EXHIBIT 10.2
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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 3rd
day of August 1999, between MAYORE ESTATES LLC and 80 LAFAYETTE ASSOCIATES LLC,
each a New York limited liability company having an address at 000 Xxxxx Xxxxxx,
Xxxxxxxx, XX 00000, party to the first part, hereinafter referred to as OWNER,
and XXXXXX, XXXXXXX INC., a corporation having an address at , party of the
second part, hereinafter referred to as TENANT,
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from Owner the
entire rentable portion of the 19th floor and a certain rentable portion of the
20th floor as set forth on the floor plans annexed hereto as Exhibit "A" in the
building known as 00 Xxxxxxxxx Xxxxxx in the Borough of Manhattan, City of New
York, for the term of SEE RIDER ANNEXED HERETO AND MADE A PART HEREOF both dates
inclusive, at an annual rental rate of SEE RIDER ANNEXED HERETO AND MADE A PART
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).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns, hereby
covenant 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 SEE RIDER ANNEXED
HERETO AND MADE A PART HEREOF and for no other purpose.
Tenant Alterations: 3. Tenant shall make no changes in or to the demised premise
of any nature without Owner's prior written consent(1). Subject to the prior
written consent of Owner, 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. (2a)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, approvals and certificates to Owner and Tenant agrees to carry and will
cause Tenant's contractors and sub-contractors to carry such xxxxxxx'x
compensation, general liability, personal and property damage insurance as Owner
may require. If any mechanic's lien is filed against the demised premises, or
the building of which the same forms a part, for work claimed to have been done
for, or materials furnished to, Tenant, whether or not done pursuant to this
article, the same shall be discharged by Tenant within thirty days (3), at
Tenant's expense, by filing the bond required by law. All fixtures and all
paneling, partitions, railings and like installations, installed in the premises
at any time, either by Tenant or by Owner in Tenant's behalf, shall, upon
installation, become the property of Owner and shall remain upon and be
surrendered with the demised premises unless Owner, by notice to Tenant no later
than twenty days prior to the date fixed as the termination of this lease,
elects to relinquish Owner's right thereto and to have them removed by Tenant,
in which event the same shall be removed from the premises by Tenant prior to
the expiration of the lease, at Tenant's expense (4). Nothing in this Article
shall be construed to give Owner title to or to prevent Tenant's removal of
trade fixtures, moveable office furniture and equipment, but upon removal of any
such from the premises or upon removal of other installations as may be (2)
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 or
any other part of the building and the systems and equipment thereof, whether
requiring structural or nonstructural repairs caused by or resulting from
carelessness, omission, neglect or improper conduct of Tenant, Tenant's
subtenants, agents, employees, invitees or licensees, or which arise out of any
work, labor, service or equipment done for or supplied to Tenant or any
subtenant or arising out of the installation, 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 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 from the outside in violation
of Section 202 of 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 of 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, arising out of Tenant's manner of use thereof,
(including Tenant's permitted use) or, with respect to the building if arising
out of Tenant's manner of use of the premises or the building (including the use
permitted under the lease). Nothing herein shall require Tenant to make
structural repairs or alterations unless Tenant has, by its manner or 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 satisfaction against all damages,
interest, penalties and expenses, including, but not limited to, reasonable
attorney's fees, by cash deposit or by surety bond in an amount and in a company
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 or 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 at
any time carried by or for the benefit of 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 prior to the commencement of
Tenant's occupancy. Tenant shall pay all costs, expenses, fines, penalties, or
damages, which may be imposed upon Owner by reason of 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, 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 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 settings sufficient, in Owner's judgement, to absorb and
prevent vibration, noise and annoyance.
Subordination: 7. This lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or hereafter affect such
leases or the real property of which demised premises are a part and to all
renewals, modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall execute promptly any certificate that Owner may (2) request.
Property--Loss, Damage, Reimbursement, Indemnity: 8. Owner or its agents shall
not be liable for any damage to property of Tenant or of others entrusted to
employees of the building, nor for 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 (5) of Owner, 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 or 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 (or permanently 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 attorneys 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. Tenant's liability under
this lease extends to the acts and omissions of any sub-tenant, and any agent,
contractor, employee, invitee or licensee of any sub-tenant. In case of 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.
Destruction, Fire and Other Casualty: 9. (a) If the demised premises or any part
thereof shall be damaged by fire or other casualty, Tenant shall give immediate
notice thereof to Owner and this lease shall be continue in full force and
effect except as hereinafter set forth. (b) If the demised premises are
partially damaged (6) or rendered partially unusable by fire or other casualty,
the damages thereto shall be repaired by and at the expense of Owner and the
rent, until such repair shall be substantially completed, shall be apportioned
from the day following the casualty according to the part of the premises which
is usable. (c) If the demised premises are totally damaged or rendered wholly
unusable (8) 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 (9) shall have been repaired and restored by Owner, subject to
Owner's right to elect not to restore the same as 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 90 days after such fire or casualty, specifying a date for the
expiration of the lease, which date shall not be more than 60 days after the
giving of such notice, and upon the date specified in 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 due to adjustment of insurance claims, labor troubles and
causes beyond Owner's control. 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 (7) days
after written notice from Owner that the premises are substantially ready for
Tenant's occupancy. (e) Nothing contained hereinabove shall relieve Tenant from
liability that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, including Owners obligation to restore under
subparagraph (b) above, 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 with respect to
subparagraph (b), (d), and (e) above, against the other or any one claiming
through or under each of them by way of subrogation or otherwise. The release
and waiver herein referred to shall be deemed to include any loss or damage to
the demised premises and/or to any personal property, equipment, trade fixtures,
goods and merchandise located therein. 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 benefitting 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 of 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. (8).
Eminent Domain: 10. If the whole or any part of the demised premises shall be
acquired or condemned by Eminent Domain for any public or quasi 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, Tenant's entire interest in any such award. Tenant shall have the right
to make an independent claim to the condemning authority for the value of
Tenant's moving expenses and personal property, trade fixtures and equipment,
provided Tenant is entitled pursuant to the terms of the lease to remove such
property, trade fixture and equipment at the end of the term and provided
further such claim does not reduce Owner's award.
Assignment, Mortgage, Etc.: 11. Tenant, for itself, its heirs, distributees,
executors, administrators, legal representative, successor 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 a corporate Tenant or the
majority partnership interest of a partnership 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.
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 Owner's
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.
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 (9), 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 in and through the demised premises
and to erect new pipes and conduits therein provided they are concealed within
the walls, floor, or ceiling. 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 an 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 of business or otherwise. (10) Throughout the
term hereof Owner shall have the right to enter the demised premises at
reasonable hours for the purpose of showing the same to prospective purchasers
or mortgagees 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, Owner or Owner's agents 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.
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 a 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. (11).
Bankruptcy: 16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be canceled by Owner by the 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 as the debtor (12), or (2) the making by
Tenant of an assignment or any other arrangement for the benefit of creditors
under any state statute. Neither Tenant nor any person claiming through or under
Tenant, or by reason of any statute 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 difference 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 difference 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 the rate of four percent (4%) 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 to above.
Default: 17. (1) If Tenant defaults in fulfilling any of the covenants of this
lease (13) the covenants for the payment of rent or additional rent; or if the
demised premises become vacant 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 ss. 235 of Title 11 of the U.S. Code (bankruptcy code);
then, in any one or more of such events, upon Owner serving a written fifteen
(15) days notice upon Tenant specifying the nature of said default and upon the
expiration of said fifteen (15) 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
fifteen(15) day period, and if Tenant shall not have diligently commenced curing
such default within such fifteen(15) day period, and shall not thereafter with
reasonable diligence and in good faith, proceed to remedy or cure such default,
the Owner may serve a written five (5) days' notice of cancellation of this
lease upon Tenant, and upon the expiration of said five (5) days this lease and
the term thereunder shall end and expire as fully and completely as if the
expiration of such five (5) 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 shall have been given, and
the term shall expire as aforesaid, then and in any of such events Owner may
without 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 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 charge 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 covenants herein contained, any deficiency between the rent hereby
reserved and/or covenanted to be paid and the net 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 may incur in connection 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 Owners option, make such alterations, repairs, replacements,
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, replacements, 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 the 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 or 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 and 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 under or by
virtue of any of the terms or provisions in any article of this lease after
notice if required and upon expiration of any applicable grace period if any,
(except in an emergency), then, unless otherwise provided elsewhere in this
lease, Owner may immediately or at any time thereafter and without 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 reasonable attorney's fees, in
instituting, prosecuting or defending any action or proceeding and prevails in
any such action or proceeding, 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 ten (10) days of rendition
of any xxxx or statement to 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 and without incurring liability to
Tenant therefor 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. 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. 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 condition 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 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 time such possession was so taken, except as to
latent defects. All understandings and 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 is 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. 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.
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 mentioned.
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 or
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 or 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 inability to obtain possession or complete construction) until after
Owner shall have given Tenant written notice that the Owner is able to deliver
possession in condition required by this lease. 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, Tenant covenants and agrees that such possession or
occupancy shall be deemed to be under all the terms, covenants, conditions and
provisions of this lease, except the obligation to pay the fixed annual rent set
forth in the preamble to this lease. 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 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 and/or additional 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 lesser 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 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 brought by either of the
parties hereto against the other (except for personal injury or property damage)
on any matters whatsoever arising out of or in any way connected with this
lease, the relationship of Owner and Tenant, Tenant's use of or occupancy of
said premises, and any emergency statutory or any other statutory remedy. It is
further mutually agreed that in the event Owner commences any proceeding or
action for possession of the premises, Tenant will not interpose any
counterclaim of whatever nature or description in any such proceeding including
a counterclaim under Article 4 except for statutory mandatory counterclaims.
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 is delayed in supplying any service expressly or impliedly to be
supplied or is 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 not limited
to, government preemption or restrictions or by reason of any rule, order or
regulation of any department or subdivision thereof of any government agency or
by reason of the conditions which have been or are affected, either directly or
indirectly, 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,
delivered to Tenant personally or sent by registered or certified mail addressed
to Tenant at the last known residence address or business address of Tenant or
left at any of the aforesaid premises addressed to Tenant, and the 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 as Owner shall
designate by written notice.
Services Provided by Owners: 29. Owner shall provide: (a) necessary elevator
facilities on business days from 8 a.m. to 6 p.m. and have one elevator subject
to call at all other times; (b) heat to the demised premises when and as
required by law, on business days from 8 a.m. to 6 p.m.; (c) water for ordinary
lavatory purposes, but if Tenant uses or consumes water for any other purposes
or in unusual quantities (of which fact Owner shall be the sole judge), Owner
may install a water meter at Tenant's expense which Tenant shall thereafter
maintain 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 reasonably
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
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 excepted) from 8:00
a.m. to 6:00 p.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 or on Saturdays, Sundays or on holidays, as defined under Owner's
contract with Operating Engineers Local 94-94A, Owner will furnish the same at
Tenant's expense. RIDER to be added in respect to rates and conditions for such
additional service; (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, replacements 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 proceed diligently with alterations necessary therefor without in
any wise affecting this lease or the obligation of Tenant hereunder. (14)
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 or 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, 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 and 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, Sundays 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. Wherever it is expressly provided in this lease that consent
shall not be unreasonably withheld, such consent shall not be unreasonably
delayed.
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 (15) Rules and
Regulations as Owner or Owner's agents may from time to time adopt. 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 to the
parties hereto. The right to dispute the reasonableness of any additional Rule
or Regulation upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice, in writing upon Owner within fifteen (15) 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.
