AGREEMENT OF LEASE
▇▇▇▇ ▇▇▇▇▇▇▇▇ ASSOCIATES Landlord
and
EVERLAST WORLDWIDE, INC.
PREMISES: ▇▇▇▇ ▇▇▇▇▇▇▇▇
ENTIRE ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
DATE: AS OF DECEMBER 1, 2003
TABLE OF CONTENTS
Article Page
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1. PURPOSE...................................................................1
2. RENT......................................................................2
3. ELECTRICITY...............................................................8
4. ASSIGNMENT...............................................................13
5. DEFAULT..................................................................18
6. RE-LETTING, ETC..........................................................19
7. LANDLORD MAY CURE DEFAULTS...............................................19
8. ALTERATIONS..............................................................20
9. LIENS....................................................................21
10. REPAIRS..................................................................22
11. DESTRUCTION..............................................................22
12. END OF TERM..............................................................23
13. SUBORDINATION AND ESTOPPEL, ETC..........................................24
14. CONDEMNATION.............................................................26
15. REQUIREMENTS OF LAW......................................................27
16. CERTIFICATE OF OCCUPANCY.................................................28
17. POSSESSION...............................................................28
18. QUIET ENJOYMENT..........................................................28
19. RIGHT OF ENTRY...........................................................29
20. VAULT SPACE..............................................................29
21. INDEMNITY................................................................29
22. LANDLORD'S LIABILITY.....................................................30
23. CONDITION OF PREMISES....................................................31
24. SERVICES.................................................................31
25. JURY WAIVER, DAMAGES.....................................................32
26. NO WAIVER, ETC...........................................................32
27. OCCUPANCY AND USE BY TENANT..............................................33
28. NOTICES..................................................................34
29. WATER....................................................................35
30. SPRINKLER SYSTEM.........................................................35
31. HEAT, ELEVATOR, ETC......................................................36
32. SECURITY DEPOSIT.........................................................36
33. RENT CONTROL.............................................................38
34. SHORING..................................................................38
35. EFFECT OF CONVEYANCE, ETC................................................38
36. RIGHTS OF SUCCESSORS AND ASSIGNS.........................................38
37. CAPTIONS.................................................................38
38. LEASE SUBMISSION.........................................................39
39. ELEVATORS AND LOADING....................................................39
40. BROKERAGE................................................................39
41. ARBITRATION..............................................................39
42. INSURANCE................................................................39
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43. CHANGE OF LOCATION.......................................................41
44. LATE CHARGES.............................................................42
45. ENVIRONMENTAL COMPLIANCE.................................................42
46. LEASE FULLY NEGOTIATED...................................................43
47. SMOKING RESTRICTIONS.....................................................43
48. ADDITIONAL DEFINITIONS...................................................43
EXHIBIT A - Diagram of Demised Premises
EXHIBIT B - Work Letter
GUARANTEE
Rules and Regulations
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LEASE made as of this 30TH of OCTOBER between ▇▇▇▇ ▇▇▇▇▇▇▇▇ ASSOCIATES, C/O
HELMSLEY-SPEAR, INC. AGENTS ▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇, hereinafter referred to as
"Landlord", and EVERLAST WORLDWIDE, INC with an address at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇.▇. ▇▇▇▇▇ hereinafter referred to as "Tenant".
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord those
certain premises known as ENTIRE 23" FLOOR, ROOM 2412 & 2416, described or
outlined in red on Exhibit A annexed hereto and made part hereof (said premises
are hereinafter referred to as the "demised premises" or the "premises") in the
building known as ▇▇▇▇ ▇▇▇▇▇▇▇▇ ("the building") in the County of New York, City
of New York, for a term to commence on the 1ST day of DECEMBER, 2003, and to
expire on 30TH day of NOVEMBER 2008 or until such term shall sooner end as
herein provided, both dates inclusive, upon the terms and conditions hereinafter
provided.
Landlord and Tenant covenant and agree:
1. PURPOSE
Tenant shall use and occupy the demised premises only for SHOWROOM &
OFFICES FOR THE SALE, AT WHOLESALE ONLY OF WEARING APPAREL relating to Tenant's
business, and for no other purpose. Without limiting the generality of the
foregoing, it is expressly understood that no portion of the demised premises
shall be used as, by or for (a) retail operations of any retail or branch bank,
trust company, a savings bank, industrial bank, savings and loan association,
credit union or personal loan operation, or (b) a public stenographer or typist,
(c) a ▇▇▇▇▇▇ shop, beauty shop, beauty parlor or shop, (d) a telephone or
telegraph agency, (e) a telephone or secretarial service, (f) a messenger
service, (g) a travel or tourist agency, (h) an employment agency, (i) a
restaurant or bar, (j) a commercial document reproduction or offset printing
service, (k) a public vending machines, (1) a retail, wholesale or discount shop
for sale of books, magazines, audio or video tapes, CD ROM, DVD ROM or other
devices for the recording or transmitting of audio or visual signals, images,
music or speech, electronic equipment and accessories or any other merchandise,
(m) a retail service shop, (n) a labor union, (o) a school or classroom, (p) a
governmental or quasi governmental bureau, department or agency, including an
autonomous governmental corporation, embassy or consular office of any country
or other quasi-autonomous or sovereign organization, (q) an advertising agency,
(r) a firm whose principal business is real estate brokerage, (s) a company
engaged in the business of renting office or desk space, (t) any person,
organization, association, corporation, company, partnership entity or other
agency immune from service or suit in the courts of the State of New York or the
assets of which may be exempt from execution by Landlord in any action for
damages, (u) manufacturing or (v) retail sales. Tenant shall not affix any sign
to any window or exterior surface of the demised premises nor install or place
any sign within the demised premises that may be seen from the outside.
2. RENT
Tenant agrees to pay as rent herein provided at the office of Landlord or
such other place as Landlord may designate, payable in United States legal
tender by good and sufficient check drawn on a bank having a branch in the
Borough of Manhattan, City of New York, and without any notice (except as
specifically set forth herein), set off or deduction whatsoever, each of the
types of rent set forth in this Article 2. Any sum other than fixed annual rent
payable hereunder shall be deemed additional rent and due on demand unless
otherwise specifically provided. Landlord shall have the same rights and
remedies hereunder with respect to Tenant's non-payment of additional rent as it
has with respect to Tenant's non-payment of fixed annual rent
A. FIXED ANNUAL RENT: There is herein reserved to Landlord for the entire
term of this lease fixed annual rent equal to the aggregate amount of the sums
hereinafter set forth. Fixed annual rent shall be paid in advance as follows:
Commencing on DECEMBER 1, 2003 and on the first day of each month thereafter
throughout the term of this lease, Tenant shall pay to Landlord, without notice,
deduction, set off or reduction (except as specifically set forth herein),
monthly payments of fixed annual rent equal to one-twelfth (1/12th) of each of
the following annual amounts (except that the first monthly installment of fixed
annual rent is being paid upon the execution hereof):
(i) DECEMBER 1, 2003 through NOVEMBER 30, 2008
FOUR HUNDRED SEVEN THOUSAND SEVEN HUNDRED TWENTY EIGHT AND 66/100 DOLLARS
($407,728.66) per annum of which THIRTY EIGHT THOUSAND FOUR HUNDRED THIRTY SIX
AND 66/100 ($38,436.66 per year) ($3,203.05 per month); represents the electric
inclusion factor of the annual rent which shall be subject to adjustment as
provided in article # 3 A hereof.
If and so long as Tenant is not in default of any obligation on its part to be
performed hereunder, Tenant shall receive a rent credit of NONE to be applied to
NONE.
B. COST OF LIVING ADJUSTMENT: The fixed annual rent reserved in this lease
and payable hereunder shall, be adjusted, as of the times and in the manner set
forth in this paragraph B:
(i) Definitions: For the purposes of this paragraph B, the following
definitions shall apply:
(a) The term "Base Year" shall mean the full calendar year 2003.
(b) The term "Price Index" shall mean the "Consumer Price Index"
published by the Bureau of Labor Statistics of the U.S. Department of
Labor, All Items. New York, N.Y.-Northeastern, N.J., all urban
consumers (presently denominated "CPI-U"), or a successor or
substitute index appropriately adjusted
(c) The term "Price Index for the Base Year" shall mean the average of
the monthly All Items Price Indexes for each of the 12 months of the
Base Year.
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(ii) Effective as of each January and July subsequent to the Base year,
there shall be made a cost of living adjustment of the fixed annual rental rate
payable hereunder in accordance with the provisions of paragraphs (a) and (b)
below to reflect any increase in the Price Index as prescribed therein. The July
adjustment shall be based on the percentage difference between the Price Index
for the preceding month of June and the Price Index for the Base Year. The
January adjustment shall be based on such percentage difference between the
Price index for the preceding month of December and the Price Index for the Base
Year.
(a) In the event the Price Index for June in any calendar year during
the term of this lease reflects an increase over the Price Index for
the Base Year, then the fixed annual rent herein provided to be paid
as of the July 1s' following such month of June (as increased by any
adjustments under this Article, Article 3 and any Rider hereto) shall
be multiplied by the percentage difference between the Price Index for
the Base Year, and the resulting sum shall be added to such fixed
annual rent, effective as of July 1st. Said adjusted fixed annual rent
shall thereafter be payable hereunder, in equal monthly installments,
until it is readjusted pursuant to the terms of this lease.
(b) In the event the Price Index for December in any calendar year
during the term of this lease reflects an increase over the Price
Index for the Base Year, then the fixed annual rent herein provided to
be paid as of the January 1"` following such month of December (as
increased by any adjustments under this Article, Article 3 and any
Rider hereto) shall be multiplied by the percentage difference between
the Price Index for December and the Price Index for the Base Year,
and the resulting sum shall be added to such fixed annual rent
effective as of such January 1st. Said adjusted fixed annual rent
shall thereafter by payable hereunder, in equal monthly installments,
until it is readjusted pursuant to the terms of this lease.
The following illustrates the intentions of the parties hereto as to the
computation of the aforementioned cost of living adjustments in the annual rent
payable hereunder:
Assuming that said fixed annual rent is $10,000, that the Price Index for
the Base Year was 102.0 and that the Price Index for the month of June in a
calendar year following the Base Year was 105.0, then the percentage increase
thus reflected, i.e., 2.941% (3.0/102.0) would be multiplied by $10,000, and
said fixed annual rent would be increased by $294.10 effective as of July 1'` of
said calendar year.
(c) In the event that the Price Index ceases to use 1982-84=100 as the
basis of calculation, or if a substantial change is made in the terms
or number of items contained in the Price index, then the Price Index
shall be adjusted to the figure that would have been arrived at had
the manner of computing the Lice Index in effect at the date of this
lease not been altered. In the event such Price index (or a successor
or substitute index) is not available, a reliable governmental or
other non-partisan publication evaluating the information theretofore
used in determining the Price Index shall be used.
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(iii) Landlord will cause statements of the cost of living adjustments
provided for in subdivision (ii) to be prepared in reasonable detail and
delivered to Tenant.
(iv) In no event shall the fixed annual rent originally provided to be paid
under this lease (exclusive of the adjustments under this Article) be reduced by
virtue of this Article.
(v) Any delay or failure of Landlord, beyond July or January of any year,
computing or billing for the rent adjustment hereinabove provided, shall not
constitute a waiver of or in any way impair the continuing obligation of Tenant
to pay such rent adjustments hereunder.
(vi) Notwithstanding any expiration or termination of this lease prior to
the Lease expiration date (except in the case of a cancellation by mutual
agreement) Tenant's obligation to pay rent as adjusted under this Article shall
continue and shall cover all periods up to the Lease expiration date, and shall
survive, any expiration or termination of this lease.
C. Tax Escalation: Tenant shall pay to Landlord, as additional rent, tax
escalation in accordance with this paragraph C:
(i) Definitions: For the purpose of this Article, the following definitions
shall apply:
(a) The term "base tax year" as hereinafter set forth for the
determination of real estate tax escalation, shall mean the New York
City real estate tax year commencing July 1, 2003 and ending June 30
2004.
(b) The term "The Percentage", for purposes of computing tax
escalation, shall mean THREE AND 27/100 of one percent (3.27%).
(c) The term "the building project" shall mean the aggregate combined
parcel of land on a portion on which the building is constructed and
the building.
(d) The term "comparative year" shall mean the twelve (12) months
following the base tax year, and each subsequent period of twelve (12)
months (or such other period of twelve (12) months occurring during
the term of this lease as hereafter may be duly adopted as the tax
year for real estate tax purposes by the City of New York).
(e) The term "real estate taxes" shall mean the total of all taxes and
special or other assessments levied, assessed or imposed at any time
by any governmental authority upon or against the building project,
and also any tax or assessment levied, assessed or imposed at any time
by any governmental authority in connection with the receipt of income
or rents from said building project to the extent that same shall be
in lieu of all or a portion of any of the aforesaid taxes or
assessments, or additions or increases thereof, upon or against said
building project. It; due to a future change in the method of taxation
or in the taxing authority, or for any other reason, a franchise,
income, transit, profit or other tax or governmental imposition,
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however designated, shall be levied against Landlord in substitution
in whole or in part for the real estate taxes, or in lieu of additions
to or increases of said real estate taxes, then such franchise,
income, transit, profit or other tax or governmental imposition shall
be deemed to be included within the definition of "real estate taxes"
for the purposes hereof. As to special assessments which are payable
over a period of time extending beyond the term of this lease, only a
pro rata portion thereof covering the portion of the term of this
lease unexpired at the time of the imposition of such assessment,
shall be included in "real estate taxes." If by law, any assessment
may be paid in installments, then, for the purposes hereof (a) such
assessment shall be deemed to have been payable in the maximum number
of installments permitted by law and (b) there shall be included in
real estate taxes, for each comparative year in which such
installments may be paid, the installments of such assessment so
becoming payable during such comparative year, together with interest
payable during such comparative year.
(f) Where more than one assessment is imposed by the City of New York
for any tax year, whether denominated an "actual assessment" or
"transitional assessment" or otherwise, then the phrases herein
"assessed value" and "assessments" shall mean whichever of the actual,
transitional or other assessment is designated by the City of New York
as the taxable assessment for that tax year.
(g) The phrase "real estate taxes payable during the base tax years"
shall mean the real estate taxes payable for the building project for
the base tax year.
(ii) (a) In the event that the real estate taxes payable for any
comparative year shall exceed the amount of the real estate taxes
payable during the base tax year, Tenant shall pay to Landlord, as
additional rent for such comparative year, an amount equal to The
Percentage of the excess. Before or after the start of each
comparative year, Landlord shall furnish to Tenant a statement of the
real estate taxes payable for such comparative year, and a statement
of the real estate taxes payable during the base tax year. If the real
estate taxes payable for such comparative year exceed the real estate
taxes payable during the base tax year, additional rent for such
comparative year, in an amount equal to The Percentage of the excess,
shall be due from Tenant to Landlord, and such additional rent shall
be payable by Tenant to Landlord within ten (10) days after receipt of
the aforesaid statement The benefit of any discount for any earlier
payment of prepayment of real estate taxes shall accrue solely to the
benefit of Landlord, and such discount shall not be subtracted from
the real estate taxes payable for any comparative year.
Additionally, Tenant shall pay to Landlord, on demand, a sum equal to
The Percentage of any business improvement district assessment payable by
the building project.
(b) Should the real estate taxes payable during the base tax year be
reduced by final determination of legal proceedings, settlement or
otherwise, then, the real estate taxes payable during the base tax
year shall be correspondingly revised, the additional rent theretofore
paid or payable hereunder for all comparative years shall be
recomputed on the basis of such reduction, and Tenant shall pay to
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Landlord as additional rent, within ten (10) days after being billed
therefor, any deficiency between the amount of such additional rent as
theretofore computed and the amount thereof due as the result of such
recomputations. Should the real estate taxes payable during the base
tax year be increased by such final determination of legal
proceedings, settlement or otherwise, then appropriate recomputation
and adjustment also shall be made.
