tenant
expressly and solely for the purpose of preparing the Premises or a portion
thereof for the occupancy of the subtenant and subsequent to the expiration of
the sublease such improvements and/or alterations were not demolished and/or
removed, Sublease Profits shall be recalculated as if the cost of such
improvements and/or alterations were not incurred by Tenant and Tenant promptly
shall pay to Landlord seventy percent adjustment (70%) of the additional amount
of such Sublease Profit resulting from such recalculation.
Section 12.8. (A) Notwithstanding the provisions of Section 12.1
hereof, if Landlord shall not exercise its rights pursuant to paragraph (B)(2)
of this Section 12.8, Landlord shall not unreasonably withhold its consent to
an assignment of this Lease in its entirety provided that:
(1) no Event of Default shall have occurred and
be continuing;
36
41
(2) upon the date Tenant delivers the Assignment
Statement to Landlord and upon the date immediately preceding the date of any
assignment approved by Landlord, the proposed assignee shall have a financial
standing (taking into consideration the obligations of the proposed assignee
under this Lease) satisfactory to Landlord, be of a character, be engaged in a
business, and propose to use the Premises in a manner in keeping with the
standards in such respects of the other tenancies in the Building;
(3) the proposed assignee (or any Person who directly or
indirectly, Controls, is Controlled by or is under common Control with the
proposed assignee) shall not be a person or entity with whom Landlord is
negotiating to lease space in the Building at the time of receipt of an
Assignment Statement;
(4) the character of the business to be conducted or the
proposed use of the Premises by the proposed assignee shall not (a) be likely
to increase Landlord's operating expenses beyond that which would be incurred
for use by Tenant or for use in accordance with the standards of use of other
tenancies in the Building; (b) increase the burden on existing cleaning
services or elevators over the burden prior to such proposed assignment; (e)
violate any provision or restrictions herein relating to the use or occupancy
of the Premises; (d) require any alterations, installations, improvements,
additions or other physical changes to be performed in or made to any portion
of the Building or the Real Property other than the Premises; or (e) violate
any provision or restrictions in any other lease for space in the Building or
in any Superior Lease or Mortgage; if Landlord shall have consented to an
assignment and, as a result of the use and occupancy of the Premises by
Tenant/assignee, operating expenses are increased, then Tenant shall pay to
Landlord, within ten (10) days after demand, as additional tent, all
resulting increases in operating expenses; and
(5) the assignee shall agree to assume all of the
obligations of Tenant under this Lease from and after the date of the
assignment.
(B) (1) At least fifteen (15) Business Days prior to any
proposed assignment, Tenant shall submit a statement to Landlord (the
"Assignment Statement") containing the following information: (i) the name and
address of the proposed assignee, (ii) the essential terms and conditions of
the proposed assignment, including, without limitation, the consideration
payable for such assignment and the value (including cost, overhead and
supervision) of any improvements (including any demolition to be performed) to
the Premises proposed to be made by Tenant to prepare the Premises for
occupancy by such assignee, (iii) the nature and character of the business of
the proposed assignee, and (iv) any other information that Landlord may
reasonably request, together with a statement specifically directing Landlord's
attention to the provisions of this Section 12.8(B) requiring Landlord to
respond to Tenant's request within fifteen (15) Business Days after Landlord's
receipt of the Assignment Statement. The Assignment Statement shall be executed
by Tenant and the proposed assignee and shall indicate both parties' intent
(but not necessarily binding obligation) to enter into an assignment agreement
conforming to the terms and conditions of the Assignment Statement and on such
37
42
other terms and conditions to which the parties may agree which are not
inconsistent with the essential terms set forth in the Assignment Statement.
(2) Landlord shall have the right, exercisable
by written notice given to Landlord within fifteen (15) Business Days after
Landlord's receipt of the Assignment Statement, to terminate this Lease (an
"Assignment Termination"), in which event the Term shall expire on a date set
by Landlord that is not sooner than ninety (90) days after the date of
Landlord's notice, and Tenant shall vacate the Premises and surrender the same
to Landlord on such date set by Landlord in accordance with the provisions of
Article 20 hereof.
(3) If Landlord shall fail to notify Tenant
within said fifteen (15) Business Day period of Landlord's intention to
exercise its rights pursuant to paragraph (B)(2) of this Section 12.8 or of
Landlord's consent to or disapproval of the proposed assignment pursuant to the
Assignment Statement, or if Landlord shall have consented to such assignment as
provided in Section 12.8(A) hereof, Tenant shall be free to assign the Premises
to such proposed assignee on the same terms and conditions set forth in the
Assignment Statement. If Tenant shall not enter into such assignment within
ninety (90) days after the delivery of the Assignment Statement to Landlord,
then the provisions of this Section 12.8 shall again be applicable in their
entirety to any proposed assignment.
(4) If Tenant shall propose to assign this Lease
and is about to commence negotiations with a prospective assignee, Tenant shall
advise Landlord of the identity of such prospective assignee and Landlord
shall, within five (5) Business Days, advise Tenant if the execution of an
assignment agreement with such prospective assignee would violate the
provisions of paragraph (A)(3) of this Section 12.8.
(C) If Tenant shall assign this Lease, Tenant shall
deliver to Landlord, within five (5) days after execution thereof, (x) a
duplicate original instrument of assignment in form and substance reasonably
satisfactory to Landlord, duly executed by Tenant, and (y) an instrument in
form and substance reasonably satisfactory to Landlord, duly executed by the
assignee, in which such assignee shall assume observance and performance of,
and agree to be personally bound by, all of the terms, covenants and conditions
of this Lease on Tenant's part to be observed and performed.
(D) Tenant shall pay to Landlord, upon receipt thereof,
an amount equal to seventy percent (70%) of all Assignment Proceeds. For
purposes of this paragraph (D), "Assignment Proceeds" shall mean all
consideration payable to Tenant, directly or indirectly, by any assignee,
including Landlord pursuant to paragraph (B) of this Section 12.8, or any other
amount received by Tenant from or in connection with any assignment (including,
but not limited to, sums paid for the sale or rental, or consideration received
on account of any contribution, of Tenant's Property) after deducting
therefrom: (i) in the event of a sale (or contribution) of Tenant's Property,
the then unamortized or undepreciated cost thereof determined on the basis of
Tenant's federal income tax returns, (ii) the reasonable out-of-pocket costs
and expenses of Tenant in making such assignment, such as brokers' fees,
attorneys' fees, and advertising fees
38
43
paid to unrelated third parties, (iii) any payments required to be made by
Tenant in connection with the assignment of its interest in this Lease pursuant
to Article 31 of the Tax law of the State of New York or any real property
transfer tax of the United States or the City or State of New York (other than
any income tax), (iv) any sums paid by Tenant to Landlord pursuant to Section
12.2(B) hereof, (v) the cost of improvements or alterations made by Tenant
expressly and solely for the purpose of preparing the Premises for such
assignment, as determined by Tenant's federal income tax returns, (vi) the
unamortized or undepreciated cost of any Tenant's Property leased to and used
by such assignee, and (vii) the then unamortized or undepreciated cost of the
Alterations determined on the basis of Tenant's federal income tax returns. If
the consideration paid to Tenant for any assignment shall be paid in
installments, then the expenses specified in this paragraph (D) shall be
amortized over the period during which such installments shall be payable.
Section 12.9. Notwithstanding any other provision of this Lease,
neither Tenant nor any direct or indirect assignee or subtenant of Tenant may
enter into any lease, sublease, license, concession or other agreement for use,
occupancy or utilization of space in the Premises which provides for a rental
or other payment for such use, occupancy or utilization based in whole or in
part on the net income or profits derived by any person from the property
leased, occupied or utilized, or which would require the payment of any
consideration which would not fall within the definition of "rents from real
property", as that term is defined in Section 856(d) of the Internal Revenue
Code of 1986, as amended.
ARTICLE 13
ELECTRICITY
Section l3.1. Tenant shall at all times comply with the rules,
regulations, terms and conditions applicable to service, equipment, wiring and
requirements of the public utility supplying electricity to the Building. The
risers serving the Premises shall be capable of supplying five and six-tenths
(5.6) ▇▇▇▇▇ of electricity per usable square foot of the Premises (exclusive of
base Building HVAC). Tenant shall not use any electrical equipment which, in
Landlord's reasonable judgment, would exceed the capacity of existing feeders
to the Building or the risers or wiring installations therein or which will
overload such installations or interfere with the electrical service to other
tenants of the Building. In the event that, in Landlord's sole judgment,
Tenant's electrical requirements necessitate installation of an additional
riser, risers or other proper and necessary equipment, Landlord shall so notify
Tenant of same. Within five (5) Business Days after receipt of such notice,
Tenant shall either cease such use of such additional electricity or shall
request that additional electrical capacity (specifying the amount requested)
be made available to Tenant. Landlord, in Landlord's sole judgment shall
determine whether to make available such additional electrical capacity to
Tenant and the amount of such additional electrical capacity to be made
available. If Landlord shall agree to make available additional electrical
capacity and the same necessitates installation of an additional riser, risers
or other proper and necessary equipment, including, without limitation, any
switchgear, the same shall be installed by Landlord. Any such installation
shall be made at Tenant's sole cost and expense, and
39
44
shall be chargeable and collectible as additional rent and paid within ten (10)
days after the rendition of a ▇▇▇▇ to Tenant therefor. Landlord shall not be
liable in any way to Tenant for any failure or defect in the supply or
character of electric service furnished to the Premises by reason of any
requirement, act or omission of the utility serving the Building or for any
other reason not attributable to the gross negligence of Landlord, whether
electricity is provided by public or private utility or by any electricity
generation system owned and operated by Landlord.
Section 13.2. (A) Unless Landlord elects to supply electricity to the
Premises pursuant to Section 13.3 or Landlord elects to have Tenant obtain
electricity from the public utility furnishing electricity to the Building
pursuant to the provisions of Section 13.4 hereof, Landlord shall furnish
electric current to the Premises for the use of Tenant for the operation of the
lighting fixtures and the electrical receptacles for ordinary office equipment
in the Premises on a "rent inclusion" basis, that is, there shall be no separate
charge to Tenant for such electric current by way of measuring such electricity
service on any meter. The Fixed Rent set forth in this Lease includes an annual
charge for electricity service of Sixteen Thousand Two Hundred Thirty Dollars
($16,230) (the "Base Electricity Inclusion Factor"; such amount as it may be
increased pursuant to the provisions of this Lease, being referred to as the
"Electricity Inclusion Factor"). The parties agree that although the charge for
furnishing electrical energy is included in the Fixed Rent on a so-called "rent
inclusion" basis, the value to Tenant of such service may not be fully reflected
in the Fixed Rent. Accordingly, Tenant agrees that Landlord, at Landlord's
option, may cause a reputable and independent electrical engineer or electrical
consulting firm, selected by Landlord (such engineer or consulting firm being
hereinafter referred to as "Landlord's Engineer"), to make a determination,
following the commencement of Tenant's normal business activities in the
Premises, of the Full Value of such service to Tenant. As used herein, the "Full
Value" to Tenant of such service shall mean the product obtained by multiplying
the demand and consumption of electric energy at the Premises by the Electric
Rate. Landlord's Engineer" shall certify such determination in writing to
Landlord and Tenant. If the Full Value to Tenant is in excess of the Electricity
Inclusion Factor, the Electricity Inclusion Factor and the Fixed Rent shall be
increased by such excess. However, if it shall be so determined that the Full
Value to Tenant of such service does not exceed the Electricity Inclusion
Factor, there shall nevertheless be no decrease in the Electricity Inclusion
Factor or in the Fixed Rent.
(B) If during the Term the Electric Rate shall increase
over the Base Electric Rate, the Electricity Inclusion Factor (and therefore
the Fixed Rent) shall be proportionately increased.
(C) (i) Landlord, from time to time during the Term,
may cause Landlord's Engineer to survey the demand and consumption of
electrical energy at the Premises. If the then Full Value shall exceed the then
Electricity Inclusion Factor, the Electricity Inclusion Factor (and therefore
the Fixed Rent), shall be proportionately increased, based on the increased
demand and consumption and the then prevailing Electric Rate.
