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STANDARD FORM OF OFFICE LEASE
The Real Estate Board of New York, Inc.
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Agreement of Lease, made as of this 20 day of June 1997,
between 40 Wall Development Associates, LLC, a limited liability company having
an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
Party of the first part, hereinafter referred to as OWNER/ and
or Landlord and Internet Financial Services, Inc., a Delaware corporation and
X.X. Xxxxxx, Inc., a New York corporation, each having an office at 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, XX 00000, jointly and severally constituting the party of the
second part, hereinafter referred to as TENANT, WITNESSETH: owner hereby leases
to Tenant and Tenant hereby hires from Owner the entire twenty-seventh (27th)
floor as shown on Exhibit A-1 and part of the twenty-eight (28th) floor as shown
on Exhibit A-2 in the Building known as 00 Xxxx Xxxxxx, in the Borough of
Manhattan, City of New York, for the term of as specified in Article 37.01
hereof, at an annual rental rate of specified in Article 38.01 (a) hereof
Which Tenant agrees to pay in lawful money of the United
States which shall be legal tender in payment of all debts and dues, public and
private, at the time of payment, in equal monthly installments in advance on the
first day of each month during said term, at the office of Owner or such other
place as Owner may designate, without any set off or deduction whatsoever,
except that Tenant shall pay the first monthly installment(s) on the execution
hereof (unless this lease be a renewal).
The parties hereto, for themselves, their heir, distributees,
executors, administrators, legal representatives, successors and assigns, hereby
convent as follows:
Rent
1. Tenant shall pay the rent as above and as hereinafter
provided.
Occupancy
2. Tenant shall use and occupy demised premises for the
purposes specified in Article 44 here.
Tenant Alterations
3. Tenant shall make no changes in or to the demised premises
of any nature without Owner's prior written consent. Subject to the prior
written consent of Owner (1), and to the provisions of this article, Tenant at
Tenant's expense, may make alterations, installations, additions or improvements
which are non-structural and which do not affect utility services or plumbing
and electrical lines, in or to the interior of the demised premises by using
contractors or mechanics first (2) approved by Owner. Tenant shall, before
making any alterations, additions, installations or improvements, at its
expense, obtain all permits, approvals and certificates required by any
governmental or quasi-governmental bodies and (upon completion) certificates of
final approval thereof and shall deliver promptly duplicates of all such
permits, approval and certificates to Owner and Tenant agrees to carry and will
cause Tenant's contractors and sub-contractor to carry such xxxxxxx'x
compensation, general liability, personal and property damage insurance as Owner
may (2) require. If any mechanic lien is filed against the demised premises, or
the building of which the same forms a part, for work claimed to be have been
done for, or material furnished, Tenant, whether or not done pursuant to this
article, the same shall be discharged by Tenant (3), at Tenant's expense, by
filing the bond required by law (4). Nothing in this Article shall be construed
to give Owner title to or to prevent Tenant's removal of trade fixtures, movable
office furniture and equipment, but upon removal of any such from the premises
or upon removal of other installations as may be required by Owner, Tenant shall
immediately and at its expense, repair and restore the premises to the condition
existing prior to installation and repair any damage to the demised premises or
the building due to such removal. All property permitted or required to be
removed, by Tenant at the end of the term remaining in the premises after
Tenant's removal shall be deemed abandoned and may, at the election of Owner,
either be retained as Owner's property or may be removed from the premises by
Owner, at Tenant's expense.
Maintenance and Repairs
4. Tenant shall, throughout the term of this lease, take good
care of the demised premises and the fixtures and appurtenances therein. Tenant
shall be responsible for all damage or injury to the demised premises (5) or any
other part of the building and the systems and equipment thereof, whether
requiring structural or nonstructural repairs caused by or resulting form
carelessness, omission, neglect or improper conduct of Tenant, Tenant's
subtenants, agents, employees, invitees or licensees, or and for no other
purposes which arise out of any work, labor, service or equipment done for or
supplied to Tenant or any subtenant or arising out of the installations, use or
operation of the property or equipment of Tenant or any subtenant. Tenant shall
also repair all damage to the building and the demised premises caused by the
moving of Tenant's fixtures, furniture and equipment. Tenant shall promptly
make, at Tenant's expense, all repairs in and to the demised premises for which
Tenant is responsible, using only the contractor for the trade or trades in
question, selected from a list of at least two contractors per trade submitted
by Owner. Any other repairs in or to the building or the facilities and systems
thereof for which Tenant is responsible shall be performed by Owner at the
Tenant's expense. Owner shall maintain in good working order and repair the
exterior and the structural portions of the building, including the structural
portions of its demised premises, and the public portions of the building
interior and the building plumbing, electrical, heating and ventilating
systems(to the extent such systems presently exist) serving the demised
premises. Tenant agrees to give prompt notice of any defective condition in the
premises for which Owner may be responsible hereunder. There shall be no
allowance to Tenant for diminution of rental value and no liability on the part
of Owner by reason of inconvenience, annoyance or injury to business arising
from Owner or others making repairs, alterations, additions or improvements in
or others making repairs, alterations, additions or improvements in or to any
portion of the building or the demised premises or in and to the fixtures,
appurtenances or equipment thereof. It is specifically agreed that Tenant shall
not be entitled to any setoff or reduction of rent by reason of any failure of
Owner to comply with the covenants of this or any other article of this Lease.
Tenant agrees that Tenant's sole remedy at law in such instance will be by way
of an action for damages for breach of contract. The provisions of this Article
4 shall not apply in the case of fire or other casualty which are dealt with in
article 9 hereof.
Window Cleaning:
5. Tenant will not clean nor require, permit, suffer or allow
any window in the demised premises to be cleaned form outside in violation of
Section 202 or the Labor Law or any other applicable law or of the Rules of the
Board of Standards and Appeals, or of any other Board or body having or
asserting jurisdiction.
Requirements of law, Fire Insurance, Floor Loads:
6. Prior to the commencement of the lease term, if Tenant is
then in possession, and at all times thereafter, Tenant, at Tenant's sole cost
and expense, shall promptly comply with all present and future laws, orders and
regulations of all state, federal, municipal and local governments, departments,
commissions and boards and any direction of any public officer pursuant to law,
and all orders, rules and regulations or the New York Board of Fire
Underwriters, Insurance Services Office, or any similar body which shall impose
any violation, order or duty upon Owner or Tenant with respect to the demised
premises, whether or not arising out of Tenant's (6) use or manner of use
thereof, (including tenant's permitted use) or, with respect to the building if
arising out of Tenant's (7) use or manner of the premises or the building
(including the (7) use permitted under the lease). Nothing herein shall require
Tenant to make structural repairs or alternations unless Tenant has, by its
manner of use of the demised premises or method of operation therein, violated
any such laws, ordinances, orders, rules, regulations or requirements with
respect thereto. Tenant may, after securing Owner to Owner's (8) satisfaction
limited to, reasonable attorney's fees, by cash deposit or by surety bond in an
amount and in a company (2) satisfactory to Owner, contest and appeal any such
laws, ordinances, orders, rules, regulations or requirements provided same is
done with all reasonable promptness and provided such appeal shall not subject
Owner to prosecution for a criminal offense or constitute a default under any
lease or mortgage under which Owner may be obligated, or cause the demised
premises or any part thereof to be condemned or vacated. Tenant shall not do or
permit any act thing to be done in or to the demised premises which is contrary
to law, or which will invalidate or be in conflict with public liability, fire
or other policies of insurance (9) at any time carried by or for the benefit or
Owner with respect to the demised premises or the building of which the demised
premises form a part, or which shall or might subject Owner to any liability or
responsibility to any person or for property damage. Tenant shall not keep
anything in the demised premises except as now or hereafter permitted by the
Fire Department, Board of Fire Underwriters, Fire Insurance Rating Organization
or other authority having jurisdiction, and then only in such manner and such
quantity so as not to increase the rate for fire insurance applicable to the
building, nor use the premises in a manner which will increase the insurance
rate for the building or any property located therein over that in effect (10)
the commencement of Tenant's occupancy. Tenant shall pay all costs, expenses,
fines, penalties, or damages, which may be imposed upon Owner by reason Tenant's
failure to comply with the provisions of this article and if by reason of such
failure the fire insurance rate shall, at the beginning of this lease or at any
time thereafter, be higher than it otherwise would be (11) then Tenant shall
reimburse Owner, as additional rent hereunder, for that portion of all fire
insurance premiums thereafter paid by owner which shall have been charged
because of such failure by Tenant. In any action or proceeding wherein Owner and
Tenant are parties, a schedule or "make-up" of rate for the building or demised
premises issued by the New York Fire Insurance Exchange, or other body making
fire insurance rates applicable to said premises shall be conclusive evidence of
the facts therein stated and of the several items and charges in the in the fire
insurance rates then applicable to said premises. Tenant shall not place a load
upon any floor of the demised premises exceeding the floor load per square foot
area which it was designed to carry and which is allowed by law. Owner reserves
the right to prescribe the weight and position of all safes, business machines
and mechanical equipment. Such installations shall be placed and maintained by
Tenant, at tenant's expense, in setting sufficient, in Owner's (8) judgement, to
absorb and prevent, vibration, noise and annoyance.(see Article 46 of Rider)
Subordination:
7. (See Article 41 of Rider)
Property Loss, Damage, Reimbursement, Indemnity:
8. Owner of its agents shall not be liable for any damage to
property of Tenant or of others entrusted to employees of the building, nor for
loss of or damage to any property of Tenant by theft or otherwise, nor for any
injury or damage to persons or property resulting from any cause of whatsoever
nature, unless caused by or due to the negligence (12) of Owner, (13) its
agents, servants or employees. Owner or its agents will not be liable for any
such damage caused by other tenants or persons in, upon or about said building
caused by operations in construction of any private, public or quasi public
work.
If at any time any windows of the demised premises are
temporarily closed, darkened or bricked up, if required by law) for any reason
whatsoever including, but not limited to Owner's own acts, Owner shall not be
liable for any damage Tenant may sustain thereby and Tenant shall not be
entitled to any compensation therefor nor abatement or diminution of rent nor
shall the same release Tenant from its obligations hereunder nor constitute an
eviction. Tenant shall indemnify and save harmless Owner against and from all
liabilities, obligations, damages, penalties, claims, costs and expenses for
which Owner shall not be reimbursed by insurance, including reasonable
attorney's fees, paid, suffered or incurred as a result of any breach by Tenant,
Tenant's agents, contractors, employees, invitees, or licensees, of any covenant
or condition of this lease, or the carelessness, negligence or improper conduct
(?) of the Tenant, Tenant's agents, contractors, employees, invitees or
licensees. Tenants liability under this lease Extends to the acts sand omissions
of any sub-tenant, and any agent, contractor, employee, invitee or licensee of
any sub-tenant. In case any action or proceeding is brought against Owner by
reason of any such claim, Tenant upon written notice from Owner, will at
Tenant's expense, resist or defend such action or proceeding by counsel (?)
approved by Owner in writing, such approval not to be unreasonably withheld
(14).
Destruction, Fire and Other Casualty:
9. (a) If the demised premises or any part of thereof shall be
damaged by fire or other casualty, Tenant shall give immediate notice thereof to
Owner and this lease shall continue in full force and effect except as
hereinafter set forth. (b) If the demised premises are partially damaged or
rendered partially unusable by fire or other casualty, the damages thereto shall
be substantially completed, shall be apportioned from the day following the
casualty according to the part of the premises which is usable. (15) (c) If the
demised premises are totally damaged or rendered wholly unusable by fire or
other casualty, then the rent shall be proportionately paid up to the time of
the casualty and thenceforth shall cease until the date when the premises shall
have been repaired and restored by Owner, subject to Owner's right to elect not
to restore the same as ion hereinafter provided. (d) If the demised premises are
rendered wholly unusable or (whether or not the demised premises are damaged in
whole or in part) if the building shall be so damaged that Owner shall decide to
demolish it or to rebuild it, then, in any of such events, Owner may elect to
terminate this lease by written notice to Tenant, given within (16) days after
such fire or casualty, specifying a date for the expiration of the lease, which
date shall not be more than (17) days after the giving of such notice the term
of this lease shall expire as fully and completely as if such date were the date
set forth above for the termination of this lease and Tenant shall forthwith
quit, surrender and vacate the premises without prejudice however, to Landlord's
rights and remedies against Tenant under the lease provisions in effect prior to
such termination and any rent owing shall be paid up to such date and any
payments of rent made by Tenant which were on account of any period subsequent
to such date shall be returned to Tenant. Unless Owner shall serve a termination
notice as provided for herein, Owner shall make the repairs and restorations
under the conditions of (b) and (c) hereof, with all reasonable expedition,
subject to delays to adjustment of insurance claims, labor troubles and causes
beyond Owner's control. (18) After any such casualty, Tenant shall cooperate
with Owner's restoration by removing from the premises as promptly as reasonably
possible, all of Tenant's salvageable inventory and movable equipment,
furniture, and other property. Tenant's liability for rent shall resume (19)
days after written notice from Owner that the premises are substantially ready
for Tenant's occupancy. (e) Nothing contained herein above shall relieve Tenant
from liability that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, each party shall look first to any insurance in
its favor before making any claim against the other party for recovery for loss
or damage resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible and to the extent permitted by law, Owner
and Tenant each hereby releases and waives all right of recovery against the
other or anyone claiming through or under each of them by way of subrogation or
otherwise. The foregoing release and waiver shall be in force only if both
releasors' insurance policies contain a clause providing that such a release or
waiver shall not invalidate the insurance. If, and to the extent, that such
waiver can be obtained only by the payment of additional premiums, then the
party benefiting from the waiver shall pay such premium within ten days after
written demand or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under the provisions
hereof with respect to waiver or subrogation. Tenant acknowledges that owner
will not carry insurance on Tenant's furniture and/or furnishings or any
fixtures or equipment, improvements, or appurtenances removable by Tenant and
agrees that Owner will not be obligated to repair any damage thereto or replace
the same. (f) Tenant hereby waives the provisions of Section 227 of the Real
Property Law and agrees that the provisions of this article shall govern and
control in lieu thereof.
Eminent Domain:
10. If the whole or any part of the demised premises shall be
acquired or condemned by Eminent Domain for any public use or purpose, then and
in that event, the term of this lease shall cease and terminate from the date of
title vesting in such proceeding and Tenant shall have no claim for the value of
any unexpired term of said lease and assigns to Owner, Tenants, entire interest
in any such award. (20) (See Article 54 of Rider)
Assignment, Mortgage, Etc.:
11. Tenant, for itself , its heirs, distributees, executors,
administrators, legal representatives, succcessors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this agreement, nor
underlet, or suffer or permit the demised premises or any part thereof to be
used by others, without the prior written consent of owner in each instance.
Transfer of the majority of the stock of corporate Tenant shall be deemed an
assignment. If this lease be assigned, or if the demised premises or any part
thereof be underlet or occupied by anybody other than Tenant, Owner may, after
default by Tenant, collect rent from the assignee, under-tenant or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, underletting, occupancy or collection shall be deemed a waiver of
this covenant, or the acceptance of the assignee, under-tenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any further assignment
or underletting. (See Article 42 of Rider)
Electric Current:
12. Rates and conditions in respect to submetering or rent
inclusion, as the case may be, to be added in Rider attached hereto. Tenant
covenants and agrees that at all times its use of electric current shall not
exceed the capacity of existing feeders to the building or the risers or wiring
installation and Tenant may not use any electrical equipment which , in Owners
opinion, reasonably exercised, will overload such installations, or interfere
with the use thereof by other tenants of the building. The change at any time of
the character of electric service shall in no wise make Owner liable or
responsible to Tenant, for any loss, damages or expenses which Tenant may
sustain (21).
Access to Premises:
13. Owner or Owner's agents shall have the right (but shall
not be obligated) to enter the demised premises in any emergency at any time,
and, at other reasonable times (22) to examine the same and to make such
repairs, replacements and improvements as Owner may deem necessary and
reasonably desirable to the demised premises or to any other portion of the
building or which Owner may elect to perform. Tenant shall permit Owner to use
and maintain and replace pipes and conduits therein provided they are concealed
within the walls, floor, or ceiling (23). Owner may, during the progress of any
work in the demised premises, take all necessary materials and equipment into
said premises without the same constituting and eviction nor shall the Tenant be
entitled to any abatement of rent while such work is in progress nor to any
damages by reason of loss or interruption or otherwise (24). Throughout the term
hereof Owner shall have the right (25) to enter the demised premises at
reasonable hours for the purpose of showing the same to prospective purchasers
or mortgages of the building, and during the last six months of the term for the
purpose of showing the same to prospective tenants. If Tenant is not present to
open and permit an entry into the premises (26) Owner or Owner's agent may enter
the same whenever such entry may be necessary or permissible by master key or
forcibly and provided reasonable care is exercised to safeguard Tenant's
property, such entry shall not render Owner or its agents, liable therefor, nor
in any event shall the obligations of Tenant hereunder be affected. If during
the last month of the term Tenant shall have removed all or substantially all of
Tenant's property therefrom Owner may immediately enter, alter, renovate or
redecorate the demised premises without limitation or abatement of rent, or
incurring liability to Tenant for any compensation and such act shall have no
effect on this lease or Tenant's obligations hereunder.
Vault, Vault Space, Area:
14. No Vaults, vault space or area, whether or not enclosed or
covered, not within the property line of the building is leased hereunder,
anything contained in or indicated on any sketch, blue print or plan, or
anything contained elsewhere in this lease to the contrary notwithstanding.
Owner makes no representation as to the location of the property line of the
building. All vaults and vault space and all such areas not within the property
line of the building, which Tenant may be permitted to use and / or occupy, is
to be used and / or occupied under a revocable license, and if any such license
be revoked, or if the amount of such space or area be diminished or required by
any federal, state or municipal authority or public utility, owner shall not be
subject to any liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall such revocation, diminution or
requisition be deemed constructive or actual eviction. Any tax, fee or charge of
municipal authorities for such vault or area shall be paid by Tenant.
Occupancy:
15. Tenant will not at any time use or occupy the demised
premises in violation of the certificate of occupancy, issued for the building
of which the demised premises are part. Tenant has inspected the premises and
accepts them as is, subject to the riders annexed hereto with respect to Owner's
work, if any. In any event, Owner makes no representation as to the condition of
the premises and Tenant agrees to accept the same subject to violations, whether
or not of record (27)
Bankruptcy:
16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease maybe cancelled by Owner by sending of a written
notice to Tenant within a reasonable time after the happening of any one or more
of the following events: (1) the commencement of a case in bankruptcy or under
the laws of any state naming Tenant (28) as the debtor; or (2) the making by
Tenant or an assignment or any other arrangement for the benefit or creditors
under any state statue. Neither Tenant (28) not any person claiming through or
under Tenant (28) or by reason of any statue or order of court, shall thereafter
be entitled to possession of the premises demised but shall forthwith quit and
surrender the premises. If this lease shall be assigned in accordance with its
terms, the provisions of this Article 16 shall be applicable only to the party
then owning Tenant's interest in this lease.
(b) it is stipulated and agreed that in the event of the
termination of this lease pursuant to (a) hereof, Owner shall forthwith,
notwithstanding any other provisions of this lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount equal to the
differences between the rent reserved hereunder for the unexpired, portion of
the term demised and the fair and reasonable rental value of the demised
premises for the same period. In the computation of such damages the differences
between any installment of rent becoming due hereunder after the date of
termination and the fair and reasonable rental value of the demised premises for
the period for which such installment was payable shall be discounted to the
date of termination at rate of (29) per annum. If such premises or any part
thereof be relet by the Owner for the unexpired term of said lease, or any part
thereof, before presentation of proof of such liquidated damages to any court,
commission or tribunal, the amount of rent reserved upon such re-letting shall
be deemed to be the fair and reasonable rental value for the part or the whole
of the premises so re-let during the term of the re-letting. Nothing herein
contained shall limit or prejudice the right of the Owner to prove for and
obtain as liquidated damages by reason of such, termination, an amount equal to
the maximum allowed by any 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, equal to, or less than the amount of the
difference referred above.
