FIFTH AVENUE BUILDING COMPANY LLC
FIFTH
AVENUE BUILDING COMPANY LLC
Landlord,
JESUP
& ▇▇▇▇▇▇, INC.
Tenant.
LEASE
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Premises:
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Part
of the ▇▇▇▇
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▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇
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TABLE
OF CONTENTS
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ARTICLE
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PAGE
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1.
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Premises;
Term
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1
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2.
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Commencement
of Term
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1
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3.
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Rent
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2
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4.
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Use
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3
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5.
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Alterations,
Fixtures
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5
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6.
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Repairs
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8
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7.
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Floor
Load; Noise
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9
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8.
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Laws,
Ordinances, Requirements of Public Authorities
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10
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9.
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Insurance
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11
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10.
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Damage
by Fire or Other Cause
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14
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11.
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Assignment,
Subletting, Mortgaging
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15
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12.
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Liability
of Landlord and Indemnity by Tenant
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20
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13.
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Moving
of Heavy Equipment
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22
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14.
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Condemnation
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22
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15.
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Entry,
Right to Change Public Portions of the Building
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23
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16.
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Conditional
Limitations, Etc.
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24
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17.
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Mechanic's
Liens
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28
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18.
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Landlord's
Right to Perform Tenant's Obligations
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29
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19.
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Covenant
of Quiet Enjoyment
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29
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20.
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Excavation
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29
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21.
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Services
and Equipment
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30
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22.
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Escalation
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33
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23.
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Electricity
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39
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24.
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Broker
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41
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25.
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Subordination
and Ground Lease
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42
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26.
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Estoppel
Certificate
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44
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27.
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Waiver
of Jury Trial
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45
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28.
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Surrender
of Premises
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45
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29.
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Rules
and Regulations
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46
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30.
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Successors
and Assigns and Definitions
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46
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31.
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Notices
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47
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32.
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No
Waiver; Entire Agreement
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48
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33.
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Captions
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50
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34.
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Inability
to Perform
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50
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35.
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No
Representations by ▇▇▇▇▇▇▇▇
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▇▇
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▇▇.
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▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
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▇▇
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▇▇.
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Late
Payment Charge
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52
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38.
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Rent
Control
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53
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39.
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Confidentiality
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53
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40.
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Landlord's
Contribution
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54
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ii
TABLE
OF CONTENTS, cont.
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ARTICLE
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PAGE
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41.
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Supplemental
Air Conditioning
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55
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42.
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Renewal
Option
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56
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43.
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Renewal
Option Arbitration
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58
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44.
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15th
Floor Additional Space
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59
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45.
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Additional
Option Space
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61
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46.
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Additional
Option Space Arbitration
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64
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Testimonium
and Signatures
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66
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Acknowledgments
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67
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Schedule
A
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Floor
Plan
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68
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Schedule
B
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Description
of Land
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69
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Schedule
C
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Rules
and Regulations
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70
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Schedule
D
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Cleaning
Specifications
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75
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Schedule
E
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Definitions
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77
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iii
INDENTURE OF LEASE made as of
March 3, 2010, between FIFTH
AVENUE BUILDING COMPANY LLC, a New York limited liability company, having
an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Landlord") and JESUP & ▇▇▇▇▇▇, INC., a
Washington corporation, having an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Tenant").
WITNESSETH:
ARTICLE
1
Premises;
Term
Landlord
hereby leases to Tenant and Tenant hereby hires from Landlord the following
space ("Demised Premises"): the entire 17th floor,
as shown crosshatched on the floor plan (Schedule A) attached hereto, in the
office building known as and by the street number ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, in the
Borough of Manhattan, City and State of New York ("Building"), located on the
land (“Land”) more particularly described in Schedule B attached hereto, upon
and subject to the terms, covenants and conditions hereafter set
forth.
TO HAVE AND TO HOLD the
Demised Premises unto Tenant for a term commencing on March 3, 2010 (the
"Commencement Date") and ending on August 31, 2017 (unless sooner terminated
pursuant to the provisions of this Lease) ("Expiration Date").
IT IS MUTUALLY COVENANTED AND
AGREED between Landlord and Tenant as follows:
ARTICLE
2
Commencement
of Term
Section
2.01. The term of this Lease shall commence on March 3, 2010. On the
Commencement Date, Landlord shall deliver vacant possession of the Demised
Premises to Tenant and the electrical, mechanical, plumbing, life safety,
sprinkler systems, and the heat, ventilation and air conditioning systems
(“HVAC”) serving the Demised Premises shall be in working order.
Section
2.02. Subject to Section 2.01 above, Tenant has fully inspected the Demised
Premises, is familiar with the condition thereof and agrees to accept possession
of the same in its “As Is” condition on the Commencement Date. Landlord shall
not be required to do any work therein to make the same suitable for the
operation of Tenant's business. Landlord represents that the Demised Premises
does not contain hazardous materials. On the Commencement Date, Landlord shall
deliver an ACP-5 certificate for the Demised Premises.
1
ARTICLE
3
Rent
Section
3.01. Tenant shall pay as rent for the Demised Premises from and after the
Commencement Date, the following:
(a) a
fixed minimum rent (the "minimum rent") at the following annual
rates:
(i) Nine
Hundred Forty-One Thousand Five Hundred Ninety Dollars ($941,590.00) per annum
(payable $78,465.83 per month) from the Commencement Date to August 31, 2013;
and
(ii) Nine
Hundred Ninety-Nine Thousand Five Hundred Thirty-Four Dollars ($999,534.00) per
annum (payable $83,294.50 per month) from September 1, 2013 for the remainder of
the term; and
(b) all
other sums and charges required to be paid by Tenant under the terms of this
Lease (including without limitation, the payments required to be made under
Article 22), which shall be deemed to be and are sometimes referred to hereafter
as additional rent.
Section
3.02. Notwithstanding the provisions of Section 3.01 hereof and provided Tenant
is not then in default under any of the provisions of this Lease on its part to
be performed, Tenant shall be entitled to an abatement of part of the minimum
rent only in the amount of $78,465.83 for the 1st, 2nd, 3rd,
16th,
17th
and 18th months
of the term succeeding the Commencement Date (totaling six (6) months), provided
that any additional rent for each such month shall be paid by
Tenant.
Section
3.03. The minimum rent shall be payable in equal monthly installments not more
than one month in advance on the first day of each and every month during the
term of this Lease, except that the amount of $78,465.83 shall be paid upon the
execution of this Lease and applied to the payment of minimum rent for the
fourth (4th) month
of the term following the Commencement Date.
Landlord
and Tenant agree that Tenant shall pay minimum rent, additional rent and other
amounts now due or hereafter to become due to the Landlord or its agents as
provided for in this Lease, (as and when due) directly to the following lock-box
account:
▇
▇▇▇▇▇
▇▇▇▇▇▇ Building Company LLC
▇.▇. ▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
All rent
checks shall be made payable to Fifth Avenue Building Company LLC.
Section
3.04. Tenant shall pay the minimum rent and additional rent in lawful money of
the United States which shall be legal tender for the payment of all debts,
public and private, at the time of payment.
Section
3.05. The minimum rent and additional rent shall be payable by Tenant without
any set-off, abatement or deduction whatsoever and without notice or demand,
except as otherwise expressly provided herein.
ARTICLE
4
Use
Section
4.01. Tenant shall use and occupy the Demised Premises for general, executive
and administrative offices for securities brokerage and investment banking, and
for no other use or purpose.
Section
4.02. Notwithstanding the provisions of Section 4.01, Tenant shall not use or
allow the use of the Demised Premises or any part thereof (1) for the cooking
and/or sale of food; (2) for storage for sale of any alcoholic beverage in the
Demised Premises; (3) for the storage and/or sale of any product or material
from the Demised Premises; (4) for manufacturing or commercial printing
purposes; (5) for the conduct of a school or training facility or similar type
of business which results in the presence of the general public in the Demised
Premises; (6) for the conduct of the business of an employment agency or
personnel agency; (7) for the conduct of any public auction or public
exhibition; (8) for occupancy by a foreign, United States, state, municipal or
other governmental or quasi-governmental body, agency or department or any
authority or other entity which is affiliated therewith or controlled thereby
and which has diplomatic or sovereign immunity or the like with respect to a
commercial lease; (9) for messenger or delivery service (excluding Tenant's own
employees or outside services); (10) as a public stenographer or typist; (11) as
a telephone or telegraph agency; (12) as a company engaged in the business of
renting office(s) or desk space in the Demised Premises to the general public;
(13) as medical offices or a laboratory; (14) as a travel agency; (15) as a
dating service; (16) as a restaurant; (17) as a night club, discotheque, arcade
or like kind establishments; (18) as a public or quasi-public health facility,
radiation treatment facility, methadone clinic or other drug related clinic,
abortion clinic, or for any practice conducted in or through the format of a
clinic; (19) as a pawn shop; (20) as an off-track betting parlor; (21) as a
homeless shelter, soup kitchen or similar use; (22) for the sale or display or
pornographic products or services; (23) for the use or storage of flammable
liquids or chemicals (unless incidental to a permitted use); (24) as a
funeral parlor; (25) for the sale or grooming of pets; or (26) for any form of
spiritualist services, such as fortune telling or
reading. Furthermore, the Demised Premises shall not be used for any
purpose that would, in Landlord's reasonable judgment, tend to lower the
first-class character of the Building, create unreasonably excessive elevator or
floor loads, materially impair or interfere with any of the Building operations
or the proper and economic heating, air-conditioning, cleaning or any other
services of the Building, interfere with the use of the other areas of the
Building by any other tenants, or impair the appearance of the
Building. Neither Tenant nor any person within Tenant's control shall
use, generate, store, treat and/or dispose of any Hazardous Materials (as
hereinafter defined) in, on, under or about the Demised Premises.
3
Section
4.03. If any governmental license or permit, other than a Certificate of
Occupancy, is required for the proper and lawful conduct of Tenant's business in
the Demised Premises, or any part thereof, and if failure to secure such license
or permit would in any way affect Landlord, Tenant, at its expense, shall duly
procure and thereafter maintain such license or permit and submit the same for
inspection by Landlord. Tenant shall at all times comply with the
terms and conditions of each such license or permit.
Section
4.04. Tenant shall not at any time use or occupy, or permit anyone to use or
occupy, the Demised Premises, or do or permit anything to be done in the Demised
Premises, in violation of the Certificate of Occupancy for the Demised Premises
or for the Building, and will not permit or cause any act to be done or any
condition to exist on the Demised Premises which may be dangerous unless
safeguarded as required by law, or which in law constitutes a nuisance, public
or private, or which may make void or voidable any insurance then in force
covering the Building and building equipment.
4
ARTICLE
5
Alterations,
Fixtures
Section
5.01. Tenant, without Landlord's prior consent, shall make no
structural or exterior alterations, installations, additions, or improvements
(“work”) in or to the Demised Premises. However, subject to Landlord's consent,
which shall not be unreasonably withheld, conditioned or delayed, Tenant may
make non-structural interior alterations, including, without limitation, the
installation of special systems such as private bathrooms, a supplemental air
conditioning system, computer facilities and a fitness area (collectively
“Alterations”) in the Demised Premises, provided that: (i) such Alterations
shall not affect the Building structure; (ii) such Alterations shall not affect
any area, outside the Demised Premises or the Building; (iii) such Alterations
shall comply with all Governmental Requirements, and any other provisions of
this Lease; (iv) such Alterations shall not unreasonably interfere with the
normal and customary business operations of other tenants of the Building or
Building Project; or (v) such Alterations shall not cause or create a dangerous
or hazardous condition. Notwithstanding the foregoing, Tenant may make any
Alterations that cost less than $75,000.00 during any twelve (12) consecutive
month period without Landlord's consent but subject to Landlord's approval of
contractors as set forth below which approval of the contractor shall not be
unreasonably withheld, conditioned or delayed provided that the contractor is
licensed, bonded, insured and complies with Landlord’s contractor integrity
program, provided further that Tenant delivers to Landlord written notice of
such Alterations at least ten (10) business days prior to the commencement
thereof. Tenant may also make Alterations, or may paint the Demised Premises and
install carpeting, wall covering and furnishings in the Demised Premises (the
“Cosmetic Alterations”) and technology alterations (i.e. – voice and data
cabling, equipment installations and upgrades) (collectively, the “Permitted
Alterations”) without Landlord's consent but subject to Landlord's approval of
contractors, which approval shall not be unreasonably withheld, conditioned or
delayed provided that the contractor is licensed, bonded, insured and complies
with Landlord’s contractor integrity program, provided further that Tenant
delivers to Landlord written notice of such Permitted Alterations at least ten
(10) business days prior to the commencement thereof. The foregoing shall apply
to Landlord's right to approve Tenant's contractors, and shall not be deemed to
require Landlord's consent for the actual performance of the Permitted
Alterations. If any contractor, other than Landlord, shall perform any work or
Alterations, such contractor shall first be approved by Landlord and Tenant
shall pay to Landlord any out-of-pocket expenses incurred by Landlord in
connection therewith, provided, that Tenant shall not be required to pay such
expenses for (i) Tenant’s Work to prepare the Demised Premises for Tenant’s
initial occupancy and (ii) Cosmetic Alterations and technology alterations (i.e.
– voice and data cabling, equipment installations and upgrades). Notwithstanding
the foregoing, Tenant may, without first obtaining Landlord's consent, utilize
the services of any licensed architect or engineer which Tenant, in its sole and
absolute discretion, deems acceptable. In connection with any request by Tenant
of Landlord that Landlord approve a contractor or subcontractors, Tenant shall
cause the proposed contractor or subcontractor to complete and submit to
Landlord such reasonable questionnaire, if any, as Landlord shall require as
part of Landlord’s contractor integrity program. Thereafter, Tenant
agrees to reasonably cooperate with Landlord, provided there shall be no cost to
Tenant, in connection with the implementation of such program and to cause its
contractors to comply therewith. During the term of this Lease,
Landlord may elect to pursue work in the Building under the provisions of the
ICAP Program (as hereinafter defined). The parties acknowledge that
the ICAP Program is not currently in effect at the Building. Tenant acknowledges
that the ICAP Program may impose requirements with respect to the hiring and
training practices, among other matters, of contractors and subcontractors
engaged to perform certain work in the Building for Tenant (collectively, herein
called "Tenant's Contractors"). Tenant shall use Tenant's Contractors
(subject to Landlord's approvals) that qualify under the applicable requirements
of the ICAP Program for the performance of Tenant's work and any alterations to
the Demised Premises and Tenant will require Tenant's Contractors to comply with
the provisions of the ICAP Program. If Landlord is notified of any
violation of the ICAP Program by Tenant's Contractors, Landlord shall promptly
advise Tenant, and Tenant shall take all reasonable actions to cure such
violations. Workers' compensation and commercial general liability
insurance covering claims for personal injury, death, bodily injury and
property damage insurance, all in amounts and with companies licensed to conduct
business in New York, shall be provided and at all times maintained by Tenant's
contractors engaged in the performance of the work, and before proceeding with
the work, copies of certificates of such insurance shall be furnished to
Landlord. If consented to by Landlord, all such work shall be done at
Tenant's sole expense and in full compliance with all Governmental Requirements
(as hereinafter defined). Upon completion of such work, Tenant shall
deliver to Landlord full scale "as built" plans for the same in both paper and
electronic CAD (either in DWF or DWG) formats. All improvements
affixed to the realty shall become the property of Landlord, subject to Tenant's
right to replace same during the term hereof with items of equal quality class
and value, and shall remain upon, and be surrendered with, the Demised Premises
as a part thereof at the end of the term or any renewal or extension term, as
the case may be, without allowance to Tenant or charge to
Landlord. Notwithstanding anything contained in this Lease to the
contrary, Tenant shall not be obligated to remove any alterations or
improvements existing in the Demised Premises as of the Commencement Date. For
purposes of this Section 5.01, “Specialty Alterations” shall mean any structural
alterations and any alterations consisting of vaults, internal staircases, any
alterations which penetrate any floor slab, raised flooring and other
alterations of a similar character which are not customary for general office
use in a Class A office building. Tenant shall, at Tenant's cost and expense,
remove any Specialty Alteration reasonably designated by Landlord, repair any
damage to the Demised Premises or the Building due to such removal, provided,
however, that reasonable wear and tear and damage to the Demised Premises from
casualty shall be excepted. Landlord shall reasonably designate which
alterations are deemed to be Specialty Alterations which must be removed at the
end of the term, at the time that consent to such Specialty Alteration(s) is
given by Landlord. Notwithstanding the foregoing, If Landlord does
not require at the time of granting consent that the Specialty Alterations must
be removed at the end of the term, then such Specialty Alterations shall remain
in the Demised Premises. If any Building facilities or services, including but
not limited to air-conditioning and ventilating equipment installed by Landlord,
are adversely affected or damaged by reason of the work performed negligently by
Tenant, Tenant, at its expense, shall repair such damage to the extent such
damage has been caused by Tenant's negligent work and shall correct the work so
as to prevent any further damage or adverse effect on such facilities or
services.
5
Section
5.02. Prior to commencing any work pursuant to the provisions of Section 5.01,
Tenant shall furnish to Landlord:
(a) Plans
and specifications for the work (Tenant’s Plans”) to be done in both paper and
electronic CAD (either in DWF or DWG) formats. Tenant’s Plans shall be subject
to Landlord’s approval (which approval shall not be unreasonably withheld,
conditioned or delayed). Landlord shall promptly review Tenant's Plans and shall
notify Tenant within ten (10) business days of the receipt of Tenant's Plans or
within five (5) business days of any resubmission thereof that Landlord either:
(i) approves Tenant's Plans, (ii) disapproves Tenant's
Plans (stating the reasons therefor with reasonable specificity), or (iii)
requires clarification or additional information.
6
(b) Copies
of all governmental permits and authorizations which may be required in
connection with such work. Upon request from Tenant, Landlord, at no expense to
Landlord, shall join in any applications for permits, approvals or certificates
of governmental agencies or authorities (collectively, “Application”) required
to be obtained by Tenant in connection with Tenant's Work.
(c) A
certificate evidencing that Tenant (or Tenant's contractor) has procured
workers' compensation insurance covering all persons employed in connection with
the work who might assert claims for death or bodily injury against Landlord,
Tenant, any mortgagee or the Building.
(d) A
bond, letter of credit, additional security deposit or other security reasonably
satisfactory to Landlord, in the amount of the aggregate cost of the work in
excess of Landlord's Reimbursement Contribution, to insure the completion of
such work.
Section
5.03. No approval of plans or specifications by Landlord or consent by Landlord
allowing Tenant to perform work in the Demised Premises shall be deemed to be an
agreement by Landlord that the contemplated work complies with any Governmental
Requirements or insurance requirements or the certificate of occupancy for the
Building nor a determination or representation by Landlord that the contemplated
work will be functional or operational in the Demised Premises nor shall it be
deemed to be a waiver by Landlord of the compliance by Tenant of any of the
terms of this Lease. Neither Landlord, Landlord’s agents nor the
mortgagee shall be liable for any labor or materials furnished or to be
furnished to Tenant upon credit, and no mechanic’s or other lien for such labor
or materials shall attach to or affect any estate or interest of Landlord or the
mortgagee in and to the Demised Premises or the Building Project.
Section
5.04. Where furnished by or at the expense of Tenant (except the replacement of
an item theretofore furnished and paid for by Landlord or for which Tenant has
received a credit), all movable property, furniture, furnishings, roller files,
equipment and trade fixtures ("personalty") other than those affixed to the
realty shall remain the property of and shall be removed by Tenant on or prior
to any termination or expiration of this Lease, and, in the case of damage by
reason of such removal, Tenant, at Tenant's expense, promptly shall repair the
damage. If Tenant does not remove any such personalty, Landlord, at
its election, (a) may cause the personalty to be removed and placed in storage
at Tenant's expense or (b) may treat the personalty as abandoned and may dispose
of the personalty as it sees fit without accounting to Tenant for any proceeds
realized upon such disposal.
7
Section
5.05. Tenant agrees that the exercise of its rights pursuant to the provisions
of this Article 5 shall not be done in a manner which would create any
work stoppage, picketing, labor disruption or dispute or violate Landlord's
union contracts affecting the Building or unreasonably interfere with the
business of Landlord or any Tenant or occupant of the Building. In
the event of the occurrence of any condition described above arising from the
exercise by Tenant of its right pursuant to the provisions of this Article 5,
Tenant shall, promptly after notice from Landlord, cease the manner of exercise
of such right giving rise to such condition. In the event Tenant
fails to cease such manner of exercise of its rights as aforesaid, Landlord, in
addition to any rights available to it under this Lease and pursuant to law,
shall have the right to seek an injunction for specific
performance. With respect to Tenant's work, Tenant shall make all
arrangements for, and pay all expenses incurred in connection with, use of the
freight elevators servicing the Demised Premises during those hours other than
as provided in Section 21.01(a) in accordance with Landlord's customary charges
therefor. Notwithstanding the foregoing, provided that Tenant is not
then in default, after any applicable notice and the expiration of any
applicable grace period, of any of the terms and conditions of this Lease on
Tenant’s part to be performed, Tenant shall, at no additional charge, have the
right to use the Building’s freight elevator for up to fifty (50) hours of
overtime and/or business hours in the aggregate during the performance of
Tenant's Work (as herein defined) and move-in to the Demised Premises during the
first six (6) months after the Commencement Date.