(16)
Security 34. Tenant has deposited with Owner the sum of $ as security for the
faithful performance and observance by Tenant of the terms, provisions and
conditions of this lease; it is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this lease, including,
but not limited to, the payment of rent and additional rent, Owner may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any rent and additional rent of any other sum as to
which Tenant is in default or for any sum which Owner may expend or may be
required to expend by reason of Tenant's default in respect of any of the terms,
covenants and conditions of this lease, including but not limited to, any
damages or deficiency accrued before or after summary proceedings or other
re-entry by Owner. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this lease, the
security shall be returned to the Tenant after the date fixed as the end of the
Lease and after delivery of entire possession of the demised premises to Owner.
In the event of a sale of the land and building or leasing of the building, of
which the demised premises form a part, Owner shall have the right to transfer
the security to the vendee or lessee and Owner shall thereupon be released by
Tenant from all liability for the return of s such security; and Tenant agrees
to look to the new Owner solely for the return of said security, and it is
agreed that the provisions hereof shall apply to every transfer or assignment
made of the security to a new Owner. Tenant further covenants that it will not
assign or encumber or attempt to assign or encumber the monies deposited herein
as security and that neither Owner nor its successors or assigns shall be bound
by any such assignment, encumbrance, attempted assignment or attempted
encumbrance.
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. Tenant shall look
only to Owner's estate and interest in the land and building, for the
satisfaction of Tenant's remedies for the collection of a judgment (or other
judicial process) against Owner in the event of any default by Owner hereunder,
and no other property or assets of Owner (or any partner, member, 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 Owner and Tenant hereunder,
or Tenant's use and occupancy of the demised premises.
SEE RIDER ANNEXED HERETO AND MADE A PART HEREOF
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: LANDLORD
MAYORE ESTATES LLC
/s/
By: _________________________
80 LAFAYETTE ASSOCIATES LLC
/s/
By: _________________________
Witness for Tenant: Tenant
XXXXXX, XXXXXXX INC.
/s/
By:___________________________
INSERTS TO PRINTED FORM OF LEASE,
DATED AS OF AUGUST 3,1999, BETWEEN
MAVORE ESTATES LLC
AND 80 LAFAYETTE ASSOCIATES LLC,
COLLECTIVELY, AS LANDLORD, AND
XXXXXX, XXXXXXX INC., AS TENANT
(1) , which consent shall not be unreasonably withheld, (1) , which consent
shall not be unreasonably withheld, conditioned or delayed provided the
provisions of the Lease, including, without limitation, Article 40, are
complied with by Tenant
(2) reasonably
(2a) No consent is required for cosmetic, decorative alterations which do not
require a building permit and which cost less than $15,000 in the aggregate
to complete.
(3) after notice thereof is given to the Tenant
(4) ; provided, however, that Tenant shall not have any obligation to remove
any such installation which is affixed to the Demised Premises in a
permanent manner
(5) or wilful misconduct
(6) or wholly inaccessible
(7) fifteen (15)
(8) (g) Subject to Owner's receipt of insurance proceeds fro its insurer or
lender, if for any reason the repairs necessitated by fire or other
casualty are not substantially completed by Owner within 270 days after the
date of damage, Tenant shall have the right to terminate this Lease upon
not less than thirty (30) days' prior written notice to Owner; provided,
however, that such notice is sent within thirty (30) days after the
expiration of such 270 day period.
(9) upon reasonable prior notice (which may be oral) and accompanied by a
Tenant representative if Tenant desires same
(10) Owner shall in good faith use all commercially reasonabl efforts to
minimize any material interference with Tenant's use of the Demised
Premises in the exercise of Landlord's rights under this Article.
(11) Tenant shall not have any responsibility for violations existing as of the
Commencement Date. Landlord represents that there are no violations
currently encumbering the Demised Premises which will prevent Tenant from
obtaining a building permit for Tenant's Initial Installation (hereinafter
defined).
(12) (and which, in the case of an involuntary case in bankruptcy, is not
dismissed within sixty (60) days of its filing thereof)
(13) including, without limitation,
(14) Tenant shall have access to the Demised Premises 7 days week, 24 hours each
day.
(15) and nondiscriminatory
(16) Landlord agrees to enforce the Rules and Regulations in nondiscriminatory
fashion.
ADDITIONAL CLAUSES ATTACHED TO
AND FORMING A PART OF LEASE DATED
AUGUST 3,1999 BETWEEN MAYORE ESTATES
LLC AND 80 LAFAYETTE ASSOCIATES LLC,
COLLECTIVELY, AS LANDLORD, AND
XXXXXX. XXXXXXX INC.. AS TENANT
IN THE EVENT OF ANY INCONSISTENCIES BETWEEN THE PROVISIONS OF
THIS RIDER AND THE PREPRINTED FORM LEASE TO WHICH IT IS ATTACHED, THE
PROVISIONS OF THIS RIDER SHALL CONTROL.
37. DEMISED PREMISES ACCEPTED AS-IS; POSSESSION: Tenant acknowledges that
neither Landlord nor Landlord's agent has made any representations or promises
with regard to the Demised Premises for the term herein demised. Tenant
acknowledges that Tenant has inspected the Demised Premises and agrees to accept
same as is and that Landlord shall not be obligated to make any repairs,
alterations, improvements or additions to prepare said Demised Premises for
Tenant's occupancy whatsoever, except that Landlord has agreed to construct a
demising wall (the "Landlord's Work") on the twentieth (20th) floor of the
Building separating the Demised Premises located on such floor from certain
adjacent space on such floor located at the southernmost portion of such floor
and which is not being leased to Tenant pursuant to this Lease (such adjacent
space is herein referred to as Unit "A" and is shown on Exhibit "A" annexed
hereto and made a part hereof). The said demising wall shall run from east to
west and shall be constructed so as to be parallel to Xxx Street in that portion
of the Demised Premises. At Landlord's option, Landlord may elect to hire and
pay the Tenant's contractor to perform the Landlord's Work and in such event
Tenant 's contractor shall perform the Landlord's Work, and Landlord shall pay
the Tenant's contractor for the cost of same as reasonably estimated by the
Tenant's architect. The Landlord's Work shall be substantially completed within
thirty (30) days of the later of (i) the Commencement Date (hereinafter defined)
of this Lease and (ii) the date of the submission by Tenant to Landlord of the
plans and specifications for the Tenant's Initial Installation (hereinafter
defined). The plans and specifications for the Tenant's Initial Installation
shall incorporate and specify such demising wall and its planned location within
the Demised Premises.
38. USE:
(A) Subject to and in accordance with the rules, regulations,
laws, ordinances, statutory limitations and requirements of all governmental
authorities and the fire insurance rating organization and board of fire
underwriters and any similar bodies having jurisdiction thereof, Tenant
covenants and agrees that it shall use the Demised Premises solely for general
office use, stock and securities brokerage offices, trading offices, broker
dealer operations, executive and administrative offices and general offices for
research and investment banking and for no other purpose.
(B) Tenant agrees that (i) Landlord shall have the right to
prohibit the continued use by Tenant of any method of operation, advertising or
interior display which shall be in violation of the use permitted herein. Tenant
will not encumber or obstruct or permit to be encumbered or obstructed any
hallway, service elevator, stairway or passageway in the Building. Tenant hereby
indemnifies and holds harmless the Landlord and its lender, agent, tenants and
invitees from any and all loss, cost or expense incurred by reason of the
Tenant's particular manner of use of the Demised Premises, the Building and any
common areas therein or thereon.
(C) Tenant acknowledges that the Demised Premises are located in
a first-class commercial building, that the provisions of this Article 38 are a
material inducement to the Landlord for the execution of this Lease and that a
default by Tenant hereunder shall be deemed a material default by Tenant
hereunder shall be deemed a material default entitling Landlord to exercise any
or all of the remedies provided in this Lease.
39. RENTAL: The payments reserved under this Lease for the term hereof shall be
and consist of the aggregate of:
(A) "Minimum Rent" during the term of the Lease shall be as
follows:
Lease Year(s) Annual Rental Monthly Rental
------------- ------------- --------------
1 - 5 $ 585,620.00 $ 48,801.67
6 - 10 $ 669,280.00 $ 55,773.33
and seven (7)
months in Lease
Year 11
The first "Lease Year" shall commence on the commencement date
(the "Commencement Date") of this Lease, which shall be August 3, 1999, and
shall end on August 31, 2000 and each succeeding "Lease Year" shall run
concurrently with each succeeding period of twelve (12) calendar months. The
Demised Premises shall be delivered to Tenant as of the Commencement Date free
of other tenancies and occupants.
The expiration date of this Lease and the end of the term of
this Lease shall be March 31, 2010 (the "Expiration Date").
Minimum Rent shall be payable in advance, on the first (1st) day
of each calendar month.
Tenant's obligation to pay Minimum Rent under this Lease shall
commence (the "Rent Commencement Date") on April 1, 2000. Except as hereinabove
described, there shall be no abatements of Minimum Rent or Additional Rent under
this Lease.
(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 a default
in payment of Minimum Rent).
(C) The obligation of Tenant to pay all sums of Additional Rent
and electricity charges to Landlord shall commence on the Commencement Date of
the Lease and there shall be no abatement whatsoever of the obligation of Tenant
to pay all sums of Additional Rent and electricity charges during any period or
part of any Lease Year during the term of the Lease.
(D) Landlord hereby directs Tenant to make all Minimum Rent and
Additional Rent payments payable to Mayore Estates LLC.
40. TENANT'S INSTALLATIONS: Except for Landlord's Work, all work necessary or
desirable to make the Demised Premises suitable for Tenant's use and occupancy,
including, without limitation, any changes or work which Tenant intends to make
at the inception of the Lease shall be performed by Tenant at Tenant's own cost
and expense (hereinafter called "Tenant's Work"). Tenant's Work to be performed
by Tenant in the Demised Premises shall be subject to the following conditions:
(A) Tenant shall comply with all of the laws, orders, rules and
regulations of all governmental authorities, and of the fire insurance rating
organization having jurisdiction thereof, and the local board of fire
underwriters, or any similar body, and Tenant shall procure and pay for, so far
as the same may be required, all governmental permits and authorizations;
(B) Prior to commencing Tenant's Work, all plans and
specifications therefore shall be submitted to Landlord for Landlord's prior
written approval said approval not to be unreasonably withheld, conditioned or
delayed as to nonstructural work. Tenant will reimburse Landlord for any
reasonable third party review costs incurred by Landlord in connection with the
Tenant's Initial Installation (hereinafter defined) and for any of Tenant's Work
(other than the Landlord's Work), including, without limitation, reasonable
costs incurred in connection with Landlord's review and/or approval of Tenant's
plans and specifications for any Tenant's Work. In the event Tenant does not
retain the Building's engineer, plans prepared by other engineers shall be
submitted to Landlord's Building engineer for review and Tenant shall reimburse
Landlord for the reasonable cost of such review in addition to any other review
costs incurred by Landlord and required to be reimbursed by Tenant hereunder. In
the event Tenant shall employ any contractor to do any work in the Demised
Premises permitted by this Lease, such contractor and any subcontractor must be
licensed and bonded and said contractor and any subcontractor shall agree to
employ only such labor as will not result in jurisdictional disputes or strikes
or result in causing disharmony with other workers employed at the Building.