Default:
17. (1) If Tenant defaults in fulfilling any of the covenants
of this lease, or if the demised premises become vacant (30) or deserted; or if
any execution or attachment shall be issued against Tenant or any of Tenant's
property whereupon the demised premises shall be taken or occupied by someone
other than Tenant; or if this lease be rejected under $235 of Title 11 of the
U.S. Code (bankruptcy code); or if Tenant shall fail to move into or take
possession of the premises within fifteen (15) days after the commencement of
the term of this lease, then, in any one or more such events, upon Owner serving
a written thirty (30) days notice upon Tenant specifying the nature of said
default and upon the said expiration of said thirty (30) days, if Tenant shall
have failed to comply with or remedy such default, or if the said default or
omission complained of shall be of a nature that the same cannot be completely
cured or remedied, within said thirty (30) day period, and if Tenant shall not
have diligently commenced curing such default within such five (5) day period,
and shall not thereafter with reasonable diligence and in good faith, proceed to
remedy or cure such default, then Owner may serve a written three (3) days'
notice of cancellation of this lease upon Tenant, and upon the expiration of
said three (3) days this lease and the term thereunder shall end and expire as
fully and completely as if the expiration of such three (3) day period were the
day herein definitely fixed for the end and expiration of this lease and the
term thereof and Tenant shall then quit and surrender the demised premises to
Owner but Tenant shall remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof have shall
been given, and the term shall expire as aforesaid; then and in any of such
events Owner may without (31) notice, re-enter the demised premises either by
force or otherwise, and dispossess Tenant by summary proceedings or otherwise,
and the legal representative of Tenant or other occupant of demised premises and
remove their effects and hold the premises as if this lease had not been made,
and Tenant hereby waives the service as if this lease had not been made, and
Tenant hereby waives the service of notice of intention to re-enter or to
institute legal proceedings to that end. If Tenant shall make default hereunder
prior to the date fixed as the commencement of any renewal or extension of this
lease, Owner may cancel and terminate such renewal or extension agreement by
written notice.
Remedies of Owner and Waiver of Redemption:
18. In case of any such default, re-entry, expiration and/or
dispossess by summary proceedings or otherwise, (a) the rent shall become due
thereupon and be paid up to the time of such re-entry, dispossess and/or
expiration, (b) Owner may re-let the premises or any part or parts thereof,
either in the name of Owner or otherwise, for a term or terms, which may at
Owner's option be less than or exceed the period which would otherwise have
constituted the balance of the term of this lease and may grant concessions or
free rent or charges a higher rental than that in this lease and /or (c) Tenant
or the legal representatives of Tenant shall also pay Owner as liquidated
damages for the failure of Tenant to observe and perform said Tenant's convents
herein contained, any deficiency between the rent hereby reserved and /or
covenanted to be paid and the pet amount, if any, of the rents collected on
account of the lease or leases of the demised premises for each month of the
period which would otherwise have constituted the balance of the term of this
lease. The failure of Owner to re-let the premises or any part or parts thereof
shall not release or affect Tenant's liability for damages. In computing such
liquidated damages there shall be added to the said deficiency such expenses as
Owner as owner may incur in connections with re-letting, such as legal expenses,
attorneys' fees, brokerage, advertising and for keeping the demised premises in
good order or for preparing the same for re-letting. Any such liquidated damages
shall be paid in monthly installments by Tenant on the rent day specified in
this lease and any suit brought to collect the amount of the deficiency for any
month shall not prejudice in any way the rights of Owner to collect the
deficiency for any subsequent month by a similar proceeding. Owner, in putting
the demised premises in good order or preparing the same for re-rental may, at
Owner" option, make such alterations, repairs, replacing and/or decorations in
the demised premises as Owner, in Owner's sole judgement, considers advisable
and necessary for the purpose of re-letting the demised premises, and the making
of such alterations, repairs, replacement, and/or decorations shall not operate
or be construed to release Tenant from liability hereunder as aforesaid. Owner
shall in no event be liable in any way whatsoever for failure to re-let the
demised premises, or in any event that the demised premises are re-let, for
failure to collect the rent thereof under such re-letting, and in no event shall
Tenant be entitled to receive any excess, if any, of such net rents collected
over the sums payable by Tenant to Owner hereunder. In the event of a breach or
threatened breach by Tenant of any of the covenants or provisions hereof, Owner
shall have the right of injunction and the right to invoke any remedy allowed at
law or in equity as if re-entry, summary proceedings and other remedies were not
herein provided for. Mention in this lease of any particular remedy, shall not
preclude Owner from any other remedy, in law or in equity. Tenant hereby
expressly waives any and all rights of redemption granted by or under any
present future laws in the event of Tenant being evicted or dispossessed for any
cause, or in the event of Owner obtaining possession of demised premises, by
reason of the violation by Tenant of any of the covenants and conditions of this
lease, or otherwise.
Fees an Expenses
19. If Tenant shall default in the observance or performance
of any term or covenant on Tenant's part to be observed or performed (32) under
or by virtue of any of the terms or provisions in any article of this lease,
then unless otherwise provided elsewhere in this lease. Owner may immediately or
at any time thereafter and without (31) notice perform the obligation of Tenant
thereunder. If Owner, in connection with the foregoing or in connection with any
default by Tenant in the covenant to pay rent hereunder, makes any expenditures
or incurs any obligations for the payment of money, including but not limited to
attorney's fees, in instituting, prosecuting or defending any action or (33),
then Tenant will reimburse Owner for such sums so paid or obligations incurred
with interest and costs. The foregoing expenses incurred by reason of Tenant's
default shall be deemed to be additional rent hereunder and shall be paid by
Tenant to Owner within (34) days of rendition of any xxxx or statement Tenant
therefor. If Tenant's lease term shall have expired at the time of making of
such expenditures or incurring of such obligations, such sums shall be
recoverable by Owner as damages.
Building Alterations and Management
20. Owner shall have the right at any time without the same
constituting an eviction an without incurring liability to Tenant therefore to
change the arrangement and /or location of public entrances, passageways, doors,
doorways, corridors, elevators, stairs, toilets or other public parts of the
building and to change the name, number or designation by which the building may
be known (35). There shall be no allowance to Tenant for diminution of rental
value and no liability on the part of Owner by reason of inconvenience,
annoyance or injury to business arising from Owner or other Tenants making any
repairs in the building or any such alterations, additions and improvements
(35). Furthermore, Tenant shall not have any claim against Owner by reason of
Owner's imposition of such controls of the manner of access to the building by
Tenant's social or business visitors as the Owner may deem necessary for the
security of the building and its occupants.
No Representations by Owner:
21: Neither Owner nor Owner's agents have made any
representations or promises with respect to the physical conditions of the
building, the land upon which It is erected or the demised premises , the rents,
leases, expenses of operation or any other matter or thing affecting or related
to the premises except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this lease. Tenant by implication or otherwise
except as expressly set forth in the provisions of this lease. Tenant has
inspected the building and the demised premises and is thoroughly acquainted
with their condition and agrees to take the same "as is" and acknowledges that
the taking of possession of the demised premises by Tenant shall be conclusive
evidence that the said premises and the building of which the same form a part
were in good and satisfactory condition at the same time such possession was so
taken, except as to latent defects. (36) All understandings an agreements
heretofore made between the parties hereto are merged in this contract, which
alone fully and completely expresses the agreement between Owner and Tenant and
any executory agreement hereafter made shall be ineffective to change, modify,
discharge or effect an abandonment of it in whole or in part, unless such
executory agreement in writing and signed by the party against whom enforcement
of the change, modification, discharge or abandonment is sought.
End of Term:
22. Upon the expiration or other termination of the term of
this lease, Tenant shall quit and surrender to Owner the demised premises, broom
clean, in good order and condition, ordinary wear and damages which Tenant is
not required to repair as provided elsewhere in this lease excepted and Tenant
shall remove all its property. (37) Tenant's obligation to observe or perform
this covenant shall survive the expiration or other termination of this lease.
If the last day of the term of this Lease or any renewal thereof, falls on
Sunday, this lease shall expire at noon on the preceding Saturday unless it be a
legal holiday in which case it shall expire at noon on the preceding business
day. (See Article 54 of Rider)
Quiet Enjoyment:
23. Owner covenants and agrees with Tenant that upon Tenant
paying the rent and additional rent and observing and performing all the terms,
covenants and conditions, on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the premises hereby demised, subject,
Nevertheless, to the terms and conditions of this lease including, but not
limited to, Article 31 hereof and to the ground leases, underlying leases and
mortgages hereinbefore metioned.
Failure to Give Possession:
24. If Owner is unable to give possession of the demised
premises on the date of the commencement of the term hereof, because of the
holding-over or retention of possession of any tenant, undertenant of occupants
or if the demised premises are located in a building being constructed, because
such building has not been sufficiently completed to make the premises ready for
occupancy or because of the fact that a certificate of occupancy has not been
procured of for any other reason, Owner shall not be subject to any liability
for failure to give possession on said date and the validity of the lease shall
not be impaired under such circumstances, nor shall the same be construed in any
wise to extend the term of this lease, but the rent payable hereunder shall be
abated (provided Tenant is not responsible for Owner's liability to obtain
possession) until after Owner shall have given Tenant written notice that the
premises are substantially ready for Tenant's occupancy. If permission is given
to Tenant to enter into the possession of the demised premises or to occupy
premises other than the demised premises prior to the date specified as the
commencement of the term of this lease, Tenants covenants and agrees that such
occupancy shall be deemed to be under all the terms, covenants, conditions and
provisions of this lease, except as to the covenant to pay rent. The provisions
of this article are intended to constitute "an express provision to the
contrary" within the meaning of Section 223-a of the New York Real Property Law.
No Waiver:
25. The failure of Owner (38) to seek redress for violation
of, or to insist upon the strict performance of any covenant or condition of
this lease or of any of the Rules or Regulations, set forth or hereafter adopted
by Owner, shall not prevent a subsequent act which would have originally
constituted a violation from having all the force and effect of an original
violation. The receipt by Owner of rent with knowledge of the breach of any
covenant of this lease shall not be deemed a waiver of such breach and no
provision of this lease shall be deemed to have been waived by Owner unless such
waiver be in writing signed by Owner. No payment by Tenant or receipt by Owner
of a lessor amount than the monthly rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any endorsement
or statement of any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Owner may accept such check or
payment without prejudice to Owner's right to recover the balance of such rent
or pursue any other remedy in this lease provided. No act or thing done by Owner
or Owner's agents during the term hereby demised shall be deemed an acceptance
of a surrender of said premises, and no agreement to accept such surrender shall
be valid unless in writing signed by Owner. No employee of Owner or Owner's
agent shall have any power to accept the keys of said premises prior to the
termination of the lease and the delivery of the keys to any such agent or
employee shall not operate as a termination of the lease or a surrender of the
premises.
Waiver of Trial by Jury :
26. It is mutually agreed by and between Owner and Tenant that
the respective parties hereto shall and they hereby do waive trial by jury in
any action, proceeding or Counterclaim by either of the parties hereto against
the other (except for personal injury or property damage) on any matters
whatsoever arising out of or in any way connected with this lease , the
relationship of Owner and Tenant, Tenant's use of or occupancy of said premises,
and any emergency statutory remedy. It is further mutually agreed that in the
event Owner commences any summary proceeding for possession of the premises,
Tenant will not interpose any counterclaim of whatever nature of description in
any such proceeding including a counterclaim under Article 4 (39).
Inability to Perform:
27. This Lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenants and agreements hereunder on
part of Tenant to be performed shall in no wise be affected, impaired or excused
because Owner is unable to fulfill any of its obligations under this lease or to
supply or delayed in supplying and service expressly or implied to be supplied
or unable to make, or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures if Owner is prevented or delayed from so doing by reason of strike or
labor troubles or any cause whatsoever including, but in limited to government
preemption in connection with a Nation Emergency or reason of any rule, order or
regulation of any department or subdivision thereof of any government agency or
by reason of the conditions of the supply and demand which have been or are
affected by war or other emergency.
Bills and Notices:
28. Except as otherwise in this lease provided, a xxxx,
statement, notice or communication which Owner may desire or be required to give
to Tenant, shall be deemed sufficiently given or rendered if, in writing (40),
delivered to Tenant personally or sent by registered or certified mail addressed
to Tenant at the building of which the demised premises form a part or at the
last known residence address or business address of Tenant or left at any time
of the rendition of such xxxx or statement and of the giving of such notice or
communication shall be deemed to be the time when the same is delivered to
Tenant, mailed, or left at the premises as herein provided. Any notice by Tenant
to Owner must be served by registered or certified mail addressed to Owner at
the address first hereinabove given or at such other address at Owner (38) shall
designate by written notice (41).
Services Provided by Owners:
29. As long as Tenant is not in default under any of the
covenants of this lease, Owner shall provide: (a) necessary elevator facilities
on business days from 8 a.m to 6p.m and have one elevator subject to call at all
times; (b) heat to the required premises when and as required by law, on
business days from 8a.m to 6 p.m: (c) water for ordinary lavatory purposes , but
if Tenant uses or consumes water for any other purposes on in unusual quantities
(of which fact Owner shall be the sole judge), Owner may install a water meter
at Tenant's expense in good working order and repair to register such water
consumption and Tenant shall pay for water consumed as shown on said meter as
additional rent as and when bills are rendered; (d)cleaning service for the
demised premises on business days at Owner's expense provided that the same are
kept in order by Tenant. If, however, said premises are to be kept clean by
Tenant, it shall be done at Tenant's sole expense, in a manner satisfactory to
Owner and no one other than persons approved by Owner shall be permitted to
enter said premises or the building of which they are a part for such purpose.
Tenant shall pay Owner the cost of removal of any of Tenant's refuse and rubbish
from the building; (e)if the demised premises are serviced to by Owner's
air-conditioning /cooling and ventilating system, air conditioning/cooling will
be furnished to tenant from May 15th through September 30th on business days
(Mondays through Fridays , holidays excepted0 from 8:00 am to 6:00p.m., and
ventilation will be furnished on business days during the aforesaid hours except
when air conditioning/cooling is being furnished as aforesaid. If Tenant
requires air conditioning/cooling or ventilation for more extended hours on
Saturdays, Sundays, or on holidays. Owner will furnish the same at Tenant's
expense. (f) Owner reserves the right to stop services of the heating,
elevators, plumbing , air-conditioning, power systems or cleaning or other
services, if any, when necessary by reason of accident or for repairs,
alterations, replacement or improvements necessary or desirable in the judgment
of Owner for as long as may be reasonably required by reason thereof. If the
building of which the demised premises are a part supplies manually-operated
elevator service, Owner at any time may substitute automatic-control elevator
service and upon ten days' written notice to Tenant, proceed with alterations
necessary therefor without any wise affecting this lease or the obligation of
Tenant hereunder. The same shall be done with a minimum of inconvenience to
Tenant and Owner shall pursue the alteration with due diligence. (See Article 55
of Ride)
Captions:
30. The Captions are inserted only as a matter of convenience
and for reference and in no way define, limit or describe the scope of this
lease nor the intent of any provisions thereof.
Definitions:
31. The term "office" or "offices", wherever used in this
lease, shall not be construed to mean premises used as a store or stores, for
the sale or display, at any time, of goods, wares or merchandise, of any kind,
or as a restaurant , shop, booth, bootblack of other stand xxxxxx shop or for
other similar purposes or for manufacturing. The term "Owner" means a landlord
or lessor, and as used in this lease means only the owner, or the mortgagee in
possession, for the time being of the land and building (or the owner of a lease
of the building or of the land and building) of which the demised premises form
a part, so that in the event of any sale or sales of said land and building or
of said lease, or in the event of a lease of said building , or of the land and
building of which the demised premises form a part so that in the event of any
sale or sales of said land and building or of said lease, or in the event of a
lease of said building, or of the land and building, the said Owner shall be and
hereby is entirely freed and relieved of all covenants and obligations of Owner
hereunder, and it shall be deemed and construed without further agreement
between the parties or their successors in interest, or between the parties and
the purchaser, at any such sale, or the said lessee of the building, or of the
land and building, that the purchaser or the lessee of the building has assumed
agreed to carry out any and all covenants and obligations of Owner hereunder.
The words "re-enter" and "re-entry" as used in this lease are not restricted to
their technical legal meaning. The term "business days" as used in this lease
shall exclude Saturdays (except such portion thereof as is covered by specific
hours in Article 29 hereof), Sunday's and all days observed by the State or
Federal Government as legal holidays and those designated as holidays by the
applicable building service union employees service contract or by the
applicable Operating Engineers contract with respect to HVAC service.
Adjacent, Excavation- Shoring:
32. If an excavation shall be made upon land adjacent to the
demised premises, or shall be authorized to be made, Tenant shall afford to the
person causing or authorized to cause such excavation, license to enter upon the
demised premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the building of which demised premises form a
part from injury or damage and to support the same by proper foundations without
any claim for damages or indemnity against Owner, or diminution or abatement of
rent.
Rules and Regulations:
33. Tenant and Tenant's servants, employees, agents, visitors,
and licensees shall observe faithfully, and comply strictly with, the Rules and
Regulations and such other and further reasonable Rules and Regulations as Owner
or Owner's agents may from time to time adopt (42), Notice of any additional
rules or regulations shall be given in such manner as Owner may elect. In case
Tenant disputes the reasonableness of any additional Rule or Regulation
hereafter made or adopted by Owner or Owner's agents, the parties hereto agree
to submit the question of the reasonableness of such Rule or Regulation for
decision to the New York office of the American Arbitration Association, whose
determination shall be final and conclusive upon the parties hereto. The right
to dispute the reasonableness Of any additional Rule or Regulation upon Tenant's
part shall be deeemed waived unless the same shall be asserted by service of
notice, in writing upon Owner within ten (10) days after the giving of notice
thereof. Nothing in this lease contained shall be construed to impose upon Owner
any duty or obligation to enforce the Rules and Regulations or terms, covenants
or conditions in any other lease, as against any other tenant and Owner shall
not be liable to Tenant for violation of the same by any other tenant, its
servants, employees, agents, visitors or licensees.
Security:
34. (See Article ?????)
Estoppel Certificate:
35. Tenant, at any time, and from time to time, upon at least
10 days' prior notice by Owner, shall execute, acknowledge and deliver to Owner,
and/or to any other person, firm or corporation specified by Owner, a statement
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), stating the dates to which the rent and
additional rent have been paid, and stating whether or not there exists any
default by Owner under this Lease, and , if so, specifying each such default.
Successors and Assigns:
36. The covenants, conditions and agreements contained in this
lease shall bind and inure to the benefit of Owner and Tenant and their
respective heirs, distributees, executors, administrators, successors, and
except as otherwise provided in this lease, their assigns.
Articles 37 through 61, inclusive, are annexed hereto and incorporated herein.
In Witness Whereof, Owner and Tenant have respectively signed
and sealed this lease as of the day and year first above written.
Witness for Owner: 000 Xxxxx Xxxxxx Associates
By: Sumitomo Corporation of America, its
General Partner
.................................... By:.................................
Witness for Tenant: X.X. Xxxxxx, Inc.
.................................... By:.................................
ACKNOWLEDGMENTS
CORPORATE OWNER COROPORATE OWNER
XXXXX XX XXX XXXX, XXXXX XX XXX XXXX,
Xxxxxx of County of
On this.......day of.....................19....., before me On this.........day of...........19....., before me to
personally came personally came
to me known, who being by me duly sworn, did depose to me known, who being by me duly sworn,
and say that he resides did depose and say that he
in in
that he is the.......................of.................... that he is the................of.......................
the corporation described in and which executed the corporation described in and which
the foregoing instrument, as the corporation executed the foregoing instrument, as
described in and which TENANT; that he knows the seal of said
OWNER: that he knows the seal of said corporation; corporation; that the seal affixed to said
that the seal affixed to said instrument is such corporate seal; that
instrument is such corporate seal; that it was so it was so affixed by order of the Board
affixed by order of the Board of of Directors of said corporation
Directors of said corporation, and that he signed and that he signed his name thereto by
his name thereto by like order. Like order
........................................................... ...............................................