Section
5.06. Tenant shall have sufficient access to the core closets and shall be
provided with sufficient shaft spaces, as needed. Tenant, at Tenant’s sole cost
and expense, shall be permitted to install two (2) 3” conduits from the
Building’s communication ▇▇▇’▇ to the Demised Premises, in accordance with the
provisions of this Article.
ARTICLE
6
Repairs
Section
6.01. Tenant shall take good care of the non-structural portions of the Demised
Premises and the fixtures therein and all portions of the HVAC serving the
Demised Premises, mechanical, plumbing and electrical systems within and
exclusively serving the Demised Premises, and at its sole cost and expense make
all repairs thereto as and when needed to preserve them in good working order
and condition. All damage or injury to the Demised Premises or the
Building or to any building equipment or systems caused by Tenant moving
property in or out of the Building or by installation or removal of personalty
or resulting from negligence or intentional misconduct of Tenant, its employees,
agents, contractors, customers, invitees and visitors, shall be repaired,
promptly by Tenant at Tenant's expense, and whether or not involving structural
changes or alterations, to the satisfaction of Landlord. All repairs
shall include replacements or substitutions where necessary and shall be at
least equal to the quality, class and value of the property repaired, replaced
or substituted and shall be done in a good and workmanlike
manner.
8
Section
6.02. Landlord, at its expense, shall maintain and make all repairs and
replacements, structural and otherwise, to the exterior and public portions of
the Building and to the Demised Premises, unless Tenant is required to make them
under the provisions of Section 6.01 or unless required as a result of the
performance of alterations by Tenant or on Tenant's behalf, in which event
Tenant, at its expense, shall perform such maintenance, repairs or
replacements. Tenant shall notify Landlord of the necessity for
any repairs for which Landlord may be responsible in the Demised Premises under
the provisions of this Section. Landlord shall have no liability to
Tenant by reason of any inconvenience, annoyance, interruption or injury to
business arising from Landlord's making any repairs or changes which Landlord is
required or permitted by this Lease, or required by law, to make in or to any
portion of the Building or the Demised Premises, or in or to the fixtures,
equipment or appurtenances of the Building or the Demised Premises, provided
that Landlord shall use commercially reasonable efforts to minimize any
disruption to Tenant's business operations in the Demised Premises.
Section
6.03. Tenant shall not store or place any materials or other obstructions in the
lobby or other public portions of the Building, or on the sidewalk abutting the
Building.
ARTICLE
7
Floor Load; Noise
Section
7.01. Tenant shall not place a load upon any floor of the Demised Premises which
exceeds the load per square foot which such floor was designed to carry (50 lbs.
live per square foot) and which is allowed by law.
Section
7.02. Business machines and mechanical equipment belonging to Tenant which cause
noise, vibration or any other nuisance that may be transmitted to the structure
or other portions of the Building or to the Demised Premises, to such a degree
as to be objectionable to Landlord or which interfere with the use or enjoyment
by other tenants of their premises or the public portions of the Building, shall
be placed and maintained by Tenant, at Tenant's expense, in settings of cork,
rubber or spring type vibration eliminators sufficient to eliminate such
objectionable or interfering noise or vibration.
9
ARTICLE
8
Laws, Ordinances, Requirements of
Public Authorities
Section
8.01. (a) Landlord represents that as of the Commencement
Date, the Demised Premises shall be free of any Hazardous Materials (as that
term is hereinafter defined) and that as of the Commencement Date, the Demised
Premises shall be in compliance with legal requirements. Tenant, at its
expense, shall comply with all laws, orders, ordinances, rules and regulations
and directions of Federal, State, County and Municipal authorities and
departments thereof having jurisdiction over the Demised Premises and the
Building, now or hereafter in effect including but not limited to the Americans
With Disabilities Act (collectively "Governmental Requirements"), arising by
reason of Tenant's specific manner of use of the Demised Premises or any
installations made therein by or on behalf of Tenant, or any default by Tenant
under this Lease.
(b)
Tenant covenants and agrees that Tenant shall, at Tenant's
sole cost and expense, comply at all times with all Governmental Requirements
governing the use, generation, storage, treatment and/or disposal of any
"Hazardous Materials" (which term shall mean any biologically or chemically
active or other toxic or hazardous wastes, pollutants or substances, including,
without limitation, asbestos, PCBs, petroleum products and by-products,
substances defined or listed as "hazardous substances" or "toxic substances" or
similarly identified in or pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. § 9601 et seq., and as hazardous
wastes under the Resource Conservation and Recovery Act, 42 U.S.C. § 6010 et seq., any chemical
substance or mixture regulated under the Toxic Substance Control Act of 1976, as
amended, 15 U.S.C. § 2601 et
seq., any "toxic pollutant" under the Clean Water Act, 33 U.S.C. § 466
et seq., as amended,
any hazardous air pollutant under the Clean Air Act, 42 U.S.C. § 7401 et seq., hazardous materials
identified in or pursuant to the Hazardous Materials Transportation Act, 49
U.S.C. § 1802 et seq.,
and any hazardous or toxic substances or pollutant regulated under any other
Governmental Requirements), to the extent such compliance is necessitated by
Tenant's specific manner of use of the Demised Premises. Tenant shall
agree to execute, from time to time, at Landlord's request, affidavits,
representations and the like concerning Tenant's best knowledge and belief
regarding the presence of Hazardous Materials in, on, under or about the Demised
Premises, the Building or the Land. Tenant shall indemnify and hold
harmless Landlord, its partners, officers, shareholders, members, directors and
employees, the lessor under the Saks Lease (as hereinafter defined) and any
mortgagee (collectively, the "Indemnitees"), from and against any loss, cost,
damage, liability or expense (including attorneys' fees and disbursements)
arising by reason of any cleanup, removal, remediation, detoxification action or
any other activity required or recommended of any Indemnitees by any government
authority by reason of the presence in or about the Land, the Building or the
Demised Premises of any Hazardous Materials, as a result of or in connection
with the negligent act or omission of Tenant or any person or entity within
Tenant's control or the breach of this Lease by Tenant or any person or entity
within Tenant's control. The foregoing covenants and indemnity shall
survive the expiration of any termination of this Lease.
10
(c) Landlord,
at its expense, shall comply with and cure Governmental Requirements relating to
the public portions of the Building and to the Demised Premises, provided
non-compliance will impair Tenant's use or access to the Demised Premises, and
provided that Tenant is not obligated to comply with them under the provisions
of subdivision (a) of this Section. Landlord, at its expense, may
contest the validity of any Governmental Requirements and postpone compliance
therewith pending such contest.
Section
8.02. If Tenant receives written notice of any violation of any Governmental
Requirements applicable to the Demised Premises, it shall give prompt notice
thereof to Landlord.
Section
8.03. Tenant will not clean, nor allow any window in the Demised Premises to be
cleaned, from the outside in violation of Section 202 of the Labor Law or the
rules of the Board of Standards and Appeals or of any other board or body having
or asserting jurisdiction.
ARTICLE
9
Insurance
Section
9.01. Tenant shall not do or permit to be done any act or thing in or upon the
Demised Premises which will invalidate or be in conflict with the Certificate of
Occupancy for the Building or the terms of the insurance policies covering the
Building and the property and equipment therein; and Tenant, at its expense,
shall comply with all rules, orders, regulations and requirements of the New
York Board of Fire Underwriters or any other similar body having jurisdiction,
and of the insurance carriers, and shall not knowingly do or permit anything to
be done in or upon the Demised Premises in a manner which directly increases the
rate of insurance for the Building or any property or equipment therein over the
rate in effect on the Commencement Date.
Section
9.02. If, by reason of Tenant's failure to comply with the provisions of Section
9.01 or any of the other provisions of this Lease, the rate of insurance for the
Building or the property and equipment of Landlord shall be higher than on the
Commencement Date, Tenant shall pay to Landlord any additional or increased
insurance premiums to the extent resulting therefrom thereafter paid by Landlord
until such increase terminates, and Tenant shall make such payment forthwith on
demand of Landlord. In any action or proceeding wherein Landlord and
Tenant are parties, a schedule or "make up" of any insurance rate for the
Building or Demised Premises issued by the New York Fire Insurance Exchange, or
other body establishing fire insurance rates for the Building, shall be
conclusive evidence of the facts therein stated and of the several items
and charges in the insurance rates then applicable to the Building or Demised
Premises.
11
Section
9.03. (a) Tenant covenants to provide on or
before the Commencement Date and to keep in force during the term hereof, the
following insurance coverage:
(i)
For the benefit of Landlord, Tenant and any
mortgagee, a commercial general liability policy naming Landlord (and Landlord’s
designees) and any mortgagee as additional insureds, protecting and indemnifying
Landlord, Tenant and any mortgagee against any and all claims for personal
injury, death, bodily injury or property damage occurring upon, in or about the
Demised Premises, and the public portions of the Building in connection with any
act of Tenant, its employees, agents, contractors, customers, invitees and
visitors including, without limitation, personal injury, death, bodily injury or
property damage resulting from any work performed by or on behalf of Tenant,
with coverage of not less than $3,000,000, combined single limit for personal
injury, death and property damage arising out of one occurrence or
accident.
(ii)
All risk property insurance utilizing the special form in an
amount adequate to cover the cost of replacement of all personal property,
fixtures, furnishings and equipment, including any work (as referred to in
Section 5.01), located in the Demised Premises.
(iii)
Workers’ compensation insurance in such limits as
required by applicable Governmental Requirements.
(iv)
Business interruption insurance covering those risks referred
to in subdivision (ii) above, in the amount equal to all rents payable under
this Lease for a period of twelve (12) months, commencing with the date of
loss.
(b)
All such insurance shall (i) be effected under valid and
enforceable policies, (ii) be issued by insurers of recognized responsibility
authorized to do business in the State of New York, (iii) contain a provision
whereby the insurer agrees not to cancel the insurance without thirty (30) days'
prior written notice to Landlord, (iv) contain a provision that no act or
omission of Tenant shall result in forfeiture of the insurance as against
Landlord, (v) be in form acceptable to Landlord or shall use standard forms,
(vi) be primary and not contribute with any insurance carried by Landlord,
and (vii) be placed with insurers carrying a Bests rating of at least
A-VIII.
12
On or
before the Commencement Date, Tenant shall deliver to Landlord certificates
evidencing the aforesaid insurance coverage, such certificates to contain an
endorsement naming Landlord (and Landlord’s designees) as additional insureds
for liability insurance, and renewal policies or certificates shall be delivered
to Landlord at least thirty (30) days prior to the expiration date of each
policy with proof of payment of the premiums thereof.
Section
9.04. Landlord and Tenant shall each secure an appropriate clause in, or an
endorsement upon, each all risk property insurance policy obtained by it and
covering the Building, the Demised Premises or the personal property, fixtures
and equipment located therein or thereon, pursuant to which the respective
insurance companies waive subrogation to the extent insurance proceeds are
received for such loss, or permit the insured, prior to any loss, to agree with
a third party to waive any claim it might have against said third party to the
extent insurance proceeds are recovered from such loss. The waiver of
subrogation or permission for waiver of any claim herein before referred to
shall extend to the agents of each party and its employees and, in the case of
Tenant, shall also extend to all other persons and entities occupying or using
the Demised Premises in accordance with the terms of this Lease. If
and to the extent that such waiver or permission can be obtained only upon
payment of an additional charge, then, the party benefitting from the waiver or
permission shall pay such charge upon demand, or shall be deemed to have agreed
that the party obtaining the insurance coverage in question shall be free of any
further obligations under the provisions hereof relating to such waiver or
permission.
Subject
to the foregoing provisions of this Section 9.04, and insofar as may be
permitted by the terms of the insurance policies carried by it, each party
hereby releases the other with respect to any claim (including a claim for
negligence) which it might otherwise have against the other party for loss,
damages or destruction with respect to its property by fire or other casualty
(including rental value or business interruption, as the case may be) occurring
during the term of this Lease to the extent that insurance proceeds are
recovered for such loss, damage or destruction.
13
ARTICLE
10
Damage
by Fire or Other Cause
Section
10.01. If the Demised Premises shall be damaged by fire or other casualty or the
Demised Premises is rendered inaccessible due to fire or other casualty, the
damage shall be repaired by and at the expense of Landlord and the minimum rent
and additional rent pursuant to the provisions of Article 22 until such repairs
shall be made, shall be apportioned according to the part of the Demised
Premises which is usable by Tenant. Landlord shall have no
responsibility to repair any Tenant's work (as referred to in Section 5.01), the
same being the responsibility of Tenant. No penalty shall accrue for
delays which may arise by reason of adjustment of insurance by Landlord,
unavoidable delays (as hereinafter defined), or any other cause beyond
Landlord's reasonable control. Tenant shall give notice to Landlord
promptly upon learning thereof in case of fire or other damage to the Demised
Premises. If the Demised Premises are totally or substantially
damaged or are rendered wholly or substantially unusable by fire or any such
other casualty, or if the Building shall be so damaged that Landlord shall
decide to demolish it or to rebuild it (whether or not the Demised Premises
shall have been damaged), or if more than twenty-five (25%) percent of the
rentable square feet of the Demised Premises shall be damaged during the last
year of the term hereof, Landlord at its election may terminate this Lease by
written notice to Tenant, within ninety (90) days after such fire or other
casualty, and thereupon the term of this Lease shall expire by lapse of time
upon the third (3rd) day after such notice is given, and Tenant shall vacate and
surrender the Demised Premises to Landlord. Tenant shall not be
liable under this Lease for anything accruing after the date of such
expiration. Notwithstanding the foregoing provisions of this Section,
within sixty (60) days after such casualty, Landlord shall provide Tenant with
an estimate as to the time reasonably required to repair such
damage. If such period exceeds nine (9) months from the date of such
casualty, subject to unavoidable delays not to exceed ninety (90) days, Tenant
may elect to terminate this Lease by notice to Landlord no later than ten (10)
days following Tenant's receipt of such estimate, and thereupon the term of this
Lease shall expire on the thirtieth (30th) day
after Tenant's notice is given, and Tenant shall vacate and surrender the
Demised Premises to Landlord. If Landlord does not substantially
complete such repairs within said period of nine (9) months, subject to
unavoidable delays not to exceed ninety (90) days, then Tenant may
elect to terminate this Lease by notice to Landlord within ten (10) days
following the expiration of such time period, and thereupon the term of this
Lease shall expire on the thirtieth (30th) day
after such notice is given, and Tenant shall vacate and surrender the Demised
Premises to Landlord, unless within such thirty (30) day period, Landlord
substantially completes the repair of such damage, in which event this Lease
shall remain in full force and effect.
Tenant
hereby waives the provisions of Section 227 of the Real Property Law, and the
provisions of this Article shall govern and control in lieu
thereof. If the damage is due to the fault or neglect of Tenant, the
debris shall be removed by, and at the expense of, Tenant.
Section
10.02. No damages of compensation shall be payable by Landlord nor shall Tenant
make any claim for inconvenience, loss of business or annoyance arising from any
repair or restoration of any portion of the Demised Premises or of the Building,
provided that Landlord shall use its commercially reasonable efforts to commence
and effect such repairs promptly and in such manner as not to unreasonably
interfere with Tenant's occupancy.
14
ARTICLE
11
Assignment,
Subletting, Mortgaging
Section
11.01. Tenant will not, by operation of law or otherwise, assign, mortgage or
encumber this Lease, or sublet or permit the Demised Premises or any part
thereof to be occupied or used by others for desk space or mailing privileges,
without Landlord's prior written consent in each instance. 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 any assignment,
subletting, mortgage or encumbrance shall not in any manner be construed to
relieve Tenant from obtaining Landlord's express consent to any other or further
assignment, subletting, mortgage or encumbrance. In no event shall
any permitted sublessee 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.
Section
11.02. If Tenant shall at any time or times during the term of this Lease desire
to assign this Lease or sublet all or part of the Demised Premises, Tenant shall
give notice thereof to Landlord, which notice shall be accompanied by (a) a
conformed or photostatic executed copy of the proposed assignment or sublease,
together with an abstract of the material terms of the assignment or sublease,
the effective or commencement date of which shall be not less than thirty (30)
nor more than one hundred eighty (180) days after the giving of such notice, (b)
a statement setting forth in reasonable detail the identity of the proposed
assignee or subtenant, the nature of its business and its proposed use of the
Demised Premises, (c) a statement in sufficient detail satisfactory to Landlord,
setting forth the calculations of the sums to be payable to Landlord pursuant to
the provisions of Section 11.10, and (d) current financial information with
respect to the proposed assignee or subtenant, including, without limitation,
its most recent financial report. Such notice shall be deemed an
offer from Tenant to Landlord whereby Landlord may, at its option, terminate
this Lease if the proposed transaction is an assignment or a sublease (whether
by one sublease or a series of related or unrelated subleases) of all or
substantially all of the Demised Premises.
Section
11.03. If Landlord exercises its option to terminate this Lease in the case
where Tenant desires either to assign this Lease or sublet (whether by one
sublease or a series of related or unrelated subleases) all or substantially all
of the Demised Premises, then this Lease shall end and expire on the date that
such assignment or sublet was to be effective or commence, as the case may be,
and the minimum rent and additional rent shall be paid and apportioned to such
date.
15
Section
11.04. Intentionally Deleted.
Section
11.05. Intentionally Deleted.
Section
11.06. Intentionally Deleted.
Section
11.07. In the event Landlord does not exercise an option provided to it pursuant
to Section 11.02 and provided that Tenant is not in default in any of Tenant's
obligations under this Lease, Landlord's consent (which must be in writing and
in form reasonably satisfactory to Landlord) to the proposed assignment or
sublease shall not be unreasonably withheld or delayed, provided and upon
condition that:
(a) Tenant
shall have complied with the provisions of Section 11.02;
(b) In
Landlord's judgment, the proposed assignee or subtenant is engaged in a business
and the Demised Premises, or the relevant part thereof, will be used in a manner
which (i) is limited to the use expressly permitted under Sections 4.01 and 4.02
of this Lease; and (ii) is in keeping with the then standards of the
Building;
(c) The
proposed assignee or subtenant is a reputable person of good character and with
sufficient financial worth considering the responsibility involved, and Landlord
has been furnished with reasonable proof thereof;
(d) Neither
(i) the proposed assignee or sublessee nor (ii) any person which, directly or
indirectly, controls, is controlled by or is under common control with, the
proposed assignee or sublessee, is then an occupant of any part of the
Building;
(e) The
proposed assignee or sublessee is not a person with whom Landlord is currently
negotiating to lease space in the Building;
(f)
The proposed sublease shall be in form reasonably
satisfactory to Landlord and shall comply with the provisions of this
Article;
(g) At
any one time there shall not be more than two (2) subtenants (including Landlord
or its designee) in the Demised Premises;
(h) Tenant
shall pay to Landlord within ten (10) days following written demand for any
reasonable costs that may be incurred by Landlord in connection with said
assignment or sublease, including, without limitation, the reasonable costs
incurred in making investigations as to the acceptability of the proposed
assignee or subtenant, and attorneys fees in connection with the granting of any
requested consent;
16
(i)
Tenant shall not have (i) advertised the Demised
Premises for subletting or assignment without prior notice to Landlord, or (ii)
listed the same at a rental rate less than the minimum rent or additional rent
at which Landlord is then offering to lease other space in the
Building.
(j)
The proposed subtenant or assignee shall not
be entitled, directly or indirectly, to diplomatic or sovereign immunity and
shall be subject to the service of process in and the jurisdiction of the courts
of New York State.
Except
for subletting by Tenant to Landlord or its designee pursuant to the provisions
of this Article, 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 Landlord or any
such subletting to any other subtenant and/or acceptance of rent or additional
rent by Landlord from any subtenant, Tenant shall and will remain fully liable
for the payment for the minimum 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
performed and all acts and omissions of any licensee or subtenant or anyone
claiming under or through any subtenant which shall be in violation of any of
the obligations of this Lease, and any such violation shall be deemed to be a
violation by Tenant. Tenant further agrees that notwithstanding any
such subletting, no other and further subletting of the Demised Premises by
Tenant or any person claiming through or under Tenant (except as provided in
Section 11.05) shall or will be made except upon compliance with and subject to
the provisions of this Article. If Landlord shall reasonably decline
to give its consent to any proposed assignment or sublease, Tenant shall
indemnify, defend and hold harmless Landlord against and from any and all loss,
liability, damages, costs and expenses (including reasonable counsel fees)
resulting from any claims that may be made against Landlord by the proposed
assignee or sublessee or by any brokers or other persons claiming a commission
or similar compensation in connection with the proposed assignment or
sublease.