(c) As long as Tenant is a tenant and is not in default of any
material obligation hereunder, if Tenant shall have made a payment of
additional rent under this paragraph, Landlord shall receive a refund
of any portion of the real estate taxes payable for any comparative
year after the base tax year on which such payment of additional rent
shall have been based, as a result of a reduction of such real estate
taxes by final determination of legal proceedings, settlement or
otherwise, Landlord shall promptly after receiving the refund pay to
Tenant The Percentage of the refund less The Percentage of expenses
(including attorneys' and appraisers' fees) incurred by Landlord in
connection with any such application or proceeding. If prior to the
payment of taxes for any comparative year, Landlord shall have
obtained a reduction of that comparative year's assessed valuation of
the building project, and therefore of said taxes, then the term "real
estate taxes" for that comparative year shall be deemed to include the
amount of Landlord's expenses in obtaining such reduction in assessed
valuation, including attorneys' and appraisers' fees.
(d) The statement of the real estate taxes to be furnished by Landlord
as provided above shall be certified by Landlord and shall constitute
a final determination as between landlord and Tenant of the real
estate taxes for the periods represented thereby, unless Tenant within
thirty (30) days after they are furnished shall give a written notice
to Landlord that it disputes their accuracy or their appropriateness,
which notice shall specify the particular respects in which the
statement is inaccurate or inappropriate. If Tenant shall so dispute
said statement then, pending the resolution of such dispute, Tenant
shall pay the additional rent to Landlord in accordance with the
statement furnished by Landlord
(e) In no event shall the fixed annual rent under this lease
(exclusive of the additional rents under this Article) be reduced by
virtue of this Article.
(f) If the commencement date of the term of this lease is not the
first day of the first comparative year, then the additional rent due
hereunder for such first comparative year shall be a proportionate
share of said additional rent for the entire comparative year, said
proportionate share to be based upon the length of time that the lease
term will be in existence during such first comparative year. Upon the
date of any expiration or termination of this lease (except
termination because of Tenant's default) whether the same be the date
hereinabove set forth for the expiration of the term or any prior or
subsequent date, a proportionate share of said additional rent for the
comparative year during which such expiration or termination occurs
shall immediately become due and payable by Tenant to Landlord, if it
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was not theretofore already billed and paid. The said proportionate
share shall be based upon the length of time that this lease shall
have been in existence during such comparative year. Landlord shall
promptly cause statements of said additional rent for that comparative
year to be prepared and furnished to Tenant. Landlord and Tenant shall
thereupon make appropriate adjustments of amounts then owing.
(g) Landlord's and Tenant's obligations to make the adjustments
referred to in subdivision (f) above shall survive any expiration or
termination of this lease.
(h) Any delay or failure of Landlord in billing any tax escalation
hereinabove provided shall not constitute a waiver of or in any way
impair the continuing obligation of Tenant to pay such tax escalation
hereunder.
D. FAILURE TO ▇▇▇▇: Landlord's failure to ▇▇▇▇ on a timely basis all or any
portion of any amount payable pursuant to this lease for any period during the
term hereof shall neither constitute a waiver of Landlord's right ultimately to
collect such amount or to ▇▇▇▇ Tenant at any subsequent time retroactively for
the entire amount so un-billed (which previously un-billed amount shall be
payable within ten (10) days after demand therefor). Landlord's failure to
render an Escalation Statement with respect to any comparative year shall not
prejudice Landlord's right to thereafter render an Escalation Statement with
respect thereto or with respect to any subsequent comparative year. Tenant's
obligation to pay any fixed annual rent and additional rent shall survive the
expiration or earlier termination of this lease.
E. NO RIGHT TO APPLY SECURITY: Tenant shall not have the right to apply any
security deposited to assure Tenant's faithful performance of Tenant's
obligation hereunder to the payment of any installment of fixed annual rent or
additional rent.
F. NO REDUCTION IN FIXED ANNUAL RENT: In no event shall the fixed annual
rent under this lease be reduced by virtue of any decrease in the amount of any
additional rent payment under this Article or any other provision of this lease.
If landlord receives from Tenant any payment less than the sum of the fixed
annual rent and additional rent then due and owing pursuant to this lease,
Tenant hereby waives its right, if any, to designate the items to which such
payment shall be applied and agrees that Landlord in its sole discretion may
apply such payment in whole or in part to any fixed annual rent, additional rent
or to any combination thereof then due and payable hereunder. Unless Landlord
shall otherwise expressly agree in writing, acceptance of any portion of the
fixed annual rent or additional rent from anyone other than Tenant shall not
relieve Tenant of any of its other obligations under this lease, including the
obligation to pay other fixed annual rent and additional rent, and Landlord
shall have the right at any time, upon notice to Tenant, to require Tenant
(rather than someone other than Tenant) to pay the fixed annual rent and
additional rent payable hereunder directly to Landlord. Furthermore, such
acceptance of fixed annual rent and additional rent shall not be deemed to
constitute Landlord's consent to an assignment of this lease or a subletting or
other occupancy of the demised premises by anyone other than Tenant, nor a
waiver of any of Landlord's right or Tenant's obligations under this lease.
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G. Partial Comparative Year: If the commencement date of the term of this
lease is not the first day of the first comparative year commencing prior to the
term hereof, then the additional rent due under any paragraph of this Article
for the first comparative year (as defined in the relevant paragraph) shall be a
proportionate share of said additional rent for the entire comparative year,
said proportionate share to be based upon the length of time that the Lease term
will be in existence during such first comparative year. Upon the date of any
expiration or termination of this lease (except termination because of Tenant's
default) whether the same be the date herein above set' forth for the expiration
of the term or any prior or subsequent date, a proportionate share of said
additional rent for such comparative year during which such expiration or
termination occurs shall immediately become due and payable by Tenant to
Landlord, if it was not theretofore already billed and paid The said
proportionate share shall be based upon the length of time that this lease shall
have been in existence during such comparative year. Landlord shall, as soon as
reasonably practicable, compute the additional rent due from Tenant, as
aforesaid, which computations, shall either be based on that comparative year's
actual figures or be an estimate based upon the most recent statements
theretofore prepared by Landlord and furnished to Tenant as may be required
under any paragraph in this Article. If an estimate is used, then Landlord shall
cause statements to be prepared on the basis of the comparative year's actual
figures promptly after they are available, and thereupon, Landlord and Tenant
shall make appropriate adjustments of any estimated payments theretofore made.
H. Survival of Obligations: Landlord's and Tenant's obligation to make the
adjustments and payments referred to in this Article shall survive any
expiration or termination of this lease.
3. ELECTRICITY
Tenant agrees that Landlord may furnish electricity to the demised premises
on, at Landlord's option, a "rent inclusion" basis or on a "submetering" basis.
Electricity and electric service, as used herein, shall mean any element
affecting the generation, transmission, and/or redistribution of electricity,
including but not limited to, services which facilitate the distribution of
service.
A. RENT INCLUSION: (i) If and so long as Landlord provides electricity to
the demised premises on a rent inclusion basis, Tenant agrees that the fixed
annual rent shall be increased by the amount of the Electricity Rent Inclusion
Factor ("ERIF'), as hereinafter defined. Tenant acknowledges and agrees (a) that
the fixed annual rent herein above set forth in this lease does not yet, but is
to include an ERIF of ($ 3.18 ) dollars per rentable square foot per annum to
compensate Landlord for electrical wiring and other installations necessary for,
and for its obtaining and making available to Tenant the redistribution of,
electric current as an additional service; and (b) that said ERIF, which shall
be subject to periodic adjustments as hereinafter provided, has been partially
based upon an estimate of Tenant's connected electrical load, which shall be
deemed to be the demand (KW), and hours of use thereof, which shall be deemed to
be the energy (KWH), for ordinary lighting and light office equipment and the
operation of typical small business machines, including copying machines,
personal computers and peripheral equipment such as printers, telephone
switching equipment, facsimile transmission machines (such lighting, machines
and equipment are hereinafter called "Ordinary Equipment") during ordinary
8
business hours ("ordinary business hours" shall be deemed to mean forty-five
(45) hours per week, 8:00 a.m. to 5:00 p.m., Mondays through Fridays, including
holidays), with Landlord providing an average connected load of 4-1/2 ▇▇▇▇▇ of
electricity for all purposes per rentable square foot. Any installation and use
of equipment other than Ordinary Equipment and/or any connected load and/or any
energy usage by Tenant in excess of the foregoing shall result in adjustment of
the ERIF as hereinafter provided. For purposes of this lease the rentable square
foot area of the demised premises shall be deemed to be 12,087 rentable square
feet.
(ii) If the cost to Landlord of electricity shall have been, or shall be,
increased subsequent to May 1, 1996 (whether such change occurs prior to or
during the term of this lease), (a) by change in Landlord's electric rates or
service classifications, or electricity charges, including changes in market
prices, or (b) by any increase in fuel adjustments or (c) by charges of any
kind, or (d) by taxes, imposed or which may be imposed on Landlord's electricity
purchases, or on Landlord's electricity redistribution, or (e) by virtue of any
other cause, then (x) the ERIF, which is a portion of the fixed annual rent,
shall be changed in the same percentage as any such change in cost due to
changes in electric rates, service classifications, or market prices and, also,
(y) Tenant's payment obligation, for electricity redistribution, shall change
from time to time so as to reflect any such increase in any of the items listed
in (b) through (e) of this paragraph. Sales taxes collectible by Landlord under
applicable law in connection with the sale or re-distribution of electricity to
Tenant shall be paid by Tenant to Landlord as additional rent when billed. Any
such percentage change in Landlord's cost due to changes in electric rates,
service classifications or market prices shall be computed by the application of
the average consumption (energy and demand) of electricity for the entire
building for the twelve (12) full months immediately prior to the rate and/or
service classification and/or market price change, or any changed methods of or
rules on billing for same, on a consistent basis to the new rate and/or service
classification and/or market price and to the immediately prior existing rate
and/or service classification and/or market price. If the average consumption of
electricity for the entire building for said prior twelve (12) months cannot
reasonably be applied and used with respect to changed methods of or rules on
billing, then the percentage increase shall be computed by the use of the
average consumption (energy and demand) for the entire building for the first
three (3) months after such change, projected to a full twelve (12) months, so
as to reflect the different seasons; and that same consumption, so projected,
shall be applied to the rate and/or service classification and/or market price
which existed immediately prior to the change. The parties agree that a
reputable, independent electrical consultant, selected by Landlord ("Landlord's
electrical consultant"), shall determine the percentage change for the changes
in the ERIF due to Landlord's changed costs, and that Landlord's electrical
consultant may from time to time make surveys in the demised premises of the
electrical equipment and fixtures and the use of current. If any such survey
shall reflect a connected load in the demised premises in excess of 4-1/2 ▇▇▇▇▇
of electricity for all purposes per rentable square foot and/or energy usage in
excess of ordinary business hours (each such excess is hereinafter called
"excess electricity") then the connected load and/or the hours of use portion(s)
of the then existing ERIF shall each be increased by an amount which is equal to
the product derived from multiplying the then existing ERIF by a fraction, the
numerator of which is the excess electricity (i.e., excess connected load and/or
excess usage) and the denominator of which is the connected load and/or the
energy usage which was the basis for the computation of the then existing ERIF.
Such fractions shall be determined by Landlord's electrical consultant. The
fixed annual rent shall then be appropriately adjusted, effective as of the date
of any such change in connected load and/or usage, as disclosed by said survey.
9
If such survey shall disclose installation and use of other than Ordinary
Equipment, then effective as of the date of said survey, there shall be added to
the ERIF portion of the fixed annual rent (computed and fixed as hereinbefore
described) an additional amount equal to what would be paid under the SC-4 Rate
I Service Classification in effect on the date of this lease (and not the
time-of-day rate schedule) for such load and usage of electricity, with the
connected electrical load deemed to be demand (KW) and the hours of use thereof
deemed to be the energy (KWH), as hereinbefore provided, (which addition to the
ERIF shall be increased by all electricity cost increases of Landlord, as herein
above provided, from May 1, 1996 through the date of billing).
(iii) In no event, whether because of surveys or for any other reason, is
the originally specified per rentable square foot ERIF portion of the fixed
annual rent (plus any net increase thereof, but not decrease, by virtue of all
electric rate or service classification changes subsequent to May 1, 1996) to be
reduced.
B. SUBMETERING: If and so long as Landlord provides electricity to the
demised premises on a submetering basis, Tenant covenants and agrees to purchase
the same from Landlord or Landlord's designated agent at charges, terms and
rates set, from time to time, during the term of this lease by Landlord but not
less than those specified in the service classification in effect on the date of
this lease pursuant to which Landlord then purchased electric current from the
public utility corporation serving the part of the city where the building is
located; provided, however, said charges shall be increased in the same
percentage as any percentage increase in the billing to Landlord for electricity
for the entire building, (a) by reason of increase in Landlord's electric rates
or service classifications, subsequent to January 1, 1970, and so as to reflect
any increase in Landlord's electric charges, including changes in market prices
for electricity from utilities and/or other providers, or (b) by fuel
adjustment, or (c) by taxes or charges of any kind imposed or which may be
imposed on Landlord's electricity purchases, or on Landlord's electricity
redistribution, or (d) by virtue of any other cause subsequent to January 1,
1970. Sales taxes collectible by Landlord under applicable law in connection
with the sale or re-distribution of electricity to Tenant shall be paid by
Tenant to Landlord as additional rent when billed Any such percentage increase
in Landlord's billing for electricity due to changes in rates or service
classifications or market prices shall be computed by the application of the
average consumption (energy and demand) of electricity for the entire building
for the twelve (12) full months immediately prior to the rate and/or service
classification change, or any changed methods of or rules on billing for same,
on a consistent basis to the new rate and/or service classification and to the
service classification in effect on January 1, 1970. If the average consumption
of electricity for the entire building for said prior twelve (12) months cannot
reasonably be applied and used with respect to changed methods of or rules on
billing, then the percentage increase shall be computed by the use of the
average consumption (energy and demand) for the entire building for the first
three (3) months after such change, projected to a full twelve (12) months; and
that same consumption, so projected, shall be applied to the service
classification in effect on January 1, 1970. Where more than one meter measures
the service of Tenant in the building, the service rendered through each meter
may be computed and billed separately in accordance with the rates herein. Bills
therefor shall be rendered at such times as Landlord may elect and the amount,
as computed from a meter, shall be deemed to be, and be paid as, additional
rent. In the event that such bills are not paid within five (5) days after the
same are rendered, Landlord may, without further notice, discontinue the service
of electric current to the demised premises without releasing Tenant from any
10
liability under this lease and without Landlord or Landlord's agent incurring
any liability for any damage or loss sustained by Tenant by such discontinuance
of service. If any tax is imposed upon Landlord's receipt from the sale or
resale of electrical energy or gas or telephone service to Tenant by any
Federal, State or Municipal Authority, Tenant covenants and agrees that where
permitted by law, Tenant's pro rata (based on consumption or estimated
consumption) share of such taxes shall be passed on to, and included in the ▇▇▇▇
o1, and paid by, Tenant to Landlord.
C. GENERAL CONDITIONS: (i) The determinations by Landlord's electrical
consultant shall be binding and conclusive on Landlord and on Tenant from and
after the delivery of a copy of each such relevant determination to Landlord and
Tenant, unless, within fifteen (15) days after delivery thereof, Tenant disputes
such determination. If Tenant so disputes the determination, it shall, at its
own expense, obtain from a reputable, independent electrical consultant its own
determinations in accordance with the provisions of this Article. Tenant's
consultant and Landlord's consultant then shall seek to agree. If they cannot
agree within thirty (30) days, they shall choose a third reputable electrical
consultant, whose cost shall be shared equally by the parties, to make similar
determinations which shall be controlling. (If they cannot agree on such third
consultant within ten (10) days, then either party may apply to the Supreme
Court in the County of New York for such appointment) However, pending such
controlling determinations, Tenant shall pay to landlord the amount of
additional rent or ERIF in accordance with the determinations of Landlord's
electrical consultant If the controlling determinations differ from Landlord's
electrical consultant, then the parties shall promptly make adjustment for any
deficiency owed by Tenant or overage paid by Tenant.