INDIVIDUAL OWNER INDIVIDUAL TENANT
XXXXX XX XXX XXXX, XXXXX XX XXX XXXX,
Xxxxxx of County of
On this ................day of ....................19...... On this ........day of ..............19........
before me before me
Personally came personally came
To me known and known to me to be the individual to me know to me to be the individual
Describe in and who, as OWNER, executed the described in and who, as TENANT,
foregoing instrument and executed the foregoing instrument
Acknowledged to me that.............................he and acknowledged to me that
executed the same ...................he executed the same.
.................................................. ..................................................
INDEX-RIDER
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ARTICLE PAGE
------- ----
37 Commencement and Expiration Dates, Delivery of Possession.......... 1
38 Rents.............................................................. 2
39 Tax Escalation..................................................... 3
40 Expense Escalation................................................. 5
41 Subordination, Notice to Lessors and Mortgages..................... 8
42 Assignment and Subletting.......................................... 10
43 Brokers............................................................ 18
44 Use................................................................ 18
45 Waivers............................................................ 18
46 Legal Compliance - ADA and Hazardous Materials..................... 19
47 Signs; Lobby Directory Space....................................... 20
48 Delinquent Payments................................................ 20
49 Holdover........................................................... 20
50 Tenant's Remedies.................................................. 21
51 Alterations........................................................ 21
52 Not an offer....................................................... 22
53 Tenant's Property.................................................. 22
54 Eminent Domain..................................................... 23
55 Heating and Air Conditioning....................................... 23
56 Non-Liability and Indemnification.................................. 23
57 Insurance.......................................................... 24
58 Parties Bound...................................................... 26
59 Arbitration........................................................ 27
60 Electricity........................................................ 27
61 Curing Tenant's Defaults, Additional Rent.......................... 29
62 Ground Lease Provisions............................................ 29
63 Xxxxx Name......................................................... 30
64 ICIP, Tax and Energy Abatements.................................... 31
65 Security........................................................... 32
66 Tenant's Right of Cancellation..................................... 34
67 Tenant's Right of First Offer...................................... 34
Exhibit A - Floor Plan
Exhibit B - Decsription of Land
Exhibit C - Rent Schedule
Exhibit D - Work Letter
Exhibit E - Definitions
Exhibit F - sCleaning Schedule
ADDITIONAL CLAUSES attached to and forming a part of Lease
dated June 20, 1997, by and between
40 Wall Development Associates, LLC, Landlord, or Owner,
and Internet Financial Services and X.X. Xxxxxx, INC., Tenants.
--------------------------------------------------------------------------------
The Provisions of this Rider shall supersede any inconsistent
provisions contained in the printed portion of the Lease.
37. COMMMENCEMENT AND EXPIRATION DATES; DELIVERY OF PROSSESSION.
-----------------------------------------------------------
37.01 The term of this lease shall commence on a date (hereinafter
referred to as the "Commencement Date") which shall be the later of (a) the day
on which the Preliminary Installations as defined in Exhibit D in the Demised
Premises have been completed Landlord or (b) 90 days from the date this lease is
executed and shall end at noon on the last day of the month which is ten (10)
years after the Rent Commencement Date (which ending date is hereinafter
referred to as the "Expiration Date" ) or shall end on such earlier date upon
which said term may expire or be cancelled or terminated pursuant to any of the
conditions or covenants of this lease or pursuant to law. Promptly following the
Commencement Date Landlord and Tenant shall enter into a recordable
supplementary agreement fixing the dates of the Commencement Date and the
Expiration Date and if they cannot agree theron within fifteen (15) days after
Landlord's request therefore, such dates shall be determined by arbitration in
the manner provided in Article 59.
37.02 The Demised Premises shall be completed and prepared for Tenant's
occupancy utilizing the materials, fixtures and equipment, as and to the extent
set forth in the plans and specifications to be submitted by Tenant pursuant to
Exhibit D annexed hereto and made a part hereof.
37.03 All installations, materials and work which may be required or
desired by Tenant to alter, improve, equip, decorate and furnish the Demised
Premises for Tenant's occupancy shall be accordance with Exhibit D.
37.04 It shall be conclusively presumed that the Demised Premises were
in satisfactory condition as of the date Landlord completes the Preliminary
Installations, unless within (30) days after the Commencement Date, Tenant shall
give Landlord notice specifying the respects in which the Demised Premises were
not in satisfactory condition. Notwithstanding the
1
taking of possession by Tenant, Landlord shall be obligated to complete and
defective or incomplete portion of Landlord's work as promptly and diligently as
reasonably possible.
37.05 Provided Tenant shall not hamper or delay Landlord's completion
of the Preliminary Installations, Tenants shall have the right to enter the
demised Premises and begin its installation upon the execution and delivery of
this lease, upon all of the terms, covenants and conditions of this lease except
for the covenant to pay rent and additional rent.
38. RENTS
-----
38.01 The rents reserved under this lease, for the term thereof, shall
be and consist of:
(a) "rent" or "fixed rent" as specified on Exhibit C annexed
hereto and made a part hereof.
Fixed rent shall be payable in equal monthly installments in advance on the
first day of each and every calendar month during the term this lease (except
that Tenant shall pay, upon the execution and delivery of this lease by Tenant,
an amount equal to the first month's rent becoming due under this lease); and
(b) "additional rent" consisting of all such other sums of money
as shall become due from and payable by Tenant to Landlord hereunder (for
default in payment of which Landlord shall have the same remedies as for a
default in payment of fixed rent);
All fixed rent and additional rent shall be paid to Landlord and its office, or
such other place, or to such agent and at such place, as Landlord may designate
by notice to Tenant, in lawful money of the United States of America.
38.02 Tenant shall pay the fixed rent and additional rent herein
reserved promptly as and when the same shall become due and payable, without any
abatement, deduction or setoff whatsoever, except as and to the extent expressly
provided in this lease and except as to additional rent, without demand
38.03 The "Rent Commencement Date" shall be the date which is seventeen
(17) months after the Commencement Date. If the Commencement Date occurs on a
day other than the first day of calendar month, the fixed rent for such calendar
month shall be prorated and the balance of the first month's fixed rent
theretofore paid shall be credited against the next monthly installment of fixed
rent.
2
39. TAX ESCALATION.
--------------
39.01 For the purposes of this Article 39:
(a) "Taxes" shall mean the real estate taxes and assessments and
special assessments (including, but not limited in any respect to any business
improvement district assessments) imposed upon the Property. If at any time
during the term of this lease the methods of taxation prevailing on the
Commencement Date shall be altered so that in lieu of or as an addition to or as
a substitute for the while or any part of the taxes, assessments, levies,
impositions or charges now levied, assessed or imposed on the Property, there
shall be levied, assessed or imposed (i) a tax, assessment, levy, imposition or
charge wholly or partially as capital levy or otherwise on the rents received
therfrom, or (ii) a tax, assessment, levy, imposition or charge measured by or
based in whole or in part upon the Demised Premises and imposed upon Landlord,
or (iii) a license fee measured by the rents payable by Tenant to Landlord, then
all such taxes, assessments, levies, impositions or charges, or the part thereof
so measured or based, shall be deemed to be included within the term "Taxes" for
the purposes hereof;
(b) "Base Tax Rate" shall mean the Taxes (as finally determined)
assessed against the Property for calendar year 2000;
(c) "Tax Year" shall mean the fiscal or calendar year for which
Taxes are levied by the governmental authority;
(d) "Tenant's Proportionate Share" shall mean for purposes of
this Article 39 and all calculations in connection herewith 1.672%, which has
been computed on the basis of a fraction, the numerator of which is the agreed
rentable square foot area of the Building as set forth below. The parties agree
that the rentable square foot area of the Demised Premises shall be deemed to be
19,331 square feet and that the agreed rentable square foot area of the Building
shall be deemed to be 1,156,005 square feet.
(e) "Tenant's Projected Share of Taxes" shall mean the "Tax
Payment" (as hereinafter defined), if any, made by Tenant for the immediately
preceding Tax Year ( or in the case of the first Tax Year during which Landlord
shall be entitled to a Tax Payment) divided by twelve (12) and payable monthly
by Tenant to Landlord as additional rent.
39.02 If the Taxes for any Tax Year, including the Tax Year in effect
on the Commencement Date, shall be more than the Base Tax Rate, Tenant shall
pay, as additional rent for such Tax Year, an amount equal to Tenant's
Proportionate Share of the amount by which the Taxes for such Tax Year are
greater than the Base Tax Rate. (The amount payable by Tenant is hereinafter
referred to as the "Tax Payment".) The Tax Payment shall be prorated, if
necessary,
3
to correspond with that portion of a Tax Year occurring within the Term of this
lease. The Tax Payment shall be payable by Tenant within ten (10) days after
receipt of a demand from Landlord therefor, which demand shall be accompanied by
a copy of the tax xxxx together with Landlord's computation of the Tax Payment.
If the Taxes for any Tax Year are payable to the taxing authority or Land lord's
mortgage on an installment basis, Landlord may serve demands upon , and the Tax
Payment with respect to such Tax Year shall be payable by, Tenant on a
corresponding installment basis.
39.03 Notwithstanding the fact that the increase in rent is measured by
an increase in taxes, such increase is additional rent and shall be paid by
Tenant as provided herein regardless of the fact that the Tenant may be exempt,
in whole or in part, from the payment of any taxes by reason of the Tenant's
diplomatic or other tax exempt status or for any other reason whatsoever.
39.04 Only Landlord shall be eligible to institute tax reduction or
other proceedings to reduce the assessed valuation of the Property. Should
Landlord be successful in any such reduction proceedings and obtain a rebate or
a reduction in assessment for periods during which Tenant has paid or is
obligated to pay Tenant' Proportionate Share of increases in Taxes, or received
the benefit of any decreases, Landlord shall, after deducting its expenses,
including without limitation, customary attorneys' fees and disbursements in
connection with such rebate, reduction other benefit to Tenant (such expenses
being hereafter referred to as "Tax Expenses"), either (i) return Tenant's
Proportionate Share of such rebate to Tenant or, (ii) if a reduction in
assessment is obtained prior to the date Tenant would be required to pay
Tenant's Proportionate Share of such increase in Taxes, Tenant shall pay to
Landlord, upon written request, Tenant's Proportionate Share of such Tax
Expense.
39.05 After the Commencement Date Landlord shall furnish Tenant with a
statement setting forth the Base Tax Rate and, at the expiration of any Tax Year
thereafter Landlord shall furnish Tenant with a statement setting forth Tenant's
Proportionate Share of Taxes. The statement furnished under this section 39.05
is hereinafter referred to as a "Tax Statement". Commencing on the first day of
the first calendar month of the first Tax Year for which Landlord shall be
entitled to receive a Tax Payment, and on the first day of each calendar month
thereafter throughout the term hereof, Tenant shall pay to Landlord, as
additional rent for the then Tax Year, Tenant's Projected Shares of Taxes. Upon
each date that a tax payment or and installment on account thereof shall be due
from Tenant pursuant to the terms of Section 39.02 hereof, Landlord shall apply
the aggregate of the installments of Tenant's Projected Share of Taxes then on
account with Landlord against the Tax Payment or installment thereof then due
from Tenant. In the event the aggregate amount previously paid by Tenant shall
be insufficient to discharge full such Tax Payment or installment , Landlord
shall so notify Tenant in a demand served upon Tenant pursuant to the terms of
Section 39.02, and Tenant shall forthwith pay the amount of such insufficiency
to Landlord. If, however, such aggregate amount shall be greater than the Tax
Payment or installment, Landlord shall upon Tenant's request either (i) pay the
amount of excess directly to Tenant concurrently with the notice or (ii) credit
the amount of such excess against the next payment of Tenant's Projected Share
of Taxes hereunder and, if the credit of such
4
payment is not sufficient to liquidate the entire amount of such excess,
Landlord shall then pay the amount to any difference to Tenant.
39.06 Tenant shall pay to Landlord as additional rent, any occupancy
tax or rent tax imposed, levied or assessed by any laws and/ or requirements of
public authorities, whether now in effect or hereinafter enacted, if payable by
Landlord in the first instance or here after required to be paid by Land lord
based upon Tenant's occupancy of the Demised Premises; provided , however, that
Tenant shall not be required to pay any income, franchise, profits or similar
taxes personal to Landlord, except as otherwise provided in Section 39.01 (a)
hereof.
40. EXPENSE ESCALATION.
------------------
40.01 For purposes of this Article 40:
(a) "Operating Expenses" shall mean any or all expenses incurred
by Landlord in connection with the operation of the Property including all
expenses incurred as a result of Landlord's compliance with any of its
obligations hereunder other than Landlord's Work and such expenses shall
include: (i) salaries, wages, medical, surgical and general welfare benefits,
(including group life insurance) pension payments and other fringe benefits of
employees of Landlord engaged in the operation and maintenance of the Property;
(ii) payroll taxes, worker's compensation, uniforms and dry cleaning for the
employees referred to in subdivision (i); (iii) the cost of all charges for
steam, heat, ventilation, air conditioning and water (including sewer rental)
furnished to the Building and/or used in the operation of all of the service
facilities of the building and the cost of all charges for electricity furnished
to the public and service areas of the Property and/or used in the operation of
all of the service facilities of the Property including any taxes on any of such
utilities; (iv) the cost of all charges for rent, casualty, war risk insurance
(if obtainable from the United States government) and of liability insurance for
the property to the extent that such insurance is required to be carried by
Landlord under any superior mortgage or if not required under any superior lease
or superior mortgage then to the extent such insurance is carried by owners of
Property comparable to the Property; (v) the cost of all building and cleaning
supplies for the property and charges for telephone for the Building; (vi) the
cost of all charges for management, security, cleaning, rubbish removal, waste
recycling and service contracts for the Property (if no management, security,
cleaning, rubbish removal, waste recycling and service contracts for the
Property ( if no managing agent employed by Landlord, there may be included in
Operating Expenses a sum not exceeding 4% of all rents, additional rents and
other charges collected from tenants or other permitted occupants of the
Property); (vii) the cost of rental of equipment used in the maintenance and
operation of the Building and of capital equipment designed to result in savings
or reductions in Operating Expenses and (viii) the cost incurred in connection
with the maintenance and repair of the Property. Provision in this lease for an
expense item to be Landlord's expense or at Landlord's expense shall not affect
the inclusion thereof, to the extent above provided, in Operating Expenses.
Operating Expenses shall not include (A) administrative wages and salaries; (B)
renting commissions; (C) franchise taxes or income taxes of Landlord; (D) Taxes
on the Property; (E) costs of initial improvements, painting and decorating of
any occupant's space; (F) interest and amortization under mortgages; and (G)
expenditures for capital improvements except (1) for capital improvements which
under generally applied real estate practice are expensed or
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regarded as deferred expenses and (2) for capital improvements required by law
or (3)for capital improvements which are designed to result in a saving in the
amount of Operating Expenses, in any of such cases the cost thereof shall be
included in Operating Expenses for the Operational Years, on a straight line
basis, to the extent that such items are amortized over an appropriate period,
but, not more than ten years, with an interest factor equal to two (2%) percent
above the prime rate of Citibank, N.A. at the time of Landlord's having incurred
said expenditure;
If during all or part of the "Base Operational Year" or any other
"Operational Year" (as such terms are hereinafter defined), Landlord shall not
furnish any particular item(s) of work service (which would otherwise constitute
an Operating Expense hereunder) to office portions of the Building due to the
fact that (i) such portions are not occupied or leased, (ii) such item of work
or service or required or desired by the tenant of such portion, or (iii) such
tenant is itself obtaining and providing such item and for such period shall be
deemed to be increased by an amount equal to the additional costs and expenses
which would reasonably have been incurred during such period by Landlord if it
had its own expense furnished such item of work or services to such portion of
the Building or to such tenant.
(b) "Operational Year" shall mean each calendar year during the team
hereof after the Base Operational Year (as hereinafter defined);
(c) "Base Operational Year" shall be calendar 1998;
(d) "Tenant's Proportionate Share" shall mean purposes of Article 40
of this lease and all calculations in connection herewith 1.778%, which has been
computed on the basis of a fraction, the numerator of which is the agreed
rentable square foot area of the Demised Premises as set forth below and the
denominator of which is the agreed rentable square foot area of the Building as
set forth below excluding the ground floor, mezzanine and second floor retail
space. The parties agree that the rentable square foot area of the building
excluding the ground floor and second floor retail space shall be deemed to the
1,087,178 square feet; and
(e) "Tenant's Projected Share of Operating Expenses" shall mean
Tenant's "Operating Expense Payment" (as hereinafter defined), if any, for the
prior Operational Year (or in the case of the calendar year 1999, an amount
equal to Landlord's reasonable good faith estimate of the first Operating
Expense Payment) divided by twelve (12) and payable monthly by Tenant to
Landlord as additional rent.
40.02 After the expiration of the Base Operational Year, Landlord shall
furnish Tenant with a statement (hereinafter referred to as the "Base
Statement") of the Operating Expenses for the Base Operational Year. After the
expiration of each Operational Year thereafter, Landlord shall furnish Tenant
with a written detailed statement setting forth the aggregate amount of the
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Operating Expenses for the prior Operational Year. The statement furnished under
the second sentence of this Section 40.02 is hereinafter referred to as an
"Operating Statement"
40.03 If the Operating Expenses for any Operational Year shall be
more than the Operating Expenses in the Base Optional Year, Tenant shall pay, as
additional rent for such Operational Year, an amount equal to Tenants
Proportionate Share of the amount by which the Operating Expenses for such
Operational Year are greater than the Operating Expenses in the Base Operational
Year. (The amount payable by Tenant is hereinafter referred to as the
"Operating Expense Payment"). The Operating Expense Payment shall be prorated,
if necessary, to correspond with that portion of an Operational Year occurring
within the Term of this lease. The Operating Expense Payment shall be payable by
Tenant within (10) day after receipt of the Operating Statement.
40.04 Commencing with the first Operational Year after Landlord shall
be entitled to receive an Operating Expense Payment, Tenant shall pay to
Landlord as additional rent for the then Operational Year, Tenants Projected
Share of Operating Expenses. If the Operating Statement furnished by the
Landlord to Tenant at the end of then Operational year shall indicate that
Tenant's Projected Share of Operating Expenses exceeded the Operating Expense
Payment, Landlord shall forthwith, at Tenant's request either (i) pay the amount
of excess directly to tenant concurrently with the notice or (ii) permit Tenant
to credit the amount of such excess against the subsequent payment of rent due
hereunder; if such Operating Statement furnished by Landlord to Tenant hereunder
shall indicate that the Operating Expense Payment exceeded the aggregate of
Tenant's Projected Share of Operating Expenses for the then Operational Year,
Tenant shall forthwith pay the amount of such excess to Landlord.