Section
11.08. In the event that (a) Landlord consents to a proposed assignment or
sublease, and (b) Tenant fails to execute and deliver the assignment or sublease
to which Landlord consented within ninety (90) days after the giving of such
consent, then, Tenant shall again comply with all of the provisions and
conditions of Section 11.02 before assigning this Lease or subletting all or
part of the Demised Premises.
Section
11.09. With respect to each and every sublease or subletting authorized by
Landlord under the provisions of this Lease, it is further
agreed:
17
(a) No
subletting shall be for a term ending later than one day prior to the expiration
date of this Lease;
(b) No
sublease shall be valid, and no subtenant shall take possession of the Premises
or any part thereof, until an executed counterpart of such sublease has been
delivered to Landlord;
(c) Each
sublease shall provide that it is subject and subordinate to this Lease and to
the matters to which this Lease is or shall be subordinate, and that in the
event of termination, re-entry or dispossess by Landlord under this Lease
Landlord may, at its option, take over all of the right, title and interest of
Tenant, as sublessor, under such sublease, and such subtenant shall, at
Landlord's option, attorn to Landlord pursuant to the then executory provisions
of such sublease, except that Landlord shall not (i) be liable for any previous
act or omission of Tenant under such sublease, (ii) be subject to any offset,
not expressly provided in such sublease, which thereto accrued to such subtenant
against Tenant, or (iii) be bound by any previous modification of such sublease
or by any previous prepayment of more than one month's rent.
Section
11.10. If Landlord gives its consent to any assignment of this Lease or to any
sublease, Tenant shall, in consideration therefor, pay to Landlord, as
additional rent:
(a) in
the case of an assignment of this Lease or an assignment by any sublessee of any
sublease, an amount equal to fifty percent (50%) of all sums and other
considerations paid to Tenant from the assignee for such assignment or paid to
Tenant by any sublessee or other person claiming through or under Tenant for
such assignment (including, but not limited to sums paid for the sale of
Tenant's or sublessee's fixtures, leasehold improvements, less, in case of a
sale thereof, the then net unamortized or undepreciated cost thereof determined
on the basis of Tenant's or sublessee's federal income tax
returns). The sums payable to Landlord under this Section shall be
paid to Landlord as and when paid by such assignee to Tenant; and
(b) in
the case of a sublease, an amount equal to fifty percent (50%) of the rents and
charges and other consideration payable under the sublease to Tenant by the
subtenant or paid to Tenant by any such sublessee or other person claiming
through or under Tenant in connection with such subletting which is in excess of
the minimum rent and additional rent under Article 22 accruing during the term
of the sublease in respect of the subleased space (at the rate per square foot
payable by Tenant hereunder or such sublessee) pursuant to the terms of this
Lease (including, but not limited to, sums paid for the sale or rental of
Tenant's fixtures, leasehold improvements, less, in the case of the
sale thereof, the then net unamortized or undepreciated cost thereof
determined on the basis of Tenant's or sublessee's federal income tax
returns). The sums payable to Landlord under this Section shall be
paid to Landlord as and when paid by such subtenant to Tenant.
18
(c) For
the purposes of computing the sums payable by Tenant to Landlord under
subparagraphs (a) and (b) hereof, there shall be excluded from the consideration
payable to Tenant by any assignee or sublessee any transfer taxes, rent
concession, reasonable attorneys' fees, reasonable brokerage commissions,
advertising costs and fix-up, build out costs paid by Tenant with respect to
such assignment or subletting, but only to the extent any such sums are
allocable to the period of this Lease (in the case of any assignment), or the
term of any sublease.
Section
11.11. If Tenant or any subtenant is a corporation, partnership, limited
liability company or other entity, the provisions of Section 11.01 shall apply
to a transfer (by one or more transfers) of a majority of the stock partnership,
membership or other ownership interests of Tenant or such subtenant, as the case
may be, as if such transfer of a majority of the stock, partnership, membership
or other ownership interests of Tenant or such subtenant were an assignment of
this Lease; but said provisions and the provisions of Sections
11.02 and 11.10 shall not apply to transactions with a corporation,
partnership, limited liability company or other entity into or with which Tenant
or such subtenant is merged or consolidated or to which substantially all
of Tenant's or such subtenant's assets, stock, partnership, membership or other
ownership interests are sold or transferred or to any corporation, partnership,
limited liability company or other entity which controls, is
controlled by or is under common control with Tenant or such subtenant, provided
that in any such event (i) the successor to Tenant or such subtenant has a net
worth computed in accordance with generally accepted accounting principles at
least equal to the greater of (1) the net worth of Tenant or such subtenant
immediately prior to such merger, consolidation or transfer, or (2) the net
worth of Tenant herein named on the date of this Lease or the net worth of such
subtenant on the date of such sublease, and ii) proof satisfactory to Landlord
of such net worth shall have been delivered to Landlord at least ten (10) days
prior to the effective date of any such transaction.
Section
11.12. Any assignment or transfer, whether made with Landlord's consent pursuant
to Section 11.07 or without Landlord's consent pursuant to Section 11.11, 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 the
obligations of this Lease on the part of Tenant to be performed or observed and
whereby the assignee shall agree that the provisions in this Article 11 shall,
notwithstanding such assignment or transfer, 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 of this Lease, and notwithstanding the
acceptance of minimum 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 minimum rent and additional rent and for the
other obligations of this Lease on the part of Tenant to be performed or
observed.
19
Section
11.13. The joint and several liability of Tenant and any immediate or remote
successor in interest of Tenant and the due performance of the obligations of
this Lease on Tenant's part to be performed or observed shall not be discharged,
released or impaired in any respect by any agreement or stipulation made by
Landlord 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.
Section
11.14. The listing of any name other than that of Tenant, whether on the doors
of the Demised Premises, or the Building directory, if any, or otherwise, shall
not operate to vest any right or interest in this Lease or in the Demised
Premises, nor shall it be deemed to be the consent of Landlord to any assignment
or transfer of this Lease, to any sublease of the Demised Premises, or to the
use or occupancy thereof by others.
ARTICLE
12
Liability
and Indemnity by Landlord and Tenant
Section
12.01. Tenant shall indemnify Landlord against and save Landlord harmless from
any liability to and claim by or on behalf of any person, firm, governmental
authority, corporation or entity for personal injury, death or property damage,
arising:
(a) from
the negligent acts or omissions of Tenant, or from any work whatsoever done or
omitted to be done by Tenant (to the extent that Tenant is obligated to perform
such work under the terms hereunder), its employees, agents, contractors,
customers, invitees or visitors, or from any accident thereat; and
(b) from
any breach or default by Tenant of and under any of the terms, covenants and
conditions of this Lease on Tenant’s part to be performed.
Tenant
also shall indemnify Landlord against and save Landlord harmless from all costs,
reasonable counsel fees, expenses and penalties incurred by Landlord in
connection with any such liability or claim except to the extent such liability
or claim incurred as a result of Landlord’s negligence or willful
misconduct.
If any
action or proceeding shall be brought against either Landlord in connection with
any such liability or claim pursuant to subparagraphs (a) or (b) hereinabove,
Tenant, on notice from Landlord, shall defend such action or
proceeding, at Tenant’s expense, by counsel reasonably satisfactory
to the Landlord, or by the attorney for Tenant’s insurance carrier whose
insurance policy covers the liability or claim.
20
Section
12.02. Landlord 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, except if due to the negligence or
willful act of Landlord, its agents, contractors or employees. Except
as otherwise expressly provided elsewhere in this Lease, Landlord and its agents
shall not be liable for any injury or damage to persons or property resulting
from fire, explosion, falling plaster, steam, gas, electricity, water, rain or
snow or leaks from any part of the Building or from the pipes, appliances or
plumbing works or from the roof, street or sub-surface or from any other place
or by dampness or by any other cause of whatsoever nature, except if due to the
negligence or willful acts of Landlord, its agents, contractors or employees;
nor shall Landlord be liable for any such damage caused by other tenants or
persons in the Building or caused by operations in construction of any public or
quasi-public work; nor shall Landlord be liable for any non-structural latent
defect in the Demised Premises or any latent defect in the
Building. If, at any time any windows of the Demised Premises are
permanently closed, darkened or bricked up by reason of the requirements of law
or temporarily closed or darkened by reason of repairs, alterations or
maintenance by Landlord, Landlord shall not be liable for any damage Tenant may
sustain thereby and Tenant shall not be entitled to any compensation therefor
nor abatement of rent nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction.
Tenant
shall reimburse and compensate Landlord, as additional rent, within ten (10)
days after rendition of a statement for all expenditures made and for all
losses, liabilities, claims, damages, fines, penalties and expenses incurred by
Landlord arising from any default by Tenant under this Lease.
Tenant
shall give prompt notice to Landlord upon its actual discovery of accidents in
the Demised Premises.
Section
12.03. If in this Lease it is provided that Landlord's consent or approval as to
any matter will not be unreasonably withheld, and it is established by a court
or body having final jurisdiction thereover that Landlord has been unreasonable,
the only effect of such finding shall be that Landlord shall be deemed to have
given its consent or approval; but Landlord shall not be liable to Tenant in any
respect for money damages by reason of withholding its consent.
21
ARTICLE
13
Moving of Heavy
Equipment
Tenant
shall not move any safe, heavy equipment or bulky matter in or out of the
Building without Landlord's written consent, which shall not be unreasonably
withheld. If the movement of such items requires special handling,
Tenant agrees to employ only persons holding a Master Rigger's License to do
said work and all such work shall be done in full compliance with the
Administrative Code of the City of New York and other municipal
requirements. All such movements shall be made during hours which
will not materially interfere with the normal operations of the Building, and
all damage caused by such movement shall be promptly repaired by Tenant at
Tenant's expense.
ARTICLE
14
Condemnation
Section
14.01. In the event that the whole of the Demised Premises shall be condemned or
taken in any manner for any public or quasi-public use, this Lease and the term
and estate hereby granted shall forthwith cease and terminate as of the date of
vesting of title. In the event that only a part of the Demised
Premises shall be so condemned or taken, then, effective as of the date of
vesting of title, the minimum rent and additional rent hereunder for such part
shall be equitably abated and this Lease shall continue as to such part not so
taken. In the event that only a part of the Building shall be so
condemned or taken, then (a) if substantial structural alteration or
reconstruction of the Building shall, in the opinion of Landlord, be necessary
or appropriate as a result of such condemnation or taking (whether or not the
Demised Premises be affected), Landlord may, at its option, terminate this Lease
and the term and estate hereby granted as of the date of such vesting of title
by notifying Tenant in writing of such termination within sixty (60) days
following the date on which Landlord shall have received notice of the vesting
of title, or (b) if Landlord does not elect to terminate this Lease, as
aforesaid, this Lease shall be and remain unaffected by such condemnation or
taking, except that the minimum rent and additional rent shall be abated to the
extent, if any, hereinbefore provided. In the event that only a part
of the Demised Premises shall be so condemned or taken and this Lease and the
term and estate hereby granted are not terminated as hereinbefore provided,
Landlord, out of the portion of the award allocated for such purpose and to the
extent such award is sufficient, will restore with reasonable diligence the
remaining structural portions of the Demised Premises as nearly as practicable
to the same condition as it was in prior to such condemnation or
taking.
Section
14.02. In the event of termination in any of the cases hereinabove provided,
this Lease and the term and estate hereby granted shall expire as of the date of
such termination with the same effect as if that were the Expiration Date and
the rent hereunder shall be apportioned as of such date.
22
Section
14.03. In the event of any condemnation or taking hereinabove mentioned of all
or a part of the Building, Landlord shall be entitled to receive the entire
award in the condemnation proceeding, including any award made for the value of
the estate vested by this Lease in Tenant, and Tenant hereby expressly
assigns to Landlord any and all right, title and interest of Tenant now or
hereafter arising in or to any such award or any part thereof, and Tenant shall
be entitled to receive no part of such award. Notwithstanding the
foregoing, Tenant may make a separate claim for Tenant's moveable trade fixtures
and moving expenses, provided the same shall not affect or reduce Landlord's
award.
ARTICLE
15
Entry,
Right to Change Public Portions of the Building
Section
15.01. Tenant shall permit Landlord to erect, use and maintain pipes and
conduits in and through the walls, within the ceiling or below the floors of the
Demised Premises, provided that such pipes and conduits shall be concealed
inside the walls and/or ceilings of the Demised Premises. Landlord,
or its agents or designee shall, upon reasonable prior oral or written notice to
Tenant (unless in the event of emergency, in which case no such notice shall be
required) have the right to enter the Demised Premises during normal business
hours for the purpose of making such repairs or alterations as Landlord shall
desire, shall be required or shall have the right to make under the provisions
of this Lease, provided that Landlord shall use commercially reasonable efforts
to minimize any interference with Tenant's use of the Demised Premises; and
shall also have the right (on prior reasonable notice and at reasonable times)
to enter the Demised Premises for the purpose of inspecting them or exhibiting
them to prospective purchasers or to prospective purchasers of the lessee’s
estate under Superior Leases or to prospective mortgagees or to prospective
assignees of any such mortgagees. Landlord shall, during the progress
of any such work in the Demised Premises, be allowed to take, but in no event
shall store, all material into and upon the Demised Premises that may be
required for the repairs or alterations above mentioned without the same
constituting an eviction of Tenant in whole or in part and the rent reserved
shall in no wise ▇▇▇▇▇, except as otherwise provided in this Lease, while said
repairs or alterations are being made.
Section
15.02. During the six (6) months prior to the expiration of the term of this
Lease, Landlord may exhibit the Demised Premises to prospective
tenants.
Section
15.03. Landlord shall have the right at any time without thereby creating an
actual or constructive eviction or incurring any liability to Tenant therefor,
to change the arrangement or location of such of the following as are not
contained within the Demised Premises: entrances, passageways, doors and
doorways, corridors, elevators, stairs, toilets, and other like public service
portions of the Building, provided that access to the Demised Premises shall not
be materially impaired as a result of such change. All parts (except
surfaces facing the interior of the Demised Premises) of all walls, windows and
doors bounding the Demised Premises (including exterior Building walls, exterior
core corridor walls, exterior doors and entrances, all space in or adjacent to
the Demised Premises used for shafts, stacks, stairways, chutes, pipes,
conduits, ducts, fan rooms, heating, air cooling, plumbing and other
mechanical facilities, service closets and other Building facilities are not
part of the Demised Premises and Landlord shall have the use thereof, as well as
access thereto through the Demised Premises for the purposes of operation,
maintenance, alteration and repair, upon reasonable prior notice (unless in the
event of an emergency, in which case no notice shall be required) and otherwise
subject to the terms set forth herein.
23
Section
15.04. Landlord shall have the right at any time to name the Building as it
desires and to change any and all such names at any time
thereafter.
ARTICLE
16
Conditional
Limitations
Section
16.01. If at any time during the term of this Lease:
(a) Tenant
shall file a petition in bankruptcy or insolvency or for reorganization or
arrangement or for the appointment of a receiver of all or a portion of Tenant's
property, or
(b) Any
petition of the kind referred to in subdivision (a) of this Section shall be
filed against Tenant and such petition shall not be vacated, discharged or
withdrawn within ninety (90) days, or
(c) Tenant
shall be adjudicated a bankrupt by any court, or
(d) Tenant
shall make an assignment for the benefit of creditors, or
(e) a
permanent receiver shall be appointed for the property of Tenant by order of a
court of competent jurisdiction by reason of the insolvency of Tenant (except
where such receiver shall be appointed in an involuntary proceeding, if he shall
not be withdrawn within ninety (90) days after the date of his
appointment),
then
Landlord, at Landlord's option, may terminate this Lease on five (5) days'
notice to Tenant, and upon such termination, Tenant shall quit and surrender the
Demised Premises to Landlord.
24
Section
16.02 (a) If Tenant assumes this
Lease and proposes to assign the same pursuant to the provisions of the United
States Bankruptcy Code (the "Bankruptcy Code") to any person or entity who shall
have made a bona fide offer to accept an assignment of this Lease on terms
acceptable to Tenant, then notice of such proposed assignment, setting forth (i)
the name and address of such person, (ii) all of the terms and conditions
of such offer, and (iii) the adequate assurance to be provided Landlord to
assure such person's future performance under the Lease, including, without
limitation, the assurance referred to in section 365(b)(1) of the Bankruptcy
Code, shall be given to Landlord by Tenant not later than twenty (20) days after
receipt by Tenant but in no event later than ten (10) days prior to the date
that Tenant shall make application to a court of competent jurisdiction for
authority and approval to enter into such assignment and assumption, and
Landlord shall thereupon have the prior right and option, to be exercised by
notice to Tenant given at any time prior to the effective date of such proposed
assignment, to accept an assignment of this Lease upon the same terms and
conditions and for the same consideration, if any, as the bona fide offer made
by such person, less any brokerage commissions which may be payable out of the
consideration to be paid by such person for the assignment of this
Lease.
(b) If
this Lease is assigned to any person or entity pursuant to the provisions of the
Bankruptcy Code, any and all monies or other considerations payable or otherwise
delivered in connection with such assignment shall be paid or delivered to
Landlord, shall be and remain the exclusive property of Landlord and shall not
constitute property of Tenant or of the estate of Tenant within the meaning of
the Bankruptcy Code. Any and all monies or other considerations
constituting Landlord's Property under the preceding sentence not paid or
delivered to Landlord shall be held in trust for the benefit of Landlord and
shall be promptly paid to Landlord.
(c) Any
person or entity to which this Lease is assigned pursuant to the provisions of
the Bankruptcy Code, shall be deemed without further act or deed to have assumed
all of the obligations arising under this Lease on and after the date of such
assignment. Any such assignee shall upon demand execute and deliver
to Landlord an instrument confirming such assumption.
(d) Nothing
contained in this Section shall, in any way, constitute a waiver of the
provisions of this Lease relating to assignment. Tenant shall not, by
virtue of this Section, have any further rights relating to assignment other
than those granted in the Bankruptcy Code.
(e) Notwithstanding
anything in this Lease to the contrary, all amounts payable by Tenant to or on
behalf of Landlord under this Lease, whether or not expressly denominated as
rent, shall constitute rent for the purposes of Section 502(b)(6) of the
Bankruptcy Code.
(f) The
term "Tenant" as used in this Section includes any guarantor of this Lease, or
any, trustee, debtor in possession, receiver, custodian or other similar
officer.
25
Section
16.03. If this Lease shall terminate pursuant to the provisions of Section
16.01:
(a) Landlord
shall be entitled to recover from Tenant arrears in minimum rent and additional
rent and, in addition thereto as liquidated damages, an amount equal to the
difference between the minimum rent and additional rent for the unexpired
portion of the term of this Lease which had been in force immediately prior to
the termination effected under Section 16.01 of this Article and the fair and
the reasonable rental value of the Demised Premises, on the date of termination,
for the same period, both discounted at the rate of eight (8%) percent per annum
to the date of termination; or
(b) Landlord
shall be entitled to recover from Tenant arrears in minimum rent and additional
rent and, in addition thereto as liquidated damages, an amount equal to the
maximum allowed by statute or rule of law in effect at the time when and
governing the proceedings in which such damages are to be proved, whether or not
such amount be greater or less than the amount referred to in subdivision (a) of
this Section.
Section
16.04. (a) (i) If Tenant shall fail to make any payment of any minimum rent or
additional rent when the same becomes due and payable, or (ii) if the Demised
Premises become vacant or deserted, or if Tenant shall fail to cancel or
discharge any mechanic's lien or other lien within the time period as provided
in Section 17.02, or (iii) if Tenant shall fail to deliver an estoppel
certificate as provided in Article 26, and if any of the foregoing defaults
shall continue for a period of fifteen (15) days after notice thereof by
Landlord, or
(b) If
Tenant shall be in default in the performance of any of the other terms,
covenants and conditions of this Lease and such default shall not have been
remedied within thirty (30) days after notice by Landlord to Tenant specifying
such default and requiring it to be remedied; or where such default reasonably
cannot be remedied within such period of thirty (30) days, if Tenant shall not
have commenced the remedying thereof within such period of time and shall not be
proceeding with due diligence to remedy it,
then
Landlord, at Landlord's election, may terminate this Lease on ten (10) days'
notice to Tenant, and upon such termination Tenant shall quit and surrender the
Demised Premises to Landlord.
Section
16.05. If this Lease shall terminate as provided in this Article or if Tenant
shall be in default in the payment of minimum rent or additional rent when the
same become due and payable, and such default shall continue for a period of
fifteen (15) days after notice by Landlord to Tenant,
26
(a) Landlord
may re-enter and resume possession of the Demised Premises and remove all
persons and property therefrom either by summary dispossess proceedings or by a
suitable action or proceeding, at law or in equity, by force or otherwise,
without being liable for any damages therefor, and
(b) Landlord
may re-let the whole or any part of the Demised Premises for a period equal to,
greater or less than the remainder of the then term of this Lease, at such
rental and upon such terms and conditions as Landlord shall deem reasonable to
any tenant it may deem suitable and for any use and purpose it may deem
appropriate. Landlord shall not be liable in any respect for failure
to re-let the Demised Premises or, in the event of such re-letting, for failure
to collect the rent thereunder and any sums received by Landlord on a re-letting
in excess of the rent reserved in this Lease shall belong to
Landlord.