(ii) At the option of Landlord, Tenant agrees to purchase from Landlord or
its agents all lamps and bulbs used in the demised premises and to pay for the
cost of installation thereof. If all or part of the submetering additional rent
or the ERIF payable in accordance with this Article becomes uncollectible or
reduced or refunded by virtue of any law, order or regulation, the parties agree
that, at Landlord's option, in lieu of submetering additional rent or ERIF, and
in consideration of Tenant's use of the building's electrical distribution
system and receipt of redistributed electricity and payment by Landlord of
consultants' fees and other redistribution costs, the fixed annual rental
rate(s) to be paid under this lease shall be increased by an "alternative
charge" which shall be a sum equal to $3.18 per rentable square foot of the
demised premises per year, changed in the same percentage as any increases in
the cost to Landlord for electricity for the entire building subsequent to May
1, 1996 because of electric rate or service classification or market price
changes, as hereinabove provided.
(iii) Landlord shall not be liable to Tenant for any loss or damage or
expense, which Tenant may sustain or incur if either the quantity or character
of electric service is changed or is no longer available or suitable for
Tenant's requirements. Tenant covenants and agrees that at all times its use of
electric current shall never exceed the capacity of existing feeders to the
building or the risers or wiring installation. Tenant agrees not to connect any
additional electrical equipment to the building electric distribution system
which shall increase consumption or demand beyond the capacity and rating of the
electrical system directly servicing the demised premises without the Landlord's
prior written consent, which shall not be unreasonably withheld. Any riser or
risers to supply Tenant's electrical requirements, upon written request of
Tenant, will be installed by Landlord, at the sole cost and expense of Tenant,
if, in Landlord's sole judgment, the same are necessary and will not cause
11
permanent damage or injury to the building or demised premises or cause or
create a dangerous or hazardous condition or entail excessive or unreasonable
alterations, repairs or expense or interfere with or disturb other tenants or
occupants. In addition to the installation of such riser or risers, Landlord
will also at the sole cost and expense of Tenant, install all other equipment
proper and necessary in connection therewith subject to the aforesaid terms and
conditions. The parties acknowledge that they understand that it is anticipated
that electric rates, charges, etc., may be changed by virtue of time-of-day
rates, or other methods of billing, electricity purchases and the redistribution
thereof, and fluctuations in the market price of electricity, and that the
references in the foregoing paragraphs to changes in methods of or rules on
billing are intended to include any such changes. Anything herein above to the
contrary notwithstanding, in no event is the submetering additional rent or
ERIF, or any "alternative charge", to be less than an amount equal to the total
of Landlord's payments to public utilities and/or others for the electricity
consumed by Tenant (and any taxes on Landlord's purchase of the same or on
redistribution of same) plus five (5%) percent for transmission line loss, plus
fifteen (15%) percent for other redistribution costs. Landlord reserves the
right, at any time upon thirty (30) days' written notice, to change its
furnishing of electricity to Tenant from a rent inclusion basis to a submetering
basis, or vice versa. Landlord reserves the right to terminate the furnishing of
electricity on a rent inclusion, submetering, or any other basis at any time,
upon thirty (30) days' written notice to Tenant, in which event Tenant may make
application directly to the public utility and/or other providers for Tenant's
entire separate supply of electric current and Landlord shall permit its wires
and conduits, to the extent available and safely capable, to be used for such
purpose and only to the extent of Tenant's then authorized connected load. Any
meters, risers or other equipment or connections necessary to furnish
electricity on a submetering basis or to enable Tenant to obtain electric
current directly from such utility shall be installed at Tenant's sole cost and
expense. Only rigid conduit or electricity metal tubing (EMT) will be allowed
Landlord, upon the expiration of the aforesaid thirty (30) days' written notice
to Tenant may discontinue furnishing the electric current but this lease shall
otherwise remain in full force and effect. If Tenant was provided electricity on
a rent inclusion basis when it was so discontinued, then commencing when Tenant
receives such direct service and as long as Tenant shall continue to receive
such service, the fixed annual rental rate payable under this lease shall be
reduced by the amount of the ERIF which was payable immediately prior to such
discontinuance of electricity on a rent inclusion basis.
(iv) Alternative Service Providers: Landlord on the date hereof obtains
electric service for the building from Consolidated Edison Company.
Notwithstanding anything herein set forth to the contrary, if permitted by law,
Landlord may contract separately with Consolidated Edison Company and/or one or
more other providers ("Alternative Service Providers") to provide one or more of
the component services which together make up the entire package of electric
service (e.g., transmission, generation, distribution and ancillary services) to
the building. If Landlord elects to contract with any Alternative Service
Provider, Tenant shall cooperate with Landlord and each such Alternative Service
Provider to effect any change to the method or means of providing and
distributing electricity service to the demised premises or any other portion of
the building by reason of such change in the provision of electricity. Such
cooperation shall include but not be limited to providing Landlord or any such
Alternative Service Provider and any other person unimpeded access to the
demised premises and to all wiring, conduit, lines, feeders, cable and risers,
electricity panel boxes and any other component of the electrical distribution
system within or adjacent to the demised premises. Landlord shall not be liable
12
to Tenant for any loss or damage or expense which Tenant may sustain or incur if
such change shall interfere with Tenant's business or either the quantity or
character of electric service is changed, interrupted or is no longer available
or suitable for Tenant's requirements by reason of such change in the provision
of electric service nor shall any such interference, change, interruption,
unavailability or unsuitability constitute an actual or constructive eviction of
Tenant
4. ASSIGNMENT
A. Tenant, for itself, its heirs, distributees, executors, administrators,
legal representatives, successors and assigns, expressly covenants that it shall
not assign, mortgage or encumber this lease, nor underlet, or suffer or permit
the demised premises or any part thereof to be used or occupied by others,
without the prior written consent of Landlord in each instance. The transfer of
a majority of the issued and outstanding capital stock of any corporate tenant
or subtenant of this lease or a majority of the total interests in any
partnership tenant or subtenant or any other form of entity or organization,
however accomplished, and whether in a single transaction or in a series of
transactions, and the conversion of a tenant or subtenant entity to either a
limited liability company or a limited liability partnership, shall be deemed on
assignment of this lease or of such sublease. The merger or consolidation of a
tenant or subtenant, whether a corporation, partnership, limited liability
company or other form of entity or organization, where the net worth of the
resulting or surviving corporation, partnership, limited liability company or
other form of entity or organization, is less than the net worth of Tenant or
subtenant immediately prior to such merger or consolidation shall be deemed an
assignment of this lease or of such sublease. If this lease be assigned, or if
the demised premises or any part thereof be underlet or occupied by anybody
other than Tenant, Landlord may, after default by Tenant, collect rent from the
assignee, undertenant or occupant, and apply the net amount collected to the
rent herein reserved, but no assignment, underletting, occupancy or collection
shall be deemed a waiver of the provisions hereof the acceptance of the
assignee, undertenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Landlord to an assignment or underletting shall not in
any way be construed to relieve Tenant from obtaining the express consent in
writing of Landlord to any further assignment or underletting. In no event shall
any permitted subtenant assign or encumber its sublease or further sublet all or
any portion of its sublet space, or otherwise suffer or permit the sublet space
or any part thereof to be used or occupied by others, without Landlord's prior
written consent in each instance. A modification, amendment or extension of a
sublease shall be deemed a sublease. If any lien is filed against the demised
premises or the building of which the same form a part for brokerage services
claimed to have been performed for Tenant, whether or not actually performed,
the same shall be. discharged by Tenant within ten (10) days thereafter, at
Tenant's expense, by filing the bond required by law, or otherwise, and paying
any other necessary sums, and Tenant agrees to indemnify Landlord and its agents
and hold them harmless from and against any and all claims, losses or liability
resulting from such lien for brokerage services rendered. For the purposes of
this Article, an "interest" shall mean a right to participate, directly or
indirectly, through one or more intermediaries, nominees, trustees or agents, in
any of the profits, losses, dividends, distributions, income, gain, losses or
capital of any entity or other organization.
B. (i) if Tenant desires to assign this lease or to sublet all or any
portion of the demised premises, it shall first submit in writing to Landlord
the documents described in paragraph C below, and shall offer in writing, (a)
13
with respect to a prospective assignment, to assign this lease to Landlord
without any payment of moneys or other consideration therefor, or, (b) with
respect to a prospective subletting, to sublet to Landlord the portion of the
demised premises involved ("Leaseback Area") for the term specified by Tenant in
its proposed sublease or, at Landlord's option, for the balance of the term of
the Lease less one (1) day, and ht the lower of (x) Tenant's proposed subrental
and (y) at the same rate of fixed rent and additional rent, and otherwise on the
same terms, covenants and conditions (including provisions relating to
escalation rents), as are contained herein and as are allocable and applicable
to the portion of the demised premises to be covered by such subletting. The
offer shall specify the date when the Leaseback Area will be made available to
Landlord, which date shall be in no event earlier than ninety (90) days nor
later than one hundred eighty (180) days following the acceptance of the offer.
If an offer of sublease is made, and if the proposed sublease will result in all
or substantially all of the demised premises being sublet, then Landlord shall
have the option to extend the term of its proposed sublease for the balance of
the term of this lease less one (1) day.
(ii) Landlord shall have a period ninety (90) days from the receipt of such
offer (and all documents required under paragraph C below) to either accept or
reject the same. If landlord shall accept such offer (a) Tenant shall then
execute and deliver to Landlord, or to anyone designated or named by Landlord,
an assignment or sublease, as the case may be, in either case in a form
reasonably satisfactory to Landlord's counsel; and (b) if the proposed
transaction is a sublease and Landlord accepts such offer, Tenant, on demand,
shall pay to Landlord or its managing agent (as Landlord shall elect) an amount
equal to the brokerage commissions and any work contribution which would have
been incurred by Tenant but for Landlord's accepting such offer.
(iii) If a sublease is so made it shall expressly:
(a) permit Landlord to make further subleases of all or any part of
the Leaseback Area and (at no cost or expense to Tenant) to make and
authorize any and all changes, alterations, installations and
improvements in such space as necessary;
(b) provide that Tenant will at all times permit reasonably
appropriate means of ingress to and egress from the Leaseback Area;
(c) negate any intention that the estate created under such sublease
be merged with any other estate held by either of the parties;
(d) provide that Landlord shall accept the Leaseback Area "as is"
except that Landlord, at Tenant's expense, shall perform all such work
and make all such alterations as may be required physically to
separate the Leaseback Area from the remainder of the demised premises
and to permit lawful occupancy;
(e) provide that at the expiration of the term of such sublease Tenant
will accept the Leaseback Area in its then existing condition, subject
to the obligations of Landlord to make such repairs thereto as may be
necessary to preserve the Leaseback Area in good order and condition,
ordinary wear and tear excepted;
14
(f) provide that Landlord shall indemnify and save Tenant harmless
from all obligations under this lease as to the Leaseback Area during
the period of time it is so sublet, except for fixed annual rent and
additional rent, if any, due under the within Lease, which are in
excess of the rents and additional sums due under such sublease.
(iv) Subject to the foregoing, performance by Landlord, or its designee,
under a sublease of the Leaseback Area shall be deemed performance by Tenant of
any similar obligation under this lease and any default under any such sublease
shall not give rise to a default under a similar obligation contained in this
lease, nor shall Tenant be liable for any default under this lease or deemed to
be in default hereunder if such default is occasioned by or arises from any act
or omission of the subtenant under such sublease or is occasioned by or arises
from any act or omission of any occupant holding under or pursuant to any such
sublease.
C. If Tenant requests Landlord's consent to a specific assignment or
subletting, it shall submit in writing to Landlord (i) the name and address of
the proposed assignee or subtenant, (ii) a duly executed counterpart of the
proposed agreement of assignment or sublease, (iii) reasonably satisfactory
information as to the nature and character of the business of the proposed
assignee or subtenant, and as to the nature of its proposed use of the space,
and (iv) banking, financial or other credit information relating to the proposed
assignee or tenant reasonably sufficient to enable Landlord to determine the
financial responsibility and character of the proposed assignee or subtenant.
D. If Landlord shall not have accepted Tenant's offer, as provided in
paragraph B, then Landlord will, subject to paragraph F. below, not unreasonably
withhold or delay its consent to Tenant's request for consent to such specific
assignment or subletting, where Tenant will not move the conduct of its business
to another building in New York City. Any consent of Landlord under this Article
shall be subject to the terms of this Article and the effectiveness of any
assignment or sublease under this Article shall be conditioned upon there being
no default by Tenant, beyond any grace period, under any of the terms, covenants
and conditions of this lease at the time that Landlord's consent to any such
subletting or assignment is requested and on the date of the commencement of the
term of any proposed sublease or the effective date of any proposed assignment.
E. Tenant understands and agrees that no assignment or subletting shall be
effective unless and until Tenant, upon receiving any necessary Landlord's
written consent (and unless it was theretofore delivered to Landlord) causes a
duly executed copy of the sublease or assignment to be delivered to Landlord
within ten (10) days after execution thereof. Any such sublease shall provide
that the subtenant shall comply with all applicable terms and conditions of this
lease to be performed by Tenant hereunder. Any such assignment of lease shall
contain an assumption by the assignee of all of the terms, covenants and
conditions of this lease to be performed by Tenant.
15
F. Anything herein contained to the contrary notwithstanding:
(i) Tenant shall not advertise (but may list with brokers) its space for
assignment or subletting at a rental rate lower than the greater of the then
building rental rate for such space or the rental rate then being paid by Tenant
to Landlord.
(ii) The transfer of outstanding capital stock of any corporate tenant, for
purposes of this Article, shall not include sale of such stock by persons other
than those deemed "insiders" within the meaning of the Securities Exchange Act
of 1934 as amended, and which sale is effected through "over-the-counter market"
or through any recognized stock exchange.
(iii) No assignment or subletting shall be made:
(a) To any person or entity which shall at that time be a tenant,
subtenant or other occupant (or an affiliate thereof) of any part of
the building of which the demised premises form a part, or who dealt
with Landlord or Landlord's agent (directly or through a broker) with
respect to space in the building during the twelve (12) months
immediately preceding Tenant's request for Landlord's consent;
(b) By the legal representatives of Tenant or by any person to whom
Tenant's interest under this lease passes by operation of law, except
in compliance with the provisions of this Article;
(c) To any person or entity for the conduct of a business which is not
in keeping with the standards and the general character of the
building of which the demised premises form a part.
(iv) Tenant shall retain the building managing agent as Tenant's broker in
connection with any assignment or subletting, except in connection with a
transaction described in paragraph G or paragraph H.
(v) The listing of any names other than that of Tenant, whether on the
doors of the demised premises or on the building directory shall not be
construed as consent to the occupancy or subletting of all or any portion of the
demised premises or to an assignment of this lease.
G. Anything herein above contained to the contrary notwithstanding, the
offer back to Landlord provisions of paragraph B above shall not apply to, and
Landlord will not unreasonably withhold or delay its consent to an assignment of
this lease, or sublease of all or part of the demised premises, to the parent of
Tenant or to a wholly-owned subsidiary of Tenant or of said parent of Tenant,
provided the net worth of the transferee or subtenant, after such transaction,
is equal to or greater than the greater of Tenant's net worth on the date hereof
or immediately prior to such transaction, and provided also that any such
transaction complies with the other provisions of this Article.