(ii) Landlord shall furnish to Tenant a written
statement (an "Electricity Statement") setting forth Landlord's determination
of any increase which has
40
45
occurred in the Full Value and the Electricity Inclusion Factor (and therefore
the Fixed Rent) pursuant to the provisions of either Sections 13.2(A), (B), or
(C)(i). Any such increase in the Electricity Inclusion Factor and the Fixed
Rent shall be effective as of the date of such increase in the Electric Rate or
the consumption and demand of electric energy by Tenant and shall be
retroactive to such dates if necessary. Any retroactive increase shall be paid
by Tenant within ten (10) days after demand and such amount shall be
collectible by Landlord as Fixed Rent hereunder.
(iii) Each such Electricity Statement given by
Landlord pursuant to Section 13.2(C)(ii) above, shall be conclusive and binding
upon Tenant, unless within sixty (60) days after the receipt of such
Electricity Statement, Tenant shall notify Landlord that it disputes the
correctness of the Electricity Statement. If such dispute is based on Tenant's
demand and consumption of electric current, Tenant shall submit a survey and
determination of such adjustment, made at its sole cost and expense, by a
reputable and independent electrical engineer or electrical consulting firm
("Tenant's Engineer"), within sixty (60) days after receipt of such Electricity
Statement. If Landlord and Tenant are unable to resolve the dispute differences
between them within thirty (30) days after receipt by Landlord of a copy of the
determination of Tenant's Engineer, the dispute shall be decided by a third
reputable and independent electrical engineer or electrical consulting firm
("Third Engineer"). If the parties shall fail to agree upon the designation of
the Third Engineer within forty (40) days after the receipt by Landlord of the
determination of Tenant's Engineer, then either party may apply to the American
Arbitration Association or any successor thereto for the designation of the
Third Engineer. The Third Engineer shall conduct such hearings as he deems
appropriate. The Third Engineer, within thirty (30) days after his designation,
shall select the determination of either Landlord's Engineer or Tenant's
Engineer and such determination shall be conclusive and binding upon the
parties whether or not a judgment shall be entered in any court. The fees of
the Third Engineer and the costs of arbitration shall be paid equally by the
parties, except that each party shall pay its own counsel fees and expenses, if
any, in connection with the arbitration. Pending the resolution of such dispute
by agreement or arbitration as aforesaid, Tenant shall pay the increase in the
Electricity Inclusion Factor in accordance with the Electricity Statement,
without prejudice to Tenant's position, as herein provided. If the dispute
shall be resolved in Tenant's favor, Landlord, at its option, shall either
credit the amount of such overpayment against subsequent monthly installments
of Fixed Rent hereunder or pay to Tenant the amount of such overpayment.
(D) Landlord's failure during the Term to prepare and
deliver any Electricity Statement, or bills, or Landlord's failure to make a
demand, under this Article or any other provisions of this Lease, shall not in
any way be deemed to be a waiver of, or cause Landlord to forfeit or surrender,
its rights to collect any portion of the increase in the Electricity Inclusion
Factor (and therefore the Fixed Rent) which may have become due pursuant to
this Article 13 during the Term. Tenant's liability for the amounts due under
this Article 13 shall survive the expiration or sooner termination of this
Lease and Landlord's obligation, if any, to refund any payments by Tenant in
excess of the amounts required to be paid by Tenant to Landlord pursuant to
this Article 13 shall survive the expiration or sooner termination of this
lease. The preceding sentence shall not, however, be construed as limiting or
restricting, in any manner whatsoever,
41
46
Landlord's right pursuant to this Lease or pursuant to law to offset any such
overpayments by Tenant against any amounts which may be due and payable as
provided in this Lease.
(E) In no event shall any adjustment of the payments made
or to be made hereunder result in a decrease in Fixed Rent or additional rent
payable pursuant to any other provision of this Lease, or in the amount paid
for electricity for the prior year.
(F) The Electricity Inclusion Factor shall be collectible
by Landlord in the same manner as Fixed Rent.
(G) For the purposes of this Section 13.2, Landlord and
Tenant agree that the term "Electric Rate" (including all applicable
surcharges, demand charges, energy charges, fuel adjustment charges, time of
day charges, taxes and other sums payable in respect thereof) shall mean the
greater of:
(i) the service classification pursuant
to which Landlord purchases electricity from the utility company servicing the
Building, and
(ii) the service classification pursuant
to which Tenant would purchase electricity directly from the utility company
servicing the Building.
(H) If Landlord discontinues furnishing electricity to
Tenant pursuant to this Section 13.2, the Fixed Rent shall be decreased by the
Electricity Inclusion Factor effective as of the date Landlord discontinues the
provision of electricity in such manner
Section 13.3. (A) If Landlord shall no longer elect to have
electricity furnished to the Premises pursuant to Section 13.2 hereof then,
unless Landlord elects to have Tenant obtain electricity from the public
utility company furnishing electricity to the Building pursuant to the
provisions of Section 13.4 hereof, electricity shall be furnished by Landlord
to the Premises and Tenant shall pay to Landlord, as additional rent for such
service, during the Term, an amount (the "Electricity Additional Rent") equal
to (i) the amount Landlord actually pays to the utility company to provide
electricity to the Premises, including all applicable surcharges, demand
charges, time-of-day charges, energy charges, fuel adjustment charges, rate
adjustment charges, taxes and other sums payable in respect thereof, based on
Tenant's demand and/or consumption of electricity (and/or any other method of
quantifying Tenant's use of or demand for electricity as set forth in the
utility company's tariff) as registered on a meter or submeter (installed by
Landlord at Tenant's sole cost and expense) for purposes of measuring such
demand consumption and/or other method of quantifying Tenants use of or demand
for electricity (it being agreed that such meter or submeter shall measure
demand and consumption, and off-peak and on-peak use, in either case to the
extent such factors are relevant in making the determination of Landlord's
cost) plus (ii) an amount equal to the out-of-pocket costs and expenses
incurred by Landlord in connection with reading such meters and preparing bills
therefor. Tenant, from time to time, shall have the right to review Landlord's
meter readings, and Landlord's calculation of the Electricity Additional Rent,
at reasonable times and on reasonable prior notice, by giving
42
47
notice thereof to Landlord on or prior to the thirtieth (30th) day after the
date when Landlord gives Tenant a ▇▇▇▇ or statement for the Electricity
Additional Rent.
(B) Where more than one meter measures the electricity
supplied to Tenant, the electricity rendered through each meter may be computed
and billed separately in accordance with the provisions hereinabove set forth.
Bills for the Electricity Additional Rent shall be rendered to Tenant at such
time as Landlord may elect, and Tenant shall pay the amount shown thereon to
Landlord within ten (10) days after receipt of such ▇▇▇▇. Tenant expressly
acknowledges that in connection with the installation of the meters or
submeters, the electricity being supplied to the Premises shall be temporarily
interrupted. Landlord shall use reasonable efforts to minimize interference
with the conduct of Tenant's business in connection with such installation;
provided, however, that Landlord shall have no obligation to employ contractors
or labor at so-called overtime or other premium pay rates or to incur any other
overtime costs or expenses whatsoever.
Section 13.4. If Landlord shall elect to discontinue furnishing
electricity to Tenant this Lease shall continue in full force and effect and
shall be unaffected thereby, except only that from and after the effective date
of such discontinuance, Landlord shall not be obligated to furnish electricity
to Tenant and Tenant shall not be obligated to pay the Electricity Additional
Rent. If Landlord so discontinues furnishing electricity to Tenant, Tenant
shall use diligent efforts to obtain electric energy directly from the public
utility furnishing electric service to the Building. The costs of such service
shall be paid by Tenant directly to such public utility. Such electricity may
be furnished to Tenant by means of the existing electrical facilities serving
the Premises, at no charge, to the extent the same are available, suitable and
safe for such purposes as determined by Landlord. All meters and all additional
panel boards, feeders, risers, wiring and other conductors and equipment which
may be required to obtain electricity shall be installed by Landlord at
Tenant's expense. Provided Tenant shall use and continue to use diligent
efforts to obtain electric energy directly from the public utility, Landlord,
to the extent permitted by applicable Requirements, shall not discontinue
furnishing electricity to the Premises until such installations have been made
and Tenant shall be able to obtain electricity directly from the public
utility.
ARTICLE 14
ACCESS TO PREMISES
Section 14.1. (A) Tenant shall permit Landlord, Landlord's agents,
representatives, contractors and employees and public utilities servicing the
Building to erect, use and maintain, concealed ducts, pipes and conduits in and
through the Premises. Landlord, Landlord's agents, representatives,
contractors, and employees and the agents, representatives, contractors, and
employees of public utilities servicing the Building shall have the right to
enter the Premises at all reasonable times upon reasonable prior notice (except
in the case of an emergency in which event Landlord and Landlord's agents,
representatives, contractors, and employees may enter without prior notice to
Tenant which notice may be oral, to examine the same, to show them to
43
48
prospective purchasers, or prospective or existing Mortgagees or Lessors, and
to make such repairs, alterations, improvements, additions or restorations (i)
as Landlord may deem necessary or desirable to the Premises or to any other
portion of the Building, or (ii) which Landlord may elect to perform following
ten (10) days after notice, except in the case of an emergency (in which event
Landlord and Landlord's agents, representatives, contractors, and employees may
enter without prior notice to Tenant), following Tenant's failure to make
repairs or perform any work which Tenant is obligated to make or perform under
this Lease, or (iii) for the purpose of complying with any Requirements, a
Superior Lease or a Mortgage, 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 the Fixed Rent (and any other item of Rental) shall in no wise ▇▇▇▇▇
while said repairs, alterations, improvements, additions or restorations are
being made, by reason of loss or interruption of business of Tenant, or
otherwise.
(B) Any work performed or installations made pursuant to
this Article 14 shall be made with reasonable diligence and otherwise pursuant
to the provisions of Section 4.3 hereof.
(C) Except as hereinafter provided, any pipes, ducts, or
conduits installed in or through the Premises pursuant to this Article 14 shall
be concealed behind, beneath or within partitioning, columns, ceilings or
floors located or to be located in the Premises. Notwithstanding the foregoing,
any such pipes, ducts, or conduits may be furred at points immediately adjacent
to partitioning columns or ceilings located or to be located in the Premises,
provided that the same are completely furred and that the installation of such
pipes, ducts, or conduits, when completed, shall not reduce the usable area of
the Premises beyond a de minimis amount.
Section 14.2. During the eighteen (18) month period prior to the
Expiration Date, Landlord may exhibit the Premises to prospective tenants
thereof.
Section 14.3. If Tenant shall not be present when for any reason entry
into the Premises shall be necessary or permissible, Landlord or Landlord's
agents, representatives, contractors or employees 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 under the circumstances 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 14.4. Landlord also shall have the right at any time, 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, provided
44
49
any such change does not (a) unreasonably reduce, interfere with or deprive
Tenant of access to the Building or the Premises or (b) reduce the rentable
area (except by a de minimis amount) of the Premises. 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), 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, upon written notice from Landlord or
any Governmental Authority, shall immediately discontinue such use of the
Premises. On the Commencement Date a temporary or permanent certificate of
occupancy covering the Premises will be in force permitting the Premises to be
used as offices, provided, however, neither such certificate, nor any provision
of this Lease, nor any act or omission of Landlord, shall be deemed to
constitute a representation or warranty that the Premises, or any part thereof,
lawfully may be used or occupied for any particular purpose or in any
particular manner, in contradistinction to mere "office" use.