Section
16.06. If this Lease shall terminate as provided in this Article or by summary
proceedings (except as to any termination under Section 16.01), Landlord shall
be entitled to recover from Tenant as damages, in addition to arrears in minimum
rent and additional rent,
(a) an
amount equal to (i) all expenses incurred by Landlord in recovering possession
of the Demised Premises and in connection with the re-letting of the Demised
Premises, including, without limitation, the cost of repairing, renovating or
remodeling the Demised Premises, (ii) the cost of performing any work required
to be done by Tenant under this Lease, (iii) the cost of placing the Demised
Premises in the same condition as that in which Tenant is required to surrender
them to Landlord under this Lease, and (iv) all brokers' commissions and legal
fees incurred by Landlord in re-letting the Demised Premises, which amounts set
forth in this subdivision (a) shall be due and payable by Tenant to Landlord at
such time or times as they shall have been incurred; and
(b) an
amount equal to the deficiency between the minimum rent and additional rent
which would have become due and payable had this Lease not terminated and the
net amount, if any, of rent collected by Landlord on re-letting the Demised
Premises. The amounts specified in this subdivision shall be due and
payable by Tenant on the several days on which such minimum rent and additional
rent would have become due and payable had this Lease not
terminated. Tenant consents that Landlord shall be entitled to
institute separate suits or actions or proceedings for the recovery of such
amount or amounts, and Tenant hereby waives the right to enforce or assert the
rule against splitting a cause of action as a defense thereto.
27
Section
16.07. Tenant, for itself and for all persons claiming through or under it,
hereby waives any and all rights which are or may be conferred upon Tenant by
any present or future law to redeem the Demised Premises after a warrant to
dispossess shall have been issued or after judgment in an action of ejectment
shall have been made and entered.
Section
16.08. The words "re-enter" and "re-entry", as used in this Article, are not
restricted to their technical legal meanings.
Section
16.09. Landlord shall not be required to give any notice of its intention to
re-enter, except as otherwise provided in this Lease.
Section
16.10. In any action or proceeding brought by Landlord against Tenant,
predicated on a default in the payment of minimum rent or additional rent,
Tenant shall not have the right to and shall not interpose any set-off or
counterclaim of any kind whatsoever, other than a claim which would be legally
barred for failure to raise as a counterclaim in such action or proceeding. If
Tenant has any claim, Tenant shall be entitled only to bring an independent
action therefor; and if such independent action is brought by Tenant, Tenant
shall not be entitled to and shall not consolidate it with any pending action or
proceeding brought by Landlord against Tenant for a default in the payment of
minimum rent or additional rent.
ARTICLE
17
Mechanic's
Liens
Section
17.01. If, subject to and notwithstanding Landlord's consent to the extent
required under this Lease, Tenant shall cause any changes, alterations,
additions, improvements, installations or repairs to be made to or at the
Demised Premises or shall cause any labor to be performed or material to be
furnished in connection therewith, neither Landlord nor the Demised Premises,
under any circumstances, shall be liable for the payment of any expense incurred
or for the value of any work done or material furnished (unless otherwise
expressly provided elsewhere in this Lease), and all such changes, alterations,
additions, improvements, installations and repairs and labor and material shall
be made, furnished and performed upon Tenant's credit alone and at Tenant's
expense, and Tenant shall be solely and wholly responsible to contractors,
laborers, and materialmen furnishing and performing such labor and
material. Nothing contained in this Lease shall be deemed or
construed in any way as constituting the consent or request of Landlord, express
or implied, to any contractor, laborer or materialman to furnish or perform any
such labor or material.
28
Section
17.02. If, because of any act or omission (or alleged act or omission) of Tenant
any mechanic's or other lien, charge or order for the payment of money shall be
filed against the Demised Premises or the Building or Landlord's estate as
tenant under any Superior Lease (whether or not such lien, charge or order is
valid or enforceable as such), for work claimed to have been for, or materials
furnished to, Tenant, Tenant, at Tenant's expense, shall cause it to be
cancelled or discharged of record by bonding or otherwise within sixty (60) days
after such filing, and Tenant shall indemnify Landlord against and save Landlord
harmless from and shall pay all reasonable costs, expenses, losses, fines and
penalties, including, without limitation, reasonable attorneys' fees, resulting
therefrom.
ARTICLE
18
Landlord's Right to Perform Tenant's
Obligations
If Tenant
shall default in the performance of any of the terms or covenants and conditions
of this Lease, and such default shall remain uncured beyond the expiration of
any applicable notice and cure period, Landlord, without being under any
obligation to do so and without hereby waiving such default, may remedy such
default for the account and at the reasonable expense of Tenant. Any
payment made or expense incurred by Landlord for such purpose (including, but
not limited to, reasonable attorneys' fees), shall be deemed to be additional
rent hereunder and shall be paid by Tenant to within ten (10) days after demand,
or at Landlord's election, added to any subsequent installment or installments
of minimum rent.
ARTICLE
19
Covenant of Quiet
Enjoyment
Landlord
covenants that upon Tenant paying the minimum rent and additional rent and
observing and performing all the terms, covenants and conditions of this Lease
on Tenant's part to be observed and performed, Tenant may peaceably and quietly
enjoy the Demised Premises, subject nevertheless to the terms and conditions of
this Lease.
ARTICLE
20
Excavation
In the
event that construction is to be commenced or an excavation is made or
authorized for building or other purposes upon land adjacent to the Building,
Tenant shall, if necessary, afford to the person or persons causing or
authorized to commence construction or cause such excavation or to engage in
such other purpose, license to enter upon the Demised Premises for the purpose
of doing such work as shall reasonably be necessary to protect or preserve the
Building, from injury or damage and to support the Building and any new
structure to be built by proper foundations, pinning and/or underpinning,
or otherwise.
29
ARTICLE
21
Services and
Equipment
Section
21.01. So long as Tenant is not in default under any of the terms, covenants and
conditions of this Lease, Landlord shall, at its cost and expense:
(a) Provide
operatorless passenger elevator service to the Demised Premises on Mondays
through Fridays from 8:00 A.M. to 6:00 P.M., holidays excepted. A
passenger elevator will be available at all other times to serve the Demised
Premises. A freight elevator shall be available Mondays through
Fridays, only from 8:00 A.M. to 5:00 P.M., excepting Saturdays, Sundays and
holidays. The freight elevator shall be available on a "first come,
first served" basis during the said days and hours and on a reservation "first
come, first served" basis other than on said days and hours at Landlord's
customary charges therefor.
30
(b) Maintain
and repair the Building standard heating, ventilating and air conditioning
system servicing the Demised Premises (the "HVAC System") installed by Landlord,
except for those repairs which are the obligation of Tenant pursuant to Article
6 of this Lease. The HVAC System will be operated by Landlord as and
when required by law, or for the comfortable occupancy of the Demised Premises
(as reasonably determined by Landlord) during the applicable seasons on Mondays
through Fridays, from 8:00 A.M. to 8:00 P.M.; excepting Saturdays, Sundays and
holidays, provided that Tenant shall draw and close the draperies or blinds for
the windows of the Demised Premises whenever the HVAC system is in operation and
the position of the sun so requires and shall, at all times, cooperate fully
with Landlord and abide by all of the reasonable Rules and Regulations which
Landlord may prescribe for the proper functioning of the HVAC
System. In the event that Tenant requires HVAC service outside of the
aforementioned days and times, Landlord may charge Tenant at the initial rate of
$400.00 per hour for such off-hour service, as increased from time to time by
Landlord. Landlord agrees to operate the HVAC System servicing the Demised
Premises in accordance with their design criteria unless energy and/or water
conservation programs, guidelines or laws and/or requirements of public
authorities, shall provide for any reduction in operations below said design
criteria in which case such equipment shall be operated so as to provide reduced
service in accordance therewith. Tenant expressly acknowledges that
some or all windows are or may be hermetically sealed and will not open and
Landlord makes no representation as to the habitability of the Demised Premises
at any time the HVAC System is not in operation. Tenant
hereby expressly waives any claims against Landlord arising out of the cessation
of operation of the HVAC System, or the suitability of the Demised Premises when
the same is not in operation, whether due to normal scheduling or the reasons
set forth in Section 21.03. Landlord will not be responsible for the
failure of the HVAC System if such failure results from the occupancy of the
Demised Premises by more than an average of one (1) person for each one hundred
(100) square feet in any separate room or area or if Tenant shall install and
operate machines, incandescent lighting and appliances with a total connected
electrical load in excess of the Building's electrical specifications, as
determined by Landlord's consulting engineers. If Tenant shall occupy
the Demised Premises at an occupancy rate of greater than that for which the
HVAC System was designed, or if the total connected electrical load is in excess
of the Building's electrical specifications, as reasonably determined by
Landlord's consulting engineers, or if Tenant's partitions shall be arranged by
Tenant in such a way as to interfere with the normal operation of the HVAC
System, Landlord may elect to make changes to the HVAC System or the ducts
through which it operates required by reason thereof, and the cost thereof shall
be reimbursed by Tenant to Landlord, as additional rent, within twenty (20) days
after presentation of a ▇▇▇▇ therefor. Landlord, throughout the term,
upon reasonable prior notice, and during business hours shall have free access
to all mechanical installations of Landlord, including but not limited to
air-cooling, fan, ventilating and machine rooms and electrical closets, and
Tenant shall not construct partitions or other obstructions that may interfere
with Landlord's free access thereto, or interfere with the moving of Landlord's
equipment to and from the enclosures containing said
installations. Neither Tenant nor any person or entity within
Tenant's control shall at any time enter the said enclosures or tamper with,
adjust, touch or otherwise in any manner affect said mechanical installations,
except as set forth herein with respect to the thermostatic controls within the
Demised Premises.
(c) Provide
Building standard cleaning services in Tenant's office space and public portions
of the Building, except no services shall be performed Saturdays, Sundays and
holidays, all in accordance with Schedule D attached hereto. If,
however, any additional cleaning of the Demised Premises is to be done by
Tenant, it shall be done at Tenant's sole expense, in a manner reasonably
satisfactory to Landlord and no one other than persons approved by Landlord
shall be permitted to enter the Demised Premises or the Building for such
purpose. Tenant, at its own cost, may utilize its own employees
or outside contractors to perform additional cleaning services in the Demised
Premises, provided such employees or outside contractors do not cause any labor
disruption, dispute or disturbance in or around the Building or violate
Landlord’s union contracts affecting the Building. If Tenant shall
require additional cleaning services, Tenant may award a contract for
such services to any contractor that is approved by Landlord; provided,
however, that prior to making such award, Tenant shall inform Landlord of the
terms upon which such contractor shall provide such additional cleaning services
and, in the event that Landlord’s designated contractor can provide such
additional cleaning services on equal or better terms, Tenant shall award such
contract to Landlord’s designated contractor. Tenant shall pay for
the cost of the services performed by such designated contractor within ten (10)
days after being billed.
31
(d) Furnish
water for lavatory and cleaning purposes. If Tenant requires, uses or
consumes water in excess of the amounts ordinarily required for such purposes,
Landlord may install a meter or meters or other means to measure Tenant's water
consumption, and Tenant shall reimburse Landlord for the cost of the meter or
meters and the installation thereof, and shall pay for the maintenance of said
meter equipment and/or pay Landlord's cost of other means of measuring such
water consumption by Tenant. Tenant shall pay to Landlord on demand
the cost of all water consumed as measured by said meter or meters or as
otherwise measured, including sewer rents.
(e) If
Tenant shall require and request any of the foregoing services at times other
than above provided, and if such request is made at least twenty-four (24) hours
prior to the time when such additional services are required, Landlord will
provide them and Tenant shall pay to Landlord promptly the charges therefore
following receipt of an invoice by Tenant at the then Building standard rate
charged to other tenants in the Building, or such other rate as may be specified
in this Lease.
Section
21.02. Holidays shall be deemed to mean all federal holidays, state holidays and
Building Service Employees Union Contract holidays.
Section
21.03. Landlord reserves the right to interrupt, curtail or suspend the services
required to be furnished by Landlord under this Lease when necessary by reason
of accident, emergency, mechanical breakdown or when required by any law, order
or regulation of any Federal, State, County or Municipal authority, or for any
other cause beyond the control of Landlord. Landlord shall use due
diligence to complete all required repairs or other necessary work as quickly as
possible so that Tenant's inconvenience resulting therefrom may be for as short
a period of time as circumstances will reasonably permit. Tenant
shall not be entitled to nor shall Tenant make claim for any diminution or
abatement of minimum rent or additional rent or other compensation, nor shall
this Lease or any of the obligations of Tenant be affected or reduced by reason
of such interruption, curtailment, suspension, work or
inconvenience.
Section
21.04. Tenant shall reimburse Landlord promptly for the actual out-of-pocket
cost to Landlord of removal from the Demised Premises and the Building of
any refuse and rubbish of Tenant not covered by the Cleaning Specifications and
Tenant shall pay all bills therefor when rendered.
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Section
21.05. If Tenant shall request Landlord to furnish any services in addition to
those hereinabove provided or perform any work not required under this Lease,
and Landlord agrees to furnish and/or perform the same, Tenant shall pay to
Landlord promptly in advance the charges therefor, which charges are deemed to
be additional rent and payable as such. Subject to Section 5.01, Tenant will
have the right to perform Alterations in the Demised Premises by contractors
selected by Tenant and approved by Landlord.
Section
21.06. Tenant shall have the right to one (1) sign in the elevator lobby and up
to ten (10) listings on the Building directory located in the lobby of the
Building.
Section
21.07. If Landlord shall have failed to provide elevator, heating or air
conditioning services, as provided in this Article (the "Interruption"), and the
Interruption shall have (i) prevented the operation of Tenant's business in the
Demised Premises, and (ii) continued for a period in excess of thirty (30)
consecutive days following receipt by Landlord of notice from Tenant describing
in detail the Interruption (the Interruption that has satisfied both of the
foregoing conditions being referred to hereinafter as a "Material
Interruption"), then Tenant shall be entitled to an abatement of the minimum
rent only, provided that Tenant shall not have used all or any part of the
Demised Premises. Any such minimum rent abatement shall begin on the thirty
first (31st)
consecutive day of such Material Interruption and shall end upon the date such
Material Interruption has ended. Notwithstanding the foregoing, Tenant shall not
be entitled to any such rent abatement if (i) Tenant was able to use any part of
the Demised Premises, (ii) the Interruption shall have been caused by an act or
omission in violation of this Lease by or the negligence of Tenant, or of Tenant
agents, servants, employees or contractors, or (ii) the Interruption arises from
or relates to any unavoidable delays, including any matter beyond Landlord’s
reasonable control.
ARTICLE
22
Escalation
Section
22.01. Taxes. Tenant shall pay to Landlord, as additional rent, tax
escalation in accordance with this Section:
(a) Definitions: For
the purpose of this Section, the following definitions shall apply:
(i)
The term "Tax Base Factor" shall mean the Real Estate Taxes for the Building
Project for the period from July 1, 2010 to June 30, 2011, as finally
determined.
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(ii)
The term "The Building Project" shall mean the real property known as Unit B of
The Fifth Win Condominium, with all improvements erected on the Land as more
particularly described in Schedule B of this Lease
(iii)
The term "Comparative Tax Year" shall mean the New York City real estate tax
year commencing on July 1, 2011 and each subsequent New York City real estate
tax year. If the present use of July 1-June 30 New York City real
estate tax year shall hereafter be changed, then such changed tax year shall be
used with appropriate adjustment for the transition.
(iv)
The term "Real Estate Taxes" shall mean the total of all taxes and special or
other assessments and charges of any Special Business Improvement District
levied, assessed or imposed at any time by any governmental authority: (a) upon
or against the Building Project, and (b) in connection with the receipt of
income or rents from the 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. Income, franchise, transfer,
inheritance, corporate, mortgage recording or capital stock taxes of Landlord,
or penalties or interest thereon, shall be excluded from "Real Estate Taxes" for
the purposes hereof. If, 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, however
designated, shall be levied against the lessor under a Superior Lease (as
hereinafter defined) and/or Landlord in substitution in whole or in part for the
Real Estate Taxes, or in lieu of or addition to or increase of Real Estate
Taxes, then such franchise, income, transit, profit or other tax or governmental
imposition shall be included within "Real Estate Taxes." Tenant acknowledges
that the Tax Escalation Payment (as hereinafter defined) constitutes a method by
which Landlord is seeking to compensate for increases in expenses and that the
Tax Escalation Payment shall be calculated and paid by Tenant to Landlord
whether or not Real Estate Taxes have already been paid by
Landlord.
(v) The
term "the Percentage" for purposes of computing tax escalation, shall mean
4.2%.
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(b) (i)
Commencing July 1 ,2011, in the event that the Real Estate Taxes payable
for any Comparative Tax Year shall exceed the Tax Base Factor, Tenant shall pay
to Landlord, as additional rent for such Comparative Tax Year, an amount for tax
escalation ("Tax Escalation Payment") equal to the Percentage of the
excess. Before or after the start of each Comparative Tax Year,
Landlord shall furnish to Tenant a statement of the Tax Escalation Payment
payable for such Comparative Tax Year. Tenant shall make its aforesaid Tax
Escalation Payment to Landlord, in installments in the same manner and not later
than thirty (30) days prior to the last date that Real Estate Taxes are payable
by Landlord to the governmental authority. If a statement is
furnished to Tenant after the commencement of the Comparative Tax Year in
respect of which such statement is rendered, Tenant shall, within ten (10) days
thereafter, pay to Landlord an amount equal to those installments of the total
Tax Escalation Payment then due. If on the first day of the first
month of any Comparative Tax Year, the amount of the Real Estate Taxes shall not
have been determined by the taxing authority, then the amount of the Real Estate
Taxes payable by Tenant shall be estimated by Landlord based on the amount of
the corresponding Real Estate Taxes for the immediately preceding Comparative
Tax Year. Any such estimated Real Estate Taxes shall be subject to adjustment
when the amount of such Real Estate Taxes shall be determined, and payment or
credit of such adjustment shall be made upon billing by
Landlord. If, during the term of this Lease, Real Estate Taxes
are required to be paid, in full or in monthly or other installments, on any
other date or dates than as presently required, or if Landlord shall be required
to make monthly deposits of Real Estate Taxes to the holder of any mortgage,
then Tenant's Tax Escalation Payment(s) shall be correspondingly adjusted so
that the same are due to Landlord in corresponding installments not later than
thirty (30) days prior to the last date on which the applicable installment of
such Real Estate Taxes shall be due and payable to the governmental authority or
such mortgagee.
(ii)
If in any tax certiorari proceeding regarding Real Estate Taxes payable
for any Comparative Tax Year or in otherwise establishing such taxes, Landlord
has incurred expenses for legal and/or consulting services rendered in applying
for, negotiating or obtaining a reduction of the assessment upon which the Real
Estate Taxes are predicated, Tenant shall pay an amount equal to the
Percentage of such expenses.
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(iii)
The statements of the Tax Escalation Payment to be furnished by Landlord as
provided above shall constitute a final determination as between Landlord and
Tenant of the Tax Escalation Payment for the periods represented thereby, except
for mathematical error or other error in computation.
(iv)
In no event shall the fixed minimum rent under this Lease be reduced by virtue
of this Section 22.01.
(v)
Upon the date of any expiration or termination of this Lease, 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 the Tax Escalation Payment for the
Comparative Tax 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, or due and payable by Landlord to Tenant if
the amount paid by Tenant exceeded such proportionate share. The said
proportionate share shall be based upon the length of time that this Lease shall
have been in existence during such Comparative Tax Year. Prior to or
promptly after said expiration or termination, Landlord shall compute the Tax
Escalation Payment due from or owed to Tenant, as aforesaid and Tenant shall
promptly pay Landlord any amount unpaid. If Landlord shall receive a
refund or a tax credit of any amount of Real Estate Taxes for any Comparative
Tax Year for which Tenant has made a payment, Landlord shall pay to Tenant
within fifteen (15) days of its receipt of such refund or credit the Percentage
of any such refund, less the Percentage of any legal fees and other expenses
provided for in Section 22.01(b)(ii) to the extent the same have not theretofore
been paid by Tenant.
(vi)
Landlord's and Tenant's obligations to make the adjustments referred to in
subdivision (v) above shall survive any expiration or termination of this
Lease.
(vii)
Any delay or failure of Landlord in billing any Tax Escalation Payment
hereinabove provided shall not constitute a waiver of or in any way impair the
continuing obligation of Tenant to pay such Tax Escalation Payment
hereunder.
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(viii)
The parties acknowledge that the ICAP Program is not currently in effect at the
Building. Notwithstanding any language to the contrary in this Lease, Landlord
and Tenant agree that for the purposes of this Section 22.01, Real Estate Taxes
and Tax Escalation Payments shall be calculated without regard to any
deductions, credits, abatements, or deferral of Real Estate taxes which Landlord
may receive pursuant to Sections 489aaaaaa through 489kkkkkk, authorized by
Title 2-F of Article 4 of the New York Real Property Tax Law and any and all
rules and regulations promulgated thereunder, including any successor statute
(herein collectively called the “ICAP Program”).