H. Anything herein above contained to the contrary notwithstanding, the
offer back to Landlord provisions of paragraph B above shall not apply to, and
Landlord will not unreasonably withhold or delay its consent to an assignment of
this lease, or sublease of all or part of the demised premises, to any
16
corporation or other entity (a) to which substantially all the assets of Tenant
are transferred or (b) into which Tenant may be merged or consolidated, provided
that the net worth of the resulting or surviving corporation or other entity, as
the case may be, is equal to or greater than the greater of the net worth of
Tenant on the date hereof or the date immediately prior to such merger or
consolidation, and the experience and reputation of such resulting or surviving
corporation or other entity, as the case may be, is qualitatively no less than
that of Tenant and of any guarantor of this lease and provided, also, that any
such transaction complies with the other provisions of this Article.
I. No consent from Landlord shall be necessary under paragraphs G and H
above where (a) reasonably satisfactory proof is delivered to Landlord that the
net worth and other provisions of paragraphs G or If, as the case may be, and
the other provisions of this Article, have been satisfied and (b) Tenant, in a
writing reasonably satisfactory to Landlord's attorneys, agrees to remain
primarily liable jointly and severally with any transferee or assignee, for the
obligations of Tenant under this lease.
J. If Landlord shall not have accepted any required Tenant's offer and/or
Tenant effects any assignment or subletting, then Tenant thereafter shall pay to
Landlord a sum equal to (i) any rent or other consideration paid to Tenant by
any subtenant which (after deducting the costs of Tenant, if any, in effecting
the subletting, including reasonable alteration costs, commissions and legal
fees) is in excess of the rent allocable strictly on a per square foot basis,
without regard to any other allocation of value, by dividing aggregate
consideration by the rentable square feet of the area so sublet) to the
subleased space which is then being paid by Tenant to Landlord pursuant to the
terms hereof; and (ii) any other profit or gain (after deducting any necessary
expenses incurred) realized by Tenant from any such subletting or assignment All
sums payable hereunder by Tenant shall be payable to Landlord as additional rent
upon receipt thereof by Tenant
K. Each subletting pursuant to this Article shall be subject to all of the
covenants, agreements, terms, provisions and conditions contained in this Lease.
Notwithstanding any such subletting to any subtenant and/or acceptance of rent
or additional rent by Landlord from any subtenant, Tenant shall and will remain
fully liable for the payment of the fixed annual rent and additional rent due
and to become due hereunder and for the performance of all the covenants,
agreements, terms, provisions and conditions contained in this Lease on the part
of Tenant to be observed and performed and for all the acts and omissions of any
licensee, subtenant, or any other person claiming under or through any subtenant
that shall be in violation of any of the obligations of this Lease, and any such
violation shall be deemed to be a violation by Tenant. Tenant further agrees
that, notwithstanding any such subletting, no further subletting (including,
without limitation, any extensions or renewals of any initial sublettings) of
the demised premises by Tenant, or any person claiming through or under Tenant
shall, or will be, made, except upon compliance with, and subject to, the
provisions of this Article.
L. Any assignment or transfer shall be made only if, and shall not be
effective until, the assignee shall execute, acknowledge and deliver to Landlord
an agreement, in form and substance reasonably satisfactory to Landlord, whereby
the assignee shall assume all of the obligations of this Lease on the part or
Tenant to be performed or observed and whereby the assignee shall agree that the
provisions contained herein shall, notwithstanding such assignment or transfer,
17
continue to be binding upon it in respect of all future assignments and
transfers. The original named Tenant covenants that, notwithstanding any
assignment or transfer whether or not in violation of the provisions hereof, and
notwithstanding the acceptance of fixed annual rent and/or additional rent by
Landlord from an assignee, transferee or any other party, the original named
Tenant shall remain fully liable for the payment of the fixed annual rent and
additional rent and for the other obligations of this Lease on the part of
Tenant to be performed or observed.
M. If Landlord shall decline to give consent to any proposed assignment or
sublease, or if Landlord shall exercise Landlord's option under paragraph B of
this Article, Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all losses, liabilities, costs and expenses (including
reasonable attorneys' fees) resulting from any claims that may be made against
Landlord by the proposed assignee or subtenant or by any brokers or other
persons claiming a commission or similar compensation in connection with the
proposed assignment or sublease. This provision shall survive the expiration or
sooner termination of this Lease.
N. The joint and several liability of Tenant and any immediate or remote
successor in interest to Tenant, and the due performance of the obligations of
this Lease on Tenant's part to be performed or observed, shall not be
discharged, released or impaired in any respect by any agreement or stipulation
made by Landlord extending the time of, or modifying any of the obligations of,
this Lease, or by any waiver or failure of Landlord to enforce any of the
obligations of this Lease.
O. The listing of a name other than that of Tenant, whether on the doors of
the premises, the building directory or otherwise, shall not vest any right or
interest in this lease or the premises, not -,hall it be deemed to be the
consent of Landlord to any assignment or transfer of this lease, to any sublease
of the premises, or to any use or occupancy thereof by anyone not Tenant.
5. DEFAULT
Landlord may terminate this lease on three (3) days' notice: (a) if fixed
annual rent or additional rent or any other payment due hereunder is not paid
within three (3) days after written notice from Landlord; or (b) if Tenant shall
have failed to cure a default in the performance of any covenant of this lease
(except the payment of rent), or any rule or regulation hereinafter set forth,
within five (5) days after written notice thereof from Landlord, or if default
cannot be completely cured in such time, if Tenant shall not promptly proceed to
cure such default within said five (5) days, or shall not complete the curing of
such default with due diligence; or (c) when and to the extent permitted by law,
if a petition in bankruptcy shall be filed by or against Tenant or if Tenant
shall make a general assignment for the benefit of creditors, or receive the
benefit of any insolvency or reorganization act; or (d) if a receiver or trustee
is appointed for any portion of Tenant's property and such appointment is not
vacated within twenty (20) days; or (e) if an execution or attachment shall be
issued under which the premises shall be taken or occupied or attempted to be
taken or occupied by anyone other than Tenant; or (f) if the premises become and
remain vacant or deserted for a period over ten (10) days; or (g) if Tenant
shall default beyond any grace period under any other lease between Tenant and
Landlord; or (h) if Tenant shall fail to move into or take possession of the
premises within fifteen (15) days after commencement of the term of this lease.
Notwithstanding anything herein to the contrary set forth, Tenant shall not
18
commit waste or cause any damage to any portion of the building irrespective of
whether within or without the demised premises. The willful infliction of damage
on any property or the interference with the quiet enjoyment by any other
occupant of the building shall be deemed to be a conditional limitation of the
term of this lease. Tenant shall not create any nuisance or other disturbance
within the building.
At the expiration of the three (3) day notice period, this lease and any
rights of renewal or extension thereof shall terminate as completely' as if that
were the date originally fixed for the expiration of the term of this lease; but
Tenant shall remain liable as hereinafter provided.
6. RE-LETTING, ETC.
If Landlord shall re-enter the premises on the default of Tenant, by
summary proceedings or otherwise: (a) Landlord may re-let the premises or any
part thereof as Tenant's agent, in the name of Landlord, or otherwise, for a
term shorter or longer than the balance of the term of this lease, and may grant
concessions or free rent; (b) Tenant shall pay Landlord any deficiency between
the rent herein reserved and the net amount of any rents collected by Landlord
for the remaining term of this lease, through such re-letting. Such deficiency
shall become due and payable monthly, as it is determined. Landlord shall have
no obligation to re-let the premises, and its failure or refusal to do so, or
failure to collect rent on re-letting, shall not affect Tenant's liability
hereunder. In computing the net amount of rents collected through such
re-letting, Landlord, may deduct all expenses incurred in obtaining possession
or re-letting the premises, including legal expenses and fees, brokerage fees,
the cost of restoring the premises to good order, and the cost of all
alterations and decorations deemed necessary by Landlord to effect reletting. In
no event shall Tenant be entitled to a credit or repayment for rerental income
which exceed the sums payable to Tenant hereunder or which covers a period after
the original term of this lease; (c) Tenant hereby expressly waives any right of
redemption granted by any present or future law. "Re-enter" and "re-entry" as
used in this lease are not restricted to their technical legal meaning. In the
event of a breach or threatened breach of any of the covenants or provisions
hereof Landlord shall have the right of injunction. Mention herein' of any
particular remedy shall not preclude Landlord from any other available remedy,
and (d) Landlord shall recover as liquidated damages, in addition to accrued
rent and other charges, if Landlord's re-entry is the result of Tenant's
bankruptcy, insolvency, or reorganization, the full rental for the maximum
period allowed by any act relating to bankruptcy, insolvency or reorganization.
If Landlord re-enters the premises for any cause, or if Tenant abandons or
vacates the premises, and after the expiration or sooner termination of the term
of this lease, any property left in the premises by Tenant shall be deemed to
have been abandoned by Tenant, and Landlord shall have the right to retain or
dispose of such property in any manner without any obligation to account
therefor to Tenant If Tenant shall at any time default hereunder, and if
Landlord shall institute an action or summary proceeding against Tenant based
upon such default, then Tenant will reimburse landlord for the legal expenses
and fees thereby incurred by Landlord.
7. LANDLORD MAY CURE DEFAULTS
If Tenant shall default in performing any covenant or condition of this
lease, Landlord may perform the same for the account of Tenant, and if landlord,
in connection therewith, or in connection with any default by Tenant, makes any
19
expenditures or incurs any obligations for the payment of money, including but
not limited to attorneys' fees and disbursements, such sums so paid or
obligations incurred shall be deemed to be additional rent hereunder, and shall
be paid by Tenant to Landlord, together with interest at an annual rate equal to
the average of all prime rates published from time to time in The Wall Street
Journal (Eastern Edition) plus three (3%) percent calculated from the date of
each expenditure by Landlord, within five (5) days of rendition of any ▇▇▇▇ or
statement therefor, and if Tenant's lease term shall have expired at the time of
the making of such expenditures or incurring such obligations, such sums shall
be recoverable by Landlord as damages.
8. ALTERATIONS
A. Tenant shall make no decoration, alteration, addition or improvement
("alteration") in the premises, without the prior written consent of Landlord,
and then only by contractors or mechanics and in such manner and with such
materials as shall be approved by Landlord. All alterations, additions or
improvements to the Premises, including window and central air conditioning
equipment and duct work, if any, and fixtures, equipment and built-ins, except
movable office furniture and equipment installed at the expense of Tenant,
shall, unless Landlord elects otherwise in writing, become the property of
Landlord, and shall be surrendered with the premises at the expiration or sooner
termination of the term of this lease. Any such alterations, additions and
improvements which Landlord shall designate, shall be removed by Tenant and any
damage repaired, at Tenant's expense prior to the expiration of the term of this
lease.
B. Anything in this Article to the contrary notwithstanding, Landlord shall
not unreasonably withhold or delay approval of written requests of Tenant to
make nonstructural interior alterations in the demised premises, provided that
such alterations do not affect utility services or plumbing and electrical lines
or other systems of the building. All alterations shall be performed in
accordance with the following conditions:
(i) All alterations requiring the submission of plans to any governmental
agency (including the department of buildings of the City of New York) shall be
performed in accordance with plans and specifications first submitted to
Landlord for its prior written approval. Landlord shall be given, in writing, a
good description of all other alterations.
(ii) All alterations shall be performed in a good and workmanlike manner.
Tenant shall, prior to the commencement of any such alterations, at its sole
cost and expense, obtain and exhibit to Landlord any governmental permit
required in connection with such alterations.
(iii) All alterations shall be done in compliance with all other applicable
provisions of this lease, all building regulations (including specifications for
construction material and finishes criteria adopted by Landlord for the
building) and with all applicable laws, ordinances, directions, rules and
regulations of governmental authorities having jurisdiction, including, without
limitation, the Americans with Disabilities Act of 1990, as amended, New York
City Local Law No. 5/73 and New York City Local Law No. 58/87 and similar
present or future laws, and regulations issued pursuant thereto, and also New
York City Local Law No. 76 and similar present or future laws, and regulations
issued pursuant thereto, on abatement, storage, transportation and disposal of
20
asbestos, which work, if required, shall be effected at Tenant's sole cost and
expense, by contractors and consultants approved by Landlord and in strict
compliance with the aforesaid rules and regulations and with Landlord's rules
and regulations thereon. Notwithstanding anything to the contrary herein
contained, Tenant agrees not to penetrate or disrupt the structural columns of
the building located within the demised premises or any area within three feet
of any such structural column, in connection with any alteration performed for
or on behalf of Tenant.
(iv) All work shall be performed with union labor having the proper
jurisdictional qualifications by contractors and subcontractors approved by
landlord.
(v) Tenant shall keep the building and the demised premises free and clear
of all liens for any work or mat-at claimed to have been furnished to Tenant or
to the demised premises.
(vi) All work to be performed by Tenant shall be done in a manner which
will not interfere with or perform the disturb other tenants and occupants of
the building. No demolition or core drilling or welding shall be permitted r
default by between the hours of 7:00 a.m. and 6:00 p.m. on Mondays through
Fridays.
(vii) All alterations or other work and installations in and for the
demised premises, which shall be consented to by Landlord as provided herein,
including without limitation, Tenant's Initial Installations (as hereinafter
defined), if any, and any further changes in or additions to the demised
premises after said initial work has been completed, shall, at Landlord's
option, be effected on Tenant's behalf by Landlord, its agents or contractors,
and Tenant shall pay to Landlord, as additional rent promptly when billed, all
costs for such work, including labor, materials and general conditions, plus,
for supervising and coordinating such work (regardless of whether Landlord, its
agents or contractors perform such work), ten (10%) percent of the cost of such
work (including overhead) for profit plus ten (10%) percent of the cost of such
work for overhead.
(viii) Notwithstanding anything herein set forth to the contrary, within
thirty (30) days after final completion of any alteration, Tenant shall deliver
to the Landlord final record drawings of the alteration including as may be
pertinent to the work performed, a reflected ceiling plan, mechanical and
electrical drawings, partition plan and any other drawings which may be required
to indicate accurately the layout and systems of the demised premises. Tenant
shall require its architect to load and maintain such record plans on a CADD
system.
(ix) For the purposes hereof, alterations or improvements referred to in
this Article include Tenant's Installation Work and building Work (as each is
defined in Exhibit B) to be performed by Tenant, provided that Exhibit B shall
govern with respect to the subject matter thereof in case of any conflict with
this Article 8.
9. LIENS
Prior to commencement of its work in the demised premises, Tenant shall
obtain and deliver to Landlord a written letter of authorization, in form
reasonably satisfactory to Landlord's counsel, signed by architects, engineers,
designers and consultants to become involved in such work, which shall confirm
that any of their drawings or plans are to be removed from any filing with
21
governmental authorities, on request of Landlord, in the event that said
architect, engineer or designer thereafter no longer is providing services with
respect to the demised premises. With respect to contractors, subcontractors,
materialmen and laborers, and architects, engineers and designers, for all work
or materials to be furnished to Tenant at the premises, Tenant agrees to obtain
and deliver to Landlord written and unconditional waivers of mechanics liens
upon the premises or the building, after payments to the contractors, their
subcontractors and vendors, Tenant's architects, engineers, designers and
consultants, subject to any then applicable provisions of the Lien law.
Notwithstanding the foregoing, Tenant at its expense shall cause any lien filed
against the premises or the building, for work or materials claimed to have been
furnished to Tenant, to be discharged of record within thirty (30) days after
notice thereof.