ARTICLE 16
DEFAULT
Section 16. 1. Each of the following events shall be an "Event of
Default" hereunder:
(A) if Tenant shall default in the payment when due of
any installment of Fixed Rent and such default shall continue for five (5)
Business Days after notice of such default is given to Tenant, or in the
payment when due of any other item of Rental and such default shall continue
for five (5) Business Days after notice of such default is given to Tenant,
except that if Landlord shall have given two (2) such notices in any twelve
(12) month period, Tenant shall not be entitled to any further notice of its
delinquency in the payment of Rental until such time as twelve (12) consecutive
months shall have elapsed without Tenant having defaulted in any such payment;
or
45
50
(B) if Tenant shall default in the observance or
performance of any term, covenant or condition on Tenant's part to be observed
or performed under any other lease with Landlord or Landlord's predecessor in
interest of space in the Building and such default shall continue beyond any
grace period set forth in such other lease for the remedying of such default;
or
(C) if the Premises shall become abandoned; or
(D) if Tenant's interest or any portion thereof in this
Lease shall devolve upon or pass to any person, whether by operation of law or
otherwise, except as expressly permitted under Article 12 hereof; or
(E) (1) if Tenant shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they
become due; or
(2) if Tenant shall commence or institute any
case, proceeding or other action (A) seeking relief on its behalf 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; or
(3) if Tenant shall make a general assignment
for the benefit of creditors; or
(4) if any case, proceeding or other action
shall be 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 in either of such cases (i) 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 (ii) remains
undismissed for a period of sixty (60) days; or
(5) if any case, proceeding or other action
shall be 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 shall not have been vacated, discharged, or stayed or bonded
pending appeal within sixty (60) days from the entry thereof; or
46
51
(6) if Tenant shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth in clauses (2), (3), (4) or (5) above; or
(7) if a trustee, receiver or other custodian is
appointed for any substantial part of the assets of Tenant which appointment is
not vacated or stayed within seven (7) Business Days; or
(F) if Tenant shall fail more than five (5) times during
any twelve (12) month period to pay any installment of Fixed Rent or any item
of Rental when due after receipt of the notice and expiration of the applicable
grace period pursuant to the provisions of paragraph (A) above, if such notice
and grace period are then required; or
(G) if Tenant shall fail to pay any installments of Fixed
Rent or items of Rental when due as required by this Lease, and Landlord shall
bring more than three (3) summary dispossess proceedings during any twelve (12)
month period; or
(H) if this Lease is assigned (or all or a portion of the
Premises are subleased) to a Related Entity and such Related Entity shall no
longer (i) Control, (ii) be under common Control with, or (iii) be under the
Control of Tenant (or any permitted successor by merger, consolidation or
purchase as provided herein); or
(I) if Landlord shall present the Letter of Credit to the
bank which issued the same in accordance with the provisions of Article 31
hereof, and the bank shall fail to honor the Letter of Credit and pay the
proceeds thereof to Landlord for any reason whatsoever; or
(J) if Tenant shall default 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 shall fail to remedy such default
within twenty (20) days after notice by Landlord to Tenant of such default, or
if such default is of such a nature that it cannot with due diligence be
completely remedied within said period of twenty (20) days and Tenant shall not
commence within said period of twenty (20) days, or shall not thereafter
diligently prosecute to completion, all steps necessary to remedy such default.
Section 16.2. (A) If an Event of Default (i) described in Section
16.1 (E) hereof shall occur, or (ii) described in Sections 16.1 (A), (B), (C),
(D), (F), (G), (H), (I) or (J) shall occur and Landlord, at any time
thereafter, at its option gives written notice to Tenant stating that this
Lease and the Term shall expire and terminate on the date Landlord shall give
Tenant such notice, then this Lease and the Term and all rights of Tenant under
this Lease shall expire and terminate as if the date on which the Event of
Default described in clause (i) above occurred or the date of such notice,
pursuant to clause (ii) above, as the case may be, were the Fixed Expiration
Date and Tenant immediately shall quit and surrender the Premises, but Tenant
shall nonetheless be liable for all of its obligations hereunder, as provided
for in Articles 17 and 18 hereof Anything
47
52
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 (E) hereof, 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 as provided in Section 12.3(B), 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 five (5) days' notice to
Tenant, Tenant as debtor-in-possession or said trustee and upon the expiration
of said five (5) day period this Lease shall cease and expire as aforesaid and
Tenant, Tenant as debtor-in-possession or said trustee shall immediately quit
and surrender the Premises as aforesaid.
(B) If an Event of Default described in Section 16.1
(A) hereof shall occur, or this Lease shall be terminated as provided in
Section 16.2(A) hereof, Landlord, without notice, may reenter and repossess the
Premises using such force for that purpose as may be necessary without being
liable to indictment, prosecution or damages therefor and may dispossess Tenant
by summary proceedings or otherwise.
Section 16.3. If at any time, (i) Tenant shall be comprised of two (2)
or more persons, or (ii) Tenant's obligations under this Lease shall have been
guaranteed by any person other than Tenant, or (iii) Tenant's interest in this
Lease shall have been assigned, the word "Tenant", as used in Section 16.1
(E), 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(E) 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
Rental or a waiver on the part of Landlord of any rights under Section 16.2.
ARTICLE 17
REMEDIES AND DAMAGES
Section 17.1. (A) If there shall occur any Event of Default, and this
Lease and the Term shall expire and come to an end as provided in Article 16
hereof:
(1) Tenant shall quit and peacefully surrender
the Premises to Landlord, and Landlord and its agents may immediately, or at
any time after such 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 force or otherwise (without being
liable to indictment,
48
53
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
(2) Landlord, at Landlord's option, may relet
the whole or any portion or portions 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 (a) Tenant shall have been
dispossessed by a judgment or by warrant of any court or judge, or (b) any
re-entry by Landlord, or (c) any expiration or termination of this Lease and
the Term, 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 right
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 hereof, 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 said events:
(1) Tenant shall pay to Landlord all Fixed Rent,
Escalation Rent and other items of Rental payable under this Lease by Tenant to
Landlord to the date upon which this
49
54
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;
(2) Tenant also shall be liable for and shall
pay to Landlord, as damages, any deficiency (referred to as "Deficiency")
between the Rental for the period which otherwise would have constituted the
unexpired portion of the Term and the net amount, if any, of rents collected
under any reletting effected pursuant to the provisions of clause (2) of
Section 17.1(A) 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, but not limited to, all repossession costs,
brokerage commissions, legal expenses, attorneys' fees and disbursements,
alteration costs, contribution to work and other expenses of preparing the
Premises for such reletting); any such Deficiency shall be paid in monthly
installments by Tenant on the days specified in this Lease for payment of
installments of Fixed Rent; Landlord shall be entitled to recover from Tenant
each monthly Deficiency as the same shall arise, and 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
(3) 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 to the
amount by which the Rental for the period which otherwise would have
constituted the unexpired portion of the Term (commencing on the date
immediately succeeding the last date with respect to which a Deficiency, if
any, was collected) exceeds the then fair and reasonable rental value of the
Premises for the same period, both discounted to present worth at the Base
Rate; if, before presentation of proof of such liquidated damages to any court,
commission or tribunal, the Premises, or any part thereof, shall have been
relet by Landlord for the period which otherwise would have constituted the
unexpired portion of the Term, or any part thereof, the amount of rent reserved
upon 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 the Premises, or any part thereof, shall be relet
together with other space in the Building, the rents collected or reserved
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.
Solely for the purposes of this Article 17, the term "Escalation Rent" as used
in Section 17.2(A) shall mean the Escalation Rent in effect immediately prior
to the Expiration Date, or the date of re-entry upon the Premises by Landlord,
as the case may be, adjusted to reflect any increase pursuant to the
provisions of Article 27 hereof for the Operating Year immediately preceding
such event. Nothing contained in Article 16 hereof 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
50
55
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
LANDLORD FEES AND EXPENSES
Section 18.1. If Tenant shall be in default 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,
Landlord may (1) as provided in Section 14.1 hereof, perform the same for the
account of Tenant, or (2) make any expenditure or incur any obligation for the
payment of money, including, without limitation, reasonable attorneys' fees and
disbursements in instituting, prosecuting or defending any action or
proceeding, and the cost thereof, with interest thereon at the Applicable 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 and if the term of this Lease shall have expired at the time of making
of such expenditures or incurring of such obligations, such sums shall be
recoverable by Landlord as damages.
Section 18.2. If Tenant shall fail to pay any installment of Fixed
Rent, Escalation Rent or any other item of Rental when due, Tenant shall pay to
Landlord, in addition to such installment of Fixed Rent, Escalation Rent or
other item of Rental, as the case may be, as a late charge and as additional
rent, a sum equal to interest at the Applicable 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
Section 19.1. (A) Landlord and Landlord's agents and representatives
have made no representations or promises with respect to the Building, the Real
Property or the Premises except as herein expressly set forth, and no rights,
easements or licenses are acquired by Tenant by implication or otherwise except
as expressly set forth herein. Tenant shall accept possession of the Premises
in the condition which shall exist on the Commencement Date "as is" (subject to
the provisions of Section 4.1 hereof), and Landlord shall have no obligation to
perform any work or make any installations in order to prepare the Premises for
Tenant's occupancy, except for the items set forth on Exhibit "B" attached
hereto and made a part hereof ("Landlord's Work").
(B) If and when Tenant shall take actual possession of
the Premises, it shall be conclusively presumed that the same were in
satisfactory condition (except for "punchlist items") as of the date of such
taking of possession, unless within thirty (30) days after the Commencement
Date, Tenant shall give Landlord notice specifying the respects in which
Landlord's Work was not in satisfactory condition. Landlord shall promptly
complete any "punchlist items" and repair any items which were not in a
satisfactory condition. Landlord shall
51
56
have the right to enter the Premises subsequent to the Commencement Date, to
complete Landlord's Work, to complete any "punchlist items" and any Long Lead
Work, and to repair any items which were not in a satisfactory condition and
the payment of Fixed Rent and Escalation Rent shall not be affected thereby.
Landlord agrees to use reasonable efforts to minimize interference with
Tenant's business at the Premises during the completion of Landlord's Work, the
performance of such "punchlist items" and any Long Lead Work, and the
performance of such repairs of items which were not in satisfactory condition
provided the foregoing shall not increase the cost to Landlord of completing
such Landlord's Work, such "punchlist items", Long Lead Work and making of any
such repairs or cause Landlord to incur additional costs at overtime or premium
rates.
Section 19.2. Landlord has made and makes no representation as to the
date on which it will complete Landlord's Work. No delay in completing
Landlord's Work shall in any way affect the validity of this Lease or the
obligations of Tenant hereunder or give rise to a claim for damages by Tenant
or a claim for rescission of this Lease, nor shall the same be construed in any
wise to extend the Term hereof. Landlord agrees that, subject to Unavoidable
Delay, each item of Landlord's Work shall be prosecuted with due diligence;
provided, however, that nothing contained in this Article 19 shall be deemed to
impose upon Landlord any obligations to employ contractors or labor at
so-called overtime or other premium pay rates or to incur any other overtime
costs or expenses whatsoever. Landlord shall have the right to enter the
Premises subsequent to the Commencement Date to complete Landlord's Work and
the payment of Fixed Rent and Escalation Rent shall not be affected thereby.
ARTICLE 20
END OF TERM
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 otherwise in compliance
with the provisions of Article 3 hereof. 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. Tenant acknowledges
that possession of the Premises must be surrendered to Landlord on the
Expiration Date. Tenant agrees to indemnify and save Landlord harmless from and
against all claims, losses, damages, liabilities, costs and expenses
(including, without limitation, attorneys' fees and disbursements) resulting
from delay by Tenant in so surrendering the Premises, including, without
limitation, any claims made by any succeeding tenant founded on such delay. The
parties recognize and agree that the damage to Landlord resulting from any
failure by Tenant to timely surrender possession of the Premises as aforesaid
will be extremely substantial, will exceed the amount of the monthly
52
57
installments of the Fixed Rent and Rental theretofore payable hereunder, and
will be impossible to accurately measure. Tenant therefore agrees that if
possession of the Premises is not surrendered to Landlord within twenty-four
(24) hours after the Expiration Date, in addition to any other rights or
remedies Landlord may have hereunder or at law, and without in any manner
limiting Landlord's right to demonstrate and collect any damages suffered by
Landlord and arising from Tenant's failure to surrender the Premises as
provided herein, Tenant shall pay to Landlord on account of use and occupancy
of the Premises for each month and for each portion of any month during which
Tenant holds over in the Premises after the Expiration Date, a sum equal to the
greater of (i) one and one half (1 1/2) times the aggregate of that portion of
the Fixed Rent, Escalation Rent and Rental which was payable under this Lease
during the last month of the Term, and (ii) the then fair market rental value
for the Premises. Nothing herein contained shall be deemed to permit Tenant to
retain possession of the Premises after the Expiration Date or to limit in any
manner Landlord's right to regain possession of the Premises through summary
proceedings, or otherwise, and no acceptance by Landlord of payments from
Tenant after the Expiration Date 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. The provisions of this Article 20 shall survive the Expiration
Date.