Section
22.02. ▇▇▇▇▇▇'▇ Wage Rate. Tenant shall pay to the Landlord, as
additional rent, a ▇▇▇▇▇▇'▇ wage rate escalation in accordance with this
Section:
(a) For
the purpose of this Section, the following definitions shall apply:
(i)
"Wage Rate(s)" shall mean the minimum regular hourly rate of wages in effect,
from time to time, during each calendar year (whether paid by Landlord or any
contractor employed by Landlord) computed as paid over a forty hour week to
Porters in Class A office buildings pursuant to an Agreement between Realty
Advisory Board on Labor Relations, Incorporated, or any successor thereto, and
Local 32B-32J of the Building Service Employees International Union, AFL-CIO, or
any successor thereto; and provided, however, that if there is no such agreement
in effect prescribing a wage rate for Porters, computations and payments shall
thereupon be made upon the basis of the regular hourly wage rate actually
payable in effect as of January 1st of each year, and provided, however, that if
in any year during the term, the regular employment of Porters shall occur on
days or during the hours when overtime or other premium pay rates are in effect
pursuant to such Agreement, then the term "hourly rate of wages" as used herein
shall be deemed to mean the average hourly rate for the hours in a calendar week
during which Porters are regularly employed (e.g., if pursuant to an agreement
between Realty Advisory Board and the Local the regular employment of Porters
for forty hours during a calendar week is at a regular hourly wage rate of
$3.00 for the first thirty hours, and premium or overtime hourly wage rate of
$4.50 for the remaining ten hours, then the hourly rate of wages under this
Article during such period shall be the total weekly rate of $135.00 divided by
the total number of regular hours of employment, forty or
$3.375). Notwithstanding the foregoing, if at any time such hourly
wage rate is different for new hire and old hire Porters, then thereafter such
hourly wage rate shall be based on the weighted average of the wage rates for
the different classifications of Porters.
37
(ii)
"Base Wage Rate" shall mean the Wage Rate in effect on January 1,
2010.
(iii)
The term "Porters" shall mean that classification of non-supervisory employees
employed in and about the Building who devote a major portion of their time to
general cleaning, maintenance and miscellaneous services essentially of a
non-technical and non-mechanical nature and are the type of employees who are
presently included in the classification of "Class A-Others" in the Commercial
Building Agreement between the Realty Advisory Board and the aforesaid
Union.
(iv)
The term "minimum regular hourly rate of wages" shall not include any payments
for fringe benefits or adjustments of any kind.
(v)
The term "Multiplication Factor" shall mean 14,486.
(b) If
the Wage Rate(s) for any calendar year during the term shall be increased above
the Base Wage Rate, then Tenant shall pay, as additional rent, an amount equal
to the product obtained by multiplying the Multiplication Factor by 100% of the
number of cents (including any fraction of a cent) by which the Wage Rate(s) is
greater than the Base Wage Rate, such payment to be made in equal one-twelfth
(1/12th) monthly installments commencing with the first monthly installment of
minimum rent falling due on or after the effective date of such increase in Wage
Rate(s) (payable retroactive from said effective date) and continuing thereafter
until a new adjustment shall have become effective in accordance with the
provisions of this Article. Landlord shall give Tenant notice of each
change in Wage Rate(s) which will be effective to create or change Tenant's
obligation to pay additional rent pursuant to the provisions of this Section
22.02 and such notice shall contain Landlord's calculation in reasonable detail
and certified as true by an authorized
partner of Landlord or of its managing agent, of the annual rate of additional
rent payable resulting from such increase in Wage Rate(s). Such amounts shall be
prorated for any partial calendar years during the
term.
38
(c) Tenant’s
obligations to make the payments referred to in subdivision (b) above shall
survive any expiration or termination of this Lease.
(d) A
notice with respect to the ▇▇▇▇▇▇’▇ wage escalation given by Landlord pursuant
to Section 22(b) hereof shall be binding upon Tenant, except for manifest
error.
(e) The
"Wage Rate(s)" is intended to be a substitute comparative index of economic
costs and does not necessarily reflect the actual costs of wages or other
expenses of operating the Building. The Wage Rate(s) shall be used
whether or not the Building is a Class A office building and whether or not
Porters are employed in the Building and without regard to whether such
employees are members of the Union referred to in subsection (a)
hereof.
ARTICLE
23
Electricity
Section
23.01.
(a) Landlord
shall provide electricity to the Demised Premises on a submetering basis from
the existing risers and switches on the floor. Tenant’s consumption
of electricity shall be measured by one independent time of day (or use)
submeter, which submeter shall be in working order on the Commencement Date and
shall serve the Demised Premises, and no other tenant, and shall be furnished
and installed by Landlord, at the cost of Tenant, and read by
Landlord. If Tenant shall require electricity exceeding the available
service capacity, any additional risers, feeders and similar electrical
equipment which may be required, shall be installed by Landlord, at the expense
of Tenant, to and for the use of Tenant in the Demised Premises during the term
hereof. Landlord represents that the available service capacity of
electricity in the Demised Premises will be not less than eight (8) ▇▇▇▇▇ per
usable square foot connected load. Any riser(s) shall terminate at a
disconnect switch to be located at a point designated by Landlord in electrical
closet(s) on the floor of the Demised Premises. Such disconnect
switch shall be the sole source from which Tenant is to obtain
electricity. Such submeter shall at all times be maintained by
Tenant, at its expense, unless damaged due to the negligence of Landlord,
its agents, employees or contractors. Tenant covenants and agrees to
purchase electric power 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 more than those specified in the service classification in
effect from time to time pursuant to which Landlord then purchases electric
current from the Electric Service Provider or Alternate Service Provider (as
said terms are hereinafter defined), as the case may be, plus a fee equal to
five (5%) percent of such charges, representing agreed upon administrative and
overhead costs to Landlord. Bills therefor shall be rendered monthly
or at such other times as Landlord may elect and the amount, as computed from
such meter, shall be deemed to be, and be paid as, additional rent, within ten
(10) days thereafter, without any set-off or deduction. If any tax is
imposed upon Landlord’s receipt from the sale or resale of electric energy to
Tenant by any federal, state or municipal authority, Tenant covenants and agrees
that, where permitted by law, Tenant's pro rata share of such taxes
shall be passed on to, and included in the ▇▇▇▇ of, and paid by, Tenant to
Landlord.
39
(b) Landlord
has advised Tenant that presently Con Edison ("Electric Service Provider") is
the utility company selected by Landlord to provide electricity service for the
Building. Notwithstanding the foregoing, if permitted by law,
Landlord shall have the right at any time and from time to time during the term
of this Lease to either contract for service from a different company or
companies providing electricity service (each such company shall hereinafter be
referred to as an "Alternate Service Provider") or continue to contract for
service from the Electric Service Provider.
(c) Tenant
shall cooperate with Landlord, the Electric Service Provider, and any Alternate
Service Provider at all times and, as reasonably necessary, shall allow
Landlord, Electric Service Provider, and any Alternate Service Provider
reasonable access to the Building's electric lines, feeders, risers, wiring, and
any other machinery within the Demised Premises.
Section
23.02. Landlord shall not be liable in any way for any loss, damage or expense
that Tenant may sustain or incur by reason of or any failure, change,
interruption or defect in the supply or character of electric energy furnished
to the Demised Premises by reason of any requirement, act or omission of the
Electric Service Provider or Alternate Service Provider (as said terms are
hereinafter defined) serving the Building with electricity and no such failure,
change, interruption or defect shall constitute an act of constructive eviction,
in whole or in part, or entitle Tenant to any abatement of minimum rent or
additional rent or relieve Tenant of its obligations under this
Lease. Tenant shall furnish and install, at its sole cost and
expense, all lighting fixtures, tubes, lamps, bulbs, ballasts and outlets
relating to Tenant’s electrical equipment.
40
Section
23.03. Tenant's connected electrical load in the Demised Premises, including
lighting, shall not at any time exceed the capacity of any of the electrical
conductors and equipment in or servicing the Demised Premises, such capacity
being eight (8) ▇▇▇▇▇ per usable square foot connected load, including lighting.
In order to ensure that such capacity is not exceeded and to avert possible
adverse effect upon the Building electric service, Tenant shall not, without
Landlord's prior consent in each instance, connect any appliances or equipment
other than standard office equipment (computers, copiers, fax machines,
telephones, etc.) to the electric system of the Demised Premises existing on the
Commencement Date. Should Landlord grant such consent, all additional
risers or other equipment required therefor shall be provided by Landlord and
the cost thereof shall be paid by Tenant, to the extent Tenant's need for
electricity exceeds eight (8) ▇▇▇▇▇ per usable square foot.
Section
23.04. Landlord reserves the right to discontinue furnishing electric energy at
any time, whether or not Tenant is in default under this Lease, upon not less
than thirty (30) days' notice to Tenant, provided Landlord discontinues
furnishing electricity to all other tenants in the Building. If
Landlord exercises such right of discontinuance, this Lease shall continue in
full force and effect and shall be unaffected thereby, except only that, from
and after the effective date of such discontinuance, Landlord shall not be
obligated to furnish electric energy to Tenant. If Landlord so elects
to discontinue furnishing electric energy to Tenant, Tenant shall arrange to
obtain electric energy directly from the Electric Service Provider or Alternate
Service Provider. Notwithstanding the foregoing, Landlord shall not
discontinue furnishing electric energy until Tenant is able to obtain such
electric energy directly from said Electric Service Provider or Alternate
Service Provider. Such electric energy may be furnished to Tenant by
means of the then existing Building system feeders, risers and wiring to the
extent that they are available, suitable and safe for such
purposes. All meters and additional panel boards, feeders, risers,
wiring and other conductors and equipment which may be required to obtain
electric energy directly from such Electric Service Provider or Alternate
Service Provider company, and which are to be located within the Demised
Premises, shall be installed by Landlord at its sole cost and expense, and
maintained by Tenant at its expense.
ARTICLE
24
Broker
Landlord
and Tenant covenant and represent that the sole brokers who negotiated and
brought about this transaction were CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. and ▇▇▇▇▇ Brothers
Realty Corporation and Landlord agrees to pay a commission therefor as per
separate agreements. Landlord and Tenant agree to hold the other
harmless against any claims for a brokerage commission arising out of a breach
by the indemnifying party of the representations contained in this
Article.
41
ARTICLE
25
Subordination
and Ground Lease
Section
25.01. This Lease is subject and subordinate to (a) the lease dated as of July
29, 1986, between Saks & Company, as lessor and Swiss Bank Corporation, New
York Branch, as lessee, as the same is or may hereafter be amended (the “Saks
Lease”), (b) any “New Lease” (as defined in the Saks Lease) hereafter entered
into, as the same may be amended (collectively together with the Saks Lease
called the “Superior Leases”), and (c) to all mortgages (the “Superior
Mortgages”) which may now or hereafter encumber any such Superior Leases and/or
the interest of the lessee under the Superior Lease in and to the Building, and
to all renewals, modifications, amendments, consolidations, replacements or
extensions of any of the foregoing. This clause shall be
self-operative and no further instrument of subordination shall be
required. However, in confirmation of such subordination, Tenant, at
any time and from time to time, shall execute promptly, and within fifteen (15)
days of such request, any certificate and document that Landlord may reasonably
request which reasonably evidences such subordination.
Section
25.02. (a) The Tenant covenants and agrees that if by reason of a default under
any Superior Lease, or under any Superior Mortgage, such Superior Lease and the
leasehold estate of the Landlord in the Demised Premises is terminated, or the
lessee’s estate in the Building under a Superior Lease is foreclosed upon or
transferred in lieu of a foreclosure, the Tenant will attorn to the then holder
of the reversionary interest in the premises demised by this Lease or the
foreclosure purchaser or transferee in lieu of foreclosure, as the case may be,
and will recognize such holder, purchaser or transferee as the Tenant's Landlord
under this Lease, unless the lessor under such Superior Lease or the holder of
any such Superior Mortgage, in any proceeding to terminate such Superior Lease
or foreclose such Superior Mortgage, elects to terminate this Lease and the
rights of Tenant hereunder provided, however, the holder of the reversionary
interest or the foreclosure purchaser or transferee in lieu of foreclosure shall
not be (i) liable for any act or omission or negligence of Landlord under this
Lease; (ii) subject to any counterclaim, defense or offset which theretofore
shall have accrued to Tenant against Landlord; (iii) obligated to perform,
undertake or complete any work in the Demised Premises or to prepare it for
occupancy; (iv) bound by any previous modification or amendment of this Lease or
by any previous prepayment of more than one (1) month's rent, unless such
modification or prepayment shall have been approved in writing by the holder of
such Superior Mortgage; (v) obligated to repair the Demised Premises, or the
Building, or any part thereof, in the event of any damage beyond such repair as
can reasonably be accomplished from the net proceeds of insurance actually made
available to the then holder of the reversionary interest or the foreclosure
purchaser or transferee in lieu of foreclosure; (vi) obligated to repair the
Demised Premises or the Building, or any part thereof, in the event of
partial condemnation of the Demised Premises or the Building; (vii)
required to account for any security deposit of Tenant unless actually delivered
to such holder, purchaser or transferee by Landlord; (viii) bound by any
obligation to make any payment to Tenant or grant any credits, except for
services, repairs, maintenance and restoration provided for under this Lease to
be performed by Landlord after the date of attornment; or (ix) responsible for
any monies owing by Landlord to Tenant. Nothing contained in this
subparagraph shall be construed to impair any right otherwise exercisable by any
such holder, purchaser or transferee. Tenant agrees to execute and
deliver, at any time and from time to time, upon the request of the Landlord of
or the lessor under any such Superior Lease or the holder of any such Superior
Mortgage any instrument which may be necessary or appropriate to evidence such
attornment.
42
(b) Upon
Tenant's receipt of a written notice from the lessor under any Superior Lease or
the holder of any Superior Mortgage to the effect that (i) the lessor of said
Superior Lease has terminated such Superior Lease or the holder of any Superior
Mortgage has declared a default under such Superior Mortgage and/or is otherwise
is entitled to performance by the tenant under the Superior Lease, and (ii)
Tenant should pay the minimum rent and additional rent thereafter due and
payable under this Lease to said lessor or said holder at a place designated in
such notice, Tenant shall pay such minimum rent and additional rent to said
lessor under said Superior Lease or the holder of any Superior Mortgage at such
designated place until such time as said lessor or holder shall notify Tenant
that Tenant may resume paying all minimum rent and additional rent thereafter
due and payable under this Lease to Landlord. Tenant shall have no
liability to the Landlord for paying any minimum rent or additional rent to said
lessor under the Superior Lease or holder of any Superior Mortgage or otherwise
acting in accordance with the provisions of any notice sent to it under this
paragraph and shall be relieved of its obligations to pay Landlord any minimum
rent or additional rent under this Lease to the extent such payments are made to
said lessor under the Superior Lease or to said holder under the Superior
Mortgage.
Section
25.03. In the event of any act or omission by Landlord which would give Tenant
the right to terminate this Lease or to claim a partial or total eviction,
pursuant to the terms of this Lease, if any, Tenant will not exercise any such
right until:
(a) it
has given a written notice to cure (concurrently with any notice given to
Landlord), regarding such act or omission to the holder of any Superior Mortgage
and to the lessor of any Superior Lease, whose names and addresses shall
previously have been furnished to Tenant, in writing, addressed to such holder
and lessor at the last addresses so furnished, and
43
(b) a
reasonable period of time (not to exceed the period in this Lease or the
Superior Lease or the Superior Mortgage, as the case may be) for remedying such
act or omission shall have elapsed following such giving of notice and the
expiration of any grace period applicable thereto in favor of Landlord
hereunder, during which such holder and lessor, or any of them, with reasonable
diligence, following the giving of such notice, shall have commenced and are
continuing to remedy such act or omission or to cause the same to be
remedied.
If Tenant
fails to give the notice and cure period to the holder of any Superior Mortgage
pursuant to subparagraph (a) above and to the lessor of any Superior Lease, then
any termination of this Lease or claim of partial or total eviction by Tenant
shall be deemed null and void.
Section
25.04. If, in connection with obtaining financing for the Landlord’s estate in
and to the Building as lessee under a Superior Lease, or of Landlord's interest
in any Superior Lease, a banking, insurance or other recognized institutional
lender shall request modifications in this Lease as a condition to such
financing, Tenant will not withhold, delay or defer its consent thereto and its
execution and delivery of such modification agreement, provided that such
modifications do not increase the obligations or lessen the rights of Tenant
hereunder or adversely affect Tenant's leasehold interest hereby created or
Tenant's use and enjoyment of the Demised Premises.
Section
25.05. Landlord shall obtain, within sixty (60) days from the execution and
delivery of this Lease by the parties hereto, from the holder of the existing
mortgage on the land and Building which non-disturbance agreement shall be in
the form used by said mortgagee. Any fees (including reasonable attorneys fees)
required to be paid to such mortgagee in connection with the non-disturbance
agreement shall be paid by Tenant.
Section
25.06. Landlord represents and warrants that the terms of the Saks Lease do not
(a) materially interfere with the leasehold estate granted under this Lease, or
(b) materially interfere with Tenant’s use of the Demised Premises.
ARTICLE
26
Estoppel
Certificate
Tenant
shall at any time, and from time to time, within ten (10) days after so
requested by Landlord execute, acknowledge and deliver to Landlord, a statement
addressed to Landlord or its designee or the lessor of any Superior Lease or the
holder of any Superior Mortgage encumbering such Superior Lease and/or the
interest of the lessor under the Superior Lease in and to the Building (a)
certifying that this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications), (b) stating the dates to which the
minimum rent and additional rent have been paid, (c) stating whether or not
there exists any default by Landlord under this Lease, and, if so, specifying
each such default, and (d) such other information as may be reasonably required
by Landlord or any such lessor or mortgagee.
44
ARTICLE
27
Waiver
of Jury Trial
Tenant
hereby waives the right to trial by jury in any summary proceeding that may
hereafter be instituted against it or in any action or proceeding that may be
brought by Landlord on matters which are connected with this Lease, or any of
its provisions or Tenant's use or occupancy of the Demised Premises, including
any claims for injury or damage, or any emergency or other statutory remedy with
respect thereto.
ARTICLE
28
Surrender
of Premises
Section
28.01. Upon the expiration or other termination of the term of this Lease,
Tenant shall quit and surrender the Demised Premises, vacant, broom clean, in
good order and condition, ordinary wear and tear and damage by fire or other
casualty excepted, and shall remove all its property therefrom, except as
otherwise provided in this Lease. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of the
term of this Lease.
Section
28.02. In the event Tenant shall remain in possession of the Demised Premises
after the expiration or other termination of the term of this Lease, such
holding over shall not constitute a renewal or extension of this
Lease. Landlord, may, at its option, elect to treat Tenant as one who
is not removed at the end of the term, and thereupon be entitled to all of the
remedies against Tenant provided by law in that situation or Landlord may elect
to construe such holding over as a tenancy from month-to-month, subject to all
of the terms and conditions of this Lease, except as to the duration thereof,
and the minimum rent shall be due, in either of such events, at a monthly rental
rate equal to one and one-half (1.5) times the monthly installment of minimum
rent which would otherwise be payable for such month, together with any and all
additional rent. Tenant shall also be responsible for and hereby
indemnifies Landlord against any claims made by any succeeding tenant or
prospective tenant founded upon Tenant's delay in surrendering the Demised
Premises to Landlord. If the Demised Premises are not surrendered
upon the termination of this Lease, provided that at the time of expiration or
sooner termination, Landlord shall notify Tenant in writing that it has entered
into or is about to enter into a new lease with a succeeding tenant, in which
event, Tenant shall indemnify Landlord against liability resulting from such
delay by Tenant, including any claims made by any succeeding tenant founded upon
such delay.
45
ARTICLE
29
Rules
and Regulations
Section
29.01. Tenant, its servants, employees, agents, visitors and licensees shall
observe faithfully and comply with the rules and regulations set forth in
Schedule "C" attached hereto and made a part hereof. Landlord shall
have the right from time to time during the term of this Lease, upon at least
ten (10) business days prior notice to Tenant, to make reasonable changes in and
additions to the rules thus set forth.
Section
29.02. Any failure by Landlord to enforce any rules and regulations now or
hereafter in effect, either against Tenant or any other tenant in the Building,
shall not constitute a breach hereunder or waiver of any such rules and
regulations.
ARTICLE
30
Successors
and Assigns and Definitions
Section
30.01. The covenants, conditions and agreements contained in this Lease shall
bind and enure to the benefit of Landlord and Tenant and their respective
distributees, legal representatives, successors and, except as otherwise
provided herein, their assigns.