10. REPAIRS
Tenant shall take good care of the premises and the fixtures and
appurtenances therein, and shall make all repairs necessary to keep them in good
working order and condition, including structural repairs when those are
necessitated by the act, omission or negligence of Tenant or its agents,
employees or invitees. luring the term of this lease, Tenant may have the use of
any air-conditioning equipment located in the premises, and Tenant, at its own
cost and expense, shall maintain and repair such equipment and shall reimburse
Landlord, in accordance with Article 3 of this lease, for electricity consumed
by the equipment The exterior walls of the building, the windows and the
portions of all window ▇▇▇▇▇ outside same and areas above any hung ceiling are
not part of the premises demised by this lease, and Landlord hereby reserves all
rights to such parts of the building. Landlord shall replace, at the expense of
Tenant, any plate glass and other glass damaged or broken from any cause
whatsoever in and about the demised premises. landlord may insure, and keep
insured, at Tenant's expense, all plate and other glass in the demised premises
for and in the name of Landlord. Bills for the premium therefor shall be
rendered by Landlord to Tenant at such times as Landlord may elect and shall be
due from and payable by Tenant when rendered and the amount thereof shall be
deemed to be and paid as additional rent
11. DESTRUCTION
If the premises shall be partially damaged by fire or other casualty, the
damage shall be repaired at the expense of Landlord, but without prejudice to
the rights of subrogation, if any, of Landlord's insurer. Landlord shall not be
required to repair or restore any of Tenant's property or any alteration or
leasehold improvement made by or for Tenant at Tenant's expense. Tenant shall
give Landlord prompt notice of any damage or destruction to the premises. The
rent shall ▇▇▇▇▇ in proportion to the portion of the premises not usable by
Tenant Landlord shall not be liable to Tenant for any delay in restoring the
premises, Tenant's sole remedy being the right to an abatement of rent, as above
provided. If (i) the premises are rendered wholly untenantable by fire or other
casualty and if Landlord shall decide not to restore the premises, (ii) the
premises are rendered wholly untenantable by fire or other casualty during the
last twenty-four (24) months of the term hereof, or (iii) if the building shall
be so damaged that Landlord shall decide to demolish it or to rebuild it
(whether or not the premises have been damaged), landlord may within ninety (90)
days after such fire or other cause give written notice to Tenant of its
election that the term of this lease shall automatically expire no less than ten
(10) days after such notice is given. Notwithstanding the foregoing, each party
shall look first to any insurance in its favor before making any claim against
22
the other party for recovery for loss or damage resulting from fire or other
casualty, and to the extent that such insurance is in force and collectible and
to the extent permitted by law, Landlord and Tenant each hereby releases and
waives all right of recovery against the other or any one claiming through or
under each of them by way of subrogation or otherwise. The foregoing release and
waive shall be in force only if both releasors' insurance policies contain a
clause providing that such a release or waiver shall not invalidate the
insurance and also, provided that such a policy can be obtained without
additional premiums. Tenant hereby expressly waives the provisions of Section
227 of the Real property law and agrees that the foregoing provisions of this
Article shall govern and control in lieu thereof.
12. END OF TERM.
Tenant shall surrender the premises to Landlord at the expiration or sooner
termination of this lease in good order and condition, except for reasonable
wear and tear and damage by fire or other casualty, and Tenant shall remove all
of its property. Tenant agrees that any personal property remaining in the
demised premises following the expiration of the term of this lease (or such
earlier date as of which the term hereof may have been terminated) shall for all
purposes be deemed conveyed to and to be the property of Landlord who shall be
free to dispose of such property, at Tenant's cost, in any manner Landlord deems
desirable. Landlord may retain or assign any salvage or other residual value of
such property. In consideration of Landlord's disposing of such property, Tenant
shall reimburse Landlord or pay to Landlord any cost which Landlord may incur in
disposing of such property within ten (10) days after demand therefor. Tenant
hall indemnify and save Landlord harmless against all costs, claims, loss or
liability resulting from delay by Tenant in so surrendering the premises,
including, without limitation, any claims made by any succeeding tenant founded
on such delay. Additionally, the parties recognize and agree that other damage
to Landlord resulting from any failure by Tenant timely to surrender the
premises will be substantial, will exceed the amount of monthly rent theretofore
payable hereunder, and will be impossible of accurate measurement. Tenant
therefore agrees that if possession of the premises is not surrendered to
Landlord within one (1) day after the expiration or sooner termination of the
term of this lease, then Tenant will pay Landlord as liquidated damages for each
month and for each portion of any month during which Tenant holds over in the
premises after expiration or termination of the term of this lease, a sum equal
to three times the average rent and additional rent which was payable per month
under this lease during the last six months of the term thereof. The aforesaid
obligations shall survive the expiration or sooner termination of the term of
this lease. Anything in this lease to the contrary notwithstanding, the
acceptance of any rent shall not preclude Landlord from commencing and
prosecuting a holdover or summary eviction proceeding, and the preceding
sentence shall be deemed to be an agreement expressly "providing otherwise"
within the meaning of Section 232-c of the Real Property Law of the State of New
York and any successor law of like import Tenant expressly waives, for itself
and for any person or entity claiming through or under the Tenant, any rights
which the Tenant or any such person or entity 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 the Landlord may institute. Tenant's obligations under this
paragraph shall survive the expiration or sooner termination of the term of this
lease. At any time during the term of this lease, Landlord may exhibit the
premises to prospective purchasers or mortgagees of Landlord's interest therein.
23
During the last year of the term of this lease, Landlord may exhibit the
premises to prospective tenants.
13. SUBORDINATION AND ESTOPPEL, ETC.
A. This lease and Tenant's rights hereunder are and shall be subject and
subordinate to and all master leases of the building project, ground or
underlying leases and to all mortgages, building loan agreements, leasehold
mortgages, spreader and consolidation agreements and other similar documents and
instruments (individually, a "Superior Interest" and collectively, "Superior
Interests"), which may now or hereafter affect such leases or the real Property
of which the premises form a part and to all renewals, modifications,
consolidations, replacements, extensions, assignments, spreaders, consolidations
and refinancings thereof and to all advances made or hereafter neat of made
thereunder. This Article shall be self-operative and no further instrument of
subordination shall be necessary. In confirmation of such subordination, Tenant
shall within ten (10) days after written request execute any instrument in
recordable form that Landlord or the holder of any Superior Interest may
request. Tenant hereby appoints Landlord as Tenant's irrevocable
attorney-in-fact to execute any document of subordination on behalf of Tenant.
The foregoing power of attorney is a power coupled with an interest and not
revocable during the term of this lease, In the event that the Master Lease or
any other ground or underlying lease is terminated, or any mortgage foreclosed,
this lease shall not terminate or be terminable by Tenant unless Tenant was
specifically named in any termination or foreclosure judgment or final order for
the purposes of terminating this lease or the interest of Tenant in the
Premises.
B. Any holder of a Superior Interest may elect that this lease shall have
priority over such Superior Interest and, upon notification by such holder of a
Superior Interest to Tenant, this lease shall be deemed to have priority over
such Superior Interest, whether this lease is dated prior to or subsequent to
the date of such Superior Interest. In the event that any master lease or any
other ground or underlying lease is terminated as aforesaid, or if the interests
of Landlord under this lease are transferred by reason of or assigned in lieu of
foreclosure or other proceedings for enforcement of any mortgage, or if the
holder of any mortgage acquires a lease in substitution therefor, or if the
holder of any Superior Interest shall otherwise succeed to Landlord's estate in
the lease or the building, or the rights of Landlord under this lease, then
Tenant will, at the option to be exercised in writing by the lessor under any
such master lease or other ground or underlying lease, the holder of any other
Superior Interest or such purchaser, assignee or lessee, as the case may be, (i)
attorn to it and will perform for its benefit all the terms, covenants and
conditions of this lease on the Tenant's part to be performed with the same
force and effect as if said lessor, mortgagee or such purchaser, assignee or
lessee, were the landlord originally named in this lease, or (ii) enter into a
new lease with said lessor, `mortgagee or such purchaser, assignee or lessee, as
landlord, for the remaining term of this lease and otherwise on the same terms,
conditions and rentals as herein provided. The foregoing provisions shall inure
to the benefit of any such successor landlord, shall apply notwithstanding that,
as a matter of law, this lease may terminate upon the termination of any
Superior Interest, shall be self-operative upon any such request and no further
instrument shall be required to give effect to said provisions; provided,
however, that upon request of any such successor landlord, Tenant shall promptly
execute and deliver, from time to time, any instrument in recordable form that
any successor landlord may reasonably request to evidence and confirm the
foregoing provisions of this paragraph, in form _and content reasonably
24
satisfactory to each such successor landlord, acknowledging such attornment and
setting forth the terms and conditions of its tenancy. Upon such attornment,
this lease shall continue in full force and effect as a direct lease between
such successor landlord and Tenant upon all of the then executory terms of this
lease except that such successor landlord shall not be: (a) liable for any
previous act or omission or negligence of any prior landlord under this lease
(including, without limitation, Landlord); (b) subject to any counterclaim,
demand, defense, deficiency, credit or offset which Tenant might have against
any prior landlord under this lease (including, without limitation, Landlord);
(c) bound by any modification, amendment, cancellation or surrender of this
lease or by any prepayment of more than one month's rent or additional rent,
unless such modification, cancellation, surrender or prepayment shall have been
approved in writing by the successor landlord; (d) bound by any security
deposit, cleaning deposit or other prepaid charge which Tenant might have paid
in advance to any prior landlord under this lease (including, without
limitation, Landlord), unless such payments have been received by the successor
landlord, and (e) bound by any agreement of any landlord under the lease
(including, without limitation, Landlord) with respect to the completion of any
improvements affecting the premises, the building, the land or any part thereof
or for the payment or reimbursement to Tenant of any contribution to the cost of
the completion of any such improvements.
C. If the then current term of any master, ground or other underlying lease
to which this lease is subordinate shall expire prior to the date set forth
herein for the expiration of this lease, then, unless (1) the term of such
underlying or other lease shall have been extended, which extension Landlord may
arbitrarily decline to enter into, or (ii) the holder of any Superior Interest
shall elect, in writing, to have Tenant attorn to it, the term of this lease
shall expire on the date of the expiration of any master, ground or other
underlying lease to which this lease is ,subordinate, notwithstanding the later
termination date herein above set forth. If any such master, ground or other
underlying lease is renewed or if the holder of any Superior Interest shall
elect, in writing, to have Tenant attorn to it, then the term of this lease
shall expire as herein above set forth and, Tenant shall attorn to the holder of
such Superior Interest on the terms and conditions set forth herein for
attornment.
D. From time to time, Tenant, on ten (10) days' prior written request by
Landlord, will deliver to Landlord and the holder of any Superior Interest a
statement in writing certifying that this lease is unmodified and is in full
force and effect (or if there have been modifications, that the same is in full
force and effect as modified and stating the modifications) and the dates to
which the rent and other charges have been paid, stating the date of expiration
of the term hereof and whether any renewal options exists (and if so, the terms
thereof), stating whether any defense or counterclaim to the payment of any rent
exists, whether any allowance or work is due to Tenant from Landlord, stating
whether or not the Landlord is in default in performance of any covenant,
agreement or condition contained in this lease and, if so, specifying each such
default of which Tenant may have knowledge and containing such other information
as the holder of any Superior Interest may request. If Tenant shall fail to
deliver such a statement within such ten (10) day period, Landlord is hereby
appointed the true and lawful attorney-in-fact of Tenant, coupled with an
interest, for the purpose of executing and delivering such statement on behalf
of Tenant. Nothing contained herein will be deemed to impair any right,
privilege or option of the holder of any Superior Interest. If, in connection
with obtaining, continuing or renewing financing or refinancing for the building
and/or the land, the lender shall request reasonable modifications to this lease
25
as a condition to such financing or refinancing, Tenant will not unreasonably
withhold, delay or defer its consent, thereto, provided that such modifications
do not materially and adversely increase the obligations of Tenant hereunder
(except, perhaps, to the extent that Tenant may be required to give notices of
any defaults by Landlord to such lender with the granting of such additional
time for such curing as may be required for such lender to get possession of the
said building and/or land) or materially and adversely affect the leasehold
interest hereby created or the rights of Tenant thereunder. If any act or
omission by Landlord shall give Tenant the right, immediately or after the lapse
of time, to cancel or terminate this lease or to claim a partial or total
eviction, Tenant shall not exercise any such right until: (a) it shall have
given written notice of such act or omission to each holder of any Superior
Interest of which it has written notice, and (b) a reasonable period for
remedying such act or omission shall have elapsed following such notice (which
reasonable period shall be `equal to the period to which Landlord would be
entitled under this lease to effect such remedy, plus an additional thirty (30)
day period), provided such holder or lessor shall, with reasonable diligence,
give Tenant notice of its intention to remedy such act or omission and shall
commence and continue to act upon such intention.
14. CONDEMNATION
A. In the event that the whole of the demised premises shall be lawfully
condemned or taken in any manner for any public or quasi public use or purpose,
this lease and .the term and estate hereby granted shall forthwith cease and
terminate as of the date of vesting of title (hereinafter referred to as the
"date of taking"), and Tenant shall have no claim against Landlord for, or make
any claim for, the value of any unexpired term of this lease, and the rent and
additional rent shall be apportioned as of such date.
B. In the event that any part of the demised premises shall be so condemned
or taken, then this lease shall be and remain unaffected by such condemnation or
taking, except that the rent and addition l rent allocable to the part so taken
shall be apportioned as of the date of taking, provided, however, that Tenant
may elect to cancel this lease in the event more than twenty-five (25%) percent
of the demised premises should be so condemned or taken, provided such notice of
election is given by Tenant to Landlord not later than thirty (30) days after
the date when title shall vest in the condemning authority. Landlord shall
promptly give Tenant copies of any notice received from the condemning authority
as to vesting. Upon the giving of such notice, this lease shall terminate on the
thirtieth day following the date of such notice and the rent and additional rent
shall be apportioned as of such termination date. Upon such partial taking and
this lease continuing in force as to any part of the demised premises, the rent
and additional rent shall be diminished by an amount representing the part of
said rent and additional rent properly applicable to the portion or portions of
the demised premises which may be so condemned or taken. If as a result of the
partial taking (and this lease continuing in force as to the part of the demised
premises not so taken), any part of the demised premises not taken is damaged,
Landlord agrees with reasonable promptness to commence the work necessary to
restore the damaged portion to the condition existing immediately prior to the
taking (subject to paragraph D below), and prosecute the same with reasonable
diligence to its completion. In the event Landlord and Tenant are unable to
agree as to the amount by which the rent and additional rent shall be
diminished, the matter shall be determined by arbitration in New York City.
26
C. Nothing herein provided shall preclude Tenant from appearing, claiming,
proving and receiving in the condemnation proceeding, Tenant's moving expenses,
and the value of Tenant's fixtures, or Tenant's alterations, installations and
improvements which do not become part of the building, or property of Landlord;
or, in the case of temporary taking, so long as rent hereunder is paid to
Landlord, Tenant may make a claim for rental value and damages to the demised
premises (which are of a nature that Tenant is obligated hereunder to repair
same) or damages to Tenant's furniture and fixtures.
D. In the event that only a part of the demised premises shall be so taken
and Tenant shall not have elected to cancel this lease as above provided, the
entire award for a partial taking shall be paid to Landlord, and Landlord, at
Landlord's own expense, shall to the extent of the net proceeds (after deducting
reasonable expenses including attorneys' and appraisers' fees) of the award
restore the unaffected part of the building to substantially the same condition
and tenantability as existed prior to the taking.
E. Until said unaffected portion is restored, Tenant shall be entitled to a
proportionate abatement of rent for that portion of the premises which is being
restored and is not usable until the completion of the restoration or until the
said portion of the premises is used by Tenant, whichever occurs sooner. Said
unaffected portion shall be restored within a reasonable time but not more than
six (6) months after the taking, provided, however, if Landlord is delayed by
strike, lockout, the elements, or other causes beyond Landlord's control, the
time for completion shall be extended for a period equivalent to the delay.
Should Landlord fail to complete the restoration within the said six (6) months
or the time as extended, Tenant may elect to cancel this lease and the term
hereby granted provided such notice of election is given by Tenant to Landlord
not later than thirty (30) days after the end of said six (6) months of time or
the time as extended.