ARTICLE 21
QUIET ENJOYMENT
Provided no Event of Default has occurred and is continuing, Tenant
may peaceably and quietly enjoy the Premises subject, nevertheless, to the
terms and conditions of this Lease.
ARTICLE 22
FAILURE TO GIVE POSSESSION
Tenant waives any right to rescind this Lease under Section 223-a of
the New York Real Property Law or any successor statute of similar nature and
purpose then in force and further waives the right to recover any damages which
may result from Landlord's failure for any reason to deliver possession of the
Premises on the date set forth in Section 1. 1 hereof for the commencement of
the Term. The provisions of this Article are intended to constitute an "express
provision to the contrary" within the meaning of Section 223-a of the New York
Real Property Law. No such failure to give possession on the date set forth in
Section 1.1 hereof for the commencement of the Term shall in any wise affect
the validity of this Lease or the obligations of Tenant hereunder or give rise
to any claim for damages by Tenant or claim for rescission of this Lease, nor
shall the same be construed in any wise to extend the Term.
53
58
ARTICLE 23
NO WAIVER
Section 23.1. 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
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. In the event Tenant at any time desires to have Landlord sublet the
Premises for Tenant's account, Landlord or Landlord's agents are authorized to
receive said keys for such purpose without releasing Tenant from any of the
obligations under this Lease, and Tenant hereby relieves Landlord of any
liability for loss of or damage to any of Tenant's effects in connection with
such subletting.
Section 23.2. 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 of the provisions of this Lease, from having all of the
force and effect of an original violation of the provisions of this Lease. The
receipt by Landlord of Fixed Rent, Escalation Rent or any other item of Rental
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. 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
other item of Rental herein stipulated shall be deemed to be other than on
account of the earliest stipulated Fixed Rent or other item of Rental, 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 other
item of Rental 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 other item of Rental or to pursue any other
remedy provided in this Lease. This Lease contains the entire agreement between
the parties and all prior negotiations and agreements are merged herein. 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.
ARTICLE 24
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
54
59
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 25
INABILITY TO PERFORM
This Lease and the obligation of Tenant to pay Rental hereunder and
perform all of the other covenants and agreements hereunder on the part of
Tenant to be performed shall in no wise be affected, impaired or excused
because Landlord is unable to fulfill any of its obligations under this Lease
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
beyond Landlord's control, including, but not limited to, laws, governmental
preemption in connection with a national emergency or by reason of any
Requirements of any Governmental Authority or by reason of failure of the HVAC,
electrical, plumbing, or other Building Systems in the Building (to the extent
such failure is due to causes beyond Landlord's control), or by reason of the
conditions of supply and demand which have been or are affected by war or other
emergency ("Unavoidable Delays").
ARTICLE 26
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) or if sent by registered or certified mail (return receipt requested)
addressed
if to Tenant (a) at Tenant's address set forth in this Lease,
Attn.: _________________________________________, if mailed
prior to Tenant's taking possession of the Premises, or (b) at
the Building, Attn.: ______________________________, if
mailed subsequent to Tenant's taking possession of the
Premises, or (c) at any place where Tenant or any agent or
employee of Tenant may be found if mailed
55
60
subsequent to Tenant's vacating, deserting, abandoning or
surrendering the Premises, in each case with a copy to
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn.: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇., Esq. or
if to Landlord at Landlord's address set forth in this Lease,
Attn.: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇, and with copies to (x) Vornado
Realty Trust, Park 80 West, Plaza 11. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, Attn. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, (y) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn.: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Esq., and (z) each Mortgagee and Lessor which shall have
requested same, by notice given in accordance with the
provisions of this Article 26 at the address designated by
such Mortgagee or Lessor, or
to such other address(es) as Landlord, Tenant or any Mortgagee or Lessor may
designate as its new address(es) for such purpose by notice given to the other
in accordance with the provisions of this Article 26. Any such ▇▇▇▇, statement,
consent, notice, demand, request or other communication shall be deemed to have
been rendered or given on the date when it shall have been hand delivered or
three (3) Business Days from when it shall have been mailed as provided in this
Article 26. Anything contained herein to the contrary notwithstanding, any
Operating Statement, Tax Statement or any other ▇▇▇▇, statement, consent,
notice, demand, request or other communication from Landlord to Tenant with
respect to any item of Rental (other than any "default notice" if required
hereunder) may be sent to Tenant by regular United States mail.
ARTICLE 27
ESCALATION
Section 27.1. For the purposes of this Article 27, the following terms
shall have the meanings set forth below.
(A) "Assessed Valuation" shall mean 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 calculating all or any portion of the Taxes payable with respect to
the Real Property.
(B) "Base Operating Expenses" shall mean the Operating
Expenses for the Base Operating Year.
(C) "Base Operating Year" shall mean the calendar year
ending December 31, 1999.
(D) "Base Taxes" shall mean the Taxes payable for the
twelve (12) month fiscal period commencing July 1, 1999 and ending June 30,
2000.
56
61
(E) (1) "Operating Expenses" shall mean the
aggregate of those costs and expenses (and taxes, if any, thereon, including
without limitation, sales and value added taxes) paid or incurred by or on
behalf of Landlord (whether directly or through independent contractors) in
respect of the Operation of the Property which, are properly chargeable to the
Operation of the Property together with and including (without limitation) the
costs of gas, oil, steam, water, sewer rental, electricity (for the portions of
the Real Property not leased to and occupied by tenants or available for
occupancy), HVAC and other utilities furnished to the Building and utility
taxes, and the expenses incurred in connection with the Operation of the
Property such as insurance premiums, attorneys' fees and disbursements, auditing
and other professional fees and expenses, and all expenses (including
attorneys' fees and disbursements, experts' and other witnesses' fees) incurred
in contesting the validity or amount of any Taxes or in obtaining a refund of
any Taxes, but specifically excluding:
(i) Taxes,
(ii) franchise or income taxes imposed
upon Landlord,
(iii) debt service on Mortgages,
(iv) leasing commissions,
(v) capital improvements (except as
otherwise provided herein),
(vi) the cost of electrical energy
furnished directly to Tenant and other tenants of the Building,
(vii) the cost of tenant installations
incurred in connection with preparing space for a new tenant,
(viii) salaries of personnel above the
grade of building manager and such building manager's supervisor,
(ix) rent paid under Superior Leases
(other than in the nature of Rent consisting of Taxes or Operating Expenses),
(x) any expense for which Landlord is
otherwise compensated through the proceeds of insurance or is otherwise
compensated by any tenant (including Tenant) of the Building for services in
excess of the services Landlord is obligated to furnish to Tenant hereunder,
(xi) legal fees incurred in connection
with any negotiation of, or disputes arising out of, any space lease in the
Building,
57
62
(xii) depreciation, except as provided
herein, and
(xiii) Landlord's advertising and
promotional costs for the Building,
except, however, that if Landlord is not furnishing any particular work or
service (the cost of which if performed by Landlord would constitute an
Operating Expense) to a tenant who has undertaken to perform such work or
service in lieu of the performance thereof by Landlord, Operating Expenses shall
be deemed to be increased by an amount equal to the additional Operating
Expenses which reasonably would have been incurred during such period by
Landlord if it had at its own expense furnished such work or services to such
tenant. Any insurance proceeds received with respect to any item previously
included as an Operating Expense shall be deducted from Operating Expenses for
the Operating Year in which such proceeds are received; provided, however, to
the extent any insurance proceeds are received by Landlord in any Operating Year
with respect to any item which was included in Operating Expenses during the
Base Operating Year, the amount of insurance proceeds so received shall be
deducted from Base Operating Expenses and (x) the Base Operating Expenses shall
be retroactively adjusted to reflect such deduction and (y) all retroactive
Operating Payments resulting from such retroactive adjustment shall be due and
payable when billed by Landlord. Until such time as the electricity supplied to
each floor of the Building and the common and public areas of the Building
(including, without limitation, the Building Systems) shall be separately
metered or submetered, Operating Expenses shall include an amount equal to (x)
(i) Landlord's cost per kilowatt hour (utilizing the electrical rates applicable
to the Building including energy charges, demand charges, time-of-day charges,
fuel adjustment charges, rate adjustment charges, sales tax and any other
factors used by the public utility in computing its charges to Landlord) of
furnishing electric current to the entire Building, multiplied by (ii) the
number of kilowatt hours of electric current furnished to the public and common
areas of the Building (including, without limitation, the Building Systems) and
other areas not available for occupancy as determined by a survey prepared by an
independent, reputable electrical engineer selected by Landlord, plus (y) an
amount equal to Landlord's out-of-pocket costs in connection with the same.
(2) In determining the amount of Operating Expenses for
any Operating Year, if less than all of the Building rentable area shall have
been occupied by tenant(s) at any time during any such Operating Year,
Operating Expenses shall be determined for such Operating Year to be an amount
equal to the like expenses which would normally be expected to be incurred had
all such areas been occupied throughout such Operating Year.
(3) (a) If any capital improvement is made during
any Operating Year in compliance with a Requirement, whether or not such
Requirement is valid or mandatory, or in lieu of a repair, then the cost of
such improvement shall be included in Operating Expenses for the Operating Year
in which such improvement was made; provided, however, to the extent the cost
of such improvement is required to be capitalized for federal income tax
purposes, such cost shall be amortized over the useful economic life of such
improvement as reasonably estimated by Landlord, and the annual amortization,
together with interest thereon at the then
58
63
Base Rate, of such improvement shall be deemed an Operating Expense in each of
the Operating Years during which such cost of the improvement is amortized.
(b) If any capital improvement is made during
any Operating Year either for the purpose of saving or reducing Operating
Expenses (as, for example, a labor-saving improvement), then the cost of such
improvement shall be included in Operating Expenses for the Operating Year in
which such improvement was made; provided, however, such cost shall be
amortized over such period of time as Landlord reasonably estimates such
savings or reduction in Operating Expenses will equal the cost of such
improvement and the annual amortization, together with interest thereon at the
then Base Rate, of such improvement shall be deemed an Operating Expense in
each of the Operating Years during which such cost of the improvement is
amortized.
(F) "Operating Statement" shall mean a statement in
reasonable detail setting forth a comparison of the Operating Expenses for an
Operating Year with the Base Operating Expenses and the Escalation Rent for the
preceding Operating Year pursuant to the provisions of this Article 27.
(G) "Operating Year" shall mean the calendar year within
which the Commencement Date occurs and each subsequent calendar year for any
part or all of which Escalation Rent shall be payable pursuant to this Article
27.
(H) "Taxes" shall mean the aggregate amount of real
estate taxes and any general or special assessments (exclusive of penalties and
interest thereon) imposed upon the Real Property (including, without
limitation, (i) assessments made upon or with respect to any "air" and
"development" rights now or hereafter appurtenant to or affecting the Real
Property, (ii) any fee, tax or charge imposed by any Governmental Authority for
any vaults, vault space or other space within or outside the boundaries of the
Real Property, and (iii) any taxes or assessments levied after the date of this
Lease in whole or in part for public benefits to the Real Property or the
Building, including, without limitation, any Business Improvement District
taxes and assessments) without taking into account any discount that Landlord
may receive by virtue of any early payment of Taxes; provided, that if because
of any change in the taxation of real estate, any other tax or assessment,
however denominated (including, without limitation, any franchise, income,
profit, sales, use, occupancy, gross receipts or rental tax) is imposed upon
Landlord or the owner of the Real Property or the Building, or the occupancy,
rents or income therefrom, in substitution for any of the foregoing Taxes, such
other tax or assessment shall be deemed part of Taxes computed as if Landlord's
sole asset were the Real Property. Anything contained herein to the contrary
notwithstanding, Taxes shall not be deemed to include (w) any taxes on
Landlord's income, (x) franchise taxes, (y) estate or inheritance taxes or (z)
any similar taxes imposed on Landlord, unless such taxes are levied, assessed
or imposed in lieu of or as a substitute for the whole or any part of the
taxes, assessments, levies, impositions which now constitute Taxes.