40.05 The Base Statement and every Operating Statement given by
Landlord pursuant to Section 40.02 shall be conclusive and binding upon Tenant
unless (a) within sixty (60) days after the receipt of the Base Statement or
such Operating Statement, as the case may be, Tenant shall notify Landlord that
it disputes the correctness of the Base Statement or Operating Statement, as the
case may be, specifying in detail the particular respects in which the Base
Statement or Operating Statement, as the case may be, is claimed to be
incorrect, and (b) if such dispute shall not have been settled by agreement by
the parties then Landlord and Tenant shall each appoint a disinterested person
to act as their arbitrator to attempt to settle the dispute within 30 days after
their appointment. If the arbitrators so appointed by Landlord and Tenant cannot
reach an agreement, then they shall appoint a third impartial and disinterested
person to resolve the dispute. If Landlord's and Tenant's arbitrators cannot
agree on a disinterested third person to act as arbitrator, the arbitrator shall
be appointed by the American Arbitration Association. Pending the determination
of such dispute by agreement or arbitration as aforesaid, Tenant shall, within
thirty (30) days after receipt of any Operating Statement, pay additional rent,
if due, in accordance with the Operating Statement and such payment shall be
without prejudice to Tenant's claim in connection with such dispute. If the
dispute shall be determined in Tenant's favor, Landlord shall, on demand, pay
Tenant the amount of Tenant's overpayment of additional rent, if any, resulting
from compliance with the Operating Statement. Landlord agrees to grant Tenant
reasonable access to Landlord's books and records for the purpose of verifying
Operating
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Expenses incurred by Landlord and to have and make copies of any and all
available bills and vouchers relating thereto, subject to reimbursement by
Tenant of the expense therefor.
40.06 In the event that during the Base Operational Year or any
Operational Year the Building shall have less than 95% occupancy then, and in
any such event, the Operating Expenses for the Base Operational Year, or any
Operational Year, as the case may be, shall be adjusted to reflect what
Operating Expenses would have been were the Building 95% occupied during such
periods.
40.07 Landlord's failure during the lease term to prepare and deliver
any of the tax bills, statements, notice or bills set forth in Articles 39 or
40, or Landlord's failure to make a demand, shall not in any way cause Landlord
to forfeit or surrender its rights to collect any of the foregoing items of
additional rent which may have become due during the term of this lease.
Tenant's liability for the amounts due under Article 39 or this Article 40 shall
survive the expiration of the Term.
40.08 If all or any part of the fixed rent or additional rent payable
hereunder shall at any time become uncollectible, reduced or required to be
refunded by virtue of any laws and/or requirements of public authorities
(including, without limitation, rent control or stabilization laws) then for the
period prescribed thereby Tenant shall pay to Landlord the maximum amounts of
fixed rent and additional rent permitted pursuant thereto. Upon the expiration
of the applicable period of time during which such amounts shall be
uncollectible, reduced or refunded, Tenant shall pay to Landlord as additional
rent, with fifteen (15) days after written demand, all such uncollected, reduced
or refunded amounts that would have been payable for the period absent such laws
and/or requirements of public authorities; provided that the retroactive
collection thereof shall then by lawful.
41. SUBORDINATION, NOTICE TO LESSORS AND MORTGAGES.
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41.01 This lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate in all respects to all ground leases, overriding leases
of the Property now or hereafter existing and to all mortgages which may now
hereafter affect Property and/or any of such leases, to each and every advance
made or hereafter to be made under such mortgages, and to all renewals,
modifications, replacements and extensions of such leases and such mortgages and
spreaders and consolidations of such mortgages. This sections shall be
self-operative and no further instrument of subordination shall be required. In
confirmation of such subordination, Tenant shall promptly execute and deliver
any instrument that Landlord, the lessor of any such lease of the holder of any
such mortgage or any of their respective successors in interest may reasonably
request to evidence such subordination. The leases to which this lease is at the
time referred to, subject and subordinate pursuant to this Article are
herinafter sometimes referred to as "superior leases" and the mortgages to which
this lease is, at the time referred to, subject and subordinate are hereinafter
sometimes referred to as "superior mortgages" and the lessor of a superior lease
or its successor in interest at the time referred to is sometimes hereinafter
called a "lessor".
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41.02 In the event of any act or omission of Landlord which would give
Tenant the right, immediately or after lapse of a period of time, to cancel or
terminate this lease, or to claim a partial or total eviction, Tenant shall not
exercise such right (a) until it has given written notice of such act or
omission to the holder of each mortgage and the lessor of each superior lease
whose name and address shall previously have been furnished to Tenant in
writing, and (b) unless such act or omission shall be one which is not capable
of being remedied by Landlord or such mortgage holder or lessor within a
reasonable period of time, until a reasonable period for remedying such act or
omission shall have elapsed following the giving of such notice and following
the time when such holder or lessor shall have become entitled under such
superior mortgage or superior lease, as the case may be, to remedy the same
(which reasonable period shall in no event be less than the period to which
Landlord would be entitled under this lease otherwise, after similar notice, to
effect such remedy), provided such holder or lessor shall with due diligence
give Tenant written notice of intention to, and commence and continue to remedy
such act or omission.
41.03 If the lessor of a superior mortgage shall succeed to the rights
of Landlord under this lease, whether through possession of foreclosure action
or delivery of a new lease or deed, then at the request of such party succeeding
to Landlord's rights (herein sometimes referred to as "successor landlord") and
upon successor Landlord's written agreement to accept Tenant's attornment,
Tenant shall attorn to and recognize such successor landlord as Tenant's under
this lease, and shall promptly execute and deliver and instrument that such
successor landlord may reasonably request to evidence such attornment. Upon such
attornment this lease shall continue in full force and effect as, or as if it
were, a direct lease between the successor landlord and Tenant upon all of the
terms, conditions and covenants as are set forth in this lease and shall be
applicable after such attornment except that the successor landlord shall not
be:
(a) liable for any previous act or omission of Landlord (or its
predecessor in interest) under this lease;
(b) bound by any previous modification of this lease, not
expressly provided for in this lease, or by any previous prepayment of more than
one month's fixed rent, unless such modification or prepayment shall have been
expressly approved in writing by the lessor of the superior lease or the holder
of the superior mortgage through or by reason of which the successor landlord
shall have succeeded to the rights of Landlord under this lease.
(c) Responsible for any monies owing Tenant from Landlord;
(d) Subject to any credits, offsets, claims, counterclaims,
demands or defenses which Tenant may have against Landlord (or its predecessors
in interest);
(e) Bound by any covenant to undertake or complete any work in
Demised Premises or nay portion thereof;
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(f) Required to account for any security deposit other than any
security deposit actually delivered to the successor landlord;
(g) Bound by any obligation to make any payment to Tenant or
grant or be subject to any credits, except for services, repairs, maintenance
and restoration (provided, with respect to restoration, to the extent that the
successor landlord shall have received sufficient casualty insurance proceeds or
condemnation awards, as the case may be, to complete such restoration) provided
for under this lease to be performed after the date of attornment, it being
expressly understood, however, that the successor landlord shall not be bound by
any obligation to make payment to Tenant with respect to any work performed by
or on behalf of Tenant at the Demised Premise.
41.04 If, in connection with obtaining financing or refinancing for
Landlord's interest in the Land and Building a lender shall request reasonable
modifications to this lease as a condition to such financing or refinancing,
Tenant will not withhold, delay or defer its consent thereto provided that such
modifications do not materially increase the obligations of Tenant hereunder
requirement that the consent of any such lender be given for any modification of
this lease or subject to the provisions of this lease, for any assignment or
sublease, be deemed to materially adversely affect the leasehold interest hereby
created. In the event Tenant fails to execute and deliver to Landlord a duly
executed modification or amendment of this lease incorporating such modification
within (15) days of request therefor, Landlord may execute such amendment or
modification for and on behalf of Tenant as its attorney-in-fact coupled with an
interest solely to execute and deliver any instruments required to carry out the
intent of this Section 41.04 on behalf of Tenant.
42. ASSIGNMENT AND SUBLETTING (Supplementing Article 11).
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42.01 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 send a notice (hereinafter referred to as the "A/S Notice") thereof
to Landlord, which notice shall be accompanied by (a) a conformed or photostatic
copy of proposed 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 Demised Premises, and (c) 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 (or Landlord's
designee) may at its option (hereinafter referred to as "Landlord's Option"),
(i) sublease such space may at its option (hereinafter referred to as "Leaseback
Space") from Tenant upon the terms and conditions hereinafter set forth , (ii)
terminate this lease (if the proposed transaction is an assignment or a sublease
of all or substantially all of the Demised Premises for the remainder of the
Term), or (iii) terminate this lease with respect to the Leaseback space (if the
proposed transaction is a (iii) terminate this lease with respect to the
Leaseback space (if the proposed transaction is a sublease of part of the
Demised Premises for the remainder of the Term). Landlord's Option may be
exercised by Landlord by notice to Tenant at any time within sixty (60) days
after such
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notice has been given by Tenant to Landlord; and during such 60-day period
Tenant shall not assign lease nor sublet such space to any person.
42.02 If Landlord exercises Landlord's Option to terminate this lease
in the case where Tenant desires either to assign this lease or sublet 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 fixed rent and additional rent shall be
paid and apportioned to such date.
42.03 Landlord exercises Landlord's Option to terminate this lease in
part in any case where Tenant desires to sublet part of the Demised Premises,
then, (a) this lease shall end and expire with respect to such part of the
Demised Premises on the date that the proposed sublease was to commence; (b)
from and after such date the fixed rent and additional rent shall be adjusted,
based upon the proportion that the rentable area of the Demised Premises
remaining bears to the total rentable area of the Demised Premises; and (c)
Tenant shall pay to Landlord, upon demand, the reasonable out-of pocket costs to
third parties incurred by Landlord in physically separating such part of the
Demised Premises from the balance of the Demised and in complying with any laws
and requirements of any public authorities relating to such separation.
42.04 If Landlord exercises Landlord's Option to sublet the Leaseback
Space under Section 42.01, such sublease to Landlord or its designee (as
subtenant) shall be at the lower of (i) the rental rate per rentable square foot
or fixed rent and additional rent then payable pursuant to this lease or (ii)
the rentals set forth in the proposed sublease, and shall be for the same term
as that of the proposed subletting, and such sublease shall:
(a) be expressly subject to all of the covenants, agreements,
terms, provisions and conditions of this lease except such as are irrelevant or
inapplicable, and except as otherwise expressly set forth to the contrary in
this Section;
(b) be upon the same terms and conditions as those contained in
the proposed sublease, except such as are irrelevant or inapplicable, and except
as otherwise expressly set forth to the contrary in this Section;
(c) give the sublessee the unqualified and unrestricted right,
without Tenant's permission, to assign such sublease or any interest therein
and/or to sublet the Leaseback Space or any part or parts of the Leaseback Space
and to make any and all changes, alterations, and improvements in the space
covered by such sublease and if the proposed sublease will result in all or
substantially all of the Demised Premises being sublet, grant Landlord or its
designees the option to extend the term of such sublease for the balance of the
term of this lease less (1) day;
(d) provide that any assignee or further subtenant, of Landlord
or its designee, may, at the election of Landlord, be permitted to make
alterations, decorations and
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installations in the Leaseback Space or any part thereof without liability to
Tenant and shall also provide in substance that any such alterations,
decorations, and installations in the Leaseback Space therein made by any
assignee or subtenant of Landlord or its designee may be removed, in whole or in
part, by such assignee or subtenant, at its option, prior to or upon the
expiration or other termination of such sublease provided that such assignee or
subtenant, at its expense, shall repair any damage and injury to that portion of
the Leaseback Space so sublet caused by such removal; and
(e) also provide that (i) the parties to such sublease expressly
negate any intention that any estate created under such sublease be merged with
any other estate held by either of said parties, (ii) any assignment or
subletting by Landlord or its designee (as the subtenant) may be for any purpose
or purposes that Landlord, in Landlord's uncontrolled discretion, shall deem
suitable or appropriate, (iii) Tenant, at Tenant's expense, shall and will at
all times provide and permit reasonably appropriate means of ingress to and
egress from the Leaseback Space so sublet by Tenant to Landlord or its designee,
(iv) Landlord, at Tenant's expense, may make such alterations as may be required
or deemed necessary by Landlord to physically separate the Leaseback Space from
the balance of the Demised Premises and to comply with any laws and requirements
of public authorities relating to such separation, and (v) that at the
expiration of the term of such sublease, Tenant will accept the space covered by
such sublease in its then existing condition, subject to the obligations of the
sublessee to make such repairs thereto as may be necessary to preserve the
premises demised by such sublease in order and condition.
42.05 (a) If Landlord exercises Landlord's Option to sublet the
Leaseback Space, Landlord shall indemnify and save Tenant harmless from all
obligations under this lease as to the Leaseback Space during the period of time
it is so sublet to Landlord or with respect to any acts of the sublessee (or
persons acting through or under authority of such sublessee including assignees
and invitees of such sublessee);
(b) Performance by Landlord, or its designee, under a sublease
of the Leaseback Space shall be deemed performance by tenant of any similar
obligation under this lease and any default under any such sublease shall not
give rise to a default under a similar obligation contained in this Lease, nor
shall Tenant be liable for any default under this lease or deemed to be in
default hereunder if such default is occasioned by or arises from any act or
omission of the Tenant under such sublease or is occasioned by or arises from
any act or omission of any occupant holding under or pursuant to any such
sublease;
(c) Tenant shall have no obligation, at the expiration or earlier
termination of the term of this lease, to remove any alteration, installation or
improvement made in the Leaseback Space by Landlord.
42.06 In the event Landlord does not exercise Landlord's Option
pursuant to Section 42.01 and providing that Tenant is not in default of any of
Tenant's obligations under this lease after notice and the expiration of any
applicable grace period, Landlord's consent (which must be
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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
42.01 and Landlord shall not have exercised Landlord's Option under said Section
42.01 within the time permitted therefor;
(b) In Landlord's reasonable judgment the proposed assignee or
subtenant in engaged in business and the Demised Premises, or the relevant part
thereof, will be used in manner which (i) is in keeping with the then standards
of the Building, (ii) is limited to the use expressly permitted under this
lease, and (iii) will not violate any negative covenant as to use contained in
any other lease of space in the Building;
(c) The proposed assignee or subtenant is 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 or any person who
controls the proposed assignee (all of the foregoing being defined as an
"Affiliate" 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 or has, within six (6) months prior to the
date of the A/S Notice, negotiated with to lease space in the Building provided
the Landlord has appropriate space available in the Building to lease to such
assignee or sublessee;
(f) The form of the proposed sublease shall be in the form
reasonably satisfactory to Landlord and shall comply with the applicable
provisions of this Article;
(g) There shall not be more than two entities excluding
Affiliates but including Landlord or its designee occupying the Demised Premises
at any time;
(h) The amount of the aggregate rent to the paid by the proposed
subtenant is not less than the then current rent per rentable square foot for
the Demised Premises then being paid by Tenant (or if lower, the rent then being
charged by Landlord in the Building), and the rental and other terms and
conditions of the sublease are the same as those contained in the proposed
sublease furnished to Landlord pursuant to Section 42.01;
(i) Tenant shall reimburse Landlord on the demand for any reason
able costs that may be incurred by Landlord in connection with said assignment
or sublease, including, without limitation, the costs of making investigations
as to the acceptability of the proposed assignee or subtenant and reasonable
legal costs incurred in connection with the review of any term sheets, proposed
assignment or sublease or any documentation in connection
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therewith and in the preparation of any documentation in connection with any
request for consent whether or not granted;
(j) Tenant shall not have (i) advertised or publicized in any way
the availability of the Demised Premises without prior notice to and approval by
Landlord (which approval shall not be unreasonably withheld or delayed), nor
shall any advertisement state the name (as distinguished from the address) of
the Building or the proposed rental, (ii) listed the Premises for sublettting
or assignment, with a broker, agent or representative other than the then
managing agent of the Building or other agent designated by Landlord, or
otherwise at a rental rate less than the greater of (1) the fixed rent and
additional rent at which Landlord is then offering to lease other space in the
Building; and
(k) The sublease shall not allow the use of the Demised Premises
or any part thereof for (i) the preparation and/or sale of food for on or off
premises consumption or (ii) for use by a foreign or domestic governmental
agency.
Except for any 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 or any such subtenant, Tenant shall and will
remain fully liable for the payment of the fixed rent and additional rent due
and to become due hereunder and for the performance of all 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
Premises by Tenant or any person claiming through or under Tenant (except as
provided in Section 42.04) shall or will be made except upon compliance with and
subject to the provisions of this article. If Landlord shall decline to give its
consent to any proposed assignment or sublease, or if Landlord shall exercise
any of its options under Section 42.01, 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.
42.07 In the event that (a Landlord fails to exercise Landlord's
Option under Section 42.01 and consents to a proposed assignment or sublease,
and (b) Tenant fails to execute and deliver the assignment or sublease to which
Landlord consented within 90 days after the giving of such consent, then Tenant
shall again comply with all of the provisions and conditions of Section 42.01
before assigning this lease or subletting all or part of the Demised Premises.
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42.08 With respect to each and every sublease or subletting authorized
by Landlord under the provisions of this lease, it is further agreed:
(a) No subletting shall be for a term ending later that one (1)
day prior to the expiration date of this lease;
(b) No sublease shall be valid, and no subtenant shall take
possession of the Demand 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 be:
(i) Liable for any previous act or omission of Tenant (or its
predecessor in interest) under the sublease;
(ii) Bound by any previous modification of the sublease, or
by any previous prepayment of more than one months fixed rent, unless such
modification or prepayment shall have been expressly approved in writing by the
Landlord;
(iii) Responsible for any monies owing to subtenant from
Tenant;
(iv) Subject to any credits, offsets, claims, counterclaims,
demands or defenses which subtenant may have against Tenant (or its predecessors
in interest);
(v) Bound by any covenant to undertake or complete any work
in the Demised Premises or any portion thereof;
(vi) required to account for any security deposit other than
any security deposit actually delivered to the Landlord;
(vii) Bound by any obligation to make any payment to
subtenant or grant or be subject to any credits, except for services, repairs,
maintenance and restoration (provided, with respect to restoration, to the
extent that the Landlord shall have received sufficient casualty insurance
proceeds or condemnation awards, as the case may be, to complete such
restoration) provided for under the sublease to be performed after the date of
attornment, it being expressly understood, however, that the Landlord shall not
be bound by an obligation to make payment to subtenant with respect to any work
performed by or on behalf of subtenant at the Demised Premises.
42.09 If Landlord shall give its consent any assignment of this lease
or to any sublease, Tenant shall in consideration therefor, pay to Landlord, as
additional rent:
15
(a) in the case of an assignment, an amount equal to 50% of all
sums and other considerations paid to Tenant by the assignee (except for rent
and additional rent) for or by reason of such assignment (including, but not
limited to, sums paid for the sale of Tenant's fixtures, leasehold improvements,
equipment, furniture, furnishings or other personal property, less, in the case
of sale thereof, the then net unamortized or undepreciated cost thereof
determined on the basis of Tenant's federal income tax returns) and less the
reasonable costs (hereinafter referred to as the "Assignment Expense") paid by
Tenant for alteration costs (or contributions in lieu thereof), advertising,
brokerage or consulting fees or commissions and legal fees in connection with
such assignment; and
(b) in the case of a sublease, an amount equal to 50% of any
rents, additional charge or other consideration payable under the sublease to
Tenant by the subtenant which is in excess of the fixed rent and additional rent
accruing during the term, of the sublease in respect of the subleased space (at
the rate per square foot payable by tenant hereunder) pursuant to the terms
hereof (including, but not limited to, sums paid for the sale or rental of
Tenant's fixtures, leasehold improvements, equipment, furniture or other
personal property, less in the case of the sale therof, the then net unamortized
or undepreciated cost thereof determined on the basis of Tenant's federal income
tax returns) and less the reasonablecosts (hereinafter referred to as the
"Subletting Expenses") paid by tenant for alteration costs (or contributions in
lieu thereof), of advertising, broverage or consulting fees or commissions and
legal fees in connection with such subletting. The sums payable under Sections
42.09 (a) and (b) shall be paid to Landlord as and when paid by the assignee or
subtenant, as the case may be, to Tenant and upon the execution and delivery of
such assignment or sublease, as the case may be, Tenant shall provide to
Landlord a statement of the Assignment Expenses or Subletting Expenses, as the
case may be, certified as correct by an officer or principal of Tenant.