15. REQUIREMENTS OF LAW
A. Tenant at its expense shall comply with all laws, orders and regulations
of any governmental authority having or asserting jurisdiction over the
premises, which shall impose any violation, order or duty upon Landlord or
Tenant with respect to the premises or the use or occupancy thereof including,
without limitation, compliance in the premises with New York City Local Law No.
5173, and all City, State and Federal laws, rules and regulations on the
disabled or handicapped, on fire safety and on hazardous materials. The
foregoing shall not require Tenant to do structural work but shall require
Tenant to perform work, including asbestos abatement and abatement of any other
hazardous or toxic material that may become necessary by reason of any Tenant
installation, alteration, improvement or work.
B. Tenant shall require every person engaged by him to clean any window in
the premises from the outside, to use the equipment and safety devices required
by Section 202 of the Labor Law and the rules of any governmental authority
having or asserting jurisdiction.
C. Tenant at its expense shall comply with all requirements of the New York
Board of Fire Underwriters, or any other similar body affecting the premises and
shall not use the premises in a manner which shall increase the rate of fire
insurance of Landlord or of any other tenant, over that in effect prior to this
lease. If Tenant's use of the premises increases the fire insurance rate, Tenant
27
shall reimburse Landlord for all such increased costs. That the premises are
being used for the purpose set forth in Article 1 hereof shall not relieve
Tenant from the foregoing duties, obligations and expenses.
D. It is expressly agreed that if in consequence of the use of the demises
premises for manufacturing purposes any governmental authority requires
alterations and additions to such premises or the building of which they are a
part, Landlord, in addition to other remedies provided for in this lease, shall
have the option of terminating this lease on sixty (60) days' written notice to
Tenant. Upon expiration of said sixty (60) days, the term of this lease shall
terminate, and Tenant shall immediately vacate the premises. In such event,
Landlord shall refund to Tenant the unearned pro rata portion of any rent paid
in advance. Landlord reserves the privilege of complying with any order, rule or
regulation as aforementioned in order to remove such violation, if any. In such
event, Tenant waives any and all claims for damages growing out of the work in
the building or on the premises in connection therewith. In the event that the
violation can be removed by Tenant's limiting the number of employees in the
demised premises, Tenant shall so limit the number of employees immediately and
no claim for damages or any loss may be made against Landlord therefor.
16. CERTIFICATE OF OCCUPANCY
Tenant will at no time use or occupy the premises in violation of the
certificate of occupancy issued for the building. The statement in this lease of
the nature of the business to be conducted by Tenant shall not be deemed to
constitute a representation or guaranty by Landlord that such use is lawful or
permissible in the premises under the certificate of occupancy for the building.
17. POSSESSION
If Landlord shall be unable to give possession of the premises on the
commencement date of the terra because of the retention of possession of any
occupant thereof alteration or construction work, or for any other reason except
as hereinafter provided, Landlord shall not be subject to any liability for such
failure. In such event, this lease shall stay in full force and effect, without
extension of its term. However, the rent hereunder shall not commence until the
premises are available for occupancy by Tenant. If delay in possession is due to
work, changes or decorations being made by or for Tenant, or is otherwise caused
by Tenant, there shall be no rent abatement and the rent shall commence on the
date specified in this lease. If permission is given to Tenant to occupy the
demised premises or other premises prior to the date specified as the
commencement of the term, such occupancy shall be deemed to be pursuant to the
terms of this lease, except that the parties shall separately agree as to the
obligation of Tenant to pay rent for such occupancy. The provisions of this
Article are intended to constitute an "express provision to the contrary" within
the meaning of Section 223(a), New York Real Property Law.
18. QUIET ENJOYMENT
Landlord covenants that if Tenant pays the rent and performs all of
Tenant's other obligations under this lease, Tenant may peaceably and quietly
enjoy the demised premises, subject to the terms, covenants and conditions of
28
this lease and to the Master Lease and other Superior Interests.
19. RIGHT OF ENTRY
Tenant shall permit Landlord to erect and maintain pipes and conduits in
and through the premises. Landlord or its agents shall have the right to enter
or pass through the premises at all times, by master key, by reasonable force or
otherwise, to examine the same, to exhibit the space to prospective tenants,
purchasers, investors and lenders, and to make such repairs, installations,
alterations or additions as to the building or the premises as may be required
by law or as Landlord may deem necessary or desirable, and to take into and
store within and upon the premises all' material that may be used in connection
with any such repair, installation, alteration or addition work. Such entry,
storage and work in connection with any such repair, installation, alteration or
addition shall not constitute an eviction (whether actual or constructive) of
Tenant in whole or in part or breach of the covenant of quiet enjoyment, shall
not be grounds for any abatement of rent, and shall not impose any liability on
Landlord to Tenant by reason of inconvenience or injury to Tenant's business or
to the demised premises. Landlord shall have the right at any time, without the
same constituting an actual or constructive eviction, and without incurring any
liability to Tenant, to change the arrangement and/or location of entrances or
passageways, windows, corridors, elevators, stairs, toilets, or other public
parts of the building, and to change the name or number by which the building is
known.
20. VAULT SPACE
Anything contained in any plan or blueprint to the contrary
notwithstanding, no vault or other space not within the building property line
is demised hereunder. Any use of such space by Tenant shall be deemed to be
pursuant to a license, revocable at will by Landlord, without diminution of the
rent payable hereunder. If Tenant shall use such vault space, any fees, taxes or
charges made by any governmental authority for such space shall be paid by
Tenant.
21. INDEMNITY
Tenant shall defend, indemnify and hold harmless Landlord, its agents,
officers, directors, shareholders, partners, principals, employees and tenants
in common (whether disclosed or undisclosed) (hereinafter collectively the
"Landlord Parties") from and against any and all claims, demands, liability,
losses, damages, costs and expenses (including reasonable attorneys' fees and
disbursements) arising from or in connection with: (a) any breach or default by
Tenant in the full and prompt payment and performance of Tenant's obligations
hereunder, (b) the use or occupancy or manner of use or occupancy of the demised
premises by Tenant or any person claiming under or through Tenant; (c) any act,
omission or negligence of Tenant or any of its subtenants, assignees or
licensees or its or their partners, principals, directors, officers, agents,
invitees, employees, guests, customers or contractors during the term hereof,
(d) any accident, injury or damage occurring in or about the demised premises
during the term hereof; (e) the performance by Tenant of any alteration in the
demised premises including, without limitation, Tenant's failure to obtain any
permit, authorization or license or failure to pay in full any contractor,
subcontractor or materialmen performing work on such alteration; and (f)
mechanics lien filed, claimed or asserted in connection With any alteration or
any other work, labor, services or materials done for or supplied to, or claimed
29
to have been done for or supplied to, or claimed to have been done for or
supplied to Tenant, or any person claiming through or under Tenant. If any
claim, action or proceeding is brought against any of the Landlord Parties for a
matter covered by this indemnity, Tenant, upon notice from the indemnified
person or entity, shall defend such claim, action or proceeding with counsel
reasonably satisfactory to Landlord and the indemnified person or entity. The
provisions of this Article shall survive the expiration or sooner termination of
this lease.
22. LANDLORD'S LIABILITY
A. If, by reason of (i) strike, (ii) labor troubles, (iii) governmental
pre-emption in connection with a national emergency, (iv) any rule, order or
regulation of any governmental agency, (v) conditions of supply or demand, (vi)
conditions affected by, or actions taken by Landlord or others reasonably
intended to assure the health, security or safety of the building or any person
in response to, war, any act of terrorism or violence (even if not directed at
the building or any occupant thereof), or other national, state or municipal
emergency (whether or not officially proclaimed by any governmental authority)
or (vii) any other cause beyond Landlord's control, Landlord does not fulfill
any obligation under this Lease or shall be unable to supply any service which
Landlord is obligated to supply, this lease and Tenant's obligation to pay rent
hereunder shall in no wise be affected, impaired or excused. As Landlord shall
learn of the happening of any of the foregoing conditions, Landlord shall
promptly notify Tenant of such event and, if ascertainable, its estimated
duration, and will proceed promptly and diligently with the fulfillment of its
obligations as soon as reasonably possible.
B. This lease and the obligations of Tenant hereunder shall in no way be
affected because Landlord is unable to fulfill any of its obligations or to
supply any service (e.g., heat, electricity, air conditioning (if Landlord is
obligated hereunder to furnish the same), elevators, water), by reason of any of
the causes set forth in paragraph A above. Landlord shall have the right,
without incurring any liability to Tenant, to stop any service because of
accident or emergency, or for repairs, alterations or improvements, necessary or
desirable in the judgment of Landlord to the building or the demised premises,
until such repairs, alterations or improvements shall have been completed.
Landlord shall not be liable to Tenant or anyone else, for any loss or damage to
person, property or business, unless due to the negligence of Landlord nor shall
Landlord be liable for any latent defect in the premises or the building.
Landlord or its agents shall not be liable for any damage to property of Tenant
or of others entrusted to employees of the building nor for the loss of or
damage to any property of Tenant by theft or otherwise. Landlord or its agents
shall not be liable for any injury or damage to persons or property resulting
from fire, explosion, falling ceilings, falling plaster, steam, gas,
electricity, water, rain or snow or leaks from any part of said building or from
the pipes, appliances or plumbing works or from the roof, street or subsurface
or from any other place or by dampness or by any other cause or whatsoever
nature, including but not limited to the making or repairs and improvements,
unless caused by or due to the negligence of Landlord, its agents, servants or
employees; nor shall Landlord or its agents be liable for any such damage caused
by other tenants or persons in said building or caused by operations in
construction of any private, public or quasi public work; nor shall Landlord be
liable for any latent defect in the demised premises or in the building. Tenant
shall give immediate notice to Landlord in case of fire or accidents i n the
demised premises or in the building or of defects therein or in any fixtures or
equipment. TENANT AGREES TO LOOK SOLELY TO LANDLORD'S ESTATE AND INTEREST IN THE
30
LAND AND BUILDING, OR THE LEASE OF THE BUILDING OR OF THE LAND AND BUILDING, AND
THE DEMISED PREMISES, FOR THE SATISFACTION OF ANY RIGHT OR REMEDY OF TENANT FOR
THE SATISFACTION OF A JUDGMENT (OR OTHER JUDICIAL PROCESS) REQUIRING THE PAYMENT
OF MONEY BY LANDLORD, IN THE EVENT OF ANY LIABILITY BY LANDLORD, AND NO OTHER
PROPERTY OR ASSETS OF LANDLORD SHALL BE SUBJECT TO LEVY, EXECUTION OR OTHER
ENFORCEMENT PROCEDURE FOR THE SATISFACTION OF TENANTS REMEDIES UNDER OR WITH
RESPECT TO THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT HEREUNDER, OR
TENANTS USE AND OCCUPANCY OF THE DEMISED PREMISES OR ANY OTHER LIABILITY OF
LANDLORD TO TENANT (EXCEPT FOR NEGLIGENCE, IN WHICH CASE TENANT MAY ALSO LOOK TO
THE PROCEEDS OF ANY INSURANCE; CARRIED BY LANDLORD AND NOT PAYABLE UNDER
INSURANCE TO BE MAINTAINED BY TENANT PURSUANT TO THE TERMS HEREOF).. IN NO EVENT
SHALL TENANT BE ENTITLED TO MAKE, NOR SHALL TENANT MAKE, ANY CLAIM, AND TENANT
HEREBY WAIVES ANY CLAIM, FOR MONEY DAMAGES (NOR SHALL TENANT CLAIM ANY MONEY
DAMAGES BY WAY OF SET-OFF, COUNTERCLAIM OR DEFENSE) BASED UPON ANY CLAIM OR
ASSERTION BY TENANT THAI LANDLORD HAS UNREASONABLY WITHHELD OR UNREASONABLY
DELAYED ITS CONSENT OR APPROVAL TO A PROPOSED ASSIGNMENT OR SUBLETTING AS
PROVIDED FOR IN THIS LEASE TENANT'S SOLE REMEDY SHALL BE AN ACTION OR PROCEEDING
TO ENFORCE ANY SUCH PROVISION, OR FOR SPECIFIC PERFORMANCE, INJUNCTION OR
DECLARATORY JUDGMENT.
23. CONDITION OF PREMISES
Tenant expressly acknowledges that it has inspected the demised premises
and is fully familiar with the physical condition thereof. Tenant agrees to
accept the demised premises in their "as is" condition. Tenant acknowledges that
Landlord (i) has made no representation respecting the physical condition of the
demised premises, including the existence or non-existence of any hazardous
substances, any defects or other matters concerning their physical condition and
(ii) shall have no obligation to do any work in and to the demised premises in
order to make them suitable and ready for occupancy and use by Tenant, except
such "building Work" as may specifically be set forth in Exhibit B (Work Letter)
annexed hereto and made part hereof.
24. SERVICES
A. landlord shall provide no services, except as specifically set forth in
this lease.
B. Tenant shall keep the demised premises clean and in good order to the
satisfaction of Landlord and remove its own refuse and rubbish. Tenant agrees to
employ any contractor (including Landlord's personnel or a division of Landlord
or affiliates of Landlord), as Landlord may from time to time designate to
remove Tenant's refuse and rubbish from the building, for any waxing, polishing
and other maintenance work in the demised premises and of the Tenant's
furniture, fixtures and equipment, provided that the prices charged by said
contractor are comparable to the prices charged by other contractors for the
31
same work. Tenant agrees that it shall not employ any other cleaning and
maintenance contractor, nor any individual, firm or organization for such
purpose without Landlord's prior written consent. If Landlord arid Tenant cannot
agree on whether the prices being charged by the contractor designated by the
Landlord are comparable to those charged by other contractors, Landlord and
Tenant shall each obtain two bona fide bids for such work from reputable
contractors, and the average of the four bids thus obtained shall be the
standard of comparison. Landlord shall not be obligated to provide cleaning
services, except Landlord shall clean the halls, corridors and public portions
of the building.
25. JURY WAIVER, DAMAGES
THE PARTIES HERETO HEREBY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW,
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF
SUCH PARTIES AGAINST THE OTHER WITH RESPECT TO ANY MATTER WHATSOEVER ARISING OUT
OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND
TENANT, TENANTS USE OR OCCUPANCY OF THE DEMISED PREMISES, OR FOR THE ENFORCEMENT
OF ANY REMEDY WHETHER PURSUANT TO STATUTE, IN CONTRACT OR TORT, AND IRRESPECTIVE
OF THE NATURE OR BASIS OF THE CLAIM INCLUDING BREACH OF AN OBLIGATION TO MAKE
ANY PAYMENT, FRAUD, DECEIT, MISREPRESENTATION OF FACT, FAILURE TO PERFORM ANY
ACT, NEGLIGENCE, MISCONDUCT OF ANY NATURE OR VIOLATION OF STATUTE, RULE,
REGULATION OR ORDINANCE. IF LANDLORD COMMENCES AGAINST TENANT ANY SUMMARY
PROCEEDING OR OTHER ACTION TO RECOVER POSSESSION OF THE DEMISED PREMISES OR TO
RECOVER ANY RENT, TENANT SHALL NOT INTERPOSE ANY COUNTERCLAIM OF WHATEVER NATURE
OR DESCRIPTION IN ANY SUCH PROCEEDING OR ACTION. NO DAMAGES SHALL BE AWARDED AND
TENANT HEREBY WAIVES ANY CLAIM FOR DAMAGES (WHETHER ACTUAL, COMPENSATORY,
CONSEQUENTIAL, SPECIAL OR PUNITIVE) IN ANY ACTION OR PROCEEDING (WHETHER
JUDICIAL OR AN ARBITRATION) RELATING TO LANDLORD'S WITHHOLDING, DELAYING OR
CONDITIONING ANY CONSENT OR APPROVAL OR THE REASONABLENESS OF ANY SUCH
WITHHOLDING, DELAY OR CONDITION.