(I) "Tax Statement" shall mean a statement in reasonable
detail setting forth a comparison of the Taxes for a Tax Year with the Base
Taxes.
59
64
(J) "Tax Year" shall mean the period July 1 through June
30 (or such other period as hereinafter may be duly adopted by the Governmental
Authority then imposing taxes as its fiscal year for real estate tax purposes),
any portion of which occurs during the Term.
Section 27.2. (A) If the Taxes payable for any Tax Year (any part or
all of which falls within the Term) shall represent an increase above the Base
Taxes, then Tenant shall pay as additional rent for such Tax Year and
continuing thereafter until a new Tax Statement is rendered to Tenant, Tenant's
Share of such increase (the "Tax Payment") as shown on the Tax Statement with
respect to such Tax Year. Tenant shall be obliged to pay the Tax Payment
regardless of whether Tenant is exempt in whole or part, from the payment of
any Taxes by reason of Tenant's diplomatic status or for any other reason
whatsoever. The Taxes shall be computed initially on the basis of the Assessed
Valuation in effect at the time the Tax Statement is rendered (as the Taxes may
have been settled or finally adjudicated prior to such time) regardless of any
then pending application, proceeding or appeal respecting the reduction of any
such Assessed Valuation, but shall be subject to subsequent adjustment as
provided in Section 27.3 hereof.
(B) At any time during or after the Term, Landlord may
render to Tenant a Tax Statement or Statements showing (i) a comparison of the
Taxes for the Tax Year with the Base Taxes and (ii) the amount of the Tax
Payment resulting from such comparison. On the first day of the month following
the furnishing to Tenant of a Tax Statement, Tenant shall pay to Landlord a sum
equal to 1/12th of the Tax Payment shown thereon to be due for such Tax Year
multiplied by the number of months of the Term then elapsed since the
commencement of such Tax Year. Tenant shall continue to pay to Landlord a sum
equal to one-twelfth (1/12th) of the Tax Payment shown on such Tax Statement on
the first day of each succeeding month until the first day of the month
following the month in which Landlord shall deliver to Tenant a new Tax
Statement. If Landlord furnishes a Tax Statement for a new Tax Year subsequent
to the commencement thereof, promptly after the new Tax Statement is furnished
to Tenant, Landlord shall give notice to Tenant stating whether the amount
previously paid by Tenant to Landlord for the current Tax Year was greater or
less than the installments of the Tax Payment for the current tax year in
accordance with the Tax Statement, and (a) if there shall be a deficiency,
Tenant shall pay the amount thereof within ten (10) days after demand therefor,
or (b) if there shall have been an overpayment, Landlord shall credit the
amount thereof against the next monthly installments of the Fixed Rent payable
under this Lease. Tax Payments shall be collectible by Landlord in the same
manner as Fixed Rent. Landlord's failure to render a Tax Statement shall not
prejudice Landlord's right to render a Tax Statement during or with respect to
any subsequent Tax Year, and shall not eliminate or reduce Tenant's obligation
to make Tax Payments for such Tax Year.
Section 27.3. (A) Only Landlord shall be eligible to institute tax
reduction or other proceedings to reduce the Assessed Valuation. In the event
that, after a Tax Statement has been sent to Tenant, an Assessed Valuation which
had been utilized in computing the Taxes for a Tax Year is reduced (as a result
of settlement, final determination of legal proceedings or otherwise), and as a
result thereof a refund of Taxes is actually received by or on behalf of
Landlord, then, promptly after receipt of such refund, Landlord shall send
Tenant a Tax Statement adjusting the Taxes for such Tax Year and setting forth
Tenant's Share of such refund and Tenant shall be
60
65
entitled to receive such Share, at Landlord's option, either by way of a credit
against the Fixed Rent next becoming due after the sending of such Tax
Statement or by a refund to the extent no further Fixed Rent is due; provided,
however, that Tenant's Share of such refund shall be limited to the portion of
the Tax Payment, if any, which Tenant had theretofore paid to Landlord
attributable to increases in Taxes for the Tax Year to which the refund is
applicable on the basis of the Assessed Valuation before it had been reduced.
(B) In the event that, after a Tax Statement has been
sent to Tenant, the Assessed Valuation which had been utilized in computing the
Base Taxes is reduced (as a result of settlement, final determination of legal
proceedings or otherwise) then, and in such event: (i) the Base Taxes shall be
retroactively adjusted to reflect such reduction, and (ii) all retroactive Tax
Payments resulting from such retroactive adjustment shall be due and payable
when billed by Landlord. Landlord promptly shall send to Tenant a statement
setting forth the basis for such retroactive adjustment and Tax Payments.
Section 27.4. (A) If the Operating Expenses for any Operating Year
(any part or all of which falls within the Term) shall be greater than the Base
Operating Expenses, then Tenant shall pay as additional rent for such Operating
Year and continuing thereafter until a new Operating Statement is rendered to
Tenant, Tenant's Share of such increase (the "Operating Payment") as
hereinafter provided. Notwithstanding anything to the contrary contained
herein, Landlord shall not render an Operating Statement to Tenant prior to the
first (lst) anniversary of the Commencement Date.
(B) At any time after the first (1st) anniversary of the
Commencement Date or after the Term, Landlord may render to Tenant an Operating
Statement or Statements showing (i) a comparison of the Operating Expenses for
the Operating Year in question with the Base Operating Expenses, and (ii) the
amount of the Operating Payment resulting from such comparison. Landlord's
failure to render an Operating Statement during or with respect to any
Operating Year in question shall not prejudice Landlord's right to render an
Operating Statement during or with respect to any subsequent Operating Year,
and shall not eliminate or reduce Tenant's obligation to make payments of the
Operating Payment pursuant to this Article 27 for such Operating Year.
(C) On the first day of the month following the
furnishing to Tenant of an Operating Statement, Tenant shall pay to Landlord a
sum equal to 1/12th of the operating Payment shown thereon to be due for the
preceding Operating Year multiplied by the number of months (and any fraction
thereof) of the Term then elapsed since the commencement of such Operating Year
in which such Operating Statement is delivered, less Operating Payments
theretofore made by Tenant for such Operating Year and thereafter, commencing
with the then current monthly installment of Fixed Rent and continuing monthly
thereafter until rendition of the next succeeding Operating Statement, Tenant
shall pay on account of the Operating Payment for such Year an amount equal to
1/12th of the Operating Payment shown thereon to be due for the preceding
Operating Year. Any Operating Payment shall be collectible by Landlord in the
same manner as Fixed Rent.
61
66
(D) (1) As used in this Section 27.4, (i) "Tentative
Monthly Escalation Charge" shall mean a sum equal to 1/12th of the product
of (a) Tenant's Share, and (b) the difference between (x) the Base Operating
Expenses and (y) Landlord's estimate of Operating Expenses for the Current
Year, and (ii) "Current Year" shall mean the Operating Year in which a demand
is made upon Tenant for payment of a Tentative Monthly Escalation Charge.
(2) At any time in any Operating Year,
Landlord, at its option, in lieu of the payments required under Section 27.4(C)
hereof, may demand and collect from Tenant, as additional rent, a sum equal to
the Tentative Monthly Escalation Charge multiplied by the number of months in
said Operating Year preceding the demand and reduced by the sum of all payments
theretofore made under Section 27.4(C) with respect to said Operating Year, and
thereafter, commencing with the month in which the demand is made and
continuing thereafter for each month remaining in said Operating Year, the
monthly installments of Fixed Rent shall be deemed increased by the Tentative
Monthly Escalation Charge. Any amount due to Landlord under this Section
27.4(D) may be included by Landlord in any Operating Statement rendered to
Tenant as provided in Section 27.4(B) hereof.
(E) (1) After the end of the Current Year and at any
time that Landlord renders an Operating Statement or Statements to Tenant as
provided in Section 27.4(B) hereof with respect to the comparison of the
Operating Expenses for said Operating Year or Current Year, with the Base
Operating Expenses, as the case may be, the amounts, if any, collected by
Landlord from Tenant under Section 27.4(C) or (D) on account of the Operating
Payment or the Tentative Monthly Escalation Charge, as the case may be, shall
be adjusted, and, if the amount so collected is less than or exceeds the amount
actually due under said Operating Statement for the Operating Year, a
reconciliation shall be made as follows: Tenant shall be debited with any
Operating Payment shown on such Operating Statement and credited with the
amounts, if any, paid by Tenant on account in accordance with the provisions of
subsection (C) and subsection (D)(2) of this Section 27.4 for the Operating
Year in question. Tenant shall pay any net debit balance to Landlord within
fifteen (15) days next following rendition by Landlord of an invoice for such
net debit balance; any net credit balance shall be applied against the next
accruing monthly installments of Fixed Rent.
(2) If the sum of the Tentative Monthly
Escalation Charges and payments made by Tenant in accordance with subsection
(C) of this Section 27.4 for any Operating Year shall have exceeded the
Operating Payment for such Operating Year by more than ten percent (10%),
interest at the Applicable Rate on the portion of the overpayment that exceeds
the applicable Operating Payment by more than ten percent (10%) determined as
of the respective dates of such payments by Tenant and calculated from such
respective dates to the dates on which such amounts are credited against the
monthly installments of Fixed Rent, shall be so credited. Any amount owing to
Tenant subsequent to the Term shall be paid to Tenant within ten (10) Business
Days after a final determination has been made of the amount due to Tenant,
together with interest at the Applicable Rate in accordance with the foregoing.
62
67
Section 27.5. Any Operating Statement sent to Tenant shall be
conclusively binding upon Tenant unless, within ninety (90) days after such
Statement is sent, Tenant shall send a written notice to Landlord objecting to
such Statement and specifying the respects in which such Statement is disputed.
If such notice is sent, Tenant (together with its independent certified public
accountants, provided they are a nationally recognized firm of at least one
hundred fifty (150) partners or principals who are certified public
accountants) may examine Landlord's books and records relating to the Operation
of the Property to determine the accuracy of the Operating Statement. Tenant
recognizes the confidential nature of such books and records and agrees to
maintain the information obtained from such examination in strict confidence.
If after such examination, Tenant still disputes such Operating Statement,
either party may refer the decision of the issues raised to a reputable
independent firm of certified public accountants, selected by Landlord and
approved by Tenant, which approval shall not be unreasonably withheld or
delayed as long as such firm of certified public accountants is a nationally
recognized firm of at least one hundred fifty (150) partners or principals who
are certified public accountants, and the decision of such accountants shall be
conclusively binding upon the parties. The fees and expenses involved in such
decision shall be borne by the unsuccessful party (and if both parties are
partially successful, such fees and expenses shall be apportioned between
Landlord and Tenant in inverse proportion to the amount by which such decision
is favorable to each party). Notwithstanding the giving of such notice by
Tenant, and pending the resolution of any such dispute, Tenant shall pay to
Landlord when due the amount shown on any such Operating Statement, as provided
in Section 27.4 hereof.
Section 27.6. The expiration or termination of this Lease during any
Operating Year or Tax Year shall not affect the rights or obligations of the
parties hereto respecting any payments of Operating Payments for such Operating
Year and any payments of Tax Payments for such Tax Year, and any Operating
Statement relating to such Operating Payment and any Tax Statement relating to
such Tax Payment, may be sent to Tenant subsequent to, and all such rights and
obligations shall survive, any such expiration or termination. In determining
the amount of the Operating Payment for the Operating Year or the Tax Payment
for the Tax Year in which the Term shall expire, the payment of the Operating
Payment for such Operating Year or the Tax Payment for the Tax Year shall be
prorated based on the number of days of the Term which fall within such
Operating Year or Tax Year, as the case may be. Any payments due under such
Operating Statement or Tax Statement shall be payable within thirty (30) days
after such Statement is sent to Tenant.