42.10 If Tenant is a corporation other than a corporation whose stock
is listed and traded on a nationally recognized stock exchange or on the NASDAQ
market, the provisions of Article 11 and this Section 42, shall apply to a
transfer (however accomplished, whether in a single transaction or in a series
of related or unrelated transactions) of stock (or any other mechanism such as,
by way of example, the issuance of additional stock, a stock voting agreement or
change in class(es) of stock) which results in a change of control of Tenant as
if such transfer of stock (or other mechanism) which results in a change of
control of Tenant were an assignment of this lease, and if Tenant is a
partnership, joint venture or a limited liability company, said provisions shall
apply with respect to a transfer (by one or more transfers) of an interest in
the distributions of profits and losses of such partnership, joint venture or a
limited liability company (or other mechanism, such as, by way of example, the
creation of additional general partnership or limited partnership or member
interests) which results in a change of control of such partnership, joint
venture or a limited liability company, as if such transfer of an interest in
the distributions of profits and losses of such partnership, joint venture or a
limited liability company which results in a change of control of such
partnership, joint venture or a limited liability company were an assignment of
this lease. The provisions of Article 11, and Section 42 (except for Sections
42.10, 42.11, and 42.12) shall not apply to transactions as part of a public
offering or a transaction with a corporation into which or with which Tenant is
merged or consolidated or to which all are substantially all of Tenant's assets
are transferred or to any corporation which controls or is
16
controlled by Tenant under common control with Tenant, provided that in the
event of such merger, consolidation or transfer of all or substantially all of
Tenant's assets (i) the successor to Tenant 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 herein named on the date of this lease,
and (ii) proof satisfactory to Landlord of such net worth shall have been
delivered to Landlord at least 10 days prior to the effective date of any such
net worth shall have been delivered to Landlord at least 10 days prior to the
effective date of any such transaction. The provisions of Section 42.10 shall
apply to matters or transactions involving either of the two named entities
comprising Tenant.
42.11 Any assignment or transfer, whether made with Landlord's consent
pursuant to Article 11 or without Landlord's consent pursuant to Section 42.10,
shall be made only if , and shall not be effective until, the assignee shall
execute, acknowledge and deliver to Landlord an agreement in form and substance
satisfactory to Landlord whereby the assignee shall assume the obligations of
this lease on the part of Tenant to be performed or observed and whereby the
assignee shall agree that the provisions in Article 11 shall, notwithstanding
such assignment or transfer, continue to be binding upon in it respect of all
future assignments and transfers. The original named Tenant covenants that,
notwithstanding the acceptance of fixed rent not in violation of the provisions
of this lease, and notwithstanding such assignment or transfer, whether or not
in violation of the provisions of this lease, and notwithstanding the acceptance
of fixed rent and/or additional rent by Landlord from an assignee, transferee,
or any other party, the original named tenant (except if the Tenant is
extinguished as a corporate entity in connection with a transaction permitted
pursuant to Section42.10 hereof), shall remain fully liable for the payment of
the fixed rent and additional rent and for the other obligations of this lease
on the part of Tenant to be performed or observed.
42.12 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.
42.13 The listing of any name other than that of Tenant, whether on the
doors of the Premises or the Building directory, or otherwise, shall not operate
to vest any right or interest in this lease or in the Premises, nor shall it be
deemed to be the consent of Landlord to any assignment or transfer of this lease
or to any sublease of the Premises or to the use or occupancy thereof by others.
43. BROKERS.
-------
Tenant warrants and represents that it dealt solely with Xxxxxxx &
Xxxxxxxxx, inc. and Xxxxxx X. Day Realty Corp. (hereinafter referred to
collectively as the "Broker") as broker and that to Tenant's knowledge no other
broker was instrumental in bringing about or procuring this Lease. Tenant agrees
to indemnify, defend and hold Landlord harmless from and against the
17
claims of other claims of other brokers or agents for compensation by reason of
Tenant's acts. Landlord shall be solely responsible for compensating the Broker
pursuant to separate agreement.
44. USE.
---
44.01 Tenant shall use and occupy the Demised Premises for executive
and general offices in connection with a stock brokerage business and for no
other purpose.
44.02 If any governmental license or permit, other that a Certificate
of Occupancy which shall be obtained by Landlord after completion of the Basic
work, shall be required for the proper and lawful conduct of Tenant's business
in the Demised Premises or in 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 there after 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 license or permit.
44.03 Tenant shall not at any time use or occupy, or suffer or permit
anyone to use or occupy, the Demised Premises or do or permit anything to be
done in 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.
45. Waivers
-------
(a) Tenant, or Tenant, and on behalf of any and all persons claiming
through or under Tenant, including creditors of all kinds, does hereby waive and
surrender all right and privilege which they or any of them might have under or
by reason of any present or future law, to redeem the Demised Premises or to
have a continuance of this lease for the term hereby demised after being
dispossessed or ejected therefrom by due process of law or under the terms of
this lease or after the termination of this lease herein provided.
(b) In the event that Tenant is in arrears in payment of fixed rent or
additional rent hereunder, Tenant waives Tenant's right, if any , to designate
the items against which any payments made by Tenant are to be credited, and
Tenant agrees that Landlord may apply any payments made by Tenant to any items
its fit, irrespective of and notwithstanding any designation or request by
Tenant as to the items against which any such payments shall be credited.
However, Tenant may bring a separate lawsuit against Landlord or may refuse to
waive its rights hereunder if such waiver prohibits the Tenant from bringing a
separate lawsuit against Landlord.
(c) Landlord and Tenant hereby waive trial by injury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any matter whatsoever arising out of or in any
way connected with this lease, the relationship of Landlord and Tenant, Tenant's
use or occupancy of the Demised Premises, including any claim of injury or
damage, or any emergency or other statutory remedy with respect thereto.
18
(d) The provisions of Articles 29, 47, and 55 shall be considered
expressed agreements Governing the services furnished by Landlord, and Tenant
agrees that any laws and/or requirements public authorities, now or hereafter in
force, shall have no application in connection with any enlargement of
Landlord's obligations with respect to such services unless Tenant agrees, in
writing, to pay to Landlord, as additional rent, Landlord's reasonable charges
for any additional services provided to Tenant if and to the extent Landlord
shall make them available to Tenant.
46. LEGAL COMPLIANCE - ADA AND HAZARDOUS MATERIALS.
----------------------------------------------
(Supplementing Article 6)
46.01 Tenant agrees that it shall be solely responsible, at its
expense, to cause the Demised Premises to comply with the provisions of the
Americans With Disabilities Act of 1990 and any regulations and amendments
promulgated pursuant thereto (hereinafter referred to as the "ADA"), following
the Commencement Date, and Landlord shall have no obligation whatsoever in
connection therewith. Except as herein provided, Landlord agrees that it shall
be responsible to comply with the provisions of ADA as to the common areas of
the Building and the Preliminary Installations. Within (10) days after receipt,
Tenant shall advise Landlord in writing, and provide Landlord with copies, of
any notices alleging violations of the ADA relating to any portion of the
Demised Premises; any claims made or threatened in writing regarding
non-compliance with the ADA and relating to any portion of the Demised Premises;
or any governmental or regulatory actions or investigations instituted or
threatened regarding non-compliance with the ADA relating to any portion of the
Demised Premises.
46.02 Except for fire extinguishers (not utilizing "halon"), Tenant
shall not cause, suffer or allow any "Hazardous Material" (as hereinafter
defined) to be brought upon, kept or used in or about the Demised Premises.
Tenant shall indemnify, defend and hold Landlord harmless from any and all
claims, judgements, damages, penalties, fines, costs, liabilities or
losses(including reasonable attorney's fees) which arise during or after the
term of this lease as a result of Tenant's breach of its obligations hereunder.
The foregoing indemnification includes, without limitation, costs incurred in
connection with any investigation of conditions or any clean-up, remedial work,
removal or restoration work in the Demised Premises. Without limiting the
foregoing, if the presence of any Hazardous Materials within the Demised
Premises caused or permitted by Tenant results in any Hazardous Materials within
the Demised Premises caused or permitted by Tenant results in any contamination
of the Demised Premises, Tenant shall promptly take all actions at its sole
expense as are necessary to return the Demised Premises to the condition
existing prior to the introduction of any such Hazardous Materials to the
Demised Premises. As used in this paragraph, the term "Hazardous Material"
means : (I) polychlorinated biphenyls (PCBs) and (II) hazardous or toxic
materials, wastes and substances, including but not limited in any respect to
asbestos or asbestos containing materials, which are defined, determined or
identified as such pursuant to any applicable federal, state and municipal
governmental laws, rules or regulations. Tenant shall also comply with all rules
and regulations imposed by Landlord with respect to recycling waste, if required
by applicable governmental regulations. Landlord shall have the obligation to
remove any Hazardous Materials existing in the Demised Premises prior to the
Commencement Date.
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47. SIGNS; LOBBY DIRECTORY SPACES.
-----------------------------
47.01 Subject to prior written approval of Landlord, Tenant shall be
permitted to install a sign indicating Tenant's name on the exterior of the main
entrance door to the Demised Premises. The sign shall conform to Landlord's
guidelines for Tenants of the Building.
47.02 Landlord, at its expense, and on Tenant's request, shall maintain
Tenant's proportionate share of the listings on the Building directory based on
the size of the Demised Premises. In the event Tenant shall require additional
or substitute listings on the Building directory, Landlord shall, provided space
for such additional or substitute listings is available, maintain such listings
and Tenant shall pay to Landlord an amount equal to Landlord's reasonable charge
for such listings.
48. DELINQUENT PAYMENTS
-------------------
If any amount of fixed rent or additional rent required to be paid by
Tenant to Landlord is not paid within 10 days after the date such payment is
due, then, Landlord shall be entitles to xxxx and collect, and Tenant shall pay,
as additional rent interest on such sums from the due date until paid, at a rate
(hereinafter referred to as the "Agreed Rate") which is lesser of (a) the
greater of (I) 4% above the prime rate of Chemical Bank (or any successor
thereto or, if Chemical Bank or its successor shall not then be announcing a
prime rate, the prime rate of the largest bank by capital and assets then
announcing a prime rate in the City of New York) at that time or (iii) 18% per
annum or (b) the maximum rate then permitted under applicable law. This
paragraph shall not be construed to permit Tenant to delay payment, or to
postpone or waive any rights of Landlord to collect any fixed rent or additional
rent, with interest and expenses, by legal action or otherwise. If any legal
action or proceeding is commenced by Landlord to collect unpaid fixed rent or
additional rent, Landlord shall be entitled to recover the amount of any
expenses incurred in connection with such action or proceeding.
48. HOLD OVER.
---------
Tenant acknowledges the importance to Landlord of obtaining possession
of the Demised Premises at the stated expiration or sooner termination of this
lease, and in the condition required by this lease, so that Landlord can prepare
and re-rent such premises for a term commencing promptly after the expiration or
termination of this lease. If Tenant shall holdover or retain possession of the
Demised Premises after the expiration or termination of this lease, Tenant shall
pay Landlord, upon written demand, as liquidated damages, one hundred fifty
percent(150%) of the amount of the fixed rent and shall pay all of the
additional rent in effect on the date of such expiration or termination,
prorated for each day that Tenant so holds over or retains possession. The
provisions of the foregoing sentence shall in no way be deemed a waiver of any
rights or remedies which Landlord may have against Tenant to obtain immediate
possession of the Demised Premises, and the demand or acceptance by Landlord of
such payment shall not be construed as a consent by Landlord to such holding
over. Any obligation under this lease for Tenant to pay fixed rent, additional
rent or other sum shall survive and continue after the termination of this
lease.
20
50. TENANT'S REMEDIES.
-----------------
If Tenant shall request Landlord's consent and Landlord shall fail or
refuse to give such consent, Tenant shall not be entitled to any damages for any
withholding by Landlord of its consent, it being intended that Tenant's sole
remedy shall be an action for specific performance or injunction, and that such
remedy shall be available only in those cases where Landlord has expressly
agreed in writing not to unreasonably withhold its consent or where as a matter
of law Landlord may not unreasonably withhold its consent.
51. ALTERATIONS (Supplementing Article 3).
------------------------------------
51.01 Tenant may from time to time during the term of this lease, at
its expense, make such other alterations, additions, installations,
substitutions, improvements an decorations (hereinafter collectively referred to
as "changes") and, as applied to changes provided for in this Article, "Tenant's
Changes" in and to the Demised Premises, excluding structural changes, as Tenant
may reasonably consider necessary for the conduct of its business in the Demised
Premises, on the following conditions:
(a) the outside appearance or the strength of the Building or of
any of its structural parts shall not be affected;
(b) no part of the Building outside of the Demised Premises shall
be physically affected;
(c) the proper functioning of any of the mechanical, electrical,
sanitary and other service systems of the Building shall not be adversely
affected or the usage of such systems by Tenant shall be increased;
(d) in performing the work involved in making such changes,
Tenant shall be bound by and observe all of the conditions and covenants
contained in Article 3
(e) before proceeding with any Tenant's Changes, Tenant will
advise Landlord thereof and shall submit to Landlord proof reasonably
satisfactory of the cost thereof and shall submit the names of the contractors
or subcontractors who will be performing Tenant's Changes for Landlord's
approval, which approval shall not be unreasonably withheld or delayed.
Additionally, before proceeding with any Tenant's Changes, Tenant shall submit
to Landlord plans and specifications and all changes and revisions thereto, for
the work to be done for Landlord's approval which approval shall not be
unreasonably withheld or delayed and Tenant shall, upon demand of Landlord, pay
to Landlord the reasonable costs incurred by Landlord for the review of such
plans and specifications and all changes and revisions thereto by its architect,
engineer and other consultants. Landlord may as a condition of its approval
require Tenant to make revisions in and to the plans and specifications and to
post a bond or other security reasonably satisfactory to Landlord to insure the
completion of such change.
21
Notwithstanding the foregoing, Landlord's approval of plans and specifications
shall not be required in connection with any non-structural change or changes,
the estimated cost of which the aggregate, does not exceed $50,000.00, exclusive
of the costs of decorating work and Tenant's Property (as defined in Section
53.02 hereof) and any architect's and engineer's fees.
52. NOT AN OFFER.
------------
This Lease is submitted by Landlord to Tenant for signature and return
with the understanding that there shall be no liability upon the part of
Landlord or Tenant and it shall not bind Landlord or Tenant unless and until it
is executed by both Landlord and Tenant and an executed copy delivered to
Tenant.
53. TENANT'S PROPERTY.
-----------------
53.01 All fixtures, equipment, improvements and appurtenances (other
than trade fixtures) attached to or built into the Demised Premises at the
commencement of or during the term of this lease, whether or not by or at the
expense of Tenant, shall be and remain a part of the Demised Premise, shall be
deemed the property of Landlord and shall not be removed by Tenant, except as
hereinafter in this Article expressly provided.
53.02 All business and trade fixtures, machinery and equipment,
communications equipment and office equipment, whether or not attached to or
built into the Demised Premises, which are installed in the Demised Premises by
or for the account of Tenant and not paid for out of Landlord's Share (as
defined in Part F of Exhibit D), and can be removed without permanent structural
damage to the Building, and all furniture, furnishings and other articles of
movable personal property owned by Tenant and located in the Demised Premises,
(all of which are sometimes referred to collectively as "Tenant's Property")
shall be and shall remain the property of Tenant and may be removed by it at any
time during the term of this lease; provided that if any of Tenant's Property is
removed, Tenant or any party or person entitled to remove same shall repair or
pay the cost of repairing and damage to the Demised Premises or to the Building
resulting from such removal. Any equipment or other property for which Landlord
shall have granted any allowance or credit to Tenant or which has replaced such
items originally provided by Landlord at Landlord's expense shall not be
considered Tenant's Property.
53.03 At or before the Expiration Date, or the date of any earlier
termination of this lease, or as promptly as practicable after such an earlier
termination date, Tenant at its expense, shall remove from the Demised Premises
all of tenant's Property except such items thereof as Tenant shall have
expressly agreed in writing with Landlord were to remain and to become the
property of Landlord, and shall fully repair any damage to the Demised Premises
or the Building resulting from such removal. Tenant's obligation herein shall
survive the termination of the lease.
22
54. EMINENT DOMAIN, (Supplementing Article 10)
-----------------------------------------
Nothing in Article 10 of this lease shall be deemed to prohibit Tenant
from making a separate claim with the condemning authority for moving expenses,
tenant improvements and other permissible items provided, however, that any such
claims shall not reduce the amount of Landlord's award.
55. HEATING, AIR CONDITIONING AND CLEANING.(Supplementing Article 29)
--------------------------------------
55.01 Use of the Demised Premises, or any part thereof, in a manner
exceeding the design conditions (including occupancy and connected electrical
load) specified for the systems or rearrangements of partitioning which
interferes with normal operations of the heat, ventilation and air-conditioning
("HVAC")in the Demised Premises, may require changes in the heat, ventilation
and air-conditioning system servicing the Demised Premises. Such changes, so
occasioned, shall be made by Tenant, at its expense, pursuant to Article 53 and
51 hereof. Tenant agrees to use its best efforts to keep or cause to be kept
closed all windows in the Demised Premises whenever the air-conditioning system
is in operation. In addition, Tenant agrees at all times to cooperate fully with
Landlord and to abide by all reasonable regulations and requirements which
Landlord may prescribe for the proper functioning and protection of the HVAC
System.
55.02 In the event that Tenant shall require HVAC at any time in
addition to the times specified in Article 20, Landlord shall, upon reasonable
advance notice, furnish such overtime HVAC to the Demised Premises at Landlord's
cost plus 10% for overhead and other administrative costs.
55.03 Throughout the term of this lease, Landlord agrees to clean the
Demised Premises in accordance with the standards set forth on Exhibit F annexed
hereto and made a part hereof.
56. NON-LIABILITY AND INDEMNIFICATION.
---------------------------------
(a) Neither Landlord nor any agent or employee of Landlord shall be
liable to Tenant for any injury or damage to Tenant or to any other person or
for any damage to, or loss (by theft or otherwise)of, any property of Tenant or
of any other person, irrespective of the cause of such injury or damage, or loss
caused by or due to the negligence of Landlord, its agents or employees occuring
within the scope of their respective employment, without negligence on the part
of Tenant, it being understood that no property, other than such as might
normally be brought upon or kept in the Demised Premised as an incident to the
reasonable use of the Demised Premises for the purpose herein permitted, will be
brought upon or kept in the Demised Premises.
(b) Tenant shall indemnify and save harmless Landlord and its agents
against and from (i) any and all claims (x) arising from (A) the conduct or
management of the Demised
23
Premises or of any business therein, or (B) any work or thing whatsoever done,
or any condition created (other than by Landlord for Landlord's or Tenant's
account) in or about the Demised Premises during the term of this lease or
during the period of time, if any, prior to the Commencement Date that Tenant
may have been given access the Demised Premises, or (y) arising from any
negligent or otherwise wrongful act or omission of Tenant or any of its
subtenants or licenses or its or their employees, agents or contractors, and
(ii) all costs, expenses and liabilities incurred in or in connection with each
such claim or action or proceeding brought thereon. In case any action or
proceeding be brought against Landlord by reason of any such claim, Tenant, upon
notice from Landlord, shall resist and defend such action or proceeding with
counsel reasonably acceptable to Landlord.
57. INSURANCE. (Supplementing Article 6)
---------
(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 and Tenant and any superior lessor,
in which Landlord and such superior lessor shall be named as an additional
insured, a comprehensive policy of liability insurance protecting Landlord,
Tenant and any such superior lessor against any liability whatsoever occasioned
by accident on or about the Demised Premises or any appurtenances thereto.
(ii) Fire and extended coverage in an amount adequate to cover the
cost of replacement of all leasehold improvements, personal property, fixtures,
furnishing and equipment, including, but not limited to Tenant's Changes and
Tenant's Property located in the Demised Premises. Such policy shall be written
by good and solvent insurance companies authorized to do business in the State
of New York.