26. NO WAIVER, ETC.
No act or omission of Landlord or its agents shall constitute an actual or
constructive partial or total eviction or give rise to a right of Tenant to
terminate this Lease or receive an abatement of any portion of its rent, or to
be relieved of any other obligation hereunder or to be compensated for any loss
or injury suffered by it, except as otherwise explicitly set forth herein. In
the event that any payment herein provided for by Tenant to Landlord shall
become overdue for a period in excess of ten (10) days, then at Landlord's
option a "late charge" shall become due and payable to Landlord, as additional
rent, from the date it was due until payment is made at the following rates: for
individual and partnership Tenants, said late charge shall be computed at the
maximum legal rate of interest, for corporate or governmental entity Tenants the
late charge shall be computed at two (2%) percent per month unless there is an
applicable maximum legal rate of interest which then shall be used. No act or
32
omission of Landlord or its agents shall constitute acceptance of a surrender of
the premises, except a writing signed by Landlord. The delivery of keys to
Landlord or its agents shall not constitute a termination of this lease or a
surrender of the premises. Acceptance by Landlord of less than the rent herein
provided ,hall at Landlord's option be deemed on account of earliest rent
remaining unpaid. No endorsement on any check, or letter accompanying rent,
shall be deemed an accord and satisfaction, and such check may be cashed without
prejudice to Landlord. No waiver of any provision of this lease shall be
effective, unless such waiver be in writing signed by Landlord. This lease
contains the entire agreement between the parties, and no modification thereof
shall be binding unless in writing and signed by the party concerned. Tenant
shall comply with the rules and regulations set forth on Schedule A attached
hereto and made a part hereof, and any reasonable modifications thereof or
additions thereto. Landlord shall not be liable to Tenant for the violation of
such rules and regulations by any other tenant Failure of Landlord to enforce
any provision of this lease, or any rule or regulation, shall not be construed
as the waiver of any subsequent violation of a provision of this lease, or any
rule or regulation. This lease shall not be affected by nor shall Landlord in
any way be liable for the closing, darkening or bricking up of windows in the
premises, for any reason, including as the result of construction on any
property of which the premises are not a part or by Landlord's own acts.
27. OCCUPANCY AND USE BY TENANT
A. Tenant acknowledges that its continued occupancy of the demised
premises, and the regular conduct of its business therein, are of utmost
importance to the Landlord in the renewal of other leases in the building, in
the renting of vacant space in the building, in the providing of electricity,
air conditioning, steam and other services to the tenants in the building, and
in the maintenance of the character and quality of the tenants in the building.
Tenant therefore covenants and agrees that it will occupy the entire demised
premises, and will conduct its business therein in the regular and usual manner,
throughout the term of this lease. Tenant acknowledges that Landlord is
executing this lease in reliance upon these covenants, and that these covenants
are a material element of consideration inducing the Landlord to execute this
lease. Tenant further agrees that if it vacates the demised premises or fails to
so conduct its business therein, at any time during the term of this lease,
without the prior written consent of the Landlord, then all rent and additional
rent reserved in this lease from the date of such breach to the expiration date
of this lease ,hall become immediately due and payable to Landlord.
B. The parties recognize and agree that the damage to Landlord resulting
from any breach of the covenants in subdivision (A) hereof will be extremely
substantial, will be far greater than the rent payable for the balance of the
term of this lease, and will be impossible of accurate measurement The parties
therefore agree that in the event of a breach or threatened breach of the said
covenants, in addition to all of Landlord's other rights and remedies, at law or
in equity or otherwise, Landlord shall have the right of injunction to preserve
Tenant's occupancy and use. The words "become vacant or deserted" as used
elsewhere in this lease shall include Tenant's failure to occupy or use as by
this Article required
C. If Tenant breaches either of the covenants in subdivision (A) above, and
this lease shall be terminated because of such default, then, in addition to
Landlord's right of reentry, restoration, preparation for and, rerental, and
anything elsewhere in this lease to the contrary notwithstanding, Landlord shall
33
retain its right to judgment on and collection of Tenant's aforesaid obligation
to make a single payment to Landlord of a sum to the total of all rent and
additional rent reserved for the remainder of the original term of this lease,
subject to future credit or repayment to Tenant in the event of any rerenting of
the premises by Landlord, after first from rerental income all expenses incurred
by Landlord in reducing to judgment or otherwise collecting Tenant aforesaid
obligation, and in obtaining possession of restoring, preparing for and
re-letting the premises. In no event shall Tenant be entitled to a credit or
repayment for rerental income which exceeds the sums payable by Tenant hereunder
or which covers a period after the original term of this lease.
D. Tenant shall not obstruct or permit the obstruction of the light, halls,
areas, roof, stairway or entrances to the building, and will not affix, erect or
inscribe any signs, projections, awnings, signals or advertisements of any kind
to any part of the premises including the inside or outside of the windows or
doors thereof and will not paint the outside of the doors thereof or the inside
or outside of the windows thereof unless and until the style, size, color,
construction and location thereof have been approved in writing by Landlord.
Landlord shall have the right to withdraw such approval at any time and to
require Tenant to remove any such signs, projections, awnings, signals or
advertisements. Landlord also reserves to itself the sole right to designate the
person, firm or corporation which shall do the work of lettering and erecting of
any and all signs to be affixed to the premises or the building. In the event
that said work is done by Tenant through any person, firm or corporation, other
than that designated by Landlord, Landlord is hereby given the right to remove
said signs without being liable to Tenant by reason thereof and to charge the
cost of so doing to Tenant as additional rent payable on the first day of the
next following month, or at Landlord's option, on the first day of any
subsequent month.
28. NOTICES
A. In order to be effective, any notice, demand, consent or approval (a
"Notice") hereunder shall be in writing (except as otherwise expressly stated
herein) and signed by the party giving such Notice. The attorneys for the
parties are authorized to give any Notice which may be given by the parties
themselves hereunder. Any Notice in writing, except as otherwise provided in the
preceding sentence, shall be personally delivered, sent by .a nationally
recognized courier service or mailed by registered or certified mail, return
receipt requested, addressed as follows:
If to Landlord:
c/o Helmsley-Spear, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
34
with a copy sent simultaneously and in like manner to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to Tenant, at:
Attention:
Notices in writing shall be deemed given three days after mailing same by
certified mail, return receipt requested, the next business day if the Notice is
sent by overnight courier or the same day if the Notice is sent by hand so that
it is received during normal business hours. Each party shall have the right to
change its address for Notices, by giving Notice in the manner set forth herein,
provided, however, Notice of a change in address shall not be deemed Mi-red
until actually received.
29. WATER
Tenant shall pay the amount of Landlord's cost for all water used by Tenant
for any purpose other than ordinary lavatory uses, and any sewer rent or tax
based thereon. Landlord may install a water meter to measure Tenant's water
consumption for all purposes and Tenant agrees to pay for the installation and
maintenance thereof and for water consumed as shown on said meter. If water is
made available to Tenant in the building or the demised premises through a meter
which also supplies other premises, or without a meter, then Tenant shall pay to
Landlord $NONE per month for water.
30. SPRINKLER SYSTEM
If there shall be a "sprinkler system" in the demised premises for any
period during this lease, Tenant shall pay $ NONE per month, for sprinkler
supervisory service. If such sprinkler system is damaged by any act or omission
of Tenant or its agents, employees, licensees or visitors, Tenant shall restore
the system to good working condition at its own expense. If the New York Board
of Fire Underwriters, the New York Fire Insurance Exchange, the Insurance
Services Office or any governmental authority requires the installation or any
alteration to a sprinkler system by reason of Tenant's occupancy or use of the
premises, including any alteration necessary to obtain the full allowance for a
sprinkler system in the fire insurance rate of Landlord, or for any other
reason, Tenant shall made such installation or alteration promptly, and at its
own expense.
35
31. HEAT, ELEVATOR, ETC.
A. Landlord shall provide elevator service during all usual business hours
(8 A.M. to 6 P.M.), including Saturdays from 8 A.M. until 1 P.M., except on
Sundays, State holidays, Federal holidays, or building Service Employees Union
Contract holidays. Landlord shall furnish heat to the premises during the same
hours on the same days in the cold season in each year. Landlord, its cleaning
contractor and their employees shall have after-hours access to the demised
premises and the use of Tenant's light, power and water in the demised premises
as may be reasonably required for the purpose of cleaning the demised premises.
Landlord may remove Tenant's extraordinary refuse from the building and Tenant
shall pay the cost thereof. If the elevators in the building are manually
operated, Landlord may convert to automatic elevators at any time, without in
any way affecting Tenant's obligations hereunder.
B. In no event shall Landlord be required to furnish heat, air-conditioning
or ventilation during hours other than those as set forth in paragraph A above;
provided, however, that Landlord shall provide after-hours air-conditioning or
after-hours heating at Landlord's then existing schedule of rates for overtime
air-conditioning and after-hours heating for tenants in the building, provided
that Tenant shall give notice to Landlord, requesting such after-hours
air-conditioning or heating, prior to 3:00 p.m. in the case of after hours
service on weekdays and prior to 1:00 p.m. on Fridays in the case of after-hours
service on weekends
32. SECURITY DEPOSIT
A. Tenant has deposited with Landlord the sum of NONE as security for the
performance by Tenant of the terms of this lease. Landlord may use any part of
the security to satisfy any default of Tenant and any expenses arising from such
default, including but not limited to any damages or rent deficiency before or
after reentry by Landlord. Tenant shall, upon demand, deposit with Landlord the
full amount so used, in order that Landlord shall have the full security deposit
on hand at all times during the term of this lease. If Tenant shall comply fully
with the terms of this lease, the security shall be returned to Tenant after the
date fixed as the end of this lease. In the event of a sale or lease of the
building containing the premises, Landlord may transfer the security to the
purchaser or tenant, and Landlord shall thereupon be released from all liability
for the return of the security. This provision shall apply to every transfer or
assignment of the security to a new Landlord. Tenant shall no le power to assign
or encumber the security herein described.
B. In lieu of the cash security deposit referred to in paragraph A hereof,
upon the approval of Landlord, upon the execution of this lease, Tenant shall
deposit with Landlord as security for the faithful performance and observance by
Tenant of the terms, provisions and conditions of this lease an unconditional,
irrevocable letter of credit issued or confirmed by a banking organization which
is a member of the New York Clearinghouse Association (or any successor thereto)
in the amount of such cash security deposit, which letter of credit shall
provide that (i) it may be presented at a branch located in New York County for
payment, (ii) it shall be automatically renewed for successive periods the last
of which shall expire not less than 30 days following the last date on which the
term hereof may, under any condition, expire, (iii) it shall be freely
transferable upon any assignment of this lease by Landlord and any transfer fee
shall be charged to the account of the account party, (iv) it shall be payable
36
upon sight draft only, and (v) it shall be payable in full or in part from time
to time.
C. If the security deposit is in the form of cash, Landlord may, in its
sole discretion, hold such security in an interest-bearing savings account, in
which case Tenant shall be entitled to the interest earned thereon annually,
less the maximum administrative fee allowed by law to which Landlord shall be
entitled
D. If the security deposit is in the form of the letter of credit, Tenant
shall pay to Landlord, on demand and as additional rent hereunder, all fees and
charges paid by Landlord to the bank issuing the letter of credit or any portion
thereof in connection with the transfer of same to any future owner of the
building. In the event of a default by Tenant of any of the terms, provisions or
conditions of this lease, Landlord shall be permitted to draw down the entire
amount of the letter of credit or any portion thereof and apply the proceeds (or
a portion thereof in accordance with the terms and provisions hereinafter set
forth). Landlord shall also have the right to draw down the entire amount of the
letter of credit in the event that Landlord receives notice that the date of
expiry of the letter of credit will not be extended by the issuing bank.
E. It is agreed that in the event Tenant defaults in respect of any of the
terms, provisions and conditions of this lease, including, but not limited to,
the payment of fixed annual rent and additional rent, Landlord may use, apply or
retain the whole or any part of the security so deposited to the extent required
for the payment of any fixed annual rent and additional rent or any other sum as
to which Tenant is in default or for any sum which Landlord may expend or may be
required to expend by reason of Tenant's default in respect of any of the terms,
covenants and conditions of this lease, including, but not limited to, any
damages or deficiency in the reletting of the demised premises, whether such
damages or deficiency accrued before or after summary proceedings or other
reentry by Landlord. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this lease, the
security deposit (whether at that time in the form of the letter of credit or
cash) shall be returned to Tenant after the date fixed as the end of the Lease
and after delivery of entire possession of the demised premises to Landlord in
the condition required hereunder. In the event of a sale of the land and
building or leasing of the building, Landlord shall have the right to transfer
the security to the vendee or lessee and Landlord shall thereupon be released by
Tenant from all liability for the return of such security, and Tenant agrees to
look solely to the new owner for the return of said security, and it is agreed
that the provisions hereof shall apply to every transfer or assignment made of
the security to a new owner. Tenant further covenants that it shall not assign
or encumber or attempt to assign or encumber the monies or the letter to credit
deposited herein as security and that neither Landlord nor its successors or
assigns shall be bound be any such assignment, encumbrance, attempted assignment
or attempted encumbrance. In the event Landlord applies or retains any portion
or all of the security deposited (in cash or by letter of credit), Tenant ,hall
forthwith restore the amount so applied or retained so that at all times the
amount deposited shall be the amount hereinabove set forth then required to be
maintained as the security deposit, exclusive of accrued interest.
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33. RENT CONTROL
In the event the fixed annual rent or additional rent or any part thereof
provided to be paid by Tenant under the provisions of this lease during the
demised term shall become uncollectible or shall be reduced or required to be
reduced or refunded by virtue of any Federal, State, County or City law, order
or regulation, or by any direction of a Public officer or body pursuant to law,
or the orders, rules, codes or regulations of any organization or entity formed
Pursuant to law, whether such organization or entity be public or private, then
Landlord, at its option, may at anytime thereafter terminate this lease, by not
less than thirty (30) days' written notice to Tenant, on a date set forth in
said notice, in which event this lease and the term hereof shall terminate and
come to an end on the date fixed in said notice as if the said date were the
date originally fixed herein for the termination of the demised term Landlord
shall not have the right so to terminate this lease if Tenant within such period
of thirty (30) days shall in writing lawfully agree that the rentals herein
reserved are a reasonable rental and agree to continue to pay said rentals, and
if such agreement by Tenant shall then be legally enforceable by Landlord.
34. SHORING
Tenant shall permit any person authorized to make an excavation on land
adjacent to the building containing the premises to do any work within the
premises necessary to preserve the wall of the building from injury or damage,
and Tenant shall have no claim against Landlord for damages or abatement of rent
by reason thereof.
35. EFFECT OF CONVEYANCE, ETC.
If the building containing the premises shall be sold, transferred or
leased, or the ease thereof transferred or sold, Landlord shall be relieved of
all future obligations and liabilities hereunder and the purchaser, transferee
or tenant of the building shall be deemed to have assumed and agreed to perform
all such obligations and liabilities of Landlord hereunder. In the event of such
sale, transfer or lease, Landlord shall also be relieved of all existing
obligations and liabilities hereunder, provided that the purchaser, transferee
or tenant of the building assumes in writing such obligations and liabilities.
36. RIGHTS OF SUCCESSORS AND ASSIGNS
This lease shall bind and inure to the benefit of the heirs, executors,
administrators, successors, and, except as otherwise provided herein, the
assigns of the parties hereto. If any provision of any Article of this lease or
the application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of that Article, `or the application of
such provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby, and each provision
of said Article and of this lease shall be valid and be enforced to the fullest
extent permitted by law..
37. CAPTIONS
The captions herein are inserted only for convenience, and are in no way to
be construed as a part of this lease or as a limitation of the scope of any
provision of this lease.