ARTICLE 28
SERVICES
Section 28.1. (A) Landlord shall provide passenger elevator service to
the Premises on Business Days from 8:00 A.M. to 6:00 P.M. and on Saturdays from
8:00 A.M. to 1:00 P.M. and have an elevator subject to call at all other times.
63
68
(B) There shall be one (1) freight elevator serving the
Premises and the entire Building on call on a "first come, first served" basis
on Business Days from 8:00 A.M. to 5:00 P.M., and on a reservation, "first
come, first served" basis from 5:00 P.M. to 8:00 A.M. on Business Days and at
any time on days other than Business Days. If Tenant shall use the freight
elevators serving the Premises between 5:00 P.M. and 8:00 A.M. on Business Days
or at any time on any other days, Tenant shall pay Landlord, as additional rent
for such use, the standard rates then fixed by Landlord for the Building, or if
no such rates are then fixed, at reasonable rates.
(C) Landlord shall not be required to furnish any freight
elevator services during the hours from 5:00 P.M. to 8:00 A.M. on Business Days
and at any time on days other than Business Days unless Landlord has received
advance notice from Tenant requesting such services prior to 2:00 P.M. of the
day upon which such service is requested or by 2:00 P.M. of the last preceding
Business Day if such periods are to occur on a day other than a Business Day.
Section 28.2. Landlord, at Landlord's expense (but subject to
recoupment pursuant to Article 27 hereof), shall furnish to the perimeter of
the Premises (for distribution by Tenant within the Premises) through the HVAC
System, when required for the comfortable occupancy of the Premises, HVAC on a
year round basis from 8:00 A.M. to 6:00 P.M. on Business Days and from 8:00
A.M. to 1:00 P.M. on Saturdays. Landlord, throughout the Term, shall have free
access to any and all mechanical installations of Landlord, including, but not
limited to, air-cooling, fan, ventilating and machine rooms and electrical
closets; Tenant shall not construct partitions or other obstructions which may
interfere with Landlord's free access thereto, or interfere with the moving of
Landlord's equipment to and from the enclosures containing said installations.
Neither Tenant, nor its agents, employees or contractors shall at any time
enter the said enclosures or tamper with, adjust or touch or otherwise in any
manner affect said mechanical installations. Tenant shall draw and close the
draperies or blinds for the windows of the Premises whenever the HVAC System is
in operation and the position of the sun so requires and shall at all times
cooperate fully with Landlord and abide by all of the regulations and
requirements which Landlord may prescribe for the proper functioning and
protection of the HVAC System.
Section 28.3. The Fixed Rent does not reflect or include any charge to
Tenant for the furnishing of any necessary HVAC to the Premises during periods
other than the hours and days set forth above ("Overtime Periods").
Accordingly, if Landlord shall furnish such HVAC to the Premises at the request
of Tenant during Overtime Periods, Tenant shall pay Landlord additional rent
for such services at the standard rates then fixed by Landlord for the
Building, or if no such rates are then fixed, at reasonable rates. Landlord
shall not be required to furnish any such services during any Overtime Periods
unless Landlord has received advance notice from Tenant requesting such
services prior to 2:00 P.M. of the day upon which such services are requested
or by 2:00 P.M, of the last preceding Business Day if such Overtime Periods are
to occur on a day other than a Business Day. If Tenant fails to give Landlord
such advance notice, then, failure by Landlord to furnish or distribute any
such services during such Overtime Periods shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any
64
69
abatement or diminution of Rental, 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. If more than one tenant
utilizing the same system as Tenant requests the same Overtime Periods for the
same services as Tenant, the charge to Tenant shall be adjusted pro rata.
Section 28.4. Provided Tenant shall keep the Premises in order,
Landlord, at Landlord's expense, subject to recoupment pursuant to Article 27
hereof, shall cause the Premises, excluding any portions thereof used for the
storage, preparation, service or consumption of food or beverages, to be
cleaned, substantially in accordance with the standards set forth in Schedule B
annexed hereto and made a part hereof. Tenant shall pay to Landlord the cost of
removal of any of Tenant's refuse and rubbish from the Premises and the Building
to the extent that the same exceeds the refuse and rubbish usually attendant
upon the use of such Premises as offices. Bills for the same shall be rendered
by Landlord to Tenant at such time as Landlord may elect and shall be due and
payable when rendered as additional rent. Tenant, at Tenant's sole cost and
expense, shall cause all portions of the Premises used for the storage,
preparation, service or consumption of food or beverages to be cleaned daily in
a manner satisfactory to Landlord, and to be exterminated against infestation
by vermin, rodents or roaches regularly and, in addition, whenever there shall
be evidence of any infestation. Any such exterminating shall be done at
Tenant's sole cost and expense, in a manner satisfactory to Landlord, and by
Persons approved by Landlord. If Tenant shall perform any cleaning services in
addition to the services provided by Landlord as aforesaid, Tenant shall employ
the cleaning contractor providing cleaning services to the Building on behalf
of Landlord or such other cleaning contractor as shall be approved by Landlord.
Tenant shall comply with any recycling program and/or refuse disposal program
(including, without limitation, any program related to the recycling,
separation or other disposal of paper, glass or metals) which Landlord shall
impose or which shall be required pursuant to any Requirements.
Section 28.5. If the New York Board of Fire Underwriters or the
Insurance Services Office or any Governmental Authority, department or
official of the state or city government shall require or recommend that any
changes, modifications, alterations or additional sprinkler heads or other
equipment be made or supplied by reason of Tenant's business, or the location of
the partitions, trade fixtures, or other contents of the Premises, Landlord, at
Tenant's cost and expense, shall promptly make and supply such changes,
modifications, alterations, additional sprinkler heads or other equipment.
Section 28.6. Landlord reserves the right to stop service of the HVAC
System or the elevator, electrical, plumbing or other Building Systems when
necessary, by reason of accident or emergency, or for repairs, additions,
alterations, replacements or improvements in the judgment of Landlord desirable
or necessary to be made, until said repairs, alterations, replacements or
improvements shall have been completed (which repairs, additions, alterations,
replacements and improvements shall be performed in accordance with Section
4.3 hereof). Landlord shall have no responsibility or liability for
interruption, curtailment or failure to supply HVAC, elevator, electrical,
plumbing or other Budding Systems when prevented by Unavoidable Delays or by
any
65
70
Requirement of any Governmental Authority or due to the exercise of its right
to stop service as provided in this Article 28. The exercise of such right or
such failure by Landlord shall not constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any compensation or to any
abatement or diminution of Rental, 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.
Section 28.7. Landlord shall make available to Tenant the computerized
directory in the lobby of the Building for up to (---) listings. The initial
programming shall be without charge to Tenant. From time to time, but not more
frequently than once every three (3) months, Landlord shall reprogram the
computerized directory to reflect such changes in the listings therein as
Tenant shall request, and Tenant promptly after request shall pay to Landlord a
reasonable reprogramming charge for each reprogramming Tenant requests. If
Landlord replaces the computerized directory with a standard directory in the
lobby of the Building, Tenant shall be entitled to Tenant's Share of such
listings on such directory.
ARTICLE 29
PARTNERSHIP TENANT
If Tenant is a partnership (including, without limitation, a limited
liability partnership) or a limited liability company or a professional
corporation (or is comprised of two (2) or more Persons, individually or as
co-partners of a partnership (including, without limitation a limited liability
partnership), as members of a limited liability company or as shareholders of a
professional corporation) or if Tenant's interest in this Lease shall be
assigned to a partnership (including, without limitation, a limited liability
partnership) a limited liability company or a professional corporation (or to
two (2) or more Persons, individually or as co-partners of a partnership, as
members of a limited liability company or shareholders of a professional
corporation) pursuant to Article 12 hereof (any such partnership, professional
corporation and such Persons are referred to in this Article 29 as "Partnership
Tenant"), the following provisions shall apply to such Partnership Tenant: (a)
the liability of each of the parties comprising Partnership Tenant shall be
joint and several; (b) each of the parties comprising Partnership Tenant hereby
consents in advance to, and agrees to be bound by (x) any written instrument
which may hereafter be executed by Partnership Tenant or any successor entity,
changing, modifying, extending or discharging this Lease, in whole or in part,
or surrendering all or any part of the Premises to Landlord, and (y) any
notices, demands, requests or other communications which may hereafter be given
by Partnership Tenant or by any of the parties comprising Partnership Tenant;
(c) any bills, statements, notices, demands, requests or other communications
given or rendered to Partnership Tenant or to any of such parties shall be
binding upon Partnership Tenant and all such parties; (d) if Partnership Tenant
shall admit new partners, shareholders or members, as the case may be,
Partnership Tenant shall give Landlord notice of such event not later than ten
(10) Business Days prior to the admission of such partner(s), shareholder(s) or
member(s) together with an assumption agreement in form and substance
66
71
satisfactory to Landlord pursuant to which each of such new partners,
shareholders or members, as the case may be, shall, by their admission to
Partnership Tenant, agree to assume joint and several liability for the
performance of all of the terms, covenants and conditions of this Lease (as the
same may have been or thereafter be amended) on Tenant's part to be observed
and performed; it being expressly understood and agreed that each such new
partner, shareholder or member (as the case may be) shall be deemed to have
assumed joint and several liability for the performance of all of the terms,
covenants and conditions of this Lease (as the same may have been or thereafter
be amended), whether or not such new partner, shareholder or member shall have
executed such assumption agreement, and that neither Tenant's failure to
deliver such assumption agreement nor the failure of any such new partner or
shareholder, as the case may be, to execute or deliver any such agreement to
Landlord shall vitiate the provisions of this clause (d) of this Article 29).
ARTICLE 30
VAULT SPACE
Notwithstanding anything contained in this Lease or indicated on any
sketch, blueprint or plan, any vaults, vault space or other space outside the
boundaries of the Real Property are not included in the Premises. Landlord
makes no representation as to the location of the boundaries of the Real
Property. All vaults and vault space and all other space outside the boundaries
of the Real Property which Tenant may be permitted to use or occupy are to be
used or occupied under a revocable license, and if any such license shall be
revoked, or if the amount of such space shall be diminished or required by any
Governmental Authority or by any public utility company, such revocation,
diminution or requisition shall not constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution
of Rental, or relieve Tenant from any of its obligations under this Lease, or
impose any liability upon Landlord. Any fee, tax or charge imposed by any
Governmental Authority for any such vaults, vault space or other space occupied
by Tenant shall be paid by Tenant.
ARTICLE 31
SECURITY
Tenant shall deposit with Landlord on the signing of this Lease an
amount equal to Fifty Thousand Forty-Two and 50/100 Dollars ($50,042.50), or at
Tenant's option, a "clean," unconditional, irrevocable and transferable letter
of credit (the "Letter of Credit") in the same amounts, satisfactory to
Landlord, issued by and drawn on a bank satisfactory to Landlord and which is a
member of the New York Clearing House Association, for the account of Landlord,
for a term of not less than one (1) year, as security for the faithful
performance and observance by Tenant of the terms, covenants, conditions and
provisions of this Lease, including, without limitation, the surrender of
possession of the Premises to Landlord as herein provided. If an Event of
Default shall occur and be continuing, Landlord may apply the whole or any
part of the security so deposited, or present the Letter of Credit for payment
and apply the whole or any part
67
72
of the proceeds thereof, as the case may be, (i) toward the payment of any
Fixed Rent, Escalation Rent or any other item of Rental as to which Tenant is
in default, (ii) toward any sum which Landlord may expend or be required to
expend by reason of Tenant's default in respect of any of the terms, covenants
and conditions of this Lease, including, without limitation, any damage,
liability or expense (including, without limitation, reasonable attorney's fees
and disbursements) incurred or suffered by Landlord, and (iii) toward any
damage or deficiency incurred or suffered by Landlord in the reletting of the
Premises, whether such damages or deficiency accrue or accrues before or after
summary proceedings or other re-entry by Landlord. If Landlord applies or
retains any part of the proceeds of the Letter of Credit or the security so
deposited, as the case may be, Tenant, upon demand, shall deposit with Landlord
the amount so applied or retained so that Landlord shall have the full deposit
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 or the security, as the case may be, 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 or leasing of the Real
Property or the Building, Landlord shall have the right to transfer the Letter
of Credit or security, as the case may be, to the vendee or lessee and Landlord
shall thereupon be released by Tenant from all liability for the return of such
security or the Letter of Credit as the case may be, and Tenant shall cause the
bank which issued the Letter of Credit to issue an amendment to the Letter of
Credit or issue a new Letter of Credit naming the vendee or lessee as the
beneficiary thereunder. Tenant shall look solely to the new landlord for the
return of the Letter of Credit or the security, as the case may be. The
provisions hereof shall apply to every transfer or assignment of the Letter of
Credit or security made to a new landlord. Tenant shall not assign or encumber
or attempt to assign or encumber the monies deposited herein as security and
neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance. Tenant
shall renew any Letter of Credit from time to time, at least thirty (30) days
prior to the expiration thereof, and deliver to Landlord a new Letter of Credit
or an endorsement to the Letter of Credit and any other evidence required by
Landlord that the Letter of Credit has been renewed for a period of at least
one (1) year. If Tenant shall fail to renew the Letter of Credit as aforesaid,
Landlord may present the Letter of Credit for payment and retain the proceeds
thereof as security in lieu of the Letter of Credit.
ARTICLE 32
CAPTIONS
The captions are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of this Lease nor
the intent of any provision thereof
68
73
ARTICLE 33
PARTIES BOUND
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.
ARTICLE 34
BROKER
Each party represents and warrants to the other that it has not dealt
with any broker or Person in connection with this Lease other than ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Inc. ("Broker") The execution and delivery of this Lease by each party
shall be conclusive evidence that such party has relied upon the foregoing
representation and warranty. Tenant shall indemnify and hold Landlord harmless
from and against any and all claims for commission, fee or other compensation
by any Person (other than Broker) who shall claim to have dealt with Tenant in
connection with this Lease and for any and all costs incurred by Landlord in
connection with such claims, including, without limitation, reasonable
attorneys' fees and disbursements. Landlord shall indemnify and hold Tenant
harmless from and against any and all claims for commission, fee or other
compensation by Broker and any Person who shall claim to have dealt with
Landlord in connection with this Lease and for any and all costs incurred by
Tenant in connection with such claims, including, without limitation,
reasonable attorneys' fees and disbursements. The provisions of this Article 34
shall survive the Expiration Date.
ARTICLE 35
INDEMNITY
Section 35.1. (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 any Requirement, and shall exercise such control
over the Premises as to fully protect Landlord against any such liability.
Tenant shall indemnify and save the Indemnitees harmless from and against (a)
all claims of whatever nature against the Indemnitees arising from any act,
omission or negligence of Tenant, its contractors, licensees, agents, servants,
employees, invitees or visitors, (b) all claims against the Indemnitees
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, (c) all claims against the Indemnitees 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
contractors, licensees, agents, servants, employees, invitees or visitors, and
(d) any breach, violation or non-performance 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
69
74
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, without limitation, attorneys' fees and disbursements)
incurred in or in connection with any such claim or proceeding brought thereon,
and the defense thereof but except with respect to claims with respect to
bodily injury or death, shall be limited to the extent any insurance proceeds
collectible by Landlord under policies owned by Landlord or such injured party
with respect to such damage or injury are insufficient to satisfy same. Tenant
shall have no liability for any consequential damages suffered either by
Landlord or by any party claiming through Landlord.
(B) Except as provided in Articles 4, 9, 10, 13, 28, 36
and 37 hereof and otherwise as expressly provided herein, Landlord shall
indemnify and save Tenant its shareholders, directors, officers, Partners,
employees and agents harmless from and against all claims against Tenant
arising from any direct damage to the Premises and any bodily injury to
Tenant's employees, agents or invitees resulting from the acts, omissions or
negligence of Landlord or its agents. 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,
without limitation, reasonable attorneys' fees and disbursements) incurred in
or in connection with any such claim or proceeding brought thereon, but shall
be limited to the extent any insurance proceeds collectible by Tenant or such
injured party with respect to such damage or injury are insufficient to satisfy
same. Landlord shall have no liability for any consequential damages suffered
either by Tenant or by any party claiming through Tenant.
Section 35.2. If any claim, action or proceeding is made or brought
against either party, which claim, action or proceeding the other party shall
be obligated to indemnify such first party against pursuant to the terms of
this Lease, then, upon demand by the indemnified party, the indemnifying party,
at its sole cost and expense, shall resist or defend such claim, action or
proceeding in the indemnified party's name, if necessary, by such attorneys as
the indemnified party shall approve, which approval shall not be unreasonably
withheld. Attorneys for the indemnifying party's insurer are hereby deemed
approved for purposes of this Section 35.2. Notwithstanding the foregoing, an
indemnified party may retain its own attorneys to defend or assist in defending
any claim, action or proceeding involving potential liability of Five Million
Dollars ($5,000,000) or more, and the indemnifying party shall pay the
reasonable fees and disbursements of such attorneys. The provisions of this
Article 35 shall survive the expiration or earlier termination of this Lease.
ARTICLE 36
ADJACENT EXCAVATION-SHORING
If an excavation shall be made upon land adjacent to the Premises, or
shall be authorized to be made, Tenant, upon reasonable advance notice, shall
afford to the person causing or authorized to cause such excavation, a license
to enter upon the Premises for the purpose of doing such work as said person
shall deem necessary to preserve the wall or the Building from injury or damage
and to support the same by proper foundations, without any claim for damages
70
75
or indemnity against Landlord, or diminution or abatement of Rental, provided
that Tenant shall continue to have access to the Premises and the Building.
ARTICLE 37
MISCELLANEOUS
Section 37.1. This Lease is offered for signature by Tenant and it is
understood that this Lease shall not be binding upon Landlord or Tenant unless
and until Landlord and Tenant shall have executed and unconditionally delivered
a fully executed copy of this Lease to each other.
Section 37.2. 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. The members, partners, shareholders, directors, officers and
principals, direct and indirect comprising Landlord (collectively, the
"Parties") shall not be liable for the performance of Landlord's obligations
under this Lease. Tenant shall look solely to Landlord to enforce Landlord's
obligations hereunder and shall not seek any damages against any of the Parties.
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
Parties in seeking either to enforce Landlord's obligations under this Lease or
to satisfy a judgment for Landlord's failure to perform such obligations.
Section 37.3. Notwithstanding anything contained in this Lease to the
contrary, all amounts payable by Tenant to or on behalf of Landlord under this
Lease, whether or not expressly denominated Fixed Rent, Escalation Rent,
additional rent or Rental, shall constitute rent for the purposes of Section
502(b)(7) of the Bankruptcy Code.
Section 37.4. Tenant's liability for all items of Rental shall survive
the Expiration Date
Section 37.5. Tenant shall reimburse Landlord as additional rent,
within ten (10) days after rendition of a statement, for all expenditures made
by, or damages or fines sustained or incurred by, Landlord, due to any default
by Tenant under this Lease, with interest thereon at the Applicable Rate.
Section 37.6. This Lease shall not be recorded.
Section 37.7. Tenant hereby waives any claim against Landlord which
Tenant may have based upon any assertion that Landlord has unreasonably
withheld or unreasonably delayed any consent or approval requested by Tenant,
and Tenant agrees that its sole remedy shall be an action or proceeding to
enforce any related provision or for specific performance, injunction or
71
76
declaratory judgment. In the event of a determination that such consent or
approval has been unreasonably withheld or delayed, the requested consent or
approval shall be deemed to have been granted; however, Landlord shall have no
liability to Tenant for its refusal or failure to give such consent or
approval. Tenant's sole remedy for Landlord's unreasonably withholding or
delaying consent or approval shall be as provided in this Section 37.7.
Section 37.8. This Lease contains the entire agreement between the
parties and supersedes all prior understandings, if any, with respect thereto.
This Lease shall not be modified, changed, or supplemented, except by a written
instrument executed by both parties.
Section 37.9. Tenant hereby (a) irrevocably consents and submits to
the jurisdiction of any Federal, state, county or municipal court sitting in
the State of New York in respect to any action or proceeding brought therein by
Landlord against Tenant concerning any matters arising out of or in any way
relating to this Lease; (b) irrevocably waives personal service of any summons
and complaint and consents to the service upon it of process in any such action
or proceeding by mailing of such process to Tenant at the address set forth
herein and hereby, irrevocably designates _________________________ or other
law firm located in Manhattan if disclosed to Landlord in writing (or if not so
located, then upon any member of the law firm of _____________________, or
their successor, if so located in Manhattan), to accept service of any process
on Tenant's behalf and hereby agrees that such service shall be deemed
sufficient; (c) irrevocably waives all objections as to venue and any and all
rights it may have to seek a change of venue with respect to any such action or
proceedings; (d) agrees that the laws of the State of New York shall govern in
any such action or proceeding and waives any defense to any action or
proceeding granted by the laws of any other country or jurisdiction unless such
defense is also allowed by the laws of the State of New York; and (e) agrees
that any final judgment rendered against it in any such action or proceeding
shall be conclusive and may be enforced in any other jurisdiction by suit on
the judgment or in any other manner provided by law. Tenant further agrees that
any action or proceeding by Tenant against Landlord in respect to any matters
arising out of or in any way relating to this Lease shall be brought only in
the State of New York, county of New York. In furtherance of the foregoing,
Tenant hereby agrees that its address for notices given by Landlord and service
of process under this Lease shall be the Premises. Notwithstanding the
foregoing provisions of this Section 37.9, Tenant may, by written notice to
Landlord, change the designated agent for acceptance of service of process to
any other law firm located in the City, county and State of New York.
Section 37.10. Unless Landlord shall render written notice to Tenant
to the contrary in accordance with the provisions of Article 26 hereof, MRC
Management LLC is authorized to act as Landlord's agent in connection with the
performance of this Lease, including, without limitation, the receipt and
delivery of any and all notices and consents in accordance with Article 26.
Tenant shall direct all correspondence and requests to, and shall be entitled
to rely upon correspondence received from, MRC Management LLC, as agent for the
Landlord in accordance with Article 26. Tenant acknowledges that MRC Management
LLC, is acting solely as agent for Landlord in connection with the foregoing,
and neither MRC Management LLC nor any of its direct or indirect members,
partners, officers, shareholders, directors or employees shall have any
72
77
liability to Tenant in connection with the performance of Landlord's
obligations under this Lease and Tenant waives any and all claims against any
such party arising out of, or in any way connected with, this Lease or the Real
Property.
Section 37.11. (A) All of the Schedules and Exhibits attached hereto 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 Schedules and Exhibits hereto, the terms and provisions of
this Lease shall control. Wherever appropriate in this Lease, personal pronouns
shall be deemed to include the other genders and the singular to include the
plural. 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.
(B) 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,
(C) 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.
ARTICLE 38
RENT CONTROL
If at the commencement of, or at any time or times during the Term of
this Lease, the Rental reserved in this Lease shall not be fully collectible by
reason of any 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, (a) the Rental shall become and thereafter
be payable hereunder in accordance with the amounts reserved in this Lease for
the periods following such termination, and (b) Tenant shall pay to Landlord,
if legally permissible, an amount equal to (i) the items of Rental which would
have been paid pursuant to this Lease but for such legal rent restriction less
(ii) the rents paid by Tenant to Landlord during the period or periods such
legal rent restriction was in effect.
73
78
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this Lease
as of the day and year first above written
ELEVEN PENN PLAZA LLC, Landlord
By: Vornado M 393 L.L.C., member
By: Vornado Realty L.P., member
By: Vornado Realty Trust, general partner
By: /s/
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President and Chief Financial Officer
By: M 393 Associates LLC, member
By: Vornado M 393 L.L.C.
By: Vornado Realty L.P., member
BY: Vornado Realty Trust, general partner
By: /s/
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President and Chief Financial Officer
▇▇▇.▇▇▇, INC., Tenant
By: /s/
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
Fed. Id. No.
--------------
74
79
STATE OF NEW YORK )
) s.s.:
COUNTY OF NEW YORK )
On the 19 day of July, 1999, before me personally came ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
to me known, who, being by me duly sworn did depose and say that he/she resides
at ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ that he/she is the President of ▇▇▇.▇▇▇,
RIC., the _____________ described and which executed the foregoing instrument;
that he/she signed his/her name thereto by order of the ____________________ of
said _______________.
---------------------------------------
Notary Public
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
State of Florida
My Comm. Exp: 02/27/00
Comm#: CC635542
75
80
Schedule A
RULES AND REGULATIONS
(1) The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors, or halls shall not be obstructed or encumbered by Tenant
or used for any purpose other than ingress and egress to and from the Premises
and for delivery of merchandise and equipment in prompt and efficient manner,
using elevators and passageways designated for such delivery by Landlord.
(2) NO AWNINGS, air-conditioning units, fans or other projections shall
be attached to the outside walls of the Building. No curtains, blinds, shades,
or screens, other than those which conform to Building standards as established
by Landlord from time to time, shall be attached to or hung in, or used in
connection with, any window or door of the Premises, without the prior written
consent of Landlord which shall not be unreasonably withheld or delayed. Such
awnings, projections, curtains, blinds, shades, screens or other fixtures must
be of a quality, type, design and color, and attached in the manner reasonably
approved by Landlord. All electrical fixtures hung in offices or spaces along
the perimeter of the Premises must be of a quality, type, design and bulb
color approved by Landlord, which consent shall not be withheld or delayed
unreasonably unless the prior consent of Landlord has been obtained for other
▇▇▇▇▇▇▇.
(3) No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the outside of the
Premises or Building or on the inside of the Premises if the same can be seen
from the outside of the Premises without the prior written consent of Landlord
except that the name of Tenant may appear on the entrance door of the Premises.
In the event of the violation of the foregoing by Tenant, if Tenant has refused
to remove same after reasonable notice from Landlord, Landlord may remove same
without any liability, and may charge the expense incurred by such removal to
Tenant. Interior signs on doors and directory tablet shall be of a size, color
and style reasonably acceptable to Landlord.
(4) The exterior windows and doors that reflect or admit light and air
into the Premises or the halls, passageways or other public places in the
Building, shall not be covered or obstructed by Tenant.
(5) No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors or
vestibules, nor shall any article obstruct any air-conditioning supply or
exhaust without the prior written consent of Landlord.
(6) The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein.
All damages resulting from any misuse of the fixtures shall be borne by Tenant.
A-1
81
(7) Subject to the provisions of Article 3 of this Lease, Tenant shall
not ▇▇▇▇, paint, drill into, or in any way deface any part of the Premises or
the Building. No boring, cutting or stringing of wires shall be permitted,
except with the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed, and as Landlord may direct.
(8) No space in the Building shall be used for manufacturing, for the
storage of merchandise, or for the sale of merchandise, goods or property of
any kind at auction or otherwise.
(9) Tenant shall not make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them whether by the use of
any musical instrument, radio, television set, talking machine, unmusical
noise, whistling, singing, or in any other way.
(10) Tenant, or any of Tenant's employees, agents, visitors or licensees,
shall not at any time bring or keep upon the Premises any inflammable,
combustible or explosive fluid, chemical or substance except such as are
incidental to usual office occupancy.
(11) No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by Tenant, nor shall any changes be made in existing locks
or the mechanism thereof, unless Tenant promptly provides Landlord with the key
or combination thereto. Tenant must, upon the termination of its tenancy,
return to Landlord all keys of stores, offices and toilet rooms, and in the
event of the loss of any keys furnished at Landlord's expense, Tenant shall pay
to Landlord the cost thereof.
(12) No bicycles, vehicles or animals of any kind except for seeing eye
dogs shall be brought into or kept by Tenant in or about the Premises or the
Building.
(13) All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description must take place in the manner and
during the hours which landlord or its agent reasonably may determine from time
to time. Landlord reserves the right to inspect all safes, freight or other
bulky articles to be brought into the Building and to exclude from the Building
all safes, freight or other bulky articles which violate any of these Rules and
Regulations or the Lease of which these Rules and Regulations are a part.
(14) Tenant shall not occupy or permit any portion of the Premises
demised to it to be occupied as an office for a public stenographer or typist
or for the possession, storage, manufacture, or sale of liquor, narcotics,
dope, or as a ▇▇▇▇▇▇ or manicure shop, or as an employment bureau. Tenant shall
not engage or pay any employees on the Premises, except those actually working
for Tenant at the Premises, nor advertise for labor giving an address at the
Premises.
(15) Tenant shall not purchase spring water, ice, towels or other like
service, or accept bartering or bootblacking services in the Premises, from any
company or persons not approved
A-2
82
by Landlord, which approval shall not be withheld or delayed unreasonably and
at hours and under regulations other than as reasonably fixed by Landlord.
(16) Landlord shall have the right to prohibit any advertising by Tenant
which, in Landlord's reasonable opinion, tends to impair the reputation of the
Building or its desirability as a building for offices, and upon written notice
from Landlord, Tenant shall refrain from or discontinue such advertising.
(17) Landlord reserves the right to exclude from the Building between the
hours of 6 P.M, and 9 A.M. and at all hours on days other than Business Days
all persons who do not present a pass to the Building signed or approved by
Landlord. Tenant shall be responsible for a persons for whom a pass shall be
issued at the request of Tenant and shall be liable to Landlord for all acts of
such persons.
(18) Tenant shall, at its expense, provide artificial light for the
employees of Landlord while doing janitor service or other cleaning, and in
making repairs or alterations in the Premises.
(19) The requirements of Tenant will be attended to only upon written
application at the office of the Building. Building employees shalt not perform
any work or do anything outside of the regular duties, unless under special
instructions from the office of Landlord.
(20) Canvassing, soliciting and peddling in the Building is prohibited
and Tenant shall cooperate to prevent the same.
(21) There shall not be used in any space, or in the public halls of the
Building, either by Tenant or by jobbers or others, in the delivery or receipt
of merchandise, any hand trucks, except those equipped with rubber tires and
side guards.
(22) Except as specifically provided in Section 2.2 of this Lease, Tenant
shall not do any cooking, conduct any restaurant, luncheonette or cafeteria for
the sale or service of food or beverages to its employees or to others, or
cause or permit any odors of cooking or other processes or any unusual or
objectionable odors to emanate from the Premises. Tenant shall not permit the
delivery of any food or beverage to the Premises, except by such persons
delivering the same as shall be approved by Landlord, which approval shall not
be unreasonably withheld or delayed.
(23) Tenant shall keep the entrance door to the Premises closed at all
times.
(24) Landlord shall have the right to require that all messengers and
other Persons delivering packages, papers and other materials to Tenant (i) be
directed to deliver such packages, papers and other materials to a Person
designated by Landlord who will distribute the same to Tenant or (ii) be
escorted by a person designated by Landlord to deliver the same to Tenant
A-3
83
(25) Landlord and its agents reserve the right to inspect all packages,
boxes, bags, handbags, attache cases, suitcases, and other items carried into
the Building, and to refuse entry into the Building to any person who either
refuses to cooperate with such inspection or who is carrying any object which
may be dangerous to persons or property. In addition, Landlord reserves the
right to implement such further measures designed to ensure safety of the
Building and the persons and property located therein as Landlord shall deem
necessary or desirable.
A-4
84
Schedule B
CLEANING SPECIFICATIONS
GENERAL CLEANING:
NIGHTLY
General Offices:
1. All hardsurfaced flooring to be swept using approved dustdown
preparation.
2. Carpet sweep all carpets, moving only light furniture (desks, file
cabinets, etc. not to be moved).
3. Hand dust and wipe clean all furniture, fixtures and window ▇▇▇▇▇.
4. Empty and clean all ash trays and screen all sand urns.
5. Empty and clean all waste disposal cans and baskets.
6. Dust interiors of all waste disposal cans and baskets.
7. Wash clean all water fountains and coolers.
Public Lavatories (Base Building):
1. Sweep and wash all floors, using proper disinfectants.
2. Wash and polish all mirrors, shelves, bright work and enameled
surfaces.
3. Wash and disinfect all basins, bowls and urinals.
4. Wash all toilet seats.
5. Hand dust and clean all partitions, tile walls, dispensers and
receptacles in lavatories and restrooms.
6. Empty paper receptacles and remove wastepaper.
7. Fill and clean all soap, towel and toilet tissue dispensers as
needed, supplies therefore to be furnished by Landlord at a
reasonable charge to Tenant. If the
B-1
85
Premises consists of a part of a rentable floor, said charge to
Tenant shall be that portion of a reasonable charge for such
supplies that is reasonably allocable to Tenant.
8. Empty and clean sanitary disposal receptacles.
WEEKLY:
1. Vacuum clean all carpeting and rugs.
2. Dust all door louvres and other ventilating louvres within a
person's reach.
3. Wipe clean all brass and other bright work.
QUARTERLY:
High dust the Premises complete, including the following:
1. Dust all pictures, frames, charts, graphs and similar wall hangings
not reached in nightly cleaning.
2. Dust clean all vertical surfaces, such as walls, partitions, doors
and door bucks and other surfaces not reached in nightly cleaning.
3. Dust all pipes, ventilating and air-conditioning louvres, ducts,
high mouldings and other high areas not reached in nightly
cleaning.
4. Dust all venetian blinds.
Wash exterior and interior of windows periodically, subject to weather
conditions and requirements of law.
B-2
86
EXHIBIT "A"
FLOOR PLAN
This floor plan is annexed to and made a part of this Lease solely to indicate
the Premises by outlining and diagonal marking. All areas, conditions,
dimensions and locations are approximate.
87
[FLOOR PLAN]
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇ ▇)
88
EXHIBIT "B"
LANDLORD'S WORK
Landlord will, at its expense, perform the following work and installations,
all of which shall be of material, design, capacity, finish and color (if
applicable) of the standard adopted by Landlord for the Building (but in no
event more than the type and quantity of work set forth below):
1 Demolish stud/rock walls in the Premises.
2. Furnish and install Building-standard stud/rock walls in the
Premises (Demised wall, split conference room into two (2) offices,
close off open area and enlarge office in southwest corner).
3. Rework 2' x 2' ceilings as necessary.
4. Relocate supply diffusers as necessary in the Premises.
5. Relocate four (4) 2'x 4' light fixtures in the Premises.
6. Provide and install seven (7) new Building-standard light switches
in the Premises.
7. Recircuit four (4) 2'x 4' light fixtures in the Premises.
8. Relocate one (1) quad receptacle in the Premises.
9. Demolish carpet and cove base in the Premises.
10. Provide and install new Building-standard carpet and
Building-standard vinyl base in the Premises. Tenant shall select
color from Landlord's Building-standard sample book.
11. Relocate one (1) door and frame in the Premises.
12. Remove wall coverings in the Premises and skim coat walls ready for
paint.
13. Demolish 3' x 7' wood and frame and provide and install new
Building-standard painted wood double door and metal frame in the
Premises (to create a finished reception area).
14. Create new opening for door in the Premises and provide and install
new painted Building-standard wood door and metal frame in such
opening.
15. Disconnect power and demolish furniture partitions in the Premises.
16. Power up new furniture partitions in the Premises.
89
17. Remove all office furniture existing in the Premises.
18. Paint walls, doors, frames and convector covers throughout the
Premises with one (1) coat of Building-standard paint, one (1)
color per room. Tenant shall select color from Landlord's Building-
standard color chart.
19. Deliver Premises free and clear of debris.