(iii) Prior to the time such insurance is first required to be
carried by Tenant and thereafter, at least fifteen (15) days prior to the
expiration of any such policies, Tenant agrees to deliver to Landlord either
duplicate originals of the aforesaid policies or certificates evidencing such
insurance, and said certificates shall contain an endorsement that such
insurance may not be modified or cancelled except upon thirty (30) days notice
to Landlord sent certified mail, return receipt requested, at the address for
Landlord provided in this lease, together with evidence of payment for the
policy.
(iv) Tenant's failure to provide and keep in force the
aforementioned insurance shall be a material default of Tenant's obligations
under this lease, entitling Landlord to exercise any or all of the remedies as
provided in this lease or available at law or in equity, in the event of
Tenant's default. Landlord may at any time and from time to time during the term
hereof, inspect and /or copy, at the Demised Premises, the originals of any and
all insurance policies required to
24
be obtained by Tenant pursuant to the provisions of this lease, and Tenant shall
make such policies available to Landlord for such purpose;
(v) Each such policy shall contain a clause that such policy and
the coverage evidenced thereby shall be primary with respect to the policies of
insurance, if any, carried by Landlord, and that coverage, if any, carried by
Landlord shall be excess insurance;
(vi) Each such policy may be furnished by Tenant under a blanket
policy carried by it governing the Demised Premises and other locations of
Tenant; provided any such policy shall contain an endorsement that names
Landlord and any superior lessor as an additional insured, specifically
references the Demised Premises, and guarantees a minimum limit of insurance
coverage available for the Demised Premises and appurtenances thereto equal to
the insurance amounts required pursuant to this lease;
(vii) Tenant shall not carry separate insurance, concurrent in
coverage and contributing in the event of loss with any insurance required to be
furnished by Tenant under the provisions of this Article 57, if the effect of
such separate insurance would be to reduce the protection or the payment to be
made under said insurance required to be furnished by Tenant, unless Landlord
and superior lessor is included as an additional named insured thereunder.
Tenant shall promptly notify Landlord of the issuance of any such separate
insurance and shall cause such policies to be delivered to Landlord as herein
above provided;
(viii) Notwithstanding anything herein above provided, if in the
Landlord's reasonable opinion the amount of insurance carried by Tenant
hereunder is inadequate, Landlord shall have the right, exercised on no less
than thirty (30) days notice to Tenant, to require Tenant to increase the amount
and/or the type of insurance required to be carried by Tenant under this lease,
to an amount reasonably sufficient to protect Landlord's interests, and Tenant
agrees that within thirty (30) days of the date of Landlord's said notice,
Tenant will obtain and shall thereafter maintain the type of insurance coverage
and/or insurance limits so required by Landlord. Any dispute as to insurance
coverage shall be submitted to arbitration in accordance with Article 59.
(b) Landlord and Tenant shall each endeavor to secure an appropriate
clause in, or an endorsement upon, each fire or extended coverage 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 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. 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, except as provided in
the following two paragraphs, the party benefiting 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
25
question shall be free of any further obligations under the provisions hereof
relating to such waiver or permission.
In the event that Landlord shall be unable at any time to obtain one of
the provisions referred to above in any of its insurance policies, at Tenant's
option Landlord shall cause Tenant to be named in such policy or policies as one
of the assureds, but if any additional premium shall be imposed for the
inclusion of Tenant as such as assured, Tenant shall pay such additional premium
upon demand. In the event that Tenant shall have been named as one of the
assureds in any of Landlord's policies in accordance with the foregoing, Tenant
shall endorse promptly to the order of Landlord, without recourse, any check,
draft or order for the payment of money representing the proceeds of any such
policy or any other payment growing out of or connected with said policy and
Tenant hereby irrevocably waives any and all rights in and to such proceeds and
payments.
In the event that Tenant shall be unable at any time to obtain one of
the provisions referred to above in any of its insurance policies, Tenant shall
cause Landlord to be named in such policy or policies as one of the assureds,
but if any additional premium shall be imposed for the inclusion of Landlord as
such an assured, Landlord shall pay such additional premium upon demand or
Tenant shall be excused from its obligations under this paragraph with respect
to the insurance policy or policies for which such additional premiums would be
imposed. In the event that Landlord shall have been named as one of the assureds
in any of Tenant's policies in accordance with the foregoing, Landlord shall
endorse promptly to the order of Tenant, without recourse, any check, draft or
order for the payment of money representing the proceeds of any such policy or
any other payment growing out of or connected with said policy and Landlord
hereby irrevocably waives any and all rights in and to such proceeds and
payments.
Subject to the foregoing provisions of this Section 57(b), 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.
58. PARTIES BOUND
-------------
(a) The obligations of this lease shall bind and benefit the successors
and assigns of the parties with the same effect as if mentioned in each instance
where a party is named or referred to, except that no violation of the
provisions of Articles II or 42 shall operate to vest any rights in any
successor or assignee of Tenant. However, the obligations of Landlord under this
lease shall not be binding upon Landlord herein named with respect to any period
subsequent to the transfer of its interest in the Building as owner or lessee
thereof and in the event of such transfer, said obligations shall thereafter be
binding upon each transferee of the interest of Landlord herein named as such
owner or lessee of the Building, but only with respect to the period ending with
a subsequent transfer within the meaning of this Article.
26
(b) if Landlord shall be an individual, joint venture, tenancy in
common, co-partnership, limited liability company or limited liability
partnership, unincorporated association, or other unincorporated aggregate of
individuals and/or entities or a corporation, Tenant shall look only to such
Landlord's estate and property in the Building and, where expressly so provided
in this lease, to offset against the rents payable under this lease, for the
satisfaction of Tenant's remedies for the collection of a judgment (or other
judicial process) requiring the payment of money by Landlord in the event of any
default by Landlord hereunder, and no other property or assets of such Landlord
or any partner, member, shareholder, officer or director thereof, disclosed or
undisclosed, shall be subject to levy, execution or other enforcement procedure
for the satisfaction of Tenant's remedies under or with respect to this lease,
the relationship of Landlord and Tenant hereunder or Tenant's use or occupancy
of the Demised Premises.
59. ARBITRATION.
-----------
(a) Either party may request arbitration of any matter in dispute
wherein arbitration is expressly provided in this lease as the appropriate
remedy and no other method of dispute resolution is specified. The party
requesting arbitration shall do so by giving notice to that effect to the other
party, and both parties shall promptly thereafter jointly apply to the American
Arbitration Association (or any organization successor thereto) in the City and
County of New York for the appointment of a single arbitrator.
(b) The arbitration shall be conducted in accordance with the then
prevailing rules of the American Arbitration Association (or any organization
successor thereto) in the City and County of New York. In rendering such
decision and award, the arbitrator shall not add to, subtract from or otherwise
modify the provisions of this lease.
(c) The decision of the arbitrator shall be binding upon all parties to
the dispute and a judgment therefor may be entered by either party in a court
having jurisdiction thereof
(d) All the expenses of the arbitration shall be borne by the parties
equally.
60. ELECTRICITY.
-----------
60.01 Landlord shall furnish electricity to the Demised Premises 24
hours a day, 365 days a year. Notwithstanding the foregoing, however, Tenant
agrees that Landlord shall not in any wise be liable or responsible to Tenant
for any loss, damage, or expense that Tenant may sustain or incur if either the
quantity or character of electrical service is changed, is no longer available,
or is unsuitable for Tenant's requirements. At Landlord's option, Tenant shall
purchase from Landlord or its agent all lamps, starters, ballasts, or bulbs used
in the Demised Premises.
60.02 Tenant covenants and agrees that, at all times, its use of
electric current shall never exceed the capacity of the feeders to the Building
or the risers or wiring installation thereof In connection therewith, Tenant
expressly agrees that all installations, alterations and
27
additions of and to the electrical fixtures, appliances, or equipment within the
Demised Premises shall be subject to Landlord's prior written approval (which
approval shall not be unreasonably withheld or delayed), and, if such approval
shall be given, rigid conduit only shall be permitted. If, in connection with
any request for such approval, Landlord shall, in its sole judgment, determine
that the risers of the Building servicing the Demised Premises shall be
insufficient to supply Tenant's electrical requirements with respect thereto,
Landlord shall, at the reasonable cost and expense of Tenant after notice,
install any additional feeders that Landlord shall deem necessary with respect
thereto, provided, however, that, if Landlord shall determine, in its sole
judgment, that the same will cause permanent damage or injury to the Building or
to the Demised Premises, cause or create a dangerous or hazardous condition,
entail excessive or unreasonable alterations, repairs, or expense, or interfere
with, or disturb, the other tenants or occupants of the Building, then Landlord
shall not be obligated to make such installation, and Tenant shall not make the
installation, alteration, or addition with respect to which Tenant requested
Landlord's consent. In addition to the installation of such riser or risers,
Landlord will also, at the sole cost and expense of Tenant, install all other
equipment necessary and proper in connection therewith, subject to the aforesaid
terms and conditions. All of the aforesaid costs and expenses are chargeable and
collectible as additional rent, and shall be paid by Tenant to Landlord within
ten (1O) days after rendition of any xxxx or statement to Tenant therefor.
60.03 Provided that it is physically possible for Tenant to receive
electric current in the Demised Premises directly from the public utility
company serving the area in which the Building is located, Landlord may
discontinue the aforesaid service upon sixty (60) days notice to Tenant without
being liable to tenant therefor and without in any way affecting this lease or
the liability of Tenant hereunder, and the same shall not be deemed to be a
lessening or diminution of services within the meaning of any law, rule, or
regulation now or hereafter enacted, promulgated, or issued. In the event that
Landlord gives such notice of discontinuance, Landlord shall permit Tenant to
receive such service directly from such public utility company and shall pen-nit
Landlord's wires and conduits, to the extent available, suitable and safely
capable, to be used for such purpose. Any additional wires, conduits, or other
equipment necessary and proper in connection therewith shall be installed by
Landlord, at Landlord's expense, in accordance with the terms of, and subject to
the conditions contained in, Section 60.02. In the event that Landlord exercises
its rights under, this Section 60.03, then Tenant shall contract for such
electrical service directly with the said public utility for all of Tenant's
electric current requirements. In no event shall Tenant's electric service be
discontinued until Tenant is able to obtain such service directly from the
public utility without interruption to Tenant's business.
60.04 For purposes of Section 60.04:
(a) Usage shall mean the number of kilowatt hours and kilowatts
of electric current consumed in the Demised Premises, as measured by a meter or
meters through which the electric current supplied to the Demised Premises is
drawn, for each calendar month or such other period as Landlord shall determine
during the term of this lease;
28
(b) Rate shall mean the amount per kilowatt hour (including
energy and demand) that would be charged, at the time in question, by the public
utility company supplying electric current to the Building, at the rate schedule
payable by Landlord (including the demand factors for the Building), if the
Usage were the total current being purchased;
(c) Tenant's Cost shall mean 108% of an amount equal to the
product of the Rate multiplied by the Usage. Tenant's Cost includes Landlord's
expenses incurred in connection with submetering.
60.05 Landlord shall, from time to time, furnish Tenant with a
statement indicating the appropriate period during which the Usage was measured
and the amount of Tenant's Cost payable by Tenant to Landlord for furnishing
electrical current. Within ten (10) days after receipt of each such statement,
Tenant shall pay the amount of Tenant's Cost set forth thereon to Landlord as
additional rent.
61. CURING TENNANTS DEFAULT, ADDITIONAL RENT.
----------------------------------------
61.01 If Tenant shall default in the performance of any of Tenant's
obligations under this lease, Landlord, without thereby waiving such default,
may (but shall not be obligated to) perform the same for the account and at the
expense of Tenant, without notice, in a case of emergency, and in any other
case, only if such default continues after the expiration of ten (10) business
days from the date Landlord gives Tenant notice of Landlord's intention so to
do.
61.02 Bills for any expenses incurred by Landlord in connection with
any such performance by it for the account of Tenant, and bills for all costs,
expenses and disbursements of every kind and nature whatsoever, including
reasonable counsel fees, involved in collecting or endeavoring to collect the
fixed rent or additional rent or any part thereof or enforcing or endeavoring to
enforce any rights against Tenant, under or in connection with this lease, or
pursuant to law, including any such cost, expense and disbursement involved in
instituting and prosecuting sununary proceedings, as well as bills for any
property, material, labor or services provided, furnished, or rendered, by
Landlord or at its instance to Tenant, may be sent by Landlord to Tenant
monthly, or immediately, at Landlord's option, and, shall be due and payable in
accordance with the terms of such bills. Any unpaid item shall bear interest at
the Agreed Rate from the due date until paid.
62. GROUND LEASE PROVISIONS.
-----------------------
62.01 Tenant acknowledges that Landlord is not a fee owner of the land
but the holder of the Ground Lease (as defined in Exhibit E). Landlord
represents that the Ground Lease is presently in full force and effect and no
consent is required from the Ground Lessor (as defined in Exhibit E) in
connection with the making of this Lease.
62.02 In the event that Tenant shall send Landlord a notice of any
default on the part of Landlord, under this Lease, Tenant shall send a copy
thereof to Ground Lessor at the address listed in Section 62.04 or such other
address as tenant shall have been notified in writing. Tenant
29
agrees that Ground Lessor shall have the right, but not the obligation to cure
any such default within:
(a) Ten (10) days from the date of such notice in the event such
default shall consist of a failure to pay a sum of money; or (b) Thirty (30)
days from the date of such notice to cure any other default which is susceptible
of being cured with due diligence within said 30 days; or
(c) If such default is not susceptible of being cured with due
diligence within said 30 days then Ground Lessor shall have the right to
continence to cure such default within 30 days from the date of such notice and
diligently present such cure to completion.
62.03 Tenant further agrees that:
(a) This Lease shall not terminate or be terminable by Tenant by
reason of any termination of the Ground Lease by summary proceedings or
otherwise except in the case of an institution of any summary or other
proceeding by Ground Lessor, this Lease may be terminated if the Tenant is named
by Ground Lessor as a party and served with process sufficient to recover
possession of the Demised Premises in such proceeding and a warrant or judgment
for possession of the Demised Premises is issued in such proceeding; and
(b) Tenant shall attorn to Ground Lessor if this Lease is not
terminated by the service of process on Tenant in any proceeding for recovery of
possession of the Demised Premises or in any proceeding seeking the termination
of the Ground Lease.
62.04 Any notice from Tenant to the Ground Lessor shall be addressed as
follows:
Nautilus Real Estate, Inc.
and Scandic Wall Limited Partnership
c/o The Xxxx Companies, Ltd.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
63. XXXXX NAME.
----------
63.01 Tenant agrees that notwithstanding the designation of the
Building as a "Xxxxx Building" neither Tenant nor any subtenant, concessionaire,
licensee nor any of their respective parties, officers, agents or employees or
affiliates thereof, at any time throughout the lease term, or any renewal or
extension thereof, or after the expiration or sooner, termination of the lease
term, use any name which contains the name "Xxxxx" in any form, combination or
manner including any and all advertising) except with the prior consent of the
owner of the name in each instance.
30
64. ICIP, TAX AND ENERGY ABATEMENTS.
-------------------------------
64.01 Tenant acknowledges that Landlord is seeking benefits under the
Industrial and Commercial Incentive Program ("ICIP") and that in connection
therewith:
(a) Tenant shall not be required to pay taxes or charges which
become due because of the willful neglect or fraud by the Landlord in connection
with the ICIP Program. Tenant shall not relieve or indemnify Landlord from any
personal liability arising under Administrative Code Section 11-265 except where
imposition of such taxes, charges or liability is occassioned by actions of the
Tenant in violation of the Lease;
(b) Tenant agrees to report to the Landlord, upon request:
(i) The number of workers permanently engaging in employment
in the Demised Premises;
(ii) The nature of the worker's employment;
(iii) The New York City residency of each worker.
(c) Tenant agrees that it will provide access to the Demised
Premises by agents of the Department of Finance at all reasonable times upon
Landlord's request.
64.02 Tenant acknowledges that Landlord will file an application for
abatement of real property taxes for the Demised Premises in connection with
Title 4 of Article 4 of the RPTL. In accordance with said provisions, it is
agreed as follows:
(a) The rent, including all amounts payable by the Tenant on
account of real property taxes, will accurately reflect any abatement of real
property taxes for the Demised Premises granted pursuant to Title 4 of Article 4
of the RPTL.
(b) All abatements granted pursuant to Title 4 of Article 4 of
the RPTL will be revoked if, during the benefit period, real estate taxes or
water or sewer charges or other lienable charges are unpaid for more than one
year, unless such delinquent amounts are paid as provided in Subdivision 4 of
Section 499F of Title 4.
(c) Tenant's percentage share of the benefits granted under Title
4 of Article 4 of the RPTL is 1.672%.
(d) Not less than $35.00 per square foot of the Demised Premises
will be spent on improvements to the Demised Premises and/or the common areas of
the Building.
64.03 To the extent applicable, Landlord shall attempt to obtain the
benefits of the Lower Manhattan Energy Program relating to special rebates of
energy charges. To the extent Landlord is successful in obtaining rebates,
Tenant shall be entitled to its share of any rebate.
31
64.04 Landlord and Tenant agree to cooperate in the execution of such
documents which may be required to obtain any of the benefits available under
any of the programs mentioned in this Article as well as the real property tax
and commercial rent tax benefits which are available under the Commercial
Revitalization Program.
65. SECURITY. (Supplementing Article 34)
--------
65.01 Tenant has deposited with Landlord the sum of ("the
"Security") either in cash or by Letter of Credit as provided in Section 65.02,
as security for the faithful performance and observance by tenant of the terms,
provisions and conditions of this lease. Landlord agrees that in the event
Tenant deposits a cash security as aforesaid, Landlord shall maintain said cash
security in an interest bearing account, in a bank or savings and loan
association to be selected, from time to time, by Landlord in its sole
discretion which account shall be insured by the Federal Deposit Insurance
Corporation, so long as such insurance shall be available, and all interest
earned thereon (except with respect to Landlord's administrative expense as set
forth below) shall be retained in such account and be deemed added to the cash
security deposited hereunder or upon request of Tenant be delivered to Tenant
annually within twenty (20) days after such request. Landlord agrees further to
hold the said cash security in such an account for the entire term hereof,
subject, however, to the terms of this Article 65 with respect to the
application of the security in the event of Tenant's default hereunder. To the
extent permitted by law, Tenant agrees that Landlord shall be entitled to
receive and retain per such sum from time to time as Landlord shall determine,
in its sole discretion. Landlord shall not be required to credit any of the cash
security with interest for any period during which Landlord does not receive
interest thereon. It is agreed that in the event Tenant defaults after notice
and the expiration of any applicable cure period hereunder, in respect of any of
the terms, provisions and conditions of this lease, including, but not limited
to, the payment of rent and additional rent, Landlord may use, apply or retain
the whole or any part of the cash security so deposited and any interest thereon
then held by Landlord, or Landlord may notify the "Issuing Bank" (as such term
is defined in Section 65.02) and thereupon receive all of the monies represented
by the said Letter of Credit and use, apply or retain the whole or any part of
such proceeds, as the case may be, to the extent required for the payment of any
rent and additional rent or any other sum as to which Tenant is in default,
after notice and any cure period provided herein, or for any sum which Landlord
may expend or may be required to expend by reason of Tenant's default after
notice and the expiration of any applicable cure period hereunder, in respect of
any of the terms, covenants and conditions of this lease, including but not
limited to, 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 such cash security and interest held thereon, or
proceeds of such Letter of Credit, as the case may be, Tenant shall forthwith
restore the amount so applied or retained so that at all times, the amount
deposited shall be equal to the Security plus the amount of any interest held
thereon immediately prior to such application or retention in the event of a
cash security deposit. In the event that Tenant shall fully and faithfully
comply with all of the terms, provisions, covenants and conditions of this
lease, the cash security and any interest thereon then held by Landlord, or
Letter of Credit, as the case may be, shall be returned to Tenant within fifteen
(15) days following the date fixed as the end of the lease and after delivery of
entire possession of the Demised Premises to Landlord.