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38. LEASE SUBMISSION
Landlord and Tenant agree that this lease is submitted to Tenant on the
understanding that it shall not be considered an offer and shall not bind
Landlord in any way unless and until (i) Tenant has duly executed and delivered
duplicate originals thereof to Landlord and (ii) Landlord has executed and
delivered one of said originals to Tenant
39. ELEVATORS AND LOADING
A. There shall be no major loading or unloading in the building between
8:00 a.m. and 5:30 p.m. or on any Saturday, Sunday or holiday. Tenant
acknowledges it has been advised that the freight elevators servicing the
building can be used from 8:00 a.m. to 5:30 p.m. on business days and 8:00 a.m.
to 1:00 p.m. on Saturdays, only for less than truckload deliveries which will
not unreasonably interfere with use of the freight elevator by or of' behalf of
Landlord and the other tenants of the building.
B. It is the intention of Landlord to maintain in the building,
operatorless automatic control elevators. However, Landlord may, at its option,
maintain in the building either manually operated elevators or operatorless
automatic control elevators or part one and part the other, and Landlord shall
have the right from time to time said term, to change, in whole or in part, from
one to the other without notice to Tenant and without in any constituting an
eviction of Tenant or affecting the obligations of Tenant hereunder or incurring
any liability to Tenant hereunder.
40. BROKERAGE
Tenant represents and warrants that it neither consulted nor negotiated
with any broker or finder with regard to the demised premises other than
Helmsley-Spear, Inc. and NONE. Tenant agrees to indemnify, defend and save
Landlord harmless from and against any claims for fees or commissions from
anyone other than Helmsley-Spear, Inc. and NONE with whom Tenant has dealt in
connection with the demised premises or this lease. Landlord agrees to pay any
commission or fee owing to the aforesaid Helmsley-Spear, Inc. and NONE pursuant
to separate agreements with them. Nothing in this Article 40 shall be construed
to be a third party beneficiary contract.
41. ARBITRATION
In each case specified in this lease in which resort to arbitration shall
be required, such arbitration (unless otherwise specifically provided in other
Sections of this Lease) shall be in Manhattan in accordance with the Commercial
Arbitration Rules of the American Arbitration Association and the provisions of
this lease, and judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof.
42. INSURANCE
The following requirements (collectively, the "Insurance Requirements")
shall be complied with by Tenant at all times during the term hereof
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A. At all times during the term hereof, Tenant shall maintain, at Tenant's
expense, the following insurance coverage:
(i) all risk property insurance, including theft and, if applicable, boiler
and machinery coverage, written at replacement cost value in an adequate amount
to avoid coinsurance and a replacement cost endorsement insuring Tenant's trade
fixtures, furnishings, equipment and all items of personal property of Tenant
and including property of Tenant's customers or clients, as the case may be,
located in the demised premises;
(ii) broad form commercial general liability insurance written on a per
occurrence basis with a per occurrence limit of not less than $3,000,000 and
with other limits reasonably satisfactory to Landlord;
(iii) business interruption insurance covering risk of loss due to the
occurrence of any of the hazards covered by the insurance to be maintained by
Tenant described in paragraph A(i) with coverage in a face amount of not less
than the aggregate amount, for a period of 12 months following the
insured-against peril, of 100% of all fixed annual rent and additional rent to
be paid by Tenant under this Lease;
(iv) worker's compensation insurance and employer's liability coverage in
statutory limits, and New York State disability insurance as required by law,
covering all employees; and
(v) such other coverage as Landlord may reasonably require with respect to
the demised remises, its use and occupancy and the conduct or operation of
business therein.
Landlord may, from time to time, but not more frequently than once every
year, adjust the minimum limits set forth above.
B. All insurance policies to be maintained as set forth above (i) shall be
issued by companies of recognized responsibility, licensed and admitted to do
business in the State of New York, reasonably acceptable to word, and
maintaining a rating of A-/3H1 or better in Best's Insurance
Reports-Property-Casualty (or an equivalent rating in any successor index
adopted by Best's or its successor), (ii) shall provide that they may not be
canceled or modified unless Landlord and all additional insureds and loss payees
thereunder are given at east thirty (30) days prior written notice of such
cancellation or modification, (iii) shall name, as additional insureds,
Landlord, the managing agent of the building and any other person or entity
whose name and address shall have been furnished to Tenant and (iv) shall be
primary and non-contributory in all respects. All policies providing fire and
extended coverage Property insurance coverage pursuant to paragraph A(i) shall
name Landlord as loss payee with respect to improvements and alterations, and
shall name Tenant as loss payee with respect to Tenant's property.
C. Prior to the Commencement Date, Tenant shall deliver to Landlord
certificates of insurance for the insurance coverage required by paragraph A
and, if required by Landlord, copies of the policies therefor, in each case in
form and providing for deductibles reasonably satisfactory to Landlord. Tenant
shall procure and pay for renewals of such insurance from time to time before
the expiration thereof; and Tenant shall deliver to Landlord certificates of
renewal at least thirty (30) days before the expiration of any existing policy.
If Tenant fails to procure or maintain any insurance required by this Lease and
to pay all premiums and charges therefor, Landlord may (but shall not be
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obligated to) pay the same, and Tenant shall reimburse Landlord, within twenty
(20) days after demand, for all such sums paid by Landlord. Any such payment
shall not cure or waive any default by Tenant in the performance of its
obligations hereunder, nor shall the foregoing right of Landlord to make such
payment in any way limit, reduce, diminish or impair the rights of Landlord
under the terms of this Lease or at law or in equity arising as a result of any
such default.
D. Tenant shall not carry separate or additional insurance, concurrent in
form or contributing in the event of any loss or damage with any insurance
required to be obtained by Tenant under this Lease unless the parties required
by paragraph B above to be named as additional insured's or loss payees
thereunder are so named. Tenant may carry any insurance coverage required of it
hereunder pursuant to blanket policies of insurance so long as the coverage
afforded Landlord and the other additional insured's or loss payees thereunder,
as the case may be, shall not be less than the coverage that would be provided
by direct policies.
Tenant agrees to include, if obtainable at no additional cost, in its fire
insurance policy or policies on its furniture, furnishings, fixtures and other
property removable by Tenant under the provisions of its lease of space in the
building appropriate clauses pursuant to which the insurance company or
companies (i) waive the right of subrogation against Landlord and/or any tenant
of space in the building with respect to losses payable under such policy or
policies and/or (ii) agree that such policy or policies shall not be invalidated
should the insured waive in writing prior to a loss any or all right of recovery
against any party for losses covered by such policy or policies. But should any
additional premium be exacted for any such clause or clauses, Tenant shall be
released from the obligation hereby imposed unless Landlord or the other tenants
shall agree to pay such additional premium.
43. CHANGE OF LOCATION
A. Tenant covenants and agrees that Landlord shall have the absolute and
unqualified right, upon notice to Tenant, to designate as the demised premises
that part of any other floor in the building that approximately corresponds to
the premises demised hereunder, provided, however, (a) Landlord may exercise
this right only once during the term of this lease, (b) such substituted space
(hereinafter called "Substituted Space") shall be the equivalent in the
appearance of the demised premises upon completion of Landlord's work, if any,
to make the Substitute Space ready for Tenant's occupancy and (c) Landlord shall
move Tenant to the Substituted Space at Landlord's cost. Such notice shall
specify and designate the Substituted Space so substituted for the demised
premises. Notwithstanding such substitution of space, this lease and all the
terms, provisions, covenants and conditions contained in this lease shall remain
and continue in full force and effect, except that the demised premises shall be
and be deemed to be such substituted space, with the same force and effect as if
the Substituted Space were originally specified in this lease as the premises
demised hereunder.
B. In the event of the substitution of space as provided in paragraph A
above, Tenant, upon six (6) months' prior written notice given by Landlord to
Tenant, shall move to the Substituted Space at Landlord's expense, and upon
failure of Tenant to so move the Substituted Space, Landlord may, as Tenant's
agent, remove Tenant from the demised premises to the Substituted Space. Failure
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of Tenant to move to the Substituted Space pursuant to this Article shall be
deemed a substantial breach of this lease.
C. Following such substitution of space (pursuant to this Article) if any,
Landlord and Tenant shall, promptly at the request of either party, execute and
deliver an agreement in recordable form setting forth substitution of space and
the effective date thereof.
44. LATE CHARGES
If Tenant shall fail to pay all or any part of any installment of fixed
annual rent or additional rent for more than ten (10) days after the same shall
have become due and payable, Tenant shall pay, upon demand, an additional rent
hereunder to Landlord a late charge of four ($.04) cents for each dollar of the
amount of such fixed annual rent or additional rent which shall not have been
paid to Landlord within such ten (10) days after becoming due and payable.
Tenant acknowledges that the payment of rent after the date when first due shall
result in loss and injury to Landlord the exact amount of which is not
susceptible of reasonable calculation and that the aforesaid amount of late
charge represents a reasonable estimate of such losses and injury under the
circumstances, especially after taking into account the grace period hereby
afforded Tenant before such late charge is to be imposed The late charge payable
pursuant to this Article 44 shall be without prejudice to any of Landlord's
rights and remedies hereunder at law and equity for non-payment or late payment
of rent or other sums and in addition to any such rights and remedies, including
the right to institute and prosecute a proceeding under Article 7 of the Real
Property Actions and Proceedings Law. No failure by Landlord to insist upon the
strict performance by Tenant of Tenant's obligation to pay late charges as
provided in this Article shall constitute a waiver by Landlord of its right to
enforce the provisions of this Article in any instance thereafter occurring. The
provisions of this Article shall not be construed in any way to extend the grace
periods or notice periods provided for elsewhere in this lease.
45. ENVIRONMENTAL COMPLIANCE
A. (i) Tenant shall comply with all federal, state and local environmental
protection and regulatory laws applicable to the demised premises.
(ii) Tenant shall not use, generate, manufacture, store or dispose of any
hazardous substance on, under or about the demised premises or the building nor
transport any hazardous substance thereto. Tenant shall immediately advise the
Landlord, in writing of any and all enforcement, clean-up, remediation, removal
or other governmental or regulatory actions instituted, completed or threatened
pursuant to any applicable laws relating to any hazardous substances; and all
claims, made or threatened by any person (including a governmental authority)
against the demised premises, Tenant or Landlord relating to any damage, injury,
costs, remedial action or cost recovery compensation arising out of or due to
the existence of any hazardous substance in or about the demised premises or the
building.
B. Tenant shall defend, indemnify and hold Landlord harmless from and
against all actions causes of action, claims, lawsuits, administrative
proceedings, hearings, judgments, awards, fines, penalties, costs (including
legal, engineers', experts', investigatory and consulting fees), damages,
remediation activities and clean-up costs, liens, and all other liabilities
incurred by Landlord whenever incurred, arising out of any Tenant's act or
42
failure to act resulting in (i) the existence or presence (or alleged existence
or presence) on or about the building of any hazardous substance or the release
of any hazardous substance into the environment; (ii) any personal injury or
property damage resulting from any hazardous substance in or about the building;
(iii) the violation of any federal, state or municipal environmental protection
or regulatory law, or (iv) the commencement or prosecution of any judicial or
administrative procedure arising out of any claims under any federal, state or
municipal environmental protection or regulatory law or common law cause of
action in which Landlord is named a party or in which it may intervene. Tenant
shall remove all hazardous substances from the demised premises upon the
expiration or earlier termination of the term hereof and such removal shall be
performed in accordance with all applicable laws. The obligations of Tenant
under this paragraph B shall survive the expiration or earlier termination of
the term hereof.
C. "Hazardous substance" means any hazardous substance as defined in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. ▇▇.▇▇. 9601 et seq., as amended by the Superfund Amendments and
Reauthorization Act of 1986; hazardous waste as defined in the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. ▇▇.▇▇. 6901 et seq., as any of
the foregoing may be amended or superseded; oil; petroleum product, derivative,
compound or mixture; mineral, including asbestos; chemical; gas; medical waste;
polychlorinated biphenyls (pcb's); methane; radon; radioactive material;
volatile hydrocarbons; or other material, whether naturally occurring, man-made
or the by-product of any process, which is toxic, harmful or hazardous or
acutely hazardous to the environment or public health or safety; or any other
substance the existence of which on or at any property would be the basis for a
claim for damages, clean-up costs or remediation costs, fine, penalty or lien
under any federal, state or municipal environmental protection or regulatory law
or applicable common law.
46. LEASE FULLY NEGOTIATED
In construing this lease, it shall be deemed to be a document fully
negotiated and drafted jointly by counsel to Landlord and counsel to Tenant and
the authorship of any term or provision hereof shall not be deemed germane to
its meaning. The existence or non-existence in any prior draft hereof of any
term or provision whether included herein or not shall not be relevant to the
establishment of the intent of the parties hereto or the meaning of any term or
provision hereof and may not be used as evidence to establish any such intent or
meaning.
47. SMOKING RESTRICTIONS
Landlord reserves and shall have the right to restrict to certain
designated areas within the premises or to prohibit altogether smoking of
cigarettes, cigars, other tobacco products or any other substances and the use
of pipes and other paraphernalia for such purposes. Without limiting Landlord's
rights under the preceding sentence, Tenant shall enforce within the premises
the provisions of Local Law 5 of 1995.
48. ADDITIONAL DEFINITIONS
The term "real estate taxes" shall, in addition to the items referred to in
Article 2, include assessments, impositions and levies imposed by business
special tax districts. "Business days" shall mean all days, except Saturdays,
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Sundays, and all days celebrated as holidays under union contracts applicable to
the building. The words "herein," "hereof," "hereto," "hereunder" and similar
words shall be interpreted as being references to this lease as a whole and not
merely the clause, paragraph, Section or Article in which such word appears. The
term "demised premises" is used interchangeably with the term "premises". The
words "shall" and "will" are interchangeable, each imposing a mandatory
obligation upon the party to whom such verb applies. The words `include" and
"including" shall be interpreted to mean "including, without limitation." The
word "control" and the variations thereof used in this lease shall have the
meanings ascribed to them under the Securities Act of 1933, as amended, and the
regulations promulgated under it. Wherever appropriate in this lease, personal
pronouns shall be deemed to include the other genders and the singular or plural
of any defined term or other word than, as the context may require, be deemed to
include, as the case may be, either the singular or the plural. All Article and
paragraph and subsection references set forth herein shall, unless the context
otherwise specifically requires, be deemed references to the Articles,
paragraphs and subsections of this lease. Wherever herein Tenant is required to
comply with laws, orders and regulations of any governmental authority having or
asserting jurisdiction over the demised premises, such laws, orders and
regulations shall include, as and where applicable to the demised premises: the
Americans with Disabilities Act of 1990, Local Law 5/1973, Local laws 16/1984,
and 16/1987, Local Law 58/1987, Local Law 76/1985 and Local Law 80/1985, as each
may be amended and any successor statutes of like or similar import. References
to Landlord as having no liability to Tenant or being without liability to
Tenant shall mean that, except as otherwise provided in this lease, Tenant is
not entitled to terminate this lease, or to claim actual or constructive
eviction, partial or total, or to receive any abatement or diminution of rent,
or to be relieved in any manner of any of its other obligations hereunder, or to
be compensated for loss or injury suffered or to enforce any other kind of
liability whatsoever against Landlord under or with respect to this lease or
with respect to tenant's use or occupancy of the demised premises.
49. It is understood and agreed that the lease is submitted to Tenant with
the understanding that is shall not be considered an offer and shall not bind
Landlord or tenant in any ay until (i) Tenant has duly executed and delivered
duplicated originals to Landlord (ii) Landlord has executed and delivered one of
said originals to Tenants.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this lease as of the
day and year first above written.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ASSOCIATES
HELMSLEY-SPEAR, INC., AGENTS
LANDLORD:
BY:
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Chief Operating Officer
TENANT: EVERLAST WORLDWIDE, INC.
BY:
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