Section
30.02. The term "Landlord" as used in this Lease, so far as the covenants and
agreements on the part of Landlord are concerned shall be limited to mean and
include only the owner or owners at the time in question of the tenant's estate
under any Superior Lease covering the property described in Schedule B hereto
annexed and/or (but only if the Superior Leases shall terminate and Tenant shall
attorn to the lessor under the Superior Lease which had terminated) the fee
title of Landlord covering the Land and/or the Building and improvements
thereon. In the event of any assignment or assignments of such
tenant's estate or transfer of such title, Landlord herein named (and in case of
any subsequent assignment or transfer, the then assignor or transferor) shall be
automatically freed and relieved from and after the date of such assignment or
transfer of all personal liability as respects to performance of any of
Landlord's covenants and agreements thereafter to be performed, and such
assignee or transferee shall be bound by all of such covenants and agreements;
it being intended that Landlord's covenants and agreements shall be binding on
Landlord, its successors and assigns only during and in respect of their
successive periods of such ownership.
46
However,
in any event, the members in Landlord shall not have any personal liability or
obligation by reason of any default by Landlord under any of Landlord's
covenants and agreements in this Lease. In case of such default,
Tenant will look only to Landlord's estate, as tenant, under such Superior Lease
and/or (but only if the Superior Leases shall terminate and Tenant shall attorn
to the lessor under the Superior Lease which had terminated) its interest in the
Land and/or Building, to recover any loss or damage resulting
therefrom.
Section
30.03. All pronouns or any variation thereof shall be deemed to refer to
masculine, feminine or neuter, singular or plural as the identity of the person
or persons may require; and if Tenant shall consist of more than one (1) person,
the obligations of such persons, as Tenant, under this Lease, shall be joint and
several.
Section
30.04. The definitions contained in Schedule E annexed hereto are hereby made a
part of this Lease.
ARTICLE
31
Notices
Any
notice, statement, certificate, request, approval, consent or demand required or
permitted to be given under this Lease shall be in writing sent by registered or
certified mail (or reputable, commercial overnight courier service) return
receipt requested, addressed, as the case may be, to Landlord, at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, with a copy to ▇▇▇▇▇ Brothers Realty
Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General Counsel, and to Tenant prior to the
Commencement Date at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ with a copy to ▇▇▇▇ ▇▇▇▇▇▇, Esq., Wolf Halderstein
▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and
after the Commencement Date at the Demised Premises with a copy to ▇▇▇▇ ▇▇▇▇▇▇,
Esq., Wolf Halderstein ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or to such other addresses as Landlord or Tenant
respectively shall designate in the manner herein provided. Such
notice, statement, certificate, request, approval, consent or demand shall be
deemed to have been given on the date when mailed, as aforesaid, or on the date
of delivery by overnight courier.
47
ARTICLE
32
No
Waiver; Entire Agreement
Section
32.01. The specific remedies to which Landlord may resort under the provisions
of this Lease are cumulative and are not intended to be exclusive of any other
remedies or means of redress to which Landlord may be lawfully entitled in case
of any breach or threatened breach by Tenant of any of the terms, covenants
and conditions of this Lease. The failure of Landlord or Tenant,
as the case may be, to insist upon the strict performance of any of the terms,
covenants and conditions of this Lease, or to exercise any right or remedy
herein contained, shall not be construed as a waiver or relinquishment for the
future of such term, covenant, condition, right or remedy. A receipt
by Landlord, or payment by Tenant, of minimum rent or additional rent with
knowledge of the breach of any term, covenant or condition of this Lease shall
not be deemed a waiver of such breach. This Lease may not be changed
or terminated orally. In addition to the other remedies in this Lease
provided, Landlord shall be entitled to seek to restrain by injunction, the
violation or attempted or threatened violation of any of the terms, covenants
and conditions of this Lease or to a decree, any court having jurisdiction in
the matter, compelling performance of any such terms, covenants and
conditions.
Section
32.02. No receipt of monies by Landlord from Tenant, after any re-entry or after
the cancellation or termination of this Lease in any lawful manner, shall
reinstate the Lease; and after the service of notice to terminate this Lease, or
other remedy, Landlord may demand, receive and collect any monies due, and apply
them of account of Tenant's obligations under this Lease but without in any
respect affecting such notice, action, proceeding or remedy, except that if a
money judgment is being sought in any such action or proceeding, the amount of
such judgment shall be reduced by such payment.
Section
32.03. If Tenant is in arrears in the payment of minimum rent or additional
rent, Tenant waives its right, if any, to designate the items in arrears against
which any payments made by Tenant are to be credited and Landlord may apply any
of such payments to any such items in arrears as Landlord, in its sole
discretion, shall determine, irrespective of any designation or request by
Tenant as to the items against which any such payments shall be
credited.
Section
32.04. No payment by Tenant nor receipt by Landlord of a lesser amount than may
be required to be paid hereunder shall be deemed to be other than on account of
any such payment, nor shall any endorsement or statement on any check or any
letter accompanying any check tendered as payment be deemed an accord and
satisfaction and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such payment due or pursue any other
remedy in this Lease provided.
Section
32.05. This Lease and the Schedules annexed hereto constitute the entire
agreement between Landlord and Tenant referable to the Demised Premises, and all
prior negotiations and agreements are merged herein.
Section
32.06. If any term or provision of this Lease or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such term or provision to persons
or circumstances
other than those as to which it is held invalid or unenforceable, shall
not be affected thereby, and each term and provision of this Lease shall
be valid and be enforced to the fullest extent permitted by
law.
48
Section
32.07 Tenant acknowledges that Landlord will contract or has contracted with one
or more providers of telecommunications services for the installation of cable,
wire and related electrical, electronic or mechanical devices in the Building
sufficient to provide telecommunications services to the Demised Premises, and
Tenant agrees to engage such a provider, as designated by Landlord, to provide
such services, unless another provider selected by Tenant and reasonably
approved by Landlord agrees to provide such services to Tenant at a lower cost
than the provider designated by Landlord. In such event Landlord
shall have the right to cause the service provider designated by Landlord to
match the cost chargeable by the provider selected by Tenant, in which event
Tenant agrees to engage the provider designated by Landlord.
Section
32.08 It is understood and agreed 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 whatsoever until (i) Tenant has duly executed and delivered
duplicate originals to Landlord, and (ii) Landlord has executed and delivered
one of said fully executed originals to Tenant.
Section
32.09. Tenant hereby grants to Landlord a lien and security interest on all
fixtures now or hereafter placed in or upon the Demised Premises by Tenant, and
all proceeds therefrom (collectively, “property”) and the fixtures shall be and
remain subject to such lien and security interest of Landlord for payment of all
rent, and to secure payment of any damage or loss which Landlord may suffer by
reason of the breach by Tenant of any covenant, agreement or condition contained
herein. The provisions of this section relating to said lien and
security interest shall constitute a security agreement under the New York
Uniform Commercial Code “the Code”) so that Landlord shall have and may enforce
a security interest in the fixtures now or hereafter placed in or upon the
Demised Premises by Tenant, and all proceeds therefrom, and such property shall
not be removed therefrom without the consent of Landlord until all
arrearages in rent then due to Landlord hereunder shall first have been paid and
discharged and all the covenants, agreements and conditions hereof have been
fully complied with and performed by Tenant. Upon the occurrence of
an event of default, Landlord may, in addition to any other remedies provided
herein or under law, enter upon the Demised Premises and take possession of any
fixtures of Tenant situated in the Demised Premises, without liability for
trespass or conversion, and sell the same at public or private sale with or
without having such property at the sale, after giving Tenant reasonable notice
of the time of any public sale or of the time after which any private sale is to
be made, at which sale Landlord or its assigns may purchase unless otherwise
prohibited by law. Unless otherwise provided by applicable law, and
without intending to exclude any other manner of giving Tenant reasonable
notice, the requirement of reasonable notice shall be met if such notice is
given in the manner prescribed in this Lease at least five (5) days before the
time of sale. The proceeds from any such disposition, less any and
all expenses connected with the taking of possession, holding and selling
of the property (including reasonable attorney’s fees and other expenses), shall
be applied as a credit against the indebtedness secured by the security interest
granted herein. In the event the proceeds from any such disposition
exceed the indebtedness secured by the security interest granted herein, then
such surplus shall be paid as required by law. Tenant agrees to
execute as debtor such financing statement or statements as Landlord may now or
hereafter reasonably request in order that such security interest or interests
may be perfected pursuant to said Code. Landlord, as secured party,
shall be entitled to all of the rights and remedies afforded a secured party
under said Code, in addition to and cumulative of the Landlord’s liens and
rights provided by law or by the other terms and provisions of this
Lease.
49
Section
32.10. If Tenant is a partnership that consists of two or more persons or
entities, then each person or entity signing below as Tenant shall be jointly
and severally liable for all of Tenant's obligations under this
Lease.
ARTICLE
33
Captions
The
captions of Articles in this Lease are inserted only as a matter of convenience
and for reference and they in no way define, limit or describe the scope of this
Lease or the intent of any provision thereof.
ARTICLE
34
Inability
to Perform
Tenant's
obligation to pay minimum rent and additional rent and to perform all of the
other terms, covenants and conditions of this Lease shall not be affected,
diminished, or excused if by reason of unavoidable delays (as hereinafter
defined) Landlord fails or is unable to supply any services or make any repairs
or perform any work which under this Lease Landlord has expressly agreed to
supply, make or perform, and the time for the performance or observance thereof
shall be extended for the period of time as Landlord shall have been so
delayed.
Tenant's
obligation to make any repairs required pursuant to Section 6.01 shall be
subject to any unavoidable delays (as hereinafter defined) and the time for the
performance by Tenant shall be extended for the period of time as Tenant shall
have been so delayed.
The words
"unavoidable delays", as used in this Lease shall mean (a) the enactment of any
law or issuance of any governmental order, rule or regulation (i) prohibiting or
restricting performance of work of the character required to be
performed under this Lease, or (ii) establishing rationing or priorities in
the use of materials, or (iii) restricting the use of labor, and (b) strikes,
lockouts, acts of God, inability to obtain labor or materials, enemy action,
civil commotion, fire, unavoidable casualty or other similar types of causes
beyond reasonable control, other than financial inability.
50
ARTICLE
35
No
Representations by Landlord
Neither
Landlord nor any agent or employee of Landlord has made any representation
whatsoever with respect to the Demised Premises except as expressly set forth in
this Lease.
ARTICLE
36
Security
Deposit
Section
36.01. Concurrently with the execution of this Lease, Tenant shall deliver to
Landlord the amount of $313,863.32, as security for the faithful performance and
observance by Tenant of the terms, provisions and conditions of this Lease. On
or before March 1, 2011, the security deposit shall be increased by $78,465.83
to $392,239.15 and Tenant shall deliver to Landlord a check in the amount of
$78,465.83 by said date. Tenant agrees that, in the event that Tenant defaults
in respect of any of the terms, provisions and conditions of this Lease
(including the payment of minimum rent and additional rent), after any
applicable notice and expiration of any applicable cure period, Landlord may
use, apply, or retain the whole or any part of the security deposit, to the
extent required for the payment of any rent, additional rent, or any other sum
as to which Tenant is in default, or for any sum that 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 any damages or
deficiency accrued before or after summary proceedings or other re-entry by
Landlord). In the event that Landlord applies or retains any portion
or all of the security deposit, Tenant shall, within five (5) days after demand
by Landlord, restore the amount so applied or retained. If Tenant
shall fail or refuse to make such additional deposit, Landlord shall have the
same rights in law and in equity and under this Lease as it has with respect to
a default by Tenant in the payment of minimum rent. In the event that
Tenant shall fully and faithfully comply with all of the terms, provisions,
covenants and conditions of this Lease, the security shall be returned to Tenant
within twenty (20) days after the expiration date and after delivery of
possession of the entire Demised Premises to Landlord in the condition provided
in this Lease for such delivery of possession.
51
Section
36.02. In the event Landlord's estate as tenant under any Superior Lease is sold
or assigned, or (if the Superior Lease shall terminate and Tenant shall
attorn to the lessor under the Superior Lease which had terminated) the fee
title of Landlord covering the Land and/or Building is transferable or conveyed,
Landlord shall have the right to transfer the security deposit then held by
Landlord to the vendee, transferee or assignee, and Landlord shall thereupon be
released by Tenant from all liability for the return of the security
deposit. In such event, Tenant agrees to look solely to the new
Landlord for the return of the security deposit. It is agreed that
the provisions hereof shall apply to every transfer or assignment made of the
security deposit to a new Landlord.
Section
36.03. Tenant covenants that it will not assign or encumber, or attempt to
assign or encumber, the security deposit, and that neither Landlord nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment, or attempted encumbrance.
Section
36.04. The use of the security, as provided in this Article, shall not be deemed
or construed as a waiver of Tenant's default or as a waiver of any other rights
and remedies to which Landlord may be entitled under the provisions of this
Lease by reason of such default, it being intended that Landlord's rights to use
the whole or any part of the security shall be in addition to but not in
limitation of any such other rights and remedies; and Landlord may exercise any
of such other rights and remedies independent of or in conjunction with its
rights under this Article.
Section
36.07. Provided that Tenant is not then in default under any of the terms,
covenants and conditions of this Lease, provided further that the named Tenant
is in occupancy of the entire Demised Premises, after the actual payment by
Tenant of thirty six (36) months of minimum rent, the amount of the security
deposit hereunder shall be reduced by $78,465.83 to $313,863.32.
ARTICLE
37
Late Payment
Charges
If Tenant
shall fail to pay any minimum rent or additional rent within ten (10) days after
its due date, Tenant shall pay a late charge of $.05 for each $1.00 which
remains unpaid after such period to compensate Landlord for additional expense
in processing such late payment. In addition, if Tenant fails to pay
any minimum rent or additional rent within ten (10) days after its due date,
Tenant shall pay interest thereon from the date due until the date paid at the
rate of one-half (1/2%) percent per month. If any check of Tenant in
payment of any sum due under this lease, including but not limited to minimum
rent and additional rent, fails to clear the bank, Tenant shall pay a charge of
$300.
52
ARTICLE
38
Rent
Control
In the
event the minimum rent and/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,
code or regulations of any organization or entity formed pursuant to law, Tenant
shall enter into such agreement(s) and take such other steps (without additional
expense or liability to Tenant) as Landlord may reasonably request and as may be
legally permissible to permit Landlord to collect the maximum rents which from
time to time during the continuance of such legal rent restriction may be
legally permissible (and not in excess of the amounts reserved therefor under
this Lease). Upon the termination of such legal rent restriction, (a)
the minimum rent and/or additional rent shall become and thereafter be payable
in accordance with the amounts reserved herein for the periods following such
termination, and (b) Tenant shall pay to Landlord promptly upon being billed, to
the maximum extent legally permissible, an amount equal to (i) minimum rent
and/or additional rent which would have been paid pursuant to this Lease but for
such legal rent restriction less (ii) the rents paid by Tenant during the period
such legal rent restriction was in effect.
ARTICLE
39
Confidentiality
Section
39.01. Tenant acknowledges that Tenant will have access to certain confidential
information. Tenant will not disclose the confidential information to anyone
other than its attorneys or accountants during the Term of this Lease. The term
“confidential information” shall mean the terms, covenants, conditions and
provisions of this Lease, including the amount of the minimum rent and the
additional rent, and the plans, designs, and other documentation, used in
connection with this Lease, the Demised Premises and the Building. Tenant
(including any guarantor of this Lease and Tenant’s affiliates) shall not use
the confidential information for any purpose other than the use of the Demised
Premises by Tenant in accordance with the terms of this Lease and shall not
disclose any confidential information without the prior written approval of
Landlord.
Section
39.02. Tenant acknowledges that any use or disclosure of the confidential
information will cause irreparable harm to Landlord. As a
consequence, Tenant agrees that if Tenant fails to abide by the terms of this
Article, Landlord shall be entitled to specific performance, including the
immediate issuance of a temporary restraining order or preliminary injunction
enforcing the terms of this Article, and to a judgment for any damages
resulting from such breach, and to any other remedies available under applicable
law.
53
Section
39.03. Tenant shall indemnify and hold Landlord harmless from and against any
costs, expenses, claims and liabilities (including attorneys fees) relating to
any and all matters concerning the use or disclosure of the confidential
information by Tenant or any breach of the terms of this Article.
Section
39.04. The terms of this Article shall continue during the Term and shall
survive for a period of five (5) years after the expiration or termination of
this Lease. The expiration or termination of this Lease shall not release Tenant
from Tenant’s obligations under this Article. Upon the expiration or termination
of this Lease, Tenant shall surrender and return to Landlord all confidential
information. No confidential information shall be retained by Tenant
after the expiration or termination of this Lease without Landlord’s prior
written approval.
ARTICLE 40
Landlord's
Contribution
Section
40.01. Subject to the provisions of Article 5 of this Lease, Tenant agrees to
perform the initial work and installations required to make the Demised Premises
suitable for the conduct of Tenant's business (“Tenant’s
Work”). Tenant, within thirty (30) days following its execution of
this Lease, agrees to deliver to Landlord, for Landlord's approval, the plans
and specifications for Tenant's Work. Tenant agrees to commence
Tenant’s Work promptly after Landlord’s delivery of vacant possession of the
Demised Premises and thereafter shall employ commercially reasonable efforts
(provided that Tenant shall not be required to incur any additional expense or
use overtime labor in employing such efforts) to complete Tenant’s Work and
commence business in the Premises within one hundred eighty (180) days following
Landlord’s approval of Tenant’s plans. Provided that Tenant is not in
default under this Lease beyond the expiration of any applicable notice and cure
period, Landlord agrees to reimburse Tenant up to the sum of Two Hundred
Eighty-Nine Thousand Seven Hundred Twenty Dollars ($289,720.00) ("Landlord's
Reimbursement Contribution") towards the cost of Tenant’s Work, which shall include the
hard costs of construction and soft costs for architectural and engineering
services. Landlord shall pay to Tenant, on a monthly basis, but not
more than once a month, ninety (90%) percent of the cost of the materials and
labor used for Tenant’s Work requested by Tenant theretofore performed by the
contractor, which shall include any general contractor and all subcontractors
hired by the general contractor, provided Tenant delivers to Landlord
concurrently with its request, receipted paid bills of the contractor, including
any general contractor and subcontractor, involved and approved by Tenant, and a
waiver of mechanic's lien signed by the contractors, including the general
contractor and subcontractors, with respect to the amount paid as evidenced by
the receipted paid ▇▇▇▇, such payment to be made to Tenant within thirty (30)
days after receipt of Tenant's request together with the aforesaid
documentation. Within forty-five (45) days after Landlord receives a
certificate from Tenant's architect stating that all of Tenant's Work performed
by the general contractor and subcontractors, has been completed, that the same
has been performed in compliance with all applicable Governmental Requirements
and the approved plans and specifications and delivery to Landlord of the any
required final "sign-off" letters, including, without limitation, the Department
of Buildings of the City of New York Letter of Completion Sign-off, and
equipment use permits (as necessary) for all work performed from the applicable
municipal authorities, Landlord shall pay to Tenant the aggregate of the ten
(10%) percent sums retained by Landlord. Landlord shall have no
obligation or responsibility to pay any cost exceeding the amount of Landlord’s
Reimbursement Contribution. If the amount Tenant expends for the cost
of the Tenant’s Work exceeds the amount of Landlord’s Reimbursement
Contribution, Tenant shall be responsible for the payment to the contractors of
the excess. If said amount is less than the amount of Landlord’s
Reimbursement Contribution, Landlord shall not be obligated to pay such
difference to Tenant. Tenant shall indemnify and hold Landlord
harmless from and against any and all claims, costs and expenses, including but
not limited to attorneys’ fees, in connection with or relating to the Tenant’s
Work performed pursuant to this Article.
54
ARTICLE
41
Supplemental
Air Conditioning
Section
41.01. Tenant, at Tenant’s cost and expense, shall have the right to use the
existing five (5) ton and the existing three (3) ton (totaling eight (8) tons)
water cooled supplemental air conditioning systems (the "Supplemental System”)
currently located in the Demised Premises. Landlord does not warrant
the condition of the Supplemental System and shall not be responsible for any
problems that may occur due to any mechanical or other failure of the
Supplemental System.
Section
41.02. Tenant, at Tenant’s cost and expense, (i) may tap into the existing
Building condenser water riser and use up to eight (8) tons of condenser water,
(ii) shall maintain the Supplemental System in good condition and repair and
shall make any replacements thereof as may be required, and (iii) shall obtain
in Tenant’s own name the use permits for the Supplemental System and provide
Landlord with copies of same. Tenant shall also obtain and pay for
annual renewal fees in connection therewith, and provide Landlord with a copy of
such annual renewals. The Supplemental System may be operated by
Tenant only during non-business hours. Landlord, at Tenant's cost,
shall have the right to install a device to measure the hours of operation of
the Supplemental System, which device is capable of providing a printout
verifying the date and time of usage and shall be read by
Landlord. Tenant shall pay to Landlord, as additional rent, the cost
of the electricity consumed by the Supplemental System, as determined by
Landlord, within ten (10) days following Landlord's billing thereof. Tenant
shall indemnify and hold Landlord harmless from and against any loss, claims,
costs, expenses and fees (including attorneys’ fees and disbursements) in
connection with the repair, maintenance and replacement of the Supplemental
System.