65.02 In lieu of a cash deposit, Tenant may deliver to Landlord a
clean, irrevocable and unconditional letter of credit (hereinafter referred to
as the "Letter of Credit") which shall (a) be issued by and drawn upon any
commercial bank (hereinafter referred to as the
32
"Issuing Bank") with offices for banking purposes in the City of New York and
which is a member of the New York Clearing House Association and having a net
worth of not less than Five Hundred Million and 00/100 ($500,000,000.00)
Dollars, (b) have an initial term of not less than one year, (c) be in form and
content satisfactory to Landlord, (d) be for the account of Landlord (e) be in
the amount equal to the Security (f) provide that it shall be deemed
automatically renewed, without amendment, for consecutive periods of one (1)
year each thereafter during the term of this lease, unless Issuing Bank sends
written notice (hereinafter referred to as the "Non-Renewal Notice") to Landlord
by certified or registered mail, return receipt requested, not less than thirty
(30) days next preceding the then expiration date of the Letter of Credit that
it elects not to have such Letter of Credit renewed, and (g) provide that
Landlord, within twenty (20) days of its receipt of the Non-Renewal Notice,
shall have the right, exercisable by means of a sight draft, to receive the
monies represented by the Letter of Credit and hold such proceeds pursuant to
the terms of Section 65.01 as a non-interest bearing cash security.
65.03 In the event of a sale of the Landlord's interest in the Ground
Lease or a leasing of the entire Building, Landlord shall have the right to
transfer the cash security and any interest thereon then held by Landlord, or
Letter of Credit, as the case may be, deposited hereunder to the vendee or
lessee, and Landlord shall thereupon be released by Tenant from all liability
for the return of such cash security and interest, or Letter of Credit. In such
event, Tenant agrees to look solely to the new Landlord for the return of said
cash security and interest, or Letter of Credit, as the case may be. It is
agreed that the provisions hereof shall apply to every transfer or assignment
made of said cash security and interest, or Letter of Credit, to a new Landlord.
65.04 Tenant covenants that it will not assign or encumber, or attempt
to assign or encumber, the monies or Letter of Credit deposited hereunder as
security, and that neither Landlord nor its successors or assigns shall be bound
by any such assignment, encumbrance, attempted assignment, or attempted
encumbrance.
65.05 Notwithstanding the provisions of Section 65.02 hereof, Tenant
may deliver to Landlord a Letter of Credit which is not automatically renewable
(but which otherwise complies with the provisions of Section 65.02) and which
provides for a stated term of not less than one (1) year (hereinafter referred
to as the "One Year L/C"); provided that not less than thirty (30) days prior to
the date of expiration of any Letter of Credit, Tenant shall deliver to Landlord
a new Letter of Credit complying with the provisions of Section 65.02 hereof, or
which is a One Year L/C. In the event Landlord shall fail to receive a new
Letter of Credit from Tenant as herein above provided on or before the thirtieth
(30th) day next preceding the date of expiration of any Letter of Credit,
Landlord shall have the right to obtain from the Issuing Bank the proceeds of
the expiring Letter of Credit then held by Landlord and shall hold the proceeds
pursuant to the provisions of Article 65 hereof, pending the delivery to
Landlord of a new Letter of Credit complying with the provisions of this Article
65 or the default of Tenant hereunder.
65.06 In the event that at any time during the Term, Landlord, in
Landlord's reasonable opinion, believes (a) that the net worth of the Issuing
Bank shall be less than the minimum amount specified in Section 65.02, or (b)
that circumstances have occurred indicating that the Issuing Bank may be or may
imminently become incapable of, unable to, or prohibited from honoring the then
existing Letter of Credit (hereinafter referred to as the "Existing L/C") in
accordance with the terms hereof, then, upon the happening of either of the
foregoing, Landlord may send written notice to Tenant (hereinafter referred to
as the "Replacement Notice") requiring Tenant within ten (IO) days to replace
the Existing L/C with a new Letter of Credit (hereinafter referred to as the
"Replacement L/C") from an Issuing Bank meeting the qualifications described in
Section 65.02. Landlord agrees to make the Existing L/C available for a
simultaneous exchange of the Existing L/C for a Replacement L/C meeting the
33
qualifications of Section 65.02 or 65.05. In the event that (i) a Replacement
L/C meeting the qualifications of Section 65.02 is not received by Landlord
within the time specified, or (ii) Landlord reasonably believes an emergency
exists whereby Landlord's ability to draw upon the Existing L/C (regardless of
Tenant's default hereunder) and receive the full proceeds thereof will be or may
likely be extinguished, then in either event, the Existing L/C may be presented
for payment by Landlord and the proceeds thereof shall be held by Landlord in
accordance with Section 65.01 subject, however, to Tenant's right, at any time
thereafter prior to a Tenant's default hereunder, to replace such cash security
with a new Letter of Credit meeting the qualifications of Section 65.02 or
65.05. Landlord agrees to make such cash proceeds available for a simultaneous
exchange of such cash proceeds for a new Letter of Credit meeting the
qualifications of Section 65.02 or 65.05.
65.07 In the event the Tenant is not then in default beyond any
applicable grace period at the end of the fifth (5th) Lease Year, the Security
shall be reduced to
66. TENANT'S RIGHT OF CANCELLATION.
------------------------------
66.01 Subject to force majeure, in the event that Landlord fails to
compete the Preliminary Installations within six (6) months after Tenant's Plans
have been finalized and agreed to by Landlord and Tenant, (the "Outside Date")
Tenant shall have the right to cancel this lease by sending Landlord a written
notice (the "Cancellation Notice") in accordance with Section 66.02.
66.02 The Cancellation Notice shall specify a date (the "Effective
Date") on which the lease will be deemed cancelled. The Effective Date shall be
not less than thirty (30) days from the date of the Cancellation Notice and in
the event Landlord substantially completes the Preliminary Installations prior
to the Effective Date, the Cancellation Notice shall be deemed nullified and of
no force and effect whatsoever. Tenant's right of cancellation shall be its sole
and exclusive remedy in the event Landlord fails to complete the Preliminary
Installations by the Outside Date.
67. TENANT'S RIGHT OF FIRST OFFER.
-----------------------------
67.01 At any time during the first ten(1O)years of the term of this
Lease, after Landlord has reached an agreement on the terms of a proposed lease
or sublease of all or part of the remaining portion of the 28th Floor (the
"Option Space") with a third party not affiliated with Landlord containing the
items specified in-Section 67.02 but before execution of a lease, Landlord shall
send Tenant a written notice (the "Availability Notice") to Tenant indicating
what portion of the Option Space is about to be rented to a third party.
67.02 The Availability Notice shall specify the following items (the
"Landlord's Offer"):
(a) The square footage of the of the Option Space about to be
rented;
(b) The Fixed Rent;
(c) The base rates for tax escalation and operating expense
escalation;
34
(d) The value of the Work to be performed by Landlord in the
Option Space;
(e) The amount of any rental concession being granted by Landlord
in connection with, the Option Space;
(f) The term of the lease or sublease for the Option Space
including the anticipated date of commencement;
(g) Any other monetary consideration provided to prospective
tenant.
67.03 Not later than ten (1O) business days after receipt of Landlord's
Availability Notice, Tenant shall send Landlord either (a) a written notice (
the "Tenant's Acceptance") whereby Tenant agrees to lease the Option Space on
the same terms contained in Landlord's Offer or (b) a written notice (the
"Tenant's Rejection") whereby Tenant elects not to lease the Option Space. If
Tenant sends an Acceptance Notice, Landlord shall prepare a new lease for the
Option space containing the terms set forth in the Landlord's Offer and other
terms of this lease to the extent they are consistent with Landlord's Offer. In
the event Tenant sends an Acceptance Notice and fails to execute the new lease
submitted by Landlord within 15 days after its receipt, Tenant's Acceptance
Notice shall be void and Tenant shall have no further rights as to the Option
Space.
67.04 In the event Tenant (a) sends Tenant's Rejection or (b) fails to
send an Acceptance Notice, as provided in Section 67.03, then Tenant shall have
no further rights as to the Option Space referred to in the Availability Notice,
unless and until Landlord should decide to substantially lease such Option Space
within the first ten (1O) years of the term of the lease.
35
FOOTNOTE RIDER ANNEXED TO LEASE
DATED JUNE 20, 1997
BETWEEN 40 WALL DEVELOPMENT ASSOCIATES, LLP, AS OWNER
AND INTERNET FINANCIAL SERVICES, INC. AND X.X. XXXXXX INC.,
AS TENANTS
This footnote rider consisting of 4 pages is annexed to and made a part of this
lease to which it is attached and in each instance in which the provisions of
this footnote rider shall contradict or be inconsistent with the provisions of
the printed portion of this lease or any other rider attached to this lease, the
provisions of this footnote rider shall prevail and govern and the contradicted
or inconsistent provisions of the printed portion of this lease or any other
rider attached to this lease shall be deemed amended accordingly.
The numbered inserts contained in this footnote rider are deemed inserted where
indicated by the corresponding number located on the printed portion of this
lease.
1
FOOTNOTES
---------
1. "which shall not be unreasonably withheld"
2. "reasonably"
3. "after forty-five (45) days written notice to Tenant"
4. "or otherwise"
5. "caused by Tenant, its agent, or employees"
6. "particular (as opposed to mere office)"
7. "particular (as opposed to mere office)"
8. "reasonable"
9. "on the Commencement Date"
10. "at"
11. "as a direct result of Tenant's business in the Demised Premises, other
than business permitted pursuant to Article 2 hereof,"
12. "or willful act"
13. "contractors"
14. "or delayed"
15. "unless the remainder of the demised premises which is not damaged
cannot be operated by Tenant in an economically feasible manner, in
which case the fixed rent and additional rent payable hereunder shall
be fully abated until restoration of the demised premises."
16. "45"
17. "30"
18. "Provided, however, if as a result of fire or other casualty the
Demised Premises shall be damaged in whole or in part and owner fails
to substantially complete the repair and restoration thereof by the
earlier to occur of (i) nine (9) months following the date of such
destruction, as extended by any delay due to any cause beyond Owner's
reasonable control including, without limitation, strike, labor
2
troubles, scarcity of materials or labor, governmental regulations or
governmental pre-emption or priorities or other controls in connection
with a national or other public emergency or fuel shortages or acts of
God and (ii) twelve(12) months following the date of such destruction,
without extension, Tenant may terminate this Lease by giving Owner
written notice which shall state the termination date of this Lease,
which date shall be not less than five(5) nor more than sixty(60) days
after the giving of such notice, whereupon the term hereof shall end on
the date specified in such notice as if such date were the original
date set forth herein for the expiration of the term. In addition to
the foregoing, within ninety (90) days following the damage or
destruction, Owner shall deliver to tenant a certificate from an
independent contractor or architect stating the period of time which
will be required substantially to repair the Building and/or the
demised premises. In the event that such period shall exceed nine (9)
months following the date of such destruction, then Tenant shall have
ten (10) days within which to elect to terminate this lease by written
notice to Owner specifying a date for termination of this Lease which
date shall not be more than sixty (60) days after the giving of such
notice, an upon such date specified in such notice the term of this
Lease shall expire as if it were the expiration date of this Lease and
Tenant shall vacate the Demised Premises."
19. "fifteen (15)"
20. "but Tenant shall have the right to make its own claim for personal
property, trade fixtures, leasehold improvements paid for by Tenant and
which may be removed upon expiration of the term, and moving expenses
from the condemning authority provided such claim shall not reduce the
Landlord's award.
21. "unless caused by Landlord's or its agents, contractors' or employees'
negligence."
22. "on notice to Tenant and at reasonable hours."
23. "and further provided the cubic area of the premises are not materially
reduced."
24. ",provided Landlord shall use its reasonable efforts to cause the least
practicable interference and disturbance with Tenant's business.
Landlord agrees, at its expense, to repair and restore the Demised
Premises subsequent to conducting any work therein to a condition as
good as that existing prior thereto."
25. "on notice to Tenant"
26. "after notice, except in the event of an emergency"
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27. "provide Tenant's use of the Demised Premises shall not be adversely
affected thereby. Landlord agrees that Tenant shall have access to and
the right to use and occupy the Demised Premises 24 hours per day, 7
days per week during the term hereof."
28. "actually in possession"
29. "eight percent (8%)"
30. "abandoned"
31. "further"
32. "after notice and the expiration of any applicable grace or cure
periods"
33. "provided Landlord shall prevail in any such action or a settlement
thereof"
34. "Ten(10)"
35. "unless the same materially adversely affect Tenant's use of or access
to the Demised Premises"
36. "and other matters not reasonably ascertainable after due diligence."
37. ",except as otherwise herein set forth"
38. "or Tenant"
39. "unless the failure to interpose such counterclaim will result in its
waiver."
40. "return receipt requested or by recognized overnight courier"
41. "to the other"
42. "All rules and regulations shall be promulgated and enforced on a
non-discriminatory basis as to Tenant."
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15. All references in this lease to numbered Articles, numbered Sections
and lettered Exhibits are references to Article and Sections of this lease, and
Exhibits annexed to (and thereby made part of) this lease, as the case may be,
unless expressly otherwise designated in the context.
16. Definitions from various Sections of the lease:
Additional Rent or additional rent - as defined in Section 38.01(b)
Affiliate - as defined in Section 42.01
Agreed Rate - as defined in Article 48
A/S Notice - as defined in Section 42.01
Assignment Expense - as defined in Section 42.09(a)
Availability Notice - as defined in Section 67.01
Base Operational Year - as defined in Section 40.01(c)
Base Statement - as defined in Section 40.02
Base Tax Rate - as defined in Section 39.01(c)
Broker - as defined in Article 43
Building - the structure known as 00 Xxxx Xxxxxx and all appurtenances
thereto
Building Standard - as defined in Section b Part E of Exhibit D
Cancellation Notice - as defined in Section 66.01
Changes - as defined in Section 51.01
Commencement Date - as defined in Section 37.01
Demised Premises, demised premises or premises shall mean the space in
the Building leased to Tenant as shown on Exhibit A
Effective Date - as defined in Section 66.02
Existing L/C - as defined in Section 65.06
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Option Space - as defined in Section 67.01
Outside Date - as defined in Section 66.01
Owner - 40 Wall Development Associates, LLP or any successor thereof
Preliminary Installations - as defined in Section (d) Part E of
Exhibit D
Property - shall mean the Land and Building
Rate - as defined in Section 60.04 (b)
Rent, rent or fixed rent - as defined in Section 38.01(a)
Rent Commencement Date - as defined in Section 38.03
Replacement L/C - as defined in Section 65.06
Replacement Notice - as defined in Section 65.06
Revised Tenant's Plans - as defined in Section 2 Part C of Exhibit D
Revisions - as defined in Section 4 Part C of Exhibit D
Security - as defined in Section 65.01
Soft Costs - as defined in Section (f) of Part E of Exhibit D
Subletting Expenses - as defined in Section 42.09 (b)
Successor landlord - as defined in Section 41.03
Superior Lease - as defined Section 41.01
Superior Mortgage- as defined in Section41.01
Tax Expenses- as defined in Section 39.04
Tax Payment- as defined in Section 39.02
Tax Statement - as defined in Section 39.05
Tax Year - as defined in Section 39.01 (c)
Taxes- as defined in Section 39.01 (a)
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Tenant- as defined in Exhibit E Item 12
Tenant Changes- as defined in Section 51.01
Tenant's Acceptance - as defined in Section 67.03
Tenant's Cost- as defines in Section 60.04 (c)
Tenant's Plans- as defined in Section 1 Part C of Exhibit D
Tenant's Projected Share of Taxes- as defined in Section 39.01 (e)
Tenant's Property- as defined in Section 53.02
Tenant's Proportionate Share- as defined in Section 39.01 (d)
Tenant's Rejection - as defined in Section 67.03
Tenant's Share - as defined in Part F of Exhibit D
Usage- as defined in Section 60.04 (a)
Work - as defined in Subdivision (c) of Part E of Exhibit D
Work Cost- as defined in Subdivision (a) of Part E of Exhibit D
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7. Fill toilet tissue and paper towel holders, soap dispensers and
sanitary receptacles.
WEEKLY
------
1. Vacuum clean all carpeting and rugs.
2. Wipe clean all interior metal an remove fingermarks.
MONTHLY
-------
1. Dust all vertical surfaces such as walls, partitions, door louvers
and other surface with a person's reach.
QUARTERLY
---------
High dust premises if required, including the following:
1. Dust all pictures, frames, charts, graphs and similar wallhangings
not reach in nightly cleaning.
2. Dust clean all vertical surfaces such as walls, partitions, doors,
bucks and other surfaces not reached in nightly or monthly cleaning.
3. Dust all pipes, ventilating and air-conditioning louvers, ducts,
high molding and other high areas not reached in nightly or weekly
cleaning.
4. Dust all venetian blinds.
PERIODICALLY
------------
Wash the interior of all exterior windows at least four (4) times a
year and wash the exterior of all exterior windows at least two (2) times a
year.
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EXHIBIT B - DESCRIPTION
All that plot of land in the borough of Manhattan, City, County and State of New
York, bounded and described as follows:
BEGINNING at a point on the northerly side of Wall Street distant 70 feet 1 inch
westerly from the corner formed by the intersection of the said northerly side
of Wall Street with the westerly side of Xxxxxxx Street; running.
THENCE Northerly along a line which forms an angle of 87 degrees 05 minutes 15
seconds on its westerly side with said northerly side of Wall Street, 123 feet
and 1/4 of an inch;
THENCE Westerly along a line which forms an angle of 92 degrees 33 minutes 30
seconds on its southerly side with the last course, 14 feet 2-1/2 inches;
THENCE Northerly along a line which forms an angle of 94 degrees 00 minutes 45
seconds on its easterly side with the last course, 71 feet 7-1/2 inches to the
southerly side of Pine Street;
THENCE Westerly along said southerly side of Pine Street, 45 feet 9-3/4 inches
to an angle in said southerly side of Pine Street;
THENCE containing Westerly along said southerly side of Pine Street, 163 feet
5-3/4 inches;
THENCE Southerly along a line which forms an angle of 87 degrees 31 minutes 10
seconds on its easterly side with said southerly side of Pine Street, 74 feet
9-5/8 inches;
THENCE Easterly along a line which forms an angle of 91 degrees 19 minutes 10
seconds on its northerly side with the last course, 40 feet 3-3/4 inches;
THENCE continuing Easterly along a line which forms an angle of 179 degrees 41
minutes 00 seconds on its northerly side with the last course, 35 feet 4 inches;
THENCE Southerly along a line which forms an angle of 91 degrees 45 minutes 00
seconds on its westerly side with the last course, 18 feet 4-1/2 inches;
THENCE continuing Southerly along a line which forms an of 180 degrees 38
minutes 50 seconds on its westerly side with the last course, 102 feet 11 inches
to the said northerly side of Wall Street;
THENCE Easterly along said northerly side of Wall Street, 75 feet 1-1/4 inches
to an angle in said northerly side of Wall Street;
THENCE continuing Easterly along said northerly side of Wall Street, 74 feet
11-1/2 inches to the point or place of Beginning.
EXHIBIT D
WORK LETTER
PART A: BASIC WORK
After completion of the Preliminary Installation (as hereinafter
defined), Tenant shall provide and install the following facilities and
materials and complete the following work (the "Basic Work") as part of the
"Work Cost" (as hereinafter defined) in accordance with Tenant's Plans (as
defined in Part C1 hereof). For purposes of this lease, the Basic Work shall be
at least the following:
1. Partitions:
Furnish and install partitions consisting of one layer 5/8" gypsum
board each side of 2 1/2" steel studs, 24" o.c. One layer of gypsum board to
extend to underside of structure. Joint treatment to be 3 coats. Partitions
ending at the exterior wall of the Building shall meet either a mullion or a
column without interfering with access to the peripheral enclosure. A gasket
closure and an acoustic "pillow" will be provided, wherever a partition
perpendicularly intersects a column or a mullion; acoustic rating of the
"pillow' will match the acoustic rating of the Standard Partition.