Tenant shall inform Landlord in writing of the names of any contractor or
subcontractor Tenant proposes to use in the Demised Premises at least 15 days
prior to the beginning of work by such contractor or subcontractor and Landlord
shall have the right to approve-or disapprove such contractors or
subcontractors, with such approval not to be unreasonably withheld, conditioned
or delayed. Tenant shall only use a fire-alarm contractor pre-approved by
Landlord's managing agent for the Building. The cost of Tenant's Work made at
the inception of this Lease as shown on such contract(s) shall be herein
referred to as "Tenant's Costs";
(C) Tenant's Work shall be prosecuted (i) with reasonable
dispatch, (ii) in accordance with the plans and specifications submitted to, and
approved in writing by, Landlord pursuant to subparagraph (B) hereof and (iii)
only with the use of new first class materials and supplies;
(D) Tenant shall make all necessary payments required so that
the Demised Premises and Building shall upon completion of Tenant's Work be free
of liens for labor and materials supplied in connection with Tenant's Work;
(E) Prior to commencing Tenant's Work, Tenant shall at its own
cost and expense deliver to Landlord an endorsement of its policy of
comprehensive general liability insurance referred to in Article 46 of this
Lease, covering the risk during the course of performance of Tenant's Work,
together with proof of payment of such endorsement, which policy as endorsed
shall protect Landlord in the same amounts against any claims or liability
arising out of Tenant's Work, and Tenant or Tenant's contractors shall obtain
workmen's compensation insurance to cover all persons engaged in Tenant's Work;
(F) Tenant guarantees to Landlord that Tenant's Work shall be
promptly completed and paid for, and upon completion the Demised Premises and
the Building shall be free and clear of all liens, encumbrances, chattel
mortgages, conditional bills of sale and other charges, and Tenant's Work shall
be completed in accordance with the plans and specifications approved by
Landlord; and
(G) Notwithstanding anything herein contained to the contrary,
Tenant shall make all repairs to the Demised Premises necessitated by Tenant's
Work permitted hereunder, and shall keep and maintain in good order and
condition all of the installations in connection with Tenant's Work, and shall
make all necessary replacements thereto.
(H) All of Tenant's Work shall be done in such a manner so as
not to interfere with, delay, or impose any additional expense upon Landlord in
the maintenance or operation of the Building. In no event shall Landlord be
required to consent to any of Tenant's Work which would physically affect any
part of the Building outside of the Demised Premises or would, in Landlord's
sole judgment, adversely affect the proper functioning of any of the mechanical,
electrical, sanitary or other systems of the Building. The approval by Landlord
of any of Tenant's plans and specifications shall not constitute an assumption
of any liability on the part of the Landlord for their accuracy or their
conformity which applicable law, and Tenant shall be solely responsible
therefor. Approval by Landlord of any Tenant's plans and specifications shall
not constitute a waiver by Landlord of the right to thereafter require Tenant to
amend same to provide for omissions therein later discovered by Landlord.
(I) Subject to the terms and conditions set forth below,
Landlord shall expend up to a maximum amount of $702,025.00 ("Landlord's
Contribution") for costs incurred in connection with Tenant's initial
installation in the Demised Premises for the conduct of its business (including
architectural, engineering, expediting and other consulting fees, and all
necessary building department permits and approvals, but not including personal
property not constituting a permanent leasehold improvement) (collectively,
"Tenant's Initial Installation"). Notwithstanding anything to the contrary set
forth in this Lease, Tenant unconditionally acknowledges and agrees that no more
than $104,575.00 of the Landlord's Contribution may be used by Tenant for the
payment of construction-related soft costs associated with the Tenant's Initial
Installation. The costs incurred by Tenant for electrical wiring, computer
wiring and installation and for installation of the Supplementary Unit
(hereinafter defined) may be part of Landlord's Contribution. Landlord shall
disburse from time to time, but not more often than once in any thirty (30) day
period, within ten (10) business days after receipt of Tenant's request
therefor, that portion of Landlord's Contribution equal to the amount set forth
in Tenant's requisition; provided however, that no advance or requisition shall
be made if, and for so long as, Tenant shall be in monetary default under this
lease or non-monetary default under this Lease beyond any applicable notice and
cure period. No requisition or advance shall be made until receipt of a written
request therefor from Tenant and the submission by Tenant of the following:
(1) A certificate signed by Tenant and Tenant's architect, and
AIA Form G702, also signed by Tenant and Tenant's architect, dated not more than
ten (10) days prior to such request, setting forth (a) the sum then justly due
to all contractors, subcontractors, materialmen, engineers, architects and other
persons who have rendered services or furnished materials in connection with
Tenant's Initial Installation, (b) a brief description of such services and
materials and the amounts previously paid or to be paid from such requisition to
each of such persons in respect thereof; (c) that the work described in the
certificate has been completed substantially in accordance with the final plans
which were approved in writing by the Landlord (this statement need not be made
by Tenant, only by Tenant's architect), (d) that there has not been filed with
respect to the Demised Premises or the Building or any part thereof or any
improvements thereon, any vendor's, mechanic's, laborer's, materialmen's or
other like liens arising out of Tenant's Initial Installation which has not been
discharged of record, and (e) that Tenant has complied with all of the
conditions set forth in this Lease applicable to alterations, including the
requirement that Tenant comply with all applicable law (statements (d) and (e)
need not be made by Tenant's architect, only by Tenant); and
(2) Partial lien waivers corresponding to the particular sum
to be advanced or paid (less the ten (10%) retainage amount held back by the
Landlord for such advance or requisition) to each contractor, subcontractor,
materialman, engineer, architect and other persons who have rendered services or
furnished materials in connection with Tenant's Initial Installation with
respect to such particular advance or requisition to be paid thereon, in
recordable form, paid receipts and such other proof of payment as Landlord shall
reasonably require for all work done and materials supplied and amounts paid to
such vendors prior to the current requisition and with respect to the current
requisition.
(J) Landlord has applied for the Property Tax Exemption and
Deferral created by Title II, Chapter 2, Part 3 of the Administrative Code of
the City of New York and accordingly, this Lease is subject to the provisions of
Executive Order Nos. 50 (1980) and 100 (1986) and the Rules and Regulations
promulgated thereunder, as same may from time to time be amended and the New
York City Industrial and Commercial Incentive Program and the Rules and
Regulations promulgated thereunder ("ICIP"). To the extent required, all work
(including, but not limited to Tenant's Initial Installation and all other
Tenant's Work) must be done in strict compliance with the ICIP laws for as long
as the Building continues to qualify for ICIP benefits and, to the extent
required, Tenant acknowledges that Landlord may be required to condition its
approval for any work to be done within the Demised Premises on the approval of
a governmental agency in connection with the foregoing. In furtherance of the
foregoing, Tenant and Tenant's contractor must cooperate in filing documents
required by the Department of Finance and the Department of Business Services of
the City of New York in the procurement of an ICIP exemption and the Lower
Manhattan Energy Program ("LMEP") abatement, and Landlord must, subject to the
express provisions of Exhibit "B" of this Lease, cooperate (at no expense, risk
or loss to Landlord) in executing documents required in connection with the
Lower Manhattan Real Property Tax Abatement Program ("LMRPTAP"). Tenant
acknowledges that Landlord is seeking benefits under the LMEP and that Landlord
agrees to pursue such benefits with reasonable diligence, however Landlord has
not guaranteed or represented to Tenant that any such benefits will actually be
obtained by Landlord for itself or for the benefit of Tenant. Tenant shall
indemnify and hold Landlord harmless for any and all losses, claims, damages,
costs or liabilties suffered or incurred by Landlord arising out of Tenant's
failure to comply with all ICIP, LMEP and LMRPTAP requirements applicable to
Tenant in connection with any Tenant's Work or otherwise in connection with this
Lease and of which Landlord shall have provided Tenant notice.
(K) Anything in this Article to the contrary notwithstanding,
Landlord shall not be required to expend or reimburse the final ten percent
(10%) of Landlord's Contribution and shall in addition be unconditionally
entitled to retain ten (10%) percent from each advance or requisition until it
has received final lien waivers in recordable form, paid receipts and such other
proof of payment as Landlord shall reasonably require for all work done and
materials supplied and amounts paid to such vendors prior to and with respect to
amounts and payments covered by the current requisition, and until Landlord has
also received from Tenant's architect all certificates of final approval
required by any governmental or quasi governmental body in respect of Tenant's
Initial Installation and Tenant and Tenant's contractor shall have submitted any
necessary filings required by the ICIP, the LMEP and/or the LMRPTAP. Following
completion of Tenant's Work and the Tenant's Initial Installation, Tenant shall
cause Tenant's architect to obtain and such architect shall be responsible for
obtaining final approval of Tenant's Work and the Tenant's Initial Installation
from the New York City Department of Buildings and other regulatory bodies
having jurisdiction. In addition, Tenant shall be required to sign a written
statement in form satisfactory to Landlord acknowledging the total cost of
Tenant's Initial Installation and further acknowledging that all contractors,
subcontractors, materialmen, engineers, architects and other persons who have
rendered services or furnished materials in connection with Tenant's Initial
Installation have been previously paid in full. Notwithstanding anything to the
contrary set forth in this Lease, the Tenant acknowledges that if the final ten
percent (10%) of Landlord's Contribution has not been drawn down by the Tenant
or reimbursed to the Tenant within three hundred sixty (360) days of the
Commencement Date of this Lease, then Tenant shall be deemed to have
unconditionally and forever forfeited any rights to the final ten percent (10%)
of Landlord's Contribution and Landlord shall be entitled to retain said sum.
(L) Any modifications, changes or alterations to the Class E
fire safety system for each floor in the Building on which the Demised Premises
are located (each a "Fire Safety System") which are performed after the
Commencement Date, including without limitation, installing speakers, strobes
and pull stations and making other Class E installations and hookups and making
modifications to said Fire Safety System, shall be performed by Tenant at its
sole cost and expense and shall be deemed to be a part of Tenant's Initial
Installation. The work to be performed by Tenant in and to the Fire Safety
System shall be a part of Tenant's Initial Installation, shall be described in
Tenant's plans and specifications therefor and shall be reimbursed as part of
Landlord's Contribution. Tenant may use only the contractor or contractors
designated by Landlord with respect to any Tenant's Work to the Fire Safety
System. Landlord herein acknowledges that "Xxxxxxx" is an acceptable contractor
with respect to any work to be performed by Tenant in and to the Fire Safety
System. Subsequent to any Tenant's work to be performed in and to the Fire
Safety System, such system shall be repaired and maintained only by the
contractors designated by Landlord from time to time, at Tenant's cost. Landlord
shall maintain the Building's Class E fire safety system. Together with the
plans and specifications for Tenant's Initial Installation, Tenant shall provide
to the Landlord and it's engineer for its written approval and comment thereto
the specifications outlining the design and modifications to be made by the
Tenant to the Fire Safety System for the floor(s) on which the Demised Premises
are located. Once Landlord and its engineer approve in writing said plans and
specifications for the modification of the Fire Safety System and adds to such
plans and specifications any modifications required to the Fire Safety System
for the balance of the floor on which the Demised Premises are located, same
shall be forwarded to Xxxxxxx, the service provider for the Fire Safety System.
The parties agree that the costs incurred in connection with the modification
kit for the Fire Safety System for each floor on which the Demised Premises are
located shall be paid pro-rata by Tenant according to the percentage that the
rentable square footage of each portion of the Demised Premises located on a
floor bears to the rentable square footage of each respective floor on which the
Demised Premises are located, and Tenant shall pay such pro-rata charges to
Landlord with ten (10) days of being billed therefor by the Landlord.
41. ELECTRICTY:
(A) Landlord will provide electricity to Tenant on a
submetered basis subject to the terms and conditions of this Article 41.
(B) For the purposes of subsection C of this Article 41,
Landlord and Tenant agree that:
(1) The term "Electric Rate" (including all
applicable surcharges, demand charges, energy charges, fuel adjustment charges,
time of day charges, taxes and other sums payable in respect thereof) shall mean
the greater of either:
(a) the Service Classification 4 Rate 2 (or successor
Service Classification rate) pursuant to which Landlord purchases electricity
from the utility company servicing the Building, or
(b) the Service Classification pursuant to which
Tenant would purchase electricity directly from the utility company servicing
the Building; provided, however, at no time shall the amount payable by Tenant
for electricity be less than the Cost per Kilowatthour (hereinafter defined).
(2) The term "Cost per Kilowatthour" shall mean the
total cost for electricity incurred by Landlord to service the Building during a
particular time period (including all applicable surcharges, demand charges,
energy charges, fuel adjustment charges, time of day charges, taxes and other
sums payable in respect thereof) divided by the total kilowatthours purchased by
Landlord during such period.
(C) Electricity shall be supplied by Landlord to service the
Demised Premises and Tenant shall pay to Landlord, as Additional Rent, within
ten (10) days after rendition of any xxxx, the sum of (a) an amount determined
by applying the Electric Rate to Tenant's consumption of and demand for
electricity within the Demised Premises as recorded on the submeter or submeters
servicing the Demised Premises (as installed by the Tenant at its sole cost and
expense), and (b) Landlord's administrative charge of five (5%) percent of the
amount referred to in (a) above, if and to the extent permitted by law, for
overhead and supervision. Tenant may use one submeter for both the 19th or and
20th floor spaces which comprise the Demised Premises.
When more than one submeter measures the electrical service to
Demised Premises, the service rendered through each submeter shall be separately
computed and billed in accordance with the charges, taxes, terms and rates
stated herein. Bills shall be rendered monthly at such times as Landlord may
elect and, commencing on the earlier of (i) Tenant's occupancy of all or any
portion of the Demised Premises, or (ii) the Commencement Date of the term of
this Lease, the amounts as computed from meter readings shall be deemed to be,
and be paid as, Additional Rent without set-off or deduction. In no event shall
the amount payable by Tenant each month, in consideration of Landlord having
electric current available to the Demised Premises, be less than an amount equal
to the least demand charge shown on Tenant's electric xxxx within the
immediately preceding twelve (12) month period of Tenant's occupancy of the
Demised Premises (or such shorter period of time as Tenant shall have occupied
the Demised Premises if Tenant's occupancy shall have been less than twelve (12)
months.)
For purposes of this Article, the rate to be paid by Tenant
shall include any taxes, energy charges, demand charges, fuel adjustment
charges, rate adjustment charges, or other charges actually imposed in
connection therewith. If any tax is imposed upon Landlord's receipts from the
sale or resale of electrical energy to Tenant by any federal, state, city or
local authority, the pro-rata share of such tax allocable to the electrical
energy service received by Tenant shall be passed onto and paid by Tenant as
Additional Rent if and to the extent permitted by law. Notwithstanding the
foregoing, Tenant shall pay Landlord as Additional Rent from the Commencement
Date until such time as all necessary electrical submeters are installed and
operable for the Demised Premises, an electric charge of $1.50 per square foot
of the Demised Premises until Tenant occupies the Demised Premises for the
purpose of conducting its business in the Demised Premises and $2.50 per square
foot from the time Tenant occupies the Demised Premises for the purpose of
conducting its business in the Demised Premises until all of the aforementioned
submeters are installed and operable. For purposes of this paragraph only, the
Demised Premises are deemed to contain 20, 915 rentable square feet. In no event
shall Tenant or Landlord be entitled to measure, remeasure or adjust the square
footage of the Demised Premises after the date of this Lease and none of the
provisions of this Lease, including, without limitation, the Minimum Rental and
Additional Rental, shall ever be modified based on such square footage.
Tenant shall pay Landlord for any given xxxx period for such
electric current at the prevailing rate Service Classification 4 Rate 2 as
described hereinabove (or successor Service Classification rate, and not the
time-of-day rate schedule (if any), and if any increase or increases in such
rate becomes effective during the term of this Lease, for similar service by any
public service company servicing the part of the city where the Building is
located all such increase or increases shall be paid by Tenant to Landlord or
the meter company designated by Landlord at the same percentage increase as is
shown by the first month's increased charges paid by Landlord, when billed. The
amount to be paid by Tenant for current consumed shall be determined by a
submeter or submeters in the Demised Premises or installed by the Landlord and
billed separately according to such submeter(s). Bills for current consumed by
Tenant (and/or bulbs, lamps or electric fixtures, renewed or replaced) shall be
rendered by Landlord, or the meter company, to Tenant at such time as Landlord
may elect, and shall be deemed to be, and be paid as Additional Rent within ten
(10) days after rendition of any such xxxx. The amounts payable pursuant to this
Section shall be deemed Additional Rent under the Lease. Landlord shall have the
right, in the event of any nonpayment by Tenant of any such bills within said
ten (10) day period after rendition of any xxxx to discontinue and cut off the
use of electric current to Tenant after providing Tenant an additional twenty
(20) day notice, without releasing Tenant from any liability under this Lease,
and without Landlord or the said meter company incurring any liability for any
damage caused by such discontinuance of service.
Tenant further agrees, on demand by Landlord (if Landlord shall
then be supplying electricity to the Demised Premises) if Tenant is then in
default of this Lease after the expiration of any grace or cure period expressly
provided for in this Lease, or the meter company, to deposit with Landlord or
with the meter company designated by Landlord, as applicable, cash deposit
sufficient, in Landlord's reasonable opinion, to secure payment of the
electricity consumed by Tenant in the Demised Premises. No current shall be
furnished until the equipment of the Tenant has been approved by the proper
public authorities, the New York Board of Fire Underwriters and the New York
Fire Insurance Exchange or similar organization having jurisdiction, and no
changes shall be made in such equipment without the written consent of Landlord.
Tenant shall make no changes and/or additions to the electrical equipment,
wiring and/or appliances in the Demised Premises, without the prior written
reasonable consent of landlord. Rigid conduit only will be allowed by Landlord
for exposed work. If, in Landlord's reasonable opinion, as confirmed in writing
by the written opinion of Landlord's electrical consultant, Tenant's
installation overloads any riser or risers, and/or switch or switches in the
Building, Tenant, at Tenant's sole cost and expense, promptly will provide and
install, in conformity with all applicable Legal Requirements and all applicable
provision of the Lease, any additional riser or risers and/or any or all
switches, that any be necessary; but no risers and/or switches may be installed
without Tenant first obtaining the prior written consent of the Landlord.
(D) Landlord shall not in any way be liable or
responsible to Tenant for any loss or damage or expense which Tenant may sustain
or incur if either the quantity or character of electric service is changed or
is no longer available or suitable for Tenant's requirements. Landlord agrees to
provide to the 19th floor portion of the Demised Premises (and Tenant agrees
that at no time will the connected electrical load in the 19th floor portion of
the Demised Premises exceed) in the aggregate 400 amps of electrical power
(exclusive of Building airconditioning). Landlord agrees to provide to the 20th
floor portion of the Demised Premises (and Tenant agrees that at no time will
the connected electrical load in the 20th floor portion of the Demised Premises
exceed) in the aggregate six (6) xxxxx per useable square foot of the 20th floor
portion of the Demised Premises (exclusive of Building air conditioning).
Tenant's use of electric current in the Demised Premises shall not at any time
exceed the capacity of any of the electrical conductors and facilities in or
otherwise serving the Demised Premises. In order to insure that such capacity is
not exceeded and to avert any possible adverse effect upon the Building's
electric service,
Tenant shall not, without Landlord's prior written consent in each instance,
connect any fixtures, appliances or equipment (other than a reasonable number
considering the Tenant's use of the Demised Premises and type of business of
table or floor lamps, typewriters, quotrons, word processors, small computers,
photocopy machines and similar small office machines using comparable electric
current) to the Building's electric distribution system nor make any alteration
or addition to the electric system of the Demised Premises. Should Landlord
grant such consent, all additional risers or other equipment required therefor
shall be provided by Landlord upon notice to Tenant, and all costs and expenses
in connection therewith, including without limitation, those filing and
supervision, shall be paid by Tenant. As a condition to granting such consent,
Landlord may require Tenant to agree to an increase in the Additional Rent by an
amount which will reflect the value to Tenant of the additional service to be
furnished by Landlord, to wit: the potential additional electrical current to be
made available to Tenant based upon the estimated initial total capacity of such
additional risers or other equipment. If Landlord and Tenant cannot agree on the
amount of such Additional Rent increase, the same shall be determined by a
reputable electrical consultant, to be selected by Landlord and paid equally by
both parties. The parties shall then execute an agreement prepared by Landlord
amending this Lease and setting forth the new Additional Rent resulting from
such increases and confirming the effective date thereof, but such increase
shall be effective from such date even if such agreement is not executed.
(E) Landlord reserves the right to discontinue
furnishing electric current to Tenant in the Demised Premises at any time upon
not less than sixty (60) days' notice to Tenant, provided that Landlord shall
not exercise such right unless it discontinues furnishing electricity to a
substantial portion of the Building.
(F) If Landlord, at Landlord's option, (i) exercises
such right of discontinuance as provided in paragraph E, or (ii) requires Tenant
to initially obtain its electric current directly from the public utility
corporation supplying electric current to the Building, this Lease shall
continue in full force and effect and shall be unaffected thereby except only
that, from and after the effective date of such discontinuance, or the
commencement of direct usage, as the case may be, Landlord shall not be
obligated to furnish electric current to Tenant. If Landlord is not to furnish
electric current to Tenant, Tenant shall arrange to obtain electric current
directly from the public utility corporation supplying electric current to the
Building; and in any event, unless same are already installed in sufficient
capacity and number in the Building, all risers, equipment and other facilities
which may be required for Tenant to obtain electric current directly from such
public utility corporation shall, at Tenant's expense, payable in advance to
Landlord upon demand, be installed by Landlord, if in Landlord's judgment the
same are necessary and will not cause damage or injury to the Building or any
part thereof or create a hazardous condition or entail excessive alterations,
repairs or expense or interfere with or disturb any other Building tenants or
occupants; and in any event, any such installation shall be maintained by
Tenant, at its expense, and shall be subject to such reasonable conditions as
Landlord and/or the public utility corporation may require. If, on the other
hand, Landlord is required by law or other applicable requirements of
governmental entities having jurisdiction over the Building to discontinue
furnishing electric energy to Tenant, Tenant shall reimburse Landlord promptly
upon demand for the cost incurred by Landlord in making such changes to panel
boards, feeders, risers, wiring and other conductors and equipment in order to
permit Tenant to obtain electric energy direct from the Utility Company. If
Landlord shall not furnish electric current to Tenant, it shall not be liable to
Tenant therefor 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.
(G) If any taxes or charges are or shall be imposed
upon Landlord or its agent in connection with the sale or resale of electrical
energy to Tenant, Tenant covenants and agrees that, where permitted by law,
Tenant's pro-rata share of such taxes or charges shall be passed on to Tenant
and paid by Tenant to Landlord or its agent upon demand, as Additional Rent,
without set-off or deduction. At all times during the term of this lease Tenant
will comply with all present and future general rules, regulations, terms and
conditions applicable to service equipment, wiring and requirements in
accordance with the regulations of the public utility corporation supplying
electric current to the Building.
(H) Landlord's failure during the term of this Lease to
prepare and deliver any statements or bills under this Article or Landlord's
failure to make a demand under this Article or any other provisions of this
Lease, shall not in any way be deemed to be a waiver of, or cause Landlord to
forfeit or surrender its rights to collect, any increase in the Minimum Rent, or
any amount of Additional Rent which may have become due pursuant to this Article
during the term of this Lease. Tenant's liability for any amounts due under this
Article shall continue unabated during the remainder of the term of this Lease
and shall survive the expiration or sooner termination of this Lease.
42. TAX ESCALATION:
(A) As used in t his Lease:
(i) "Taxes" shall mean the real estate taxes and
assessments and special assessments imposed upon the Building and/or the land on
which the Building is situated by any governmental bodies or authorities (the
"Land") and any rights or interests appurtenant thereto payable by Landlord
during any Tax Year. If at any time during the term of this Lease the methods of
taxation prevailing at the commencement of the term hereof shall be altered so
that in lieu of, or as an addition to or as a substitute for the whole or any
part of the taxes, assessments, levies, impositions or charges now levied,
assessed or imposed on real estate and the improvements thereof, there shall be
levied, assessed and imposed (a) a tax, assessment, levy or otherwise on the
rents received therefrom, or (b) a license fee measured by the rent payable by
Tenant to Landlord, or (c) any other such additional or substitute tax,
assessment, levy, imposition or charge, 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 purpose hereof. In no
event shall "Taxes" include income, inheritance, franchise, gross receipts or
other similar taxes. A copy of the tax xxxx of The City of New York or other
taxing authority imposing Taxes on the Land or the. Building shall be sufficient
evidence of the amount of Taxes. Subject to the provisions of Exhibit "B" of
this Lease, notwithstanding the fact that the aforesaid Additional Rent is
measured by Taxes, such amount is Additional Rent and shall be paid by Tenant as
provided herein regardless of the fact that Tenant may be exempt, in whole or in
part, from the payment of any Taxes for any reason whatsoever.
(ii) "Base Tax" shall mean Taxes, as finally determined,
for the fiscal period of July 1, 1999 through June 30, 2000. The aforesaid shall
be calculated without regard to any abatement obtained by Landlord under the
LMRPTAP.
Landlord represents that the fiscal period of July 1,
1999 through June 30,2000 is the Building's first benefit year under the ICIP.
Landlord represents that taking into account the ICIP, the current Taxes for the
fiscal period of July 1, 1999 through June 30, 2000 are $1,810,953.12.
(iii) "Tax Year" shall mean the fiscal year commencing on
July 1 and ending on June 30 (or such other period as hereinafter may be duly
adopted by the City of New York as its Fiscal Year for real estate tax
purposes), any portion of which fiscal period occurs during the term of this
Lease.
(iv) "Tenant's Share" shall be three and thirteen one
hundredths (3.13 %) percent.
(B) (i) If the Taxes for any Tax Year shall be more than the
Base Tax, Tenant shall pay as Additional Rent for such Tax Year an amount equal
to Tenant's Share of the amount by which the Taxes for such Tax Year are greater
than the Base Tax (the amount payable by Tenant is hereinafter called the "Tax
Payment"). The Tax Payment shall be prorated, if necessary, to correspond with
that portion of a Tax Year occurring within the term of this Lease. At
Landlord's sole option, the Tax Payment shall either (1) be payable by Tenant
within ten (10) days after receipt of a demand from Landlord therefor or (2)
shall be payable by Tenant to Landlord in equal monthly installments on the
first day of each month in an amount as reasonably estimated by the Landlord,
and shall in any event be adjusted from time to time with such adjusted amount
being remitted by Tenant to Landlord upon Landlord's written demand therefor. At
Tenant's written request, Landlord shall provide copies of then current bills
for the Taxes to Tenant.
(ii ) In the event the Base Tax is reduced, Landlord
shall have the right to adjust the amount of Tax Payment due from Tenant for any
Tax Year in which Tenant is or was obligated to pay a Tax Payment hereunder, and
Tenant agrees to pay the amount of said adjustment on the next rental
installment day immediately following receipt of a rent statement from Landlord
setting forth the amount of said adjustment. The parties acknowledge that in no
event shall the Minimum Rent ever be reduced as a result of a tax certiorari
proceeding or as a result of any reduction in Taxes or the Base Tax.
(C) Only Landlord shall be eligible to institute tax reduction
or other proceedings to reduce the assessed valuation of the Land and the
Building, provided, however, that Tenant shall be required to make all Tax
Payments due under this Article while any such proceedings are pending. Should
Landlord be successful in any such reduction proceedings and obtain a rebate for
periods during which Tenant has paid its share of increases, Landlord shall
after deducting its expenses, including customary, market-dictated attorneys'
fees and disbursements in connection therewith, return Tenant's Share of such
rebate to Tenant.
(D) With respect to any period at the expiration of the term
of this Lease which shall constitute a partial tax year, Landlord's statement
shall apportion the amount of the Additional Rent due hereunder. The obligation
of Tenant in respect to such Additional Rent applicable for the last year of the
term of this Lease or part thereof shall survive the expiration of the term of
this Lease.
(E) Landlord will assist and cooperate with Tenant in filing a
commercial revitalization program application and all applicable additional
documents associated with such application promptly following the execution and
delivery of this Lease in accordance with the provisions of Exhibit "B" annexed
hereto and made a part hereof.
(F) At such times as are required by the New York City
Department of Finance or other authority having jurisdiction (of which times
Landlord shall give Tenant reasonable prior written notice), Tenant agrees to
report to Landlord the number of workers permanently engaged in employment in
the Demised Premises, the nature of each worker's employment and whether each
worker is a New York City resident. Tenant further agrees to provide access to
the Demised Premises to the New York City Department of Finance at all
reasonable times and upon reasonable notice at the request of Landlord.
43. TENANT'S OPERATING PAYMENT:
(A) As used in this Lease:
(i) "Operating Expenses" shall mean the
aggregate of those costs and expenses (and taxes thereon, if any) paid or
incurred by Landlord or on behalf of Landlord with respect to the operation,
cleaning, repair, safety, replacement, management, security and maintenance of
the Building and the Land (collectively, the "Real Property"), Building Systems,
sidewalks, curbs, plazas and other areas adjacent to the Building, and with
respect to the services provided to tenants, including, without limitation: (i)
salaries, wages and bonuses paid to, and the cost of any hospitalization,
medical, surgical, union and general welfare benefits (including group life
insurance), any pension, retirement or life insurance plans and other benefits
or similar expenses relating to, employees of Landlord engaged in the operation,
cleaning, repair, safety, replacement, management, security or maintenance of
the Building, the Land and the Building Systems or in providing services to
tenants; (ii) social security, unemployment and other payroll taxes, the cost of
providing disability and worker's compensation coverage imposed by any
applicable legal requirement ("Requirement"), union contract or otherwise with
respect to said employees; (iii) the cost of gas, oil, steam, water, sewer
rental, HVAC and other utilities furnished to the common areas of the Building
and utility taxes; (iv) the expenses incurred for casualty, rent, liability,
fidelity and any other insurance; (v) the cost of repairs, maintenance and
painting, including the cost of acquiring or renting all supplies, tools,
materials and equipment used in operating or repairing the Building; (vi)
expenditures, whether by purchase or lease, for capital improvements and capital
equipment that under generally applied real estate practice are expensed or
regarded as deferred expenses and capital expenditures, whether by purchase or
lease, that are made by reason of Requirements or for emergency or labor saving
devices or security or property protection systems or in lieu of a repair, in
each case such capital expenditures to be included in Operating Expenses for the
Operating Year in which such costs are incurred and every subsequent Operating
Year, on a straight-line basis, to the extent that such items are amortized over
their useful life, with interest calculated at an annual rate equal to two (2%)
percent over Citibank, N.A.'s "prime" or "base" lending rate ("Base Rate") in
effect at the time of Landlord's having made said expenditure; (vii) the cost or
rental of all supplies, tools, materials and equipment; (viii) the cost of
uniforms, work clothes and dry cleaning; (ix) the cost of window cleaning,
janitorial, concierge, guard, watchman or other security personnel, service or
system, if any; (x) management fees in an amount not to exceed five (5%) percent
of the annual gross rents and gross revenues for the Building; (xi) charges of
independent contractors performing work included within this definition of
Operating Expenses; (xii) telephone and stationery costs; (xiii) reasonable
legal, accounting and other professional fees and disbursements incurred in
connection with the operation and management of the Building and the Land; (xiv)
association fees and dues; (xv) the cost of decorations; (xvi) depreciation of
hand tools and other movable equipment used in the operation, cleaning, repair,
safety, management, security or maintenance of the Building; (xvii) exterior and
interior landscaping; (xviii) electrical usage costs incurred in the operation
of the common areas of the Building including, but not limited to, the
electrical energy required to run the Building's elevators; and (xix) any and
all other costs and expenses incurred by Landlord in the operation and
maintenance of the Real Property. Notwithstanding any provision in this Article
to the contrary, if Landlord shall discontinue the redistribution or furnishing
of electrical energy to all tenants in the Building, then the cost and expense
incurred by Landlord for electricity shall thereafter be deemed to be one
hundred (100%) percent of the total cost and expenses to Landlord of purchasing
electricity for the Building.
Provided, however, that the foregoing costs and expenses shall
exclude or have deducted from them, as the case may be:
(a) executives' salaries above the grade of building
manager;
(b) Taxes or taxes that are imposed solely on
Landlord's business, such as franchise taxes,
excess profits taxes or income taxes;
(c) refinancing costs and mortgage interest and
amortization payments;
(d) leasing commissions, rental concessions and lease
buy-outs;
(e) depreciation, except as specifically provided in
clauses (vi) and (xvi) above and in the first
unlettered paragraph following this paragraph;
(f) rental under any ground or underlying lease and
costs incurred by Landlord in connection with the
sale or rental of the Land or Building;
(g) the cost of preparing, renovating or improving
space in the Building for initial occupancy by
tenants;
(h) professional fees (including legal and
accounting) incurred by Landlord in the
preparation of leases or in connection with
disputes with tenants or in connection with
obtaining approvals from or otherwise negotiating
with lessors or mortgagees;
(i) cost of any repair made by Landlord to remedy
damage caused by Landlord's or its agents gross
negligence or wrongful misconduct or wrongful
omission;
(j) amounts recovered by Landlord as insurance
proceeds or condemnation awards to the extent
they are compensation for sums previously
included in Operating Expenses hereunder;
(k) costs of repairs or replacements incurred by
reason of fire or other casualty or condemnation;
(1) advertising, marketing and public relation fees
incurred by Landlord to market the Building;
(m) costs incurred for doing work or services for any
tenant (including Tenant) which is to be fully
reimbursed to Landlord by such party;
(n) the cost of electricity furnished directly to the
Demised Premises or any other fully-tenanted or
tenantable space in the Building;
(o) any fines, penalties or similar punitive amounts
paid or incurred by Landlord in connection with,
or as a result of, violations of applicable laws
and requirements of public authorities;
(p) cost incurred by Landlord for the removal of
asbestos or other hazardous materials in the
Building (if any);
(q) costs otherwise included in Operating Expenses to
the extent actually reimbursed directly from
Tenant or another tenant;
(r) costs included in the Operating Expenses to the
extent allocable to other properties owned by the
Landlord; and
(s) the cost of services of work performed in
connection with the installation or operation of
any specialty facility at the Building such as a
health club, childcare facility, luncheon
facility or the like unless same is mandated by
law or is installed upon the vote of a majority
of the Building's tenants or of those tenants
occupying a majority of the rentable square
footage of the Building.
If Landlord purchases any item of capital equipment
or makes any capital expenditure that is intended to have the effect of reducing
the expenses that would otherwise be included in Operating Expenses, then the
costs of such capital equipment or capital expenditure shall be included in
Operating Expenses [as same is described hereinabove in Paragraph
(43)(A)(i)-(vi)] for the Operating Year in which the costs are incurred and
every subsequent Operating Year on a straight-line basis, to the extent that
such items are amortized over their useful life, with interest calculated at an
annual rate of two (2%) percent over the Base Rate in effect at the time of
Landlord's having made said expenditure. If Landlord leases any item of capital
equipment designed to result in savings or reductions in expenses that would
otherwise be Included in Operating Expenses, then the rentals and other costs
paid with respect to such leasing shall be included in Operating Expenses for
the Operationing Years in which such rentals and costs are incurred.
If Landlord is not furnishing any particular work or
service (the cost of which if performed by Landlord would constitute an
Operating Expense) to a tenant who has undertaken to perform such work or
service in lieu of the performance thereof by Landlord for all or any portion of
an Operating Year, Operating Expenses for such Operating Year shall be deemed to
be increased by an amount equal to the additional Operating Expenses which
reasonably would have been incurred during such Operating Year by Landlord if it
had, at its own expense, furnished such work or service to such tenant.
(ii) "Base Operating Factor" equals the
Operating Expenses paid or incurred during the Operating Year beginning January
1, 2000 and ending December 31, 2000.
(iii) "Operating Year" shall mean each
calendar year that includes any part of the term of the Lease.
(iv) "Landlord's Operating Statement" shall
mean a statement containing a computation of Additional Rent due pursuant to
the provisions of this Article furnished by Landlord to Tenant.
(B) Tenant shall pay as Additional Rent for each
Operating Year (including the Operating Year in effect on the Commencement Date)
an amount ("Tenant's Operating Payment") equal to Tenant's Share of the amount
by which Operating Expenses for such Operating Year are greater than the Base
Operating Factor.
(C) Landlord may furnish to Tenant, with respect to
each Operating Year, a Landlord's Operating Statement setting forth Landlord's
estimate of Tenant's Operating Payment for such Operating Year ("Tenant's
Projected Operating Share"). At Landlord's option, (i) Tenant shall pay to
Landlord on the first day of each month during such Operating Year, as
Additional Rent, an amount equal to one-twelfth of Tenant's Projected Operating
Share for such Operating Year; or (ii) the Tenant's Projected Operating Share
for such Operating Year shall be payable by Tenant to Landlord within ten (10)
days of Landlord's written demand therefor. If, however, Landlord furnishes any
such Landlord's Operating Statement for an Operating Year subsequent to the
commencement of such Operating Year, then (a) until the first day of the month
following the month in which such Landlord's Operating Statement is furnished to
Tenant, Tenant shall pay to Landlord on the first day of each month an amount
equal to the monthly sum payable by Tenant to Landlord under this Article in
respect of the last month of the preceding Operating Year; (b) after such
Landlord's Operating Statement is furnished to Tenant or together therewith,
Landlord shall give notice to Tenant stating whether the installments of
Tenant's Projected Operating Share previously made for such Operating Year were
greater or less than the installments of Tenant's Projected Operating Share to
be made for such Operating Year in accordance with such estimate, and (i) if
there is a deficiency, Tenant shall pay the amount thereof within thirty (30)
days after demand therefor, or (ii) if there was an overpayment, Landlord shall
credit the amount thereof against subsequent payments of Additional Rent; and
(c) on the first day of the month following the month in which such Landlord's
Operating Statement is furnished to Tenant, and monthly thereafter throughout
the remainder of such Operating Year, Tenant shall pay to Landlord, at
Landlord's option, either: (a) an amount equal to one-twelfth of Tenant's
Projected Operating Share shown in such Landlord's Operating Statement, or (b)
the Tenant's Projected Operating share for such Operating Year shall be payable
by Tenant to Landlord within ten (10) days of Landlord's written demand
therefor. Landlord may furnish to Tenant a revised Landlord's Operating
Statement with a new estimate of Tanant's Projected Operating Share for such
Operating Year and, in such case, Tenant's Projected Operating Share for such
Operating Year shall be adjusted and paid or credited, as the case may be,
substantially in the same manner as provided in the proceeding sentence.
(D) After the end of each Operating Year, Landlord
shall furnish to Tenant a Landlord's Operating Statement for such Operating
Year. Each such year-end Landlord's Operating Statement shall be accompanied by
a computation of Operating Expenses for the Building prepared by the Landlord
(or its agent or accountant) from which Landlord shall make the computation of
Additional Rent due in respect of Operating Expenses hereunder. In making
computations of Operating Expenses, the Landlord (or its agent or accountant)
may rely on Landlord's reasonable estimates and allocations whenever said
estimates and allocation are needed for this Article. If the Landlord's
Operating Statement shows that the sums paid by /Tenant under the Article
exceeded Tenant's Operating Payments required to be paid by Tenant for such
Operating Year, Landlord shall credit the amount of such excess against
subsequent payments of Additional Rent; and if the Landlord's Operating
Statement for Operating Zyear shows that the sums so paid by Tenant were less
than Tenant's Operating Payment due for such Operating Year, Tenant shall pay
the amount of such deficiency within thirty (30) days after demand therefor.
(E) Landlord's failure to render any Landlord's
Operating Statement with respect to any Operating Year shall not prejudice
Landlord's right thereafter to render a Landlord's Operating Statement with
respect thereto or with respect to any subsequent Operating Year, nor shall the
rendering of a Landlord's Operating Statement prejudice Landlord's right
thereafter to render a corrected Landlord's Operating Statement for that
Operating Year.
(F) If the Commencement Date or the Expiration Date
occurs on a date other than January 1 or December 31, respectively, any Tenant's
Operating Payment under this Article for the Operating Year in which such
Commencement Date or Expiration Date occurs shall be apportioned in that
percentage which the number of days in the period from the Commencement Date to
December 31 or from January 1 to the Expiration Date, as the case may be, both
inclusive, bears to the total number of days in such Operating Year. In the
event of a termination of this Lease, any Additional Rent under this Article
shall be paid or adjusted within thirty (30) days after submission of a
Landlord's Operating Statement. In no event shall Minimum Rent ever be reduced
by operation of this Article, and the rights and obligations of Landlord and
Tenant under the provisions of this Article with respect to any Additional Rent
shall survive the Expiration Date.
(G) Any Landlord's Operating Statement sent to Tenant
shall be conclusively binding upon Tenant unless, within sixty (60) days after
such Landlord's Operating Statement is sent, Tenant shall send a written notice
to Landlord objecting to such Landlord's Operating Statement and specifying the
respects in which such Landlord's Operating Statement is disputed. If Tenant
shall send such notice with respect to a Landlord's Operating Statement, and
Landlord shall determine that such objection(s) are reasonable and are made in
good faith, then Tenant may, on its own behalf by an independent certified
public accountant (selected and paid by Tenant) examine Landlord's books and
records relating solely to disputed aspects of the Operating Expenses to
determine the accuracy of Landlord's Operating Statement. Tenant recognizes the
confidential nature of Landlord's books and records, and agrees that any
information obtained by Tenant's accountant during any examination shall be
maintained in strict confidence by such accountant, without revealing same to
any person, including Tenant. If, after such examination, such accountant shall
in good faith dispute such Landlord's Operating Statement and shall describe
such dispute in a detailed, written notice and explanation of such dispute sent
to Landlord, then either party may refer the decision of the issues raised to a
reputable independent firm of certified public accountants, selected by Landlord
and approved by Tenant, which approval shall not be unreasonably withheld, and
the decision of such accountants shall be conclusively binding upon the parties.
The fees and expenses involved in resolving such dispute shall be borne by
Tenant (unless Landlord's Operating Statement overestimated the charges to be
paid by Tenant by more than seven and one-half (7.5%) percent, in which event
the reasonable fees and expenses shall be borne by Landlord). Notwithstanding
the giving of such notice by Tenant, and pending the resolution of any such
dispute, Tenant shall promptly pay to Landlord when due the actual amount shown
on any such Landlord's Operating Statement, as provided in this Article.
44. WAIVER OF SUBROGATION: Each party hereby releases the other party (which
term as used in this Article includes the employees, agents, officers and
directors of the other party) from all liability, whether for negligence or
otherwise, in connection with loss covered by any fire and/or extended coverage
insurance policies, which the releasor carries with respect to the Demised
Premises, or any interest or property therein or thereon (whether or not such
insurance is required to be carried under this lease), but only to the extent
that such loss is collected under said fire and/or extended coverage insurance
policies. Such release is also conditioned upon the inclusion in the policy or
policies of a provision whereby any such release shall not adversely affect said
policies, or prejudice any right of the releasor to recover thereunder. Each
party agrees that its insurance policies aforesaid will include such a provision
so long as the same shall be obtainable without extra cost, or if extra cost
shall be charged therefor, so as the party for whose benefit the clause or
endorsement is obtained shall pay such extra cost. If extra cost shall be
chargeable therefor, each party shall advise the other thereof of the amount of
the extra cost, and the other party at its election, may pay the same, but shall
not be obligated to do so.
45. COMPLIANCE WITH LAWS: Supplementing the provisions of Article 6 hereof,
Tenant shall give prompt notice to Landlord of any notice it receives of the
violation of any law or requirement of any public authority with respect to the
Demised Premises or the use or occupation thereof. Tenant shall promptly comply
with all present and future laws, orders and regulations of all state, federal,
municipal and local governments, departments, commissions and boards or any
direction of any public officer pursuant to law and all orders, rules and
regulations of the New York Board of Fire Underwriters or any similar body
arising out of Tenant's particular use of the Demised Premises which shall
impose any violation, order or duty upon Landlord or Tenant with respect to
Tenant's particular use of the Demised Premises (in which event Tenant shall
effect such compliance at its sole cost and expense) or the Building (in which
event, notwithstanding anything herein to the contrary, Landlord shall effect
such compliance but Tenant shall promptly pay to Landlord Tenant's share, as
defined in Paragraph 42(A) (iv), of the cost thereof).
46. INDEMNITY-LIABILITY INSURANCE:
(A) Tenant covenants and agrees to indemnify and save
Landlord harmless from and against any and all claims arising during the term of
this lease for damages or injuries to goods, wares, merchandise and property
and/or for any personal injury or loss of life in, upon or about the Demised
Premises, except such claims as may be the result of the gross negligence of
Landlord, its agents, employees or contractors.
(B) Tenant further covenants and agrees to indemnify
Landlord against the cost of any actual, documented increase in Landlord's
insurance rates resulting from Tenant's use or manner of use of the Demised
Premises. Tenant shall reimburse Landlord for any such increase within fifteen
(15) days after Landlord bills Tenant therefor.
(C) Tenant covenants to provide on or before the
commencement of the term hereof and to keep in force during the term hereof for
the benefit of Landlord and Tenant a comprehensive policy of liability insurance
protecting Landlord and Tenant against any liability whatsoever occasioned by
accident on or about the Demised Premises or any appurtenances thereto. Such
policy is to be written by good and solvent insurance companies satisfactory to
Landlord of at least a Best's Rating of "A+" or better, and the amounts of
liability thereunder shall not be less than the amount of $4,000,000 in respect
of any one person, in the amount of $8,000,000 in respect of any one accident,
and in the amount of $2,000,000 in respect of property damage. The aforesaid
insurance policy or a certificate evidencing such insurance shall name Landlord
and Landlord's managing agent, Landlord's mortgagee and other designees as
"additional insureds" under such policy and said policy shall be delivered to
Landlord upon Tenant's execution of this Lease. Prior to the time such insurance
is first required to be carried by Tenant, and thereafter at least thirty (30)
days prior to the expiration of any such policy, Tenant agrees to deliver to
Landlord either a duplicate original of the aforesaid policy or a certificate
evidencing such insurance and meeting the requirements of this Article, provided
said certificate contains an endorsement that such insurance may not be canceled
or modified except upon thirty (30) days prior written notice to Landlord,
together with evidence of payment for the policy. Tenant's failure to provide
and keep in force the aforementioned insurance shall be regarded as a material
default hereunder, entitling Landlord to exercise any or all of the remedies as
provided in this ease in the event of Tenant's default.
47. ASSIGNMENT, SUBLETTING, MORTGAGING:
(A) Tenant will not by operation of law or otherwise,
assign, mortgage or encumber this Lease, not sublet or permit the Demised
Premises or any part thereof to be used by others, without Landlord's prior
express written consent in each instance. Subject to the provisions of Paragraph
(47)(B)(vii) hereinbelow, any transfer, by operation of law or otherwise, of
Tenant's interest in this Lease (in whole or in part) or of a fifty (50%)
percent or greater interest in Tenant (whether stock, partnership interest or
otherwise) shall be deemed an assignment of this Lease within the meaning of
this Article. (The issuance of shares of stock to other than the existing
shareholders shall be deemed to be a transfer of such stock for the purposes of
this Article.) Subject to the provisions of Paragraph (47)(B)(vii) hereinbelow,
if there has been a previous transfer of less than a fifty (50%) percent
interest in Tenant during the term of this Lease, any other transfer of an
interest in Tenant which would then result in an aggregate transfer of greater
than a fifty (50%) percent interest in Tenant shall be deemed an assignment of
Tenant's interest in this Lease within the meaning of this Article.
(B) (i) In the event that Tenant shall at any time or
times during the term of this Lease desire to assign this Lease or sublet all or
any part of the Demised Premises, Tenant shall give notice (the
"Assignment/Sublet Notice") thereof to Landlord, which notice shall be
accompanied by (a) at Tenant's option, either a conformed or photostatic copy of
the proposed assignment or sublease agreement (provided, however that such
proposed assignment or sublease agreement need not be in executed form if
accompanied by a writing signed by Tenant and the proposed assignee or sublessee
indicating their intent to enter into the proposed assignment or sublease upon
Landlord consenting thereto), or a copy of a letter of intent (the "Letter of
Intent") executed by or on behalf of Tenant and the proposed assignee or
subtenant setting forth the material business terms of the proposed assignment
or sublease, in either event, the effective or commencement date of which shall
be at least fifteen (15) business days after the giving of such notice, (b) a
statement setting forth in reasonable detail the identity of the proposed
assignee or subtenant, the nature of its business and its proposed use of the
Demised Premises, (c) current financial information with respect to the proposed
assignee or subtenant, including, without limitation, its most recent financial
report or statement (if same exists, and if not, the equivalent information in a
form reasonably satisfactory to Landlord), and (d) such other information as
Landlord may reasonably request. Such notice shall be deemed an offer from
Tenant to Landlord whereby Landlord (or Landlord's designee) may, at its option:
(i) terminate this Lease (if the proposed transaction is an assignment or
sublease of all or substantially all of the Demised Premises), or (ii) terminate
this Lease with respect to the space covered by the proposed sublease (if the
proposed transaction is a sublease of part of the Demised Premises for all or
substantially all of the remainder of the term of this Lease, i.e., the term of
which expires during the final eighteen (18) months prior to the Expiration
Date). For purposes of this paragraph, "substantially all of the Demised
Premises" shall mean more than seventy (70%) percent thereof. Said options may
be exercised by Landlord by notice to Tenant at any time within fifteen (15)
business days after Landlord's receipt of the Assignment/Sublet Notice, together
with all other documentation and information required pursuant to this paragraph
to be given by Tenant to Landlord ("Recapture Period"); and during such
Recapture Period Tenant shall not assign this Lease or sublet such space to any
person. Following the expiration of the Recapture Period, Tenant shall have
thirty (30) days to submit to Landlord Tenant's written request for Landlord's
consent to a proposed assignment or sublease on the same terms and conditions as
were contained in the proposed assignment or sublease or the Letter of Intent,
which was previously submitted to Landlord pursuant to this Section, whichever
is applicable. In the event that Tenant fails to submit such written request for
Landlord's consent as set forth in the preceding sentence within such 30 day
period, then in connection for with any request for Landlord's consent to such
proposed assignment of this Lease or proposed subletting of the Demised Premises
or any portion thereof submitted after such 30 day period, Tenant will be
required to comply with all of the requirements of this paragraph and Landlord
shall have all the options under this paragraph.
(ii) If Landlord exercises its option to terminate this
Lease in the event that Tenant desires either to assign this Lease or to sublet
all or substantially all of the Demised Premises, then this Lease shall end and
expire upon the date that such assignment or subletting was to be effective or
to commence, as the case may be, and the Minimum Rent and Additional Rent shall
be paid and apportioned to such date. If Landlord exercises its option to
terminate this Lease as to a portion of the Demised Premises in the event that
Tenant desires to sublet a portion of the Demised Premises, then this Lease,
with respect to the portion of the Demised Premises affected by such subletting,
shall end and expire upon the date that such subletting was to commence, the
Minimum Rent payable hereunder and the Additional Rent payable pursuant to this
Lease hereof shall be adjusted in proportion to the portion of the Demised
Premises affected by such termination and Tenant shall at its sole cost and
expense (and prior to the effective date of said sublease) erect such demising
walls as are necessary to separate the terminated portion of the Demised
Premises from the remainder of the Demised Premises and to provide access
thereto.
(iii) In the event that Tenant complies with the
provisions of this subparagraph of this Article and Landlord does not exercise
an option provided to it thereunder within the time provided therefor, and
provided that Tenant is not in default of any of Tenant's obligations under this
Lease, Landlord's consent (which must be in writing and in form reasonably
satisfactory to Landlord) to the proposed assignment of this lease or subletting
of a portion or all of the Demised Premises shall not be unreasonably withheld
or delayed, provided the following conditions have been satisfied:
(1) in Landlord's reasonable judgment, the proposed
assignee or subtenant is engaged in such a business , and the Demised Premises
will be used in such a manner, that: (x) is limited to the use expressly
permitted under this Lease; and (y) will not violate any negative covenant as to
use contained in any other Lease of space in the Building about which Tenant has
been informed following its request to Landlord for such information;
(2) the proposed assignee or subtenant is a
reputable person of good character and with sufficient financial worth
considering the responsibility involved, and Landlord has been furnished with
reasonable proof thereof;
(3) the proposed assignee or sublessee is not then
an occupant of any part of the Building who is seeking to relocate to the
Demised Premises (or any portion thereof) from any other space in the Building;
(4) the proposed assignee or sublessee is not a
personwith whom Landlord is then, or shall have been during the previous twelve
(12) month period, negotiating to lease space in the Building;
(5) Tenant shall have submitted to Landlord a fully
executed counterpart of the proposed assignment or the proposed sublease, as the
case may be, and the form of the same shall be reasonably satisfactory to
Landlord and shall comply with the applicable provisions of this Article;
(6) The rental rate to be paid by the proposed
subtenant is not less than the then current rental rate being charged by
Landlord under leases being entered into for comparable space in the Building,
and the other terms and conditions of the sublease are the same as those
contained in the proposed sublease furnished to Landlord pursuant to paragraph
(b) of this Article;
(7) Tenant shall reimburse Landlord on demand for
an costs that may be incurred by Landlord in connection with said agreement or
sublease, including the costs of making investigations as to the acceptability
of the proposed assignee or subtenant and the reasonable legal costs incurred in
connection with the granting of any requested consent;
(8) Tenant shall not have (a) advertised or publicized
in any way the availability of the Demised Premises without prior notice to, and
approval by, Landlord, which approval Landlord agrees not to unreasonably
withhold, nor shall any advertisement state the name (as distinguished from the
address) of the Building, or (b) listed the Demised Premises for subletting or
assignment, with a broker, agent or representative or otherwise, at a proposed
rental less than the Minimum Rent and Additional Rent at which Landlord is then
offering to Lease other space in the Building;
(9) the sublease shall not provide for an option on
behalf of the subtenant thereunder to extend or renew the term of such sublease
and shall also not grant to subtenant any space option or other option set forth
in this Lease (which option(s) is (are) only granted to the original Tenant
hereunder);
(10) such subletter shall not result in there being
more than three (3) occupants of the Demised Premises in the 19th floor portion
of the Demised Premises (inclusive of Tenant) and two (2) occupants in the 20th
floor portion of the Demised Premises (inclusive of Tenant); and
(11) the proposed assignee or subtenant shall not be
(i) a government or any subdivision or agency thereof, (ii) a school, college,
university or educational institution of any type, whether for profit or
nonprofit, (iii) an employment agency, or (iv) a provider of medical services of
any kind.
(iv) 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 and/or acceptance
of Minimum Rent or Additional Rent by Landlord from any subtenant, Tenant shall
and will remain fully liable for the payment of the Minimum Rent and Additional
Rent due, and to become due, hereunder, for the performance of all of the
covenants, agreements, terms, provisions and conditions contained in this Lease
on the part of Tenant to be performed and for all acts and omissions of any
licensee, subtenant, or any other person claiming under or through any subtenant
that shall be in violation of any of the obligations of this Lease, and any such
violation shall be deemed to be a violation by Tenant. Tenant further agrees
that, notwithstanding any such subletting, no other and further subletting of
the Demised Premises by Tenant, or any person claiming through or under Tenant
shall, or will be, made, except upon compliance with, and subject to, the
provisions of this Article.
(v) Any assignment or transfer shall be made only if,
and shall not be effective until, the assignee shall execute, acknowledge and
deliver to Landlord an agreement, in form and substance reasonably satisfactory
to Landlord, whereby the assignee shall assume all of the obligations of this
Lease on the part of Tenant to be performed or observed and which accrue on and
after the effective date of the assignment and whereby the assignee shall agree
that the provisions contained in paragraph (a) shall, notwithstanding such
assignment or transfer, continue to be binding upon it in respect of all future
assignments and transfers.
(vi) If Landlord shall give its consent to any
assignment of this Lease or to any sublease, Tenant shall, in consideration
therefor, pay to Landlord, as Additional Rent:
(a) in the case of an assignment, an amount equal to
fifty (50%) percent of all sums and other
consideration payable to Tenant by the assignee for,
or by reason of, such assignment, including, without
limitation, all sums payable for the sale of Tenant's
fixtures, Leasehold improvements, equipment,
furniture, furnishings, or other personal property
(collectively, the "Tenant's Property"), after
deducting therefrom "Tenant's Costs" (as defined
below); and
(b) in the case of a sublease, fifty (50%) percent of
any rents, additional charges, or other consideration
payable under the sublease by the subtenant to Tenant
that are in excess of the Minimum 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, without limitation, all sums
paid for the sale or rental of Tenant's Property,
after deducting therefrom Tenant's Costs.
For purposes hereof, the term "Tenant's Costs" shall
mean:
(i) the amount of any customary and reasonable
brokerage fees or commissions actually paid to a
broker as a result of any assignment or subletting by
Tenant hereunder;
(ii)reasonable advertising expenses and reasonable
attorneys' fees directly related to the assignment of
this Lease or the subletting of the space; and
(iii) the then unamortized or undepreciated cost of
Tenant's Property determined on the basis of Tenant's
as-filed federal tax returns.
The sums payable under this paragraph (vi) shall be
paid to Landlord as and when payable by the subtenant to Tenant.
(vii) If Tenant (or any subtenant) is a corporation,
the provisions of subparagraph (A) of this Article 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 (or such
subtenant) as if such transfer of stock (or other mechanism) which results in a
change of control of Tenant (or such subtenant) were an assignment of this
Lease, and if Tenant (or such subtenant) is a partnership, limited liability
company or joint venture, 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 limited liability company (or other
mechanism, such as, by way of example, the creation of additional general
partnership or limited partnership interests or limited liability company
interests) which results in a change of control of such partnership or joint
venture or limited liability company, as if such transfer of an interest in the
distributions of profits and losses of such partnership or joint venture or
limited liability company which results in a change of control of such
partnership or joint venture or limited liability company were an assignment of
this Lease; but the provisions of subparagraph 47 (A) and 47 (B) (i), (ii),
(iii) and (vi) of this Article shall not apply and Landlord's consent shall not
be required therefor for transactions with (u) a corporation into or with which
Tenant is merged or consolidated, (v) a corporation, partnership or other entity
to which substantially all of Tenant's assets are transferred, (w) any
corporation which controls or is controlled by Tenant or is under common control
with Tenant, (x) any person, persons, entity or entities to whom a controlling
block of Tenant's stock is transferred, (y) an existing shareholder or
shareholders, or (z) a trust established by or for the benefit of existing
shareholder or shareholders, provided that in any of such events (i) the Tenant
hereunder immediately after such transfer is a reputable entity of good
character and has a net worth computed in accordance with generally accepted
accounting principles at least equal to the "Minimum Net Worth" (as defined
below), (ii) proof reasonably satisfactory to Landlord of such net worth shall
have been delivered to Landlord at least ten (10) days prior to the effective
date of any such transaction, (iii) in the event that the Tenant hereunder
immediately after such transfer is other than the Tenant herein named, a
duplicate original instrument of assignment in form and substance reasonably
satisfactory to Landlord, duly executed by Tenant, shall have been delivered to
Landlord at least ten (10) days prior to the effective date of any such
transaction, (iv) in the event that the Tenant hereunder immediately after such
transfer is other than the Tenant herein named (a "New Tenant"), an instrument
in form and substance reasonably satisfactory to Landlord, duly executed by such
New Tenant, in which such New Tenant assumes (as of the Commencement Date)
observance and performance of, and agrees to be personally bound by, all of the
terms, covenants and conditions of this Lease on Tenant's part to be performed
and observed shall have been dclivcrcd to Landlord at least ten (10) days prior
to the effective date of any such transaction, and (v) such merger,
consolidation or transfer shall be for a good business purpose with a view
toward continuing Tenants business as an on-going concern and not principally
for the purpose of transferring this Lease. For purposes of this subparagraph
(vii), the term "control" shall mean, in the case of a corporation, ownership or
voting control, directly or indirectly, of more than fifty percent (50%) of all
the voting stock, and in case of a joint venture or partnership or similar
entity, ownership, directly or indirectly, of more than fifty percent (50%) of
all the general or other partnership (or similar) interests therein. Any
agreement pursuant to which (x) Tenant is relieved from the obligation to pay
all or a part of Minimum Rent or Additional Rent under this Lease, and (y) a
third party undertakes or is granted any right to assign or attempt to assign
this Lease or sublet or attempt to sublet all or any portion of the Demised
Premises, shall be deemed an assignment of this Lease and subject to the
provisions of this Article, including, without limitation, subparagraph (A)
hereof For purposes of this subparagraph, the term "Minimum Net Worth" shall
mean the greater of (i) the average net worth of Tenant for the twelve (12)
month period which immediately precedes such transfer or (ii) Tenant's net worth
as of the date hereof. Notwithstanding anything to the contrary contained
herein, the transfer of stock to any family member or members of the
shareholders of Tenant who as of the date hereof own a minimum of fifty-one
(51%) percent of the outstanding shares of Tenant (the "Major Shareholders"), or
to any trust established for the benefit of one or more of the family members of
the Major Shareholders shall not in any event be treated as an assignment of
this Lease and Landlord's consent shall not be re4uired therefor but at least 10
business days prior written notice of such stock transfer shall be delivered to
the Landlord and a copy of the relevant trust documentation and/or estate
planning instruments shall be delivered to Landlord at least 10 business days
prior to the effective date of such stock transfer.
(C) Each permitted assignee shall assume and be deemed
to have assumed this Lease and shall be and remain liable jointly and severally
with Tenant for the payment of the Minimum Rent and Additional Rent and for the
due performance of all the terms, covenants, conditions and agreements herein
contained on Tenant's part to be performed for the term of this Lease and
accruing from and after the effective date of the assignment and any renewals
and modifications hereof. No assignment shall be binding on Landlord unless, as
hereinbefore provided, such assignee or Tenant shall deliver to Landlord a
duplicate original of the instrument of assignment which contains a covenant of
assumption by the assignee of all of the obligations aforesaid and shall obtain
from Landlord the aforesaid written consent prior thereto. Any assignment,
sublease or agreement permitting the use and occupancy of the premises to which
Landlord shall not have expressly consented in writing shall be deemed null and
void and of no force or effect.
(D) Tenant agrees that notwithstanding any subletting
or assignment permitted by Landlord, no other and further subletting of the
Demised Premises by Tenant or any person or entity claiming through or under
Tenant shall or will be made except upon compliance with and subject to the
provisions of this Article.
48. TENANT'S CERTIFICATE: Tenant shall, without charge at any time and from time
to time, within fifteen (15) days after request by Landlord, certify by written
instrument, duly executed, acknowledged and delivered and given with the express
knowledge that any party may rely on the information set forth in said
instrument, to any mortgagee, assignee of any mortgage or to any purchaser, or
any proposed mortgagee, assignee of any mortgage or purchaser, or any other
person, firm or corporation specified by Landlord:
(A) that this Lease is unmodified and in full force and
effect (or, if there has been modification, that the Lease is in full force and
effect as modified and stating the modifications) and that both the Landlord and
the Tenant are not then in default under this Lease (or, if there has been a
default, stating the default(s), if any);
(B) whether or not there are then existing any set offs
or defenses against the enforcement of any of the agreements, terms, covenants
or conditions hereof upon the part of Tenant to be performed or complied with
(and, if so, specifying the same); and
(C) the dates, if any, to which the rental, additional
rental and other charges hereunder have been paid in advance, and stating the
rental, additional rent and other charges provided for in the Lease;
(D) the commencement date and expiration date of the
Lease;
(E) whether or not any rental has been paid more than
30 days before the due date, and whether or not the Tenant has any unsatisfied
claim against Landlord;
(F) the security deposit (if any) deposited by Tenant
under the Lease;
(G) whether any actions, whether voluntary or
otherwise, are pending against the Tenant under the bankruptcy laws of the
United States or any state thereof; and
(H) whether the Tenant has any option to renew or
expand the term of the Lease or the leased premises, as the case may be, and
whether the Tenant has any right of first refusal to purchase (or lease) the
Demised Premises or any part thereof or the Building in which the Demised
Premises are located.
In the event that Tenant fails to deliver to Landlord
the aforesaid certificate within the time period described hereinabove, then at
Landlord's sole option same shall be deemed a material default by Tenant under
this Lease, Tenant shall be deemed to have unconditionally waived (and shall be
estopped from raising) any and all alleged defenses or alleged Lease defaults
allegedly committed by Landlord which it may have otherwise claimed or
maintained in such estoppel certificate and Tenant shall also be deemed to have
unconditionally assented to and affirmed any and all provisions set forth in the
estoppel certificate as same may have been prepared by the Landlord. In addition
to the foregoing, Landlord reserves the right to exercise any further rights or
remedies available to it under the Lease, at law or equity by reason of Tenant's
material default hereunder.
Landlord agrees, on fifteen (15) business days prior
written notice from Tenant, to deliver an estoppel letter certifying (to the
best knowledge of Landlord) as to the foregoing information relating to this
Lease as reasonably requested by Tenant when same is requested by Tenant in
connection with a desire to assign the Lease or sublet the Demised Premises.
49. EXCULPATORY CLAUSE: If Landlord shall be an individual, joint venture,
limited liability company, tenancy-in-common, co-partnership, unincorporated
association, or other unincorporated aggregate of individuals and/or entities,
6r 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 ofajudgment (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 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. Landlord
represents that it is currently the fee owner of the Building.
50. BROKER: Tenant covenants, warrants and represents that there was no broker
instrumental in consummating this lease other than Xxxxx Xxxx LaSalle, Xxxxxxxx
X. Xxxxx & Company, Inc. and Xxxxxx & Xxxxxxx, Inc. (collectively, the
"Broker"), and no conversations or negotiations were had with any other broker
concerning the renting of the Demised Premises. Tenant and Landlord agree to
indemnify, defend and hold and save the other harmless against any and all
liability from any claims of any broker (other than the Broker) who claims to
have dealt with the other party (including, without limitation, the cost of
counsel fees in connection with the defense of any such claims in connection
with the renting of the Demised Premises). Landlord shall pay the commission due
Broker pursuant to separate written agreement.
51. CONFLICT OF TERMS: In the event any term, covenant, condition or agreement
contained in this rider to the Lease shall conflict or be inconsistent with any
term, covenant, condition or agreement contained in the printed portion of this
Lease, then the parties agree that the rider provision shall prevail.
52. TENANTS REMEDIES: With respect to any provision of this Lease which
provides, in effect, that Landlord shall not unreasonably withhold or
unreasonably delay any consent or any approval, Tenant in no event, shall be
entitled to make, nor shall Tenant make, any claim, and Tenant hereby waives any
claim, for money damages; nor shall Tenant claim any money damages by way of
setoff, counterclaim or defense, based upon any claim or assertion by Tenant
that Landlord has unreasonably withheld or unreasonably delayed any consent or
approval; but Tenant's sole remedy shall be an action or proceeding to enforce
any such provision, or for specific performance, injunction or declaratory
judgment.
53. NO EXCESSIVE NOISE: Tenant agrees that it will use the Demised Premises and
will perform all work required or permitted hereunder in such a manner so as not
to create any excessive noise which disturbs any of the other tenants of the
Building or persons occupying adjacent and neighboring premises.
54. LABOR REGULATIONS: Tenant covenants and agrees that prior to and throughout
the demised term, it shall not take any action which would violate Landlord's
union contract, if any, affecting the Building, nor create any work stoppage,
picketing, labor disruption or dispute, or any interference with the business of
the Landlord or any other tenant or occupant in the Building or with the rights
and privileges of any person(s) lawfully in said Building, nor cause any