55
Section
41.03. With respect to Tenant’s use of condenser water, Tenant shall pay to
Landlord (i) the sum of $2,000.00 as a “tap-in” fee, to be paid upon the
execution of this Lease, and (ii) during each month of the term of this Lease,
an amount (the "Monthly Condenser Water Amount”) equal to the product obtained
by multiplying (x) the number of tons of condenser water connected to the
condenser water riser, to wit, eight (8) times (which may be increased up to 12
tons upon written request by Tenant (y) 1/12th of the Condenser Water Charge (as
hereinafter defined) in effect for the calendar year in which such month
occurs. Landlord shall furnish bills to Tenant, from time to time,
for the Monthly Condenser Water Amount and Tenant shall pay each such ▇▇▇▇
within ten (10) days after its receipt thereof. As of the date
hereof, the "Condenser Water Charge” is Seven Hundred Fifty Dollars ($750.00)
per ton of cooling capacity, per annum. From and after the fifth
anniversary of the Commencement Date, Landlord shall have the right to increase
the Condenser Water Charge, from time to time, based on Landlord’s increased
costs and expenses with respect to supplying condenser water to the Supplemental
System. Upon Tenant’s written request, Landlord shall furnish to
Tenant reasonable evidence of such increased condenser water
charges.
Section
41.04. Landlord, upon notice to Tenant (except in the case of an emergency)
reserves the right to shut down the condenser water for such period as Landlord
reasonably determines is required for necessary repairs or service to the base
Building condenser water system or as otherwise necessary in connection with the
repair or installation of other tenants’ supplemental air conditioning systems,
provided that Landlord shall employ commercially reasonable efforts to resume
the provision of condenser water.
ARTICLE
42
Renewal
Option
Section
42.01. Provided that Tenant is not then in default beyond the expiration of any
applicable notice and cure periods (and the named Tenant is in occupancy of the
entire Demised Premises), both at the time that the Tenant exercises the Renewal
Option (as hereinafter defined) and at the commencement of the Renewal Term (as
hereinafter defined) under any of the terms, covenants and conditions hereunder
on the part of Tenant to be performed, Tenant shall have the option (the
“Renewal Option”) to extend the term of this Lease for one (1)
additional period of five (5) years (the "Renewal Term"), provided that the
Tenant gives Landlord notice of its exercise of the exercise of the Renewal
Option at least twelve (12) months but not more than eighteen (18) months prior
to the expiration of the initial term hereof.
56
Section
42.02. The Renewal Term shall be upon all of the same terms, covenants and
conditions as are contained in this Lease, except as follows:
(a) Tenant
shall have no further right to extend the term of this Lease.
(b) Landlord
shall not be required to do any work in the Demised Premises or obligated to pay
any commission and there shall be no rent abatement.
(c) (i)
The minimum rent for the Renewal Term shall be an amount equal to the fair
market annual rental value of the Demised Premises as of the commencement of the
Renewal Term (inclusive of the additional rent under Article 22 which shall
continue to be payable as provided in said Article), but in no event less than
the amount of the minimum rent and additional rent then payable during the last
year of the initial term of this Lease ("Renewal Rental Value"). In
the event that the parties fail to agree on the Renewal Rental Value within
three (3) months prior to the Expiration Date of the initial term hereof, then
the Renewal Rental Value shall be determined by arbitration in the manner as
provided in Article 43, and the results of such arbitration shall be conclusive
and binding on the parties.
(ii) If
for any reason the Renewal Rental Value for the Renewal Term shall not be
determined prior to the commencement of the Renewal Term, Tenant, in the
meantime, shall pay the monthly installments of minimum rent at an amount equal
to one hundred ten percent (110%) of the then rate as provided in this Lease,
including the additional rent then payable under Article 22. If the
Renewal Rental Value as determined by arbitration shall be greater than the
amount of the annual minimum rent(inclusive of additional rent under Article 22)
then being payable, then within twenty (20) days after the arbitrators decision,
the difference between the monthly installments for minimum rent and additional
rent actually paid and the monthly installments for minimum rent and additional
rent which should have been paid from the commencement of the Renewal Term shall
be determined and paid by Tenant to Landlord and thereafter Tenant shall pay the
monthly installments of minimum rent at the new rate.
Section
42.03. Following the determination of the minimum rent, Landlord and Tenant
shall execute an agreement amending this Lease to reflect the foregoing, but the
provisions of this Article shall be effective with respect to the Renewal Term
from the commencement of the Renewal Term whether or not such an amendment is
executed.
57
ARTICLE
43
Renewal
Option Arbitration
Section
43.01. Either party may request arbitration with respect to the Renewal Rental
Value pursuant to Article 42. The arbitration shall be held in the Borough of
Manhattan, City, County and State of New York, conducted to the extent
consistent with this Article in accordance with the rules then obtaining of
the American Arbitration Association, or any successor body of similar function,
governing commercial arbitration, except that the foregoing shall not be deemed
or construed to require that such arbitration actually be conducted by or before
the American Arbitration Association or any successor body of similar
function. The arbitration shall be conducted before arbitrators
selected as follows: The party desiring arbitration shall appoint a
disinterested person (i.e. – a person that has not been employed by Landlord or
Tenant, respectively, during the prior ten (10) years) as arbitrator on its
behalf and give notice thereof to the other party who shall, within twenty (20)
days thereafter, appoint a second disinterested person as arbitrator on its
behalf and give written notice thereof to the first party. The
arbitrators thus appointed shall, within twenty (20) days after the date of the
appointment of the second arbitrator, appoint a third disinterested person, who
shall be a person licensed by the State of New York (if such license is required
by law) or otherwise qualified and having the necessary expertise, including at
least ten (10) year's experience, in the matter or discipline which is the
primary subject or is primarily involved in such arbitration. If the
arbitrators thus appointed shall fail to appoint such third disinterested person
within said twenty (20) day period, then either party may, by application to the
presiding Justice of Appellate Division of the Supreme Court of the State of New
York for the First Judicial Department, which application shall be made within
fifteen (15) days after the end of said twenty (20) day period, seek to appoint
such third disinterested person, such appointment being made not later than
thirty (30) days after the date of said application. Upon such
appointment, such person shall be the third arbitrator as if appointed by the
original two arbitrators. The decision of the majority of the
arbitrators shall be final, non-appealable, conclusive and binding on all
parties and judgment upon the award may be entered in any court having
jurisdiction. If a party who shall have the right pursuant to the
foregoing, to appoint an arbitrator, fails or neglects to do so, then and in
such event the other party shall select the arbitrator not so selected by the
first party, and upon such selection, such arbitrator shall be deemed to have
been selected by the first party. The expenses of arbitration shall
be shared equally by Landlord and Tenant, unless this Lease expressly provides
otherwise, but each party shall pay and be separately responsible for its own
counsel and witness fees and disbursements, unless this Lease expressly provides
otherwise. Landlord and Tenant agree to sign all documents and to do
all other things reasonably necessary to submit any such matter to arbitration
and further agree to, and hereby do, waive any and all rights they or either of
them may at any time have to revoke their agreement hereunder to submit to
arbitration and to abide by the decision rendered thereunder and agree that
a judgment or order may be entered in any court of competent jurisdiction based
on an arbitration award (including the granting of injunctive
relief).
58
Section
43.02. The arbitrators shall be disinterested persons having at least ten (10)
years experience in the County of New York in a calling connected with the
dispute, and shall have the right to retain and consult experts and competent
authorities skilled in the matters under arbitration, but any such consultation
shall be made in the presence of both parties, with full right on their part to
cross-examine such experts and authorities. The arbitrators shall
render their decision and award upon the concurrence of at least two (2) of
their number, not later than sixty (60) days after appointment of the third
arbitrator. Their decision and award shall be in writing and
counterpart copies thereof shall be delivered to each of the
parties. In rendering their decision and award, the arbitrators shall
have no power to modify or in any manner alter or reform any of the provisions
of this Lease, and the jurisdiction of the arbitrators is limited
accordingly.
ARTICLE
44
15th Floor
Additional Space
Section
44.01. Provided that Tenant is not then in default (and the
named Tenant is in physical occupancy of the entire Demised Premises), both at
the time of Landlord's Availability Notice (as hereinafter defined) and on the
Effective Date (as hereinafter defined), at the time during the term of this
Lease that the portion of the fifteenth (15th) floor
leased to MTS Health Partners, L.P. pursuant to a certain lease dated December
17, 2003 (the "15th Floor
Additional Space") will become available for lease and future occupancy by
Tenant, Landlord shall give the named Tenant notice thereof on or about June 1,
2010 (the "Availability Notice"). Such notice shall state Landlord's
reasonable estimation of the date when the 15th Floor
Additional Space will be available for Tenant’s occupancy which is anticipated
to be on or about July 1, 2010. Tenant shall have the one time right to exercise
its option to lease the 15th Floor
Additional Space by giving Landlord notice of its election to do so (the
"Exercise Notice"), within twenty (20) days from the date of the Availability
Notice, with TIME OF THE ESSENCE. If Landlord does not receive the Exercise
Notice within said twenty (20) day period, then Tenant shall have no further
rights with respect to the 15th Floor
Additional Space under this Article, and Landlord may lease the 15th Floor
Additional Space to any other party upon such terms and conditions as Landlord
may deem desirable. Tenant acknowledges that the remainder of the fifteenth
(15th) floor
is leased to another tenant. In the event that the Effective Date has
not occurred by December 31, 2010 (subject to unavoidable delays not to exceed
ninety (90) days, including any matter beyond Landlord’s reasonable
control) through no fault of Tenant, Tenant shall have the right to
terminate the Exercise Notice and not lease the 15th Floor
Additional Space upon ten (10) business days written notice to Landlord, as
Tenant’s sole and exclusive remedy, unless Landlord delivers possession of the
15th
Floor Additional Space to Tenant within said period of ten (10) business
days.
59
Section
44.02. Tenant shall take possession of the 15th Floor
Additional Space and Landlord shall deliver possession thereof to Tenant on the
date on which Landlord shall have delivered the 15th Floor
Additional Space to Tenant vacant (the "Effective Date"), and from and after the
Effective Date, the 15th Floor Additional Space shall be deemed to be added to
and made part of the Demised Premises upon the terms, covenants and conditions
contained in this Lease (except those which by their terms are no longer
applicable), except as follows:
(a) Tenant
agrees to accept possession of the 15th Floor
Additional Space in its then "As Is" condition and Landlord shall not be
required to do any work therein to prepare the same for Tenant’s occupancy. The
electrical, plumbing, HVAC, sprinkler, mechanical, and life safety systems
serving the 15th Floor
Additional Space shall be in working order as of the date that Tenant shall take
possession of the 15th Floor
Additional Space.
(b) The
amount of the minimum rent as provided in Section 3.01 (a) shall be increased by
Six Hundred Fifty Six Thousand Five Hundred Dollars ($656,500), payable
$54,708.34 per month, from the Commencement Date to August 31, 2013 and shall be
increased by Six Hundred Ninety Six Thousand Nine Hundred Dollars ($696,900),
payable $58,075 per month, from September 1, 2013 for the remainder of the term,
plus the additional rent payable under Article 22 of this Lease immediately
prior to the Effective Date.
(c) Provided
that Tenant is not then in default under any of the provisions of this Lease on
its part to be performed, Tenant shall be entitled to an abatement of part of
the minimum rent only (excluding the electricity rent inclusion factor
determined by Landlord) with respect to the 15th Floor
Additional Space for the 1st, 2nd, 3rd,
16th,
17th
and 18th months
succeeding the Effective Date (totaling six (6) months), provided further that
any additional rent for each such month shall be paid by Tenant.
(d Pursuant
to Article 40, provided that Tenant is not in default under this Lease beyond
the expiration of any applicable notice and cure period, Landlord agrees to
reimburse Tenant up to the sum of Two Hundred Two Thousand Dollars ($202,000.00)
towards the cost of Tenant’s work to prepare the 15th Floor
Additional Space for Tenant’s occupancy, which shall be for the hard
costs of construction and the soft costs for architectural and engineering
services.
(e) In
Section 22.01(a), with respect to the 15th Floor
Additional Space only, in subdivision (i) the "Tax Base Factor" shall mean the
Real Estate Taxes for the Building Project for the period from July 1, 2010 to
June 30, 2011, as finally determined, the term "Comparative Tax Year"
shall mean the New York City real estate tax year commencing on July 1, 2011 and
each subsequent New York City real estate tax year, and the term the
“Percentage” for the 15th Floor
Additional Space shall be 3.4%.
60
(f) In
Section 22.02(a), with respect to the 15th Floor
Additional Space only, in subdivision (ii), the "Base Wage Rate" shall mean the
Wage Rate in effect for the calendar year in which the Effective Date occurs;
and in subdivision (v) the "Multiplication Factor" for the 15th Floor
Additional Space shall be 10,100.
Section
44.05. The right granted to the named Tenant under this Article is personal
to the named Tenant and may only be exercised by the named Tenant, excluding any
assignee.
Section
44.05. Except as specifically amended in this Article, all of the terms,
covenants and conditions of this Lease shall continue in full force and effect
and unchanged.
ARTICLE
45
Additional
Option Space
Section
45.01. Provided that the named Tenant has exercised the option for the
15th
Floor Additional Space pursuant to Article 44 and the 15th Floor
Additional Space is part of the Demised Premises under this Lease, provided
further that Tenant is not then in default (and the named Tenant is in physical
occupancy of the entire Demised Premises), both at the time of Landlord's
Availability Notice (as hereinafter defined) and on the Effective Date (as
hereinafter defined), at the time during the term of this Lease that the
remainder of the fifteenth (15th) floor,
which Landlord anticipates will become available for lease and future occupancy
by Tenant during the term of this Lease, and at the time during the term of this
Lease that the entire sixteenth (16th) floor,
which Landlord anticipates will become available for lease and future occupancy
by Tenant during the term of this Lease (collectively, the "Additional Option
Space"), Landlord shall then give the named Tenant notice thereof (the
"Availability Notice").
Tenant
acknowledges that as of the Effective Date, the remainder of the fifteenth
(15th) floor
and the sixteenth (16th) floor
comprising the Additional Option Space are leased to other tenants. Tenant
further acknowledges that the anticipated delivery dates of the portions of the
Additional Option Space (subject to the holdover by the respective tenants of
any portion of the Additional Option Space), is as follows:
Portion
of the 15th Floor
currently leased to Pegasus Blue Star Fund, LLC (the “Pegasus Space”) -
Anticipated on or about November 30, 2013.
61
Portion
of the 16th Floor
currently leased to Doral Financial Corporation (the “Doral Space”) -
Anticipated on or about January 31, 2018.
Portion
of the 16th Floor
currently leased to Atalaya Capital Management, LP (the “Atalaya Space”) -
Anticipated on or about April 30, 2013.
Portion
of the 16th Floor currently leased to Ellis Lake Capital, LLC (the “▇▇▇▇▇
Space”) - Anticipated on or about October 31, 2015.
Such
notice shall state the rentable square feet of the Additional Option Space and
Landlord's reasonable estimation of the date when the Additional Option Space
will be available for Tenant’s occupancy (the "Occupancy Date"). Tenant
shall have the one time right to exercise its option to lease such Additional
Option Space by giving Landlord notice of its election to do so (the "Exercise
Notice"), within twenty (20) days from the date of the Availability Notice, with
TIME OF THE ESSENCE. If Landlord does not receive the Exercise Notice within the
applicable twenty (20) day period, then Tenant shall have no further rights with
respect to any Additional Option Space under this Article, and Landlord may
lease all or part of the Additional Option Space to any other party or parties
upon such terms and conditions as Landlord may deem desirable. In the
event that the Effective Date has not occurred by the date that is six (6)
months after the Occupancy Date (subject to unavoidable delays not to exceed
ninety (90) days, including any matter beyond Landlord’s reasonable
control) through no fault of Tenant, Tenant shall have the right to
terminate the Exercise Notice and not lease the Additional Option Space upon ten
(10) business days written notice to Landlord, as Tenant’s sole and exclusive
remedy, unless Landlord delivers possession of the Additional Option Space to
Tenant within said period of ten (10) business days.
Section
45.02. Tenant shall take possession of the Additional Option Space and
Landlord shall deliver possession thereof to Tenant on the later of the
Occupancy Date and the actual date on which Landlord shall have delivered such
Additional Option Space to Tenant vacant (the "Effective Date"), and from and
after the Effective Date such Additional Space shall automatically be deemed
added to and made part of the Demised Premises upon all of the terms, covenants
and conditions as are contained in this Lease (except those which by their terms
are no longer applicable), except as follows:
(a) Tenant
agrees to accept possession of the Additional Option Space in its then "As Is"
condition and Landlord shall not be required to do any work therein to prepare
the same for Tenant’s occupancy. The electrical, plumbing, HVAC, sprinkler,
mechanical, and life safety systems serving the Additional Option Space shall be
in working order as of the date that Tenant shall take possession of the
Additional Option Space.
62
(b) The
amount of the minimum rent provided in Section 3.01 (a)
shall be increased by the amount equal to the fair market annual rental value
("Rental Value") of the Additional Space as of the date that is six (6) months
prior to the Effective Date, as determined by Landlord, but not less than at the
aggregate rate per square foot payable for minimum rent and additional rent
payable under Article 22 of this Lease immediately prior to the Effective
Date. In the event the parties fail to agree on such Rental Value
within ninety (90) days prior to the Effective Date, such Rental Value shall be
determined by arbitration in the manner as hereinafter provided; and the
determination of such arbitration shall be conclusive and binding on the
parties. If for any reason such Rental Value shall not be determined
prior to the commencement of the Effective Date, Tenant, in the meantime, shall
pay the monthly installments of minimum rent at an amount equal to 100% of the
rate per square foot payable for minimum rent and said additional rent
immediately prior to the Effective Date. If the Rental Value shall be
greater than the amount paid by Tenant for the Additional Option Space following
the Effective Date, Tenant forthwith after the arbitrators’ decision, shall pay
to Landlord the difference between the monthly installments actually paid and
the monthly installments which should have been paid from the commencement of
the Effective Date, and thereafter Tenant shall pay the monthly installments of
the new minimum rent.
(c) In
Section 22.01(a), with respect to the Additional Option Space only, in
subdivision (i) the "Tax Base Factor" shall mean the July 1 - June 30 fiscal
year in which the Effective Date occurs; in subdivision (iii) the "Comparative
Tax Year" shall mean the July 1 - June 30 fiscal year immediately following the
Tax Base Factor; and in subdivision (v) the "Percentage" shall be as
follows:
Portion
of the 15th Floor -
the Pegasus Space - 1.1%.
Portion
of the 16th Floor -
the “Doral Space - 1.5%.
Portion
of the 16th Floor -
the Atalaya Space - 1.2%.
Portion
of the 16th Floor - the ▇▇▇▇▇ Space – 1.6%.
(d) In
Section 22.02(a), with respect to the Additional Option Space only, in
subdivision (ii), the "Base Wage Rate" shall mean the Wage Rate in effect for
the calendar year in which the Effective Date occurs; and in subdivision (v) the
"Multiplication Factor" shall be as follows:
Portion
of the 15th Floor -
the Pegasus Space – 3,745.
Portion
of the 16th Floor -
the “Doral Space - 4,975.
63
Portion
of the 16th Floor -
the Atalaya Space - 4,175.
Portion
of the 16ht Floor - the ▇▇▇▇▇ Space – 5,375
Section
45.03. Following the determination of the Effective Date, the minimum rent
and the additional rent of the Additional Space, Landlord and Tenant shall
execute an agreement amending this Lease to reflect the foregoing, but the
provisions of this Article shall be effective with respect to the Additional
Space effective from and after the Effective Date whether or not such an
amendment is executed.
Section
45.04. The right granted to the named Tenant under this Article is personal to
the named Tenant and may only be exercised by the named Tenant, excluding any
assignee.
Section
45.05. Except as specifically amended in this Article, all of the terms,
covenants and conditions of this Lease shall continue in full force and effect
and unchanged.