2. Doors, Frames, Hardware:
Furnish and install building standard doors and frames as required.
Frames to be 16 gauge welded construction, full height. Doors to be 18 gauge
with rolled seam construction, hollow metal flush design, full height.
Hardware to include Building Standard lockset/ latchset, 1 1/2 pair
butts, floor or wall stop and silencers. All hinges to be factory prime painted.
Elevator bucks must meet Building Standard specifications to insure
uniformity throughout the Building.
3. Electrical Construction:
(a) Lighting: Furnish and install one 2'x 4' aluminum parabolic lay-in
fluorescent light fixture with sockets for 3 standard 40w fluorescent bulbs per
100 sq. ft. of rental space; xxxxxxx by Tenant;
(b) Wiring: Electrical services capable of 5 xxxxx per square foot. (2
xxxxx per square foot at 120/208 volts and 3 xxxxx per square foot at 265
volts.)
(c) Power and Telephone Outlets: Furnish and install standard duplex,
and standard telephone outlets, as required.
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4. Heating, Ventilation and Air Conditioning:
Furnish and install system to meet following criteria
Summer: Inside.......78 degrees D.B., 50% RH
Outside......95 degrees D.B., 75 degrees X.X.
Xxxxxx: Inside.........68 degrees D.B.
Outside........ 5 degrees D.B.
HVAC design based upon interior loads as follow:
Lights and appliances = 3 xxxxx/sq.ft.
Population............= one person per 100 sq.ft.
5. Ceiling:
Furnish and install building Standard Acoustic Tile ceilings with a
1'x 1' concealed or "T" bar spline system using fissured acoustical tile.
Molding to be standard white. Ceiling height to be standard white. Ceiling
height to be 8'-6" (unless structural or mechanical components conflict with
same).
6. Flooring:
Furnish and install Building Standard carpeting- color selection by
Tenant.
7. Painting:
Hollow metal doors, frames, convector
Enclosures: two coats semi-gloss
Partitions: one prime, two finish coats eggshell or flat
Colors to be selected from Landlord's Building Standard Color
Chart
8. Blinds:
Furnish and install one Building Standard venetian blind in Building
Standard color for each exterior window. No substitutions will be permitted.
9. Sprinkler:
Furnish and install recessed or flush Tenant sprinkler heads per floor
in accordance with "normal" density (as same defined in New York City Building
code Reference Standard). No high density or "deluge" type heads for Tenant
interconnecting stairs or hazardous locations are included. Furnish and install
all panels, devices, wiring and connection points necessary for connection of
the fire system in the Demised Premises. Landlord's general contractor (Fire
Quencher) shall be use and the system shall interface and be connected and
reprogrammed as necessary.
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10. Structure:
Floor slab has been designed for a live load of 75 psf. Any special
openings or loading such as file rooms, libraries, are above Building Standard,
(and will have to be cleared through the Landlord's structural Engineer, in any
event).
PART B: SUPPLEMENTARY WORK
Tenant shall perform in accordance with Tenant's Plans, (as hereinafter
defined) any additional or non-standard work over and above the Basic Work and
all labor and materials which are to be furnished in connection therewith is
herein called the "Supplementary Work" and shall be performed by Tenant's
contractor or sub-contractors as part or the Work Cost.
1. Promptly after receipt of Landlord's approval of Tenant's Plans, Tenant will
procure and negotiate bids from contractors and sub-contractors of its choosing
but reasonably acceptable to Landlord and will advise Landlord which of the bids
Tenant intends to accept. Landlord agrees to promptly notify Tenant of the
acceptability of any prospective contractors and their bids.
2. All engineering for electrical, structural, plumbing and HVAC services
required for any of the Work shall be performed by Tenant's engineer subject to
review by Landlord's engineer for the Building, and the cost of all engineering
work shall be included in the Work Cost.
3. During performance of the Work, Landlord will permit Tenant and its agents to
enter the Demised Premises prior to the Commencement Date for the purpose of the
making inspections, verifying performance, taking measurements therein, provided
that (I) the construction of the Building and the Demised Premises and all
installations required to be made by Landlord therein shall have reached a point
which, in Landlord's sole judgement, will not delay or hamper Landlord in the
completion of the Building and/or the Demised Premises and (II) Tenant's access
to the Demised Premises shall be subject to all of the terms and provisions of
the Lease, except as to the payment of rent. Landlord may deny Tenant or its
contractor access to the Demised Premises and may require that Tenant withdraw
therefrom and cease all work being performed by it or on its behalf by any
person, firm or corporation other than Landlord if Landlord shall determine that
the commencement and/or continuance thereof interferes with, hampers or prevents
Landlord from processing with the completion of the Building and the Demised
Premises at the earliest date. Any entry by tenant in the Building or the
Demised before the Commencement Date shall be at Tenant's sole risk, and subject
to Tenant obtaining Landlord's prior permission, which Landlord shall not
unreasonably withhold.
3
PART C: TENANT PLANS, SPECIFIC ATIONS AND DRAWINGS
1. Tenant, at its sole cost and expense, shall prepare and submit to
Landlord, for Landlord's approval, the following descriptive information,
detailed architectural drawings. and specifications prepared by Tenant's
architect herein refer-red to as "Tenant's Plans" for any work to be done by
Landlord under Part A or Part B hereof in connection with Tenant's layout of the
Demised Premises, on or before the dates listed below. Utilizing the information
shown on Tenant's Plans, Landlord shall cause mechanical and structural plans to
be prepared as part of the Work Cost.
Phase 1: On or before July 31, 1997
a. Estimated total electrical load, including lighting for entire
space and location of electrical and telephone outlets, and
showing amount and location of areas requiring loads in excess
of Building Standard.
b. Location, loads and dimensions of telephone equipment rooms.
c. Partition locations, and type.
d. Door locations, size and type, hardware schedule.
e. Reflected ceiling plans.
f. Any structural architectural installations.
g. Air conditioning loads.
h. Specific plumbing requirements, including plans and sections.
i. Cabinet work and any other information affecting other trades.
j Non-building standard ceiling heights and/or materials, and any
other information not specified in Phase 2 below.
Phase 2: On or before
a. Decorative plans, including paint schedule, carpeting,
draperies, wall coverings;
b. Non-structural architectural detailing.
2. All plans and specifications for all work to be performed in and to
the Demised Premises (including, without limitation, Tenant's Plans) are subject
to Landlord's
4
prior written approval, which, as to non-structural work shall not be
unreasonably withheld. Within ten (10) days after notification from Landlord of
any objections to Tenant's Plans, Tenant shall submit to Landlord new plans (the
"Revised Tenant's Plans") curing Landlord's objections. If Tenant's Plans, the
Revised Tenant's Plans or Revisions (as hereinafter defined) require any
materials, services, or installations that will result in a delay in
construction of the Preliminary Installations, Landlord may reject those items
of Tenant's Plans, the Revised Tenant's Plans or Revisions which will occasion
such delay.
3. Tenant's Plans and the Revised Tenant's Plans shall comply with and
confom-1 to the plans of the Building filed with the Department of buildings of
the City of New York, and with all rules, regulations and/or other requirements
of any governmental department having jurisdiction over the construction of the
Building ands/or the Demised Premises. Landlord shall, as part of the Work Cost,
file all necessary architectural plans, together with any mechanical plans and
specifications, in such form (building notice, alteration, or other form) as may
be necessary, with the appropriate governmental agencies. Any changes required
by any governmental department affecting the construction of the Building and/or
the Demised Premises shall be complied with by Landlord in completing said
Building and/or the Demised Premises and shall not be deemed to be a violation
of Tenant's Plans or the Revised Tenant's Plans or any provisions of this Work
letter, and shall be deemed automatically accepted and approved by Tenant.
4. Tenant shall have the right to make changes from time to time in
Tenant's Plans or the Revised Tenant's Plans (other than changes necessitated by
Landlord's objections) by submitting to Landlord revised plans and
specifications (herein called the "Revisions"). All Revisions shall be subject
to Landlord's prior written approval, which as to non-structural work shall not
be unreasonably withheld. Upon receipt and approval of any Revisions, Tenant
shall submit the Revisions so approved to its general contractor or construction
manager.
PART D: DELAYS BY TENANT:
Tenant has been advised of the importance to Landlord of completing the
Building and the Demised Premises as quickly as possible and the great financial
loss to Landlord resulting from a delay in such completion. If (i) Tenant, or
persons within Tenant's control, delay the progress of completion of work
required to be performed by Landlord hereunder or pursuant to any separate
agreement by (a) failing to submit to Landlord within the time period set forth
in Part C hereof any phase of Tenant's Plans, or failing to make necessary
revisions in Tenant's Plans within the time required or delaying any selections
of materials to be made by Tenant or (b) otherwise interfering or delaying
Landlord's completion of the Building or the Preliminary Installations in the
Demised Premises; and (ii) the condition giving rise to such delay shall
continue after Landlord shall have given Tenant notice that the continuation of
such condition would result in delay; then the date of completion of the
Preliminary Installations shall be deemed to be the date upon which the
Preliminary Installations would have been substantially completed but for the
acts or omissions of Tenant or persons within tenant's control, and Tenant shall
reimburse Landlord for fixed and additional rent for the period of such delay
within five days after submission of a xxxx therefor, whether or not the Lease
has commenced. The above provisions shall be in addition to, and not in
limitation of, any other rights Landlord shall have under the lease or at law.
5
PART E: DEFINITIONS:
(a) "Work Cost" shall mean the aggregate of (i) the contract or
purchase price charged by subcontractors, under subcontracts made by
Tenant ("Subcontract Costs"), plus $25,000 of Subcontract Costs to
Landlord to cover Landlord's share of performing general conditions,
owner's insurance, all indirect costs, use of freight elevator for
construction and move-in purposes, overhead and supervision costs, plus
(ii) filing fees and permit costs incurred in connection with the Work
plus (iii) the actual cost to Landlord for engineering and architectural
fees in connection with the Work. The term "general conditions" as used
herein shall have the meaning generally given such term by the
construction industry in the City of New York for similar projects, and
shall include, without limitation, rubbish removal, rubbish trucking,
laborers for miscellaneous general conditions work, water and power and
landlord' supervision. At least 75% of the Work Cost shall be used for
Hard Costs (as defined in subdivision (e) hereof. The remaining 25% may be
used for Soft Costs as defined in subdivision (f) hereof.
(b) "Building Standard" shall mean such materials as Landlord
designates for use as a part of standard construction substantially
throughout the Building.
(c) "Work" shall mean the Basic Work under Part A and the Supplementary
Work under Part B hereof.
(d) "Preliminary Installations" shall mean the following basic
installations which will be performed by Landlord in the Demised Premises
at Landlord's sole cost and expense prior to commencement of the Basic
Work and which shall not be included as part of the Work Cost:
(i) The perimeter radiation with sheet metal, prime painted
enclosures will be in place and ready for painting;
(ii) All mechanical rooms, electrical closets, telephone closets
to be delivered finished and operational. Perimeter walls
and ceilings and elevator lobby walls and ceilings to be
delivered as is, except Landlord will provide at Landlord's
expense elevator lanterns and call buttons.
(iii) The sprinkler stub-out (but not sprinkler heads or branch
lines) will be in place. Landlord will supply fire alarm
equipment and fire accessories necessary to comply with the
Building Code, including exit signs and fire extinguishers
to the extent required;
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(iv) The floor will be bare throughout the Demised Premises but
leveled and patched as required to provide relatively flat
floor surfaces;
(v) The existing Demised Premises shall be demolished and
delivered free of all previous tenant installations,
including ceilings, HVAC distribution ductwork, and
electrical distribution wiring. New trunk duct out from
air-handling rooms will be provided and the electrical
panel next to a window on the 27th floor shall be removed.
(vi) All free standing and engaged columns will be stripped
(gutted) and sprayed with fireproofing to meet code.
(vii) Toilet rooms to be delivered in compliance with the
Americans with Disabilities Act (ADA) and include new
ceramic tile floors, tiled wet walls, acoustical tiled
ceilings, and all code required fixtures and toilet
accessories.
(viii) FIRE PROTECTION:
1. Sprinkler System
Preliminary Installations shall include the sprinkler
stub-out. The sprinkler line has been designed to support a
fully sprinklered building with zone control valves, tamper
switches and alarm flow switches provided. The sprinkler
system will be connected to a combined fire standpipe,
risers and mains. Design shall be based on density of one
(1) head/190 rentable square feet.
2. Fire Stopping
Preliminary Installations shall include all fire topping of
floor penetrations as required by code.
3. Standpipe System
Preliminary Installation shall include standpipe risers
complete with 2 & 1/2" or applicable fire department
valves, reducers to I & 1/2" and capped outlets for fire
hose attachment. Number and location of hose stations will
provide complete coverage based on 100 ft. Of hose plus 30
ft. of stream.
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4. Fire Alarm System
Preliminary Installation shall include complete fire
detection and annunciation (speaker/strobes) system for
core area (bathrooms, elevator lobby) connected to the
building Class E system.
(ix) Preliminary Installations shall include connection of
Tenant's HVAC equipment into the building (BMS) system. All
new panels and associated wiring to be provided by Tenant
as part of Work Cost.
Tenant may elect to have Landlord upgrade any or all of the items
in subdivision (vii) but the additional cost incurred shall be
included in the Work Cost. Tenant shall be entitled to any saving
received by Landlord by reason of elimination or substitution of
any of the aforesaid items or of any HVAC equipment which Landlord
would have installed as part of Preliminary Installations had
Tenant not elected to provide alternative equipment.
(e) "Hard Costs" shall mean the cost of labor and materials for
partitioning, flooring, lighting fixtures, HVAC Systems, plumbing work,
electrical work, painting, decorating and sprinkler system.
(f) "Soft Costs" shall mean cost for fixtures, furniture and equipment,
fees of architects, engineers or other professionals engaged in the Work, and
moving expenses incurred by Tenant.
PART F: PAYMENT OF WORK COSTS:
Dollars (the "Landlord's Share") of the Work Cost shall be home by the
Landlord, and any excess (the "Tenant's Share") above the Landlord's Share shall
be home by the Tenant. Landlord shall, from time to time, upon request but not
more than once a month, pay Landlord's Share to Tenant's general contractor
within ten (10 days after receipt of the following:
(a) Acknowledgment from the parties performing the Work for which
reimbursement was previously made, that prior invoices have
been paid;
(b) A certification from Tenant's architect that the Work has been
performed in accordance with Tenant's Plans;
(c) A requisition from Tenant or Tenant's general contractor
specifying: (i) the total cost of the Work for each trade for
which payment is requested the percentage of completion of the
work perf6inied by such trade (iii) the amount paid to date to
such trade;
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(d) A certification from Tenant or Tenant's general contractor
that all monies previously requisitioned have been paid to the
trades for whom reimbursement was requested.
(e) A waiver of lien signed by Tenant's general contractor for all
monies covered by all requisitions.
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EXHIBIT E
DEFINITIONS
1. The term mortgage shall include an indenture of mortgage and deed of
trust to a trustee to secure an issue of bonds, and the term mortgagee shall
include such a trustee.
2. The terms include, including and such as shall each be construed as
if followed by the phrase "without being limited to".
3. 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.
4. 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".
5. 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 Tenant is
not in default in the performance of any of Tenant's obligations hereunder, or
that a condition of the character described in Article 17 has occurred and
continues or has not occurred or does not continue, as the case may be.
6. References to Landlord as having no liability to Tenant or being
without liability to Tenant, shall mean that Tenant is not entitled to terminate
this lease, or to claim actual or constructive eviction, partial or total, or to
receive any abatement or diminution of rent, or to be relieved in any manner of
any of its other obligations hereunder, or to be compensated for less or injury
suffered or to enforce any other kind of liability whatsoever against Landlord
under or with respect to this lease or with respect to Tenant's use or occupancy
of the Demised Premises.
7. 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
1
governmental, public or quasi-public authorities, having jurisdiction in the
premises, and the specific direction of any public officer pursuant to law.
8. 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 of the Building and/or the Demised Premises.
9. 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.
10. 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 the 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.
11. The term in full force and effect when herein used in reference to
this lease as a condition to the existence or exercise of a right on the part of
Tenant shall be construed in each instance as including the further condition
that at the time in question no default on the part of tenant exists, and no
event has occurred which has continued to exist for such period of time (after
the notice, if any, required by this lease), as would entitle Landlord to
terminate this lease or to dispossess Tenant.
12. 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 the Tenant's estate and
interest granted by this lease and also, if Tenant is not an individual or a
corporation, all of the persons, firms and corporations then comprising Tenant.
13. 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.
14. 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.
2
ORIGINAL
MODIFICATION OF LEASE
Agreement dated this 17th day of August 1998, by and between 00 XXXX
XXXXXX LLC, a limited liability company, having an office at 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, (hereinafter called "Landlord") and INTERNET FINANCIAL
SERVICES INC., a Delaware corporation and X.X. XXXXXX, INC., a New York
corporation, each having an office at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
0000 1, jointly and severally, (hereinafter collectively called "Tenant").
STATEMENT OF FACTS
By lease dated June 20, 1997, (the "Lease"), 00 XXXX XXXXXX DEVELOPMENT
ASSOCIATES, LLC, (Landlord's predecessor-in-interest), leased to Tenant the 27th
floor and part of the 28th floor (the "Demised Premises") in 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx. The parties desire to modify the Lease upon the terms herein
contained.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, it is agreed as follows:
1. Landlord agrees that it will, at Landlord's cost and expense,
promptly furnish an electrical line or electrical lines sufficient to supply the
Demised Premises with 1,080 amperes of electricity (the "Increased Electrical
Service");
2. In consideration of Landlord's furnishing the Increased Electrical
Service, the annual rental payable by the Tenant under the Lease, shall be as
follows:
7/1/99 - 6/30/2001 $461,097.50 ($38,424.79 per month)
7/1/2001 - 6/30/2005 $499,759.50 ($41,646.63 per month)
7/1/2005 - 6/30/2009 $538,421.50 ($44,868.46 per month)
Except as herein expressly modified, all of the other terms, covenants
and conditions of the Lease, shall remain in full force and effect and binding
upon the parties hereto.
1
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
00 XXXX XXXXXX LLC
By: 00 Xxxx Xxxxxx Member Corp.
(Managing Member)
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Xxxxxx X. Xxxxx, President
X.X. XXXXXX, INC.
By: /s/ XXXXXXXXX
-------------------------------------
INTERNET FINANCIAL SERVICES, INC.
By: /s/ XXXXXXXXX
-------------------------------------
2
[LOGO] THE XXXXX
ORGANIZATION
00 XXXX XXXXXX
XXXXXXX, X. Y 10005
(000) 000-0000
FACSIMILE (000) 000-0000
January 22, 1998
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Xxxx Xxxxxxxxx
c/o X.X. Xxxxxx, Inc. and Internet Financial Services, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX I 001 I
Re: Lease dated June 20,1997 - 40 Wall Development Associates, LLC with X.X.
Xxxxxx, Inc. and Internet Financial Services, Inc. (jointly and severally) -
Entire 27th Floor, Part 28th Floor - 00 Xxxx Xxxxxx
----------------------------------------------------------------------------
Dear Xx. Xxxxxxxxx:
The Preliminary Installations as described in Exhibit D, Part E, Paragraph (d)
of the above mentioned Lease will be completed by January 23, 1998. This will
advise that the Commencement Date of the above premises shall be January 23,
1998. The Rent Commencement Date shall be June 23, 1999. The Expiration Date
shall be June 30, 2009.
Please acknowledge your consent to the foregoing by signing a copy of this
letter and returning it to me.
Sincerely,
40 Wall Development Associates, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx
Agreed & consented to:
X.X. Xxxxxx, Inc. and Internet Financial Services, Inc.
By: /s/ Xxxx Xxxxxxxxx
------------------------
Xxxx Xxxxxxxxx