ARTICLE
46
Additional
Option Space Arbitration
Section
46.01. Either party may request arbitration with respect to the Rental
Value pursuant to Article 45. The arbitration shall be held in the Borough of
Manhattan, City, County and State of New York, conducted to the extent
consistent with this Article in accordance with the rules then obtaining of
the American Arbitration Association, or any successor body of similar function,
governing commercial arbitration, except that the foregoing shall not be deemed
or construed to require that such arbitration actually be conducted by or before
the American Arbitration Association or any successor body of similar
function. The arbitration shall be conducted before arbitrators
selected as follows: The party desiring arbitration shall appoint a
disinterested person (i.e. – a person that has not been employed by Landlord or
Tenant, respectively, during the prior ten (10) years) as arbitrator on its
behalf and give notice thereof to the other party who shall, within twenty (20)
days thereafter, appoint a second disinterested person as arbitrator on its
behalf and give written notice thereof to the first party. The
arbitrators thus appointed shall, within twenty (20) days after the date of the
appointment of the second arbitrator, appoint a third disinterested person, who
shall be a person licensed by the State of New York (if such license is required
by law) or otherwise qualified and having the necessary expertise, including at
least ten (10) year's experience, in the matter or discipline which is the
primary subject or is primarily involved in such arbitration. If the
arbitrators thus appointed shall fail to appoint such third disinterested person
within said twenty (20) day period, then either party may, by application to the
presiding Justice of Appellate Division of the Supreme Court of the State of New
York for the First Judicial Department, which application shall be
made within fifteen (15) days after the end of said twenty (20) day period,
seek to appoint such third disinterested person, such appointment being made not
later than thirty (30) days after the date of said application. Upon
such appointment, such person shall be the third arbitrator as if appointed by
the original two arbitrators. The decision of the majority of the
arbitrators shall be final, non-appealable, conclusive and binding on all
parties and judgment upon the award may be entered in any court having
jurisdiction. If a party who shall have the right pursuant to the
foregoing, to appoint an arbitrator, fails or neglects to do so, then and in
such event the other party shall select the arbitrator not so selected by the
first party, and upon such selection, such arbitrator shall be deemed to have
been selected by the first party. The expenses of arbitration shall
be shared equally by Landlord and Tenant, unless this Lease expressly provides
otherwise, but each party shall pay and be separately responsible for its own
counsel and witness fees and disbursements, unless this Lease expressly provides
otherwise. Landlord and Tenant agree to sign all documents and to do
all other things reasonably necessary to submit any such matter to arbitration
and further agree to, and hereby do, waive any and all rights they or either of
them may at any time have to revoke their agreement hereunder to submit to
arbitration and to abide by the decision rendered thereunder and agree that a
judgment or order may be entered in any court of competent jurisdiction based on
an arbitration award (including the granting of injunctive
relief).
64
Section
46.02. The arbitrators shall be disinterested persons having at least ten
(10) years experience in the County of New York in a calling connected with the
dispute, and shall have the right to retain and consult experts and competent
authorities skilled in the matters under arbitration, but any such consultation
shall be made in the presence of both parties, with full right on their part to
cross-examine such experts and authorities. The arbitrators shall
render their decision and award upon the concurrence of at least two (2) of
their number, not later than sixty (60) days after appointment of the third
arbitrator. Their decision and award shall be in writing and
counterpart copies thereof shall be delivered to each of the
parties. In rendering their decision and award, the arbitrators shall
have no power to modify or in any manner alter or reform any of the provisions
of this Lease, and the jurisdiction of the arbitrators is limited
accordingly.
65
IN WITNESS WHEREOF, Landlord
and Tenant have duly executed this Lease as of the day and year first above
written.
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FIFTH
AVENUE BUILDING COMPANY LLC
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By:
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Fifth
Avenue Tower Corp.
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its
managing member
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By:
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▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, President
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JESUP
& ▇▇▇▇▇▇, INC.
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By:
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Name:
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Title:
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▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
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)
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:
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ss.:
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| COUNTY OF NEW YORK |
)
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On
the day
of in
the year 2010 before me, the undersigned, a Notary Public in and for said State,
personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, personally known to me or proved to me
on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity, and that by his signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.
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Notary
Public
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STATE
OF NEW YORK
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)
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:
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ss.:
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| COUNTY OF NEW YORK |
)
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On
the day
of in
the year 2010 before me, the undersigned, a Notary Public in and for said State,
personally appeared ______________________, personally known to me or proved to
me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity, and that by his signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.
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Notary
Public
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67
SCHEDULE
A
Floor
Plan
68
SCHEDULE
B
Description
of Land
That
certain plot, piece or parcel or land, situate, lying and being in the Borough
of Manhattan, City, County and State of New York, bounded and described as
follows:
BEGINNING
at a point on the southerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
distant 208 feet easterly from the corner formed by the southerly side of ▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ and the easterly side of Fifth Avenue;
RUNNING
THENCE easterly along the southerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
85 feet 10 inches to a point distant 126 feet 2 inches westerly, as measured
along the southerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
from the corner formed by the southerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
and the westerly side of Madison Avenue;
RUNNING
THENCE southerly at right angles to the last mentioned course 100 feet 5 inches
to the center line of the block;
THENCE
easterly along the center line of the block 6 feet 2 inches to a
point;
THENCE
southerly, at right angles to the last mentioned course 100 feet 5 inches to the
northerly side of ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇;
THENCE
westerly along the northerly side of East 49th street
100 feet to a point;
THENCE
northerly, at right angles to the last mentioned course, 60 feet 5 inches to a
point;
THENCE
easterly at right angles to the last mentioned course, 60 feet 5 inches to a
point;
THENCE
northerly, at right angles to the last mentioned course 77 feet 5 inches to a
point;
THENCE
westerly, at right angles to the last mentioned course 20 feet 5 inches to a
point;
THENCE
northerly, at right angles to the last mentioned course 63 feet 0 inches to the
southerly side of 50th Street,
the point or place of BEGINNING.
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SCHEDULE C
Rules
and Regulations
1. The
rights of tenants in the entrances, corridors, elevators and escalators of the
Building are limited to ingress to and egress from the tenants' premises for the
tenants and their employees, licensees, guests, customers and invitees, and no
tenant shall use, or permit the use of, the entrances, corridors, escalators or
elevators for any other purpose. No tenant shall invite to the
tenant's premises, or permit the visit of, persons in such numbers or under such
conditions as to interfere with the use and enjoyment of any of the plazas,
entrances, corridors, escalators, elevators and other facilities of the Building
by other tenants. Fire exits and stairways are for emergency use
only, and they shall not be used for any other purposes by the tenants, their
employees, licensees or invitees. No tenant shall encumber or
obstruct, or permit the encumbrance or obstruction of any of the sidewalks,
plazas, entrances, corridors, escalators, elevators, fire exits or stairways of
the Building. The Landlord reserves the right to control and operate
the public portions of the Building and the public facilities, as well as
facilities, furnished for the common use of the tenants, in such manner as it
deems best for the benefit of the tenants generally. Landlord further
reserves the right, at any time, to install a message/package center in an area
in the Building designated by Landlord and reasonably accessible to and for the
common use of tenant's, and the tenants shall comply with the procedures for the
same set forth by the Landlord.
2. The
reasonable cost of repairing any damage to the public portions of the Building
or the public facilities or to any facilities used in common with other tenants,
caused by a tenant or the employees, licensees or invitees of the tenant, shall
be paid by such tenant.
3. The
Landlord may refuse admission to the Building at any time to any person not
having a pass issued by the Landlord, and may require all persons admitted to or
leaving the Building outside of ordinary business hours to
register. Tenant's employees, agents and visitors shall be permitted
to enter and leave the building during and after ordinary business hours,
subject to the reasonable requirements of Landlord, including but not limited to
reasonable non-discriminatory use by Landlord of reasonable security scanners
and reasonable security detection equipment. Each tenant shall be
responsible for all persons for whom he requests such permission and shall be
liable to the Landlord for all acts of such persons. Tenant shall
obtain identification cards to be issued by Landlord for each employee and shall
pay the Landlord’s Building standard charge therefor. Any person
whose presence in the Building at any time shall, in the judgment of the
Landlord, be prejudicial to the safety, character, reputation and interests of
the Building or its tenants may be denied access to the Building or may be
rejected therefrom. In case of invasion, riot, public excitement or
other commotion the Landlord may prevent all access to the Building during the
continuance of the same, by closing the doors or otherwise, for the safety of
the tenants and protection of property in the Building. The Landlord
may require any person leaving the Building with any package or other
object to exhibit a pass from the tenant from whose premises the package or
object is being removed, but the establishment and enforcement of such
requirement shall not impose any responsibility on the Landlord for the
protection of any tenant against the removal of property from the premises of
the tenant. The Landlord shall, in no way, be liable to any tenant
for damages or loss arising from the admission, exclusion or ejection of any
person to or from the tenant's premises or the Building under the provisions of
this rule.
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4. No
tenant shall obtain or accept for use in its premises towel, barbering, boot
blacking, floor polishing, lighting maintenance, cleaning or other similar
services from any persons not authorized by the Landlord in writing to furnish
such services, provided always that the charges for such services by persons
authorized by the Landlord are comparable to the industry
charge. Such services shall be furnished only at such hours, in such
places within the tenant's premises and under such reasonable regulations as may
be fixed by the Landlord.
5. No
awnings or other projections over or around the windows shall be installed by
any tenant, and only such window blinds as are supplied or permitted by the
Landlord shall be used in a tenant's premises.
6. There
shall not be used in any space, or in the public halls of the Building, either
by the Tenant or by jobbers or others, in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires and side
guards.
7. All
entrance doors in each tenant's premises shall be left locked when the tenant's
premises are not in use. Entrance doors shall not be left open at any
time. All windows in each tenant's premises if operable shall be kept
closed at all times and all blinds therein above the ground floor shall be
lowered when and as reasonably required because of the position of the sun,
during the operation of the Building air conditioning system to cool or
ventilate the tenant's premises.
8. No
noise, including the playing of any musical instruments, radio or television,
which, in the judgment of the Landlord, might disturb other tenants in the
Building shall be made or permitted by any tenant. Nothing shall be
done or permitted in any tenant's premises, and nothing shall be brought into or
kept in any tenant's premises, which would impair or interfere with any of the
Building services or the proper and economic heating, cleaning or other
servicing of the Building or the premises, or the use or enjoyment by any other
tenant of any other premises, nor shall there be installed by any tenant any
ventilating, air conditioning, electrical or other equipment of any kind which,
in the judgment of the Landlord, might cause any such impairment or
interference. No dangerous, flammable, combustible or explosive
object or material shall be brought into the Building by any tenant or with the
permission of any tenant.
9. Tenant
shall not permit any cooking or food odors emanating within the Demised Premises
to seep into other portions of the Building.
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10.
No acids, vapor or other materials shall be discharged or permitted to be
discharged into the waste lines, vents or flues of the Building which may damage
them. The water and wash closets and other plumbing fixtures in or
serving any tenant's premises shall not be used for any purpose other than the
purpose for which they were designed or constructed, and no sweepings, rubbish,
rags, acids or other foreign substances shall be deposited
therein. All damages resulting from any misuse of the fixtures shall
be borne by the tenant who, or whose servants, employees, agents, visitors or
licensees, shall have caused the same.
11.
No signs, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any tenant on any part of the outside or inside
of the Building or inside the premises if visible from the outside without the
prior written consent of the Landlord. In the event of the violation
of the foregoing by any tenant, Landlord may remove the same without any
liability, and may charge the expense incurred by such removal to the tenant or
tenants violating this rule. Interior signs and lettering on doors
and elevators shall be inscribed, painted, or affixed for each tenant by
Landlord at the expense of such tenant, (the charge not to exceed that which a
reputable outside contractor would charge), and shall be of a size, color and
style reasonably acceptable to Landlord. Landlord shall have the
right to prohibit any advertising by any tenant which impairs the reputation of
the building or its desirability as a building for offices, and upon written
notice from Landlord, Tenant shall refrain from or discontinue such
advertising.
12.
No additional locks or belts of any kind shall be placed upon any of the doors
or windows in any tenant's premises and no lock on any door therein shall be
changed or altered in any respect. Upon the termination of a tenant's
lease, all keys of the tenant's premises and toilet rooms shall be delivered to
the Landlord.
13.
No tenant shall ▇▇▇▇, paint, drill into or in any way deface any part of the
Building or the premises demised to such tenant. No boring, cutting
or stringing of wires shall be permitted, except with the prior written consent
of Landlord, which will not be unreasonably withheld or delayed, and as Landlord
may reasonably direct. No tenant shall install any resilient tile or
similar floor covering in the premises demised to such tenant except in a manner
approved by Landlord.
14.
No tenant shall use or occupy, or permit any portion of the premises demised to
such tenant to be used or occupied, as an office for a public stenographer or
typist, or as a ▇▇▇▇▇▇ or manicure shop, or as an employment
bureau. No tenant or occupant shall engage or pay any employees in
the Building, except those actually working for such tenant or occupant in the
Building, nor advertise for laborers giving an address at the
Building.
15.
No premises shall be used, or permitted to be used, at any time, as a store for
the sale or display of goods, wares or merchandise of any kind, or as a
restaurant, shop, booth, bootblack or other stand, or for the conduct of any
business or occupation which predominantly involves direct patronage of the
general public in the premises demised to such tenant, or for manufacturing or
for other similar purposes.
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16.
The requirements of tenants will be attended only upon application at the office
of the Building. Employees of Landlord shall not perform any work or
do anything outside of the regular duties, unless under special instructions
from the office of the Landlord.
17.
Each tenant shall, at its expense, provide artificial light in the premises
demised to such tenant for Landlord's agents, contractors and employees while
performing janitorial or other cleaning services and making repairs or
alterations in said premises.
18.
The tenant's employees shall not loiter around the hallways, stairways,
elevators, front, roof or any other part of the Building used in common by the
occupants thereof.
19.
If the premises demised to any tenant become infested with vermin, such tenant,
at its sole cost and expense, shall cause its premises to be exterminated, from
time to time, to the satisfaction of Landlord and shall employ such
exterminators therefor as shall be approved by Landlord.
20.
No bicycle or other vehicle and no animals shall be allowed in the showrooms,
offices, halls, corridors or any other parts of the Building.
21.
Tenant shall not, without Landlord’s prior written consent, install or operate
any heating device, refrigerating or air conditioning equipment, steam or
internal combustion engine, boiler, stove, machinery or mechanical devices upon
the premises or carry on any mechanical or manufacturing business thereon, or
use or permit to be brought into the Building flammable fluids such as gasoline,
kerosene, benzene or naphtha or use any illumination other than electric
lights. All equipment, fixtures, lamps and bulbs shall be compatible
with, and not exceed the capacity of the Building’s electric
system. No explosives, firearms, radioactive or toxic or hazardous
substances or materials, or other articles deemed hazardous to life, limb or
property shall be brought into the Building or the Premises.
22.
Tenant must list all furniture and fixtures to be taken from the Building upon a
form approved by Landlord. Such list shall be presented at the office
of the Building for approval before acceptance by the security officer or
elevator operator.
23.
Tenant, its customers, invitees, licensees, agents, servants, employees and
guests shall not encumber or obstruct sidewalks, entrances, passages, courts,
vestibules, halls, elevators, stairways or other common areas in or about the
Building.
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24.
Tenant shall not allow anything to be placed against or near the glass in the
partitions between the premises and the halls or corridors of the Building which
shall diminish the light in the halls or corridors.
25.
Upon termination of this Lease, Tenant shall surrender all keys of the premises
and of the Building and give to Landlord the explanation of the combination of
all locks on safes or vault doors in the Premises.
26.
Tenant shall provide the Building Manager with keys to all locks on any doors of
the premises. The Building Manager shall be allowed admittance to the
premises in the event of any emergency, fire or other casualty that may arise in
other appropriate instances.
27.
Unless otherwise advised by Landlord, neither Tenant nor its employees shall
undertake to regulate the radiator controls of thermostats. Tenant
shall report to the office of the Building whenever such thermostats or radiator
controls are not working properly or satisfactorily.
28.
All window treatments that are visible from the street shall be subject to
Landlord’s approval.
29.
Tenant assumes full responsibility for protecting its space from weather, theft,
robbery and pilferage, which includes keeping doors locked and other means of
entry into the premises closed and secured.
30.
Tenant shall not sell food of any kind or ▇▇▇▇ in the
Building. Tenant may serve complimentary foods to its guests provided
that it shall first comply with all Legal Requirements.
31.
Water in the premises shall not be wasted by Tenant or its employees by tying or
wedging back the faucets of the washbowls or otherwise.
32.
All messengers shall be required to sign in and obtain a pass from either the
front desk or the elevator starters. Contractors and other workmen
shall use only the freight elevators for all movement within the
Building.
33.
Landlord reserves the right at any time, to install a message/package center in
an area in the Building designated by Landlord and reasonably accessible to and
for the common use of the tenants, and tenants shall comply with the procedures
for the same set forth by the Landlord.
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SCHEDULE
D
Cleaning
Specifications
for
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Landlord
will perform cleaning services in the Demised Premises and related areas as
follows:
NIGHTLY
Empty and
wipe clean all waste receptacles.
Wipe
clean all accessible areas within hand high reach; including but not limited to
window ▇▇▇▇▇, wall ledgers, chairs, desks, tables, file cabinets, convector
enclosures, pictures and all manner of office furniture.
Wipe
clean all glass top desks and tables.
Sweep
with treated cloths all composition tile flooring.
Carpet
sweep all carpeted areas, and vacuum clean weekly.
CORE LAVATORIES (Nightly or as
otherwise designated)
Wash and
dry all bowls, seats urinals, washbasins and mirrors.
Wash and
wipe dry all metal work.
Insert
toilet tissue, toweling and soap, materials to be supplied by
Tenant.
Empty
paper towel and sanitary napkin disposal receptacles and remove to designated
area.
Sweep and
wash floors.
Wipe
clean all ▇▇▇▇▇, partitions and ledges.
Wipe
clean exterior of waste cans and dispensing units.
Wash
partitions monthly.
75
Wash tile
walls monthly.
Wash and
dry interior of waste cans and sanitary disposal containers weekly.
WINDOW CLEANING
SERVICES
Clean all
exterior windows, inside and out periodically during the year, as Landlord deems
necessary.
RUBBISH REMOVAL
SERVICES
Empty all
ordinary dry rubbish waste baskets used in the normal course of business from
the office premises daily, Monday through Friday, holidays and week ends
excepted.
76
SCHEDULE
E
Definitions
(a) The
term mortgage
shall include an indenture of mortgage and deed of trust to a trustee to secure
an issue of bond, encumbering on the leasehold estate under a Superior Lease,
and the term mortgagee shall include such a trustee.
(b) The
terms include, including and such as shall each be construed as if
followed by phrase "without being limited to".
(c) The
term obligations of this lease,
and words of like import, shall mean the covenants to pay rent and additional
rent under this lease and all of the other covenants and conditions contained in
this Lease. Any provision in this Lease that one party or the other
or both shall do or not do or shall cause or permit or not cause or permit a
particular act, condition, or circumstance shall be deemed to mean that such
party so covenants or both parties so covenant, as the case may be.
(d) The
term Tenant's obligations
hereunder, and words of like import, and the term Landlord's obligations hereunder, and
words of like import, shall mean the obligations of this Lease which are to be
performed or observed by Tenant, or by Landlord, as the case may
be. Reference to performance of either party's
obligations under this Lease shall be construed as "performance and
observance".
(e) Reference
to Tenant being or not being in default
hereunder, or words of like import, shall mean that Tenant is in default
in the performance of one or more of Tenant's obligations hereunder, or that
Tenant is not in default in the performance of any of Tenant's obligations
hereunder, or that a condition of the character described in Section 16.01 has
occurred and continues or has not occurred or does not continue, as the case may
be.
(f) The
term laws and/or requirements of public
authorities and words of like import shall mean laws and ordinances of
any or all of the Federal, state, city, county and borough governments and
rules, regulations, orders and/or directives of any or all departments,
subdivisions, bureaus, agencies or offices thereof, or of any other
governmental, public or quasi-public authorities, having jurisdiction in the
premises, and/or the direction of any public officer pursuant to
law.
(g) The
term requirements of insurance
bodies and words of like import shall mean rules, regulations, orders and
other requirements of the New York Board of Fire Underwriters and/or the New
York Fire Insurance Rating Organization and/or any other similar body performing
the same or similar functions and having jurisdiction or cognizance of the
Building and/or the Demised Premises.
77
(h) The
term repair shall be deemed to
include restoration and replacement as may be necessary to achieve and/or
maintain good working order and condition.
(i) Reference
to termination of this lease
includes expiration or earlier termination of the term of this lease or
cancellation of this Lease pursuant to any of provisions of this lease or to
law. Upon a termination of this Lease, the term and estate granted by
this Lease shall end at noon of the date of termination as if such date were the
date of expiration of the Term of this Lease and neither party shall have any
further obligation or liability to the other after such termination (i) except
as shall be expressly provided for in this Lease, or (ii) except for such
obligation as by its nature or under the circumstances can only be, or by the
provisions of this Lease, may be, performed after such termination, and, in any
event, unless expressly otherwise provided in this Lease, any liability for a
payment which shall have accrued to or with respect to any period ending at the
time of termination shall survive the termination of this Lease.
(j) The
term Tenant shall mean Tenant
herein named or any assignee or other successor in interest (immediate or
remote) of Tenant herein named, while such Tenant or such assignee or other
successor in interest, as the case may be, is in possession of the Demised
Premises as owner of Tenant's estate and interest granted by this
lease.
(k) Words
and phrases used in the singular shall be deemed to include the plural and vice
versa, and nouns and pronouns used in any particular gender shall be deemed to
include any other gender.
(l)
The rule of ejusdem generis shall not be
applicable to limit a general statement following or referable to an enumeration
of specific matters to matters similar to the matters specifically
mentioned.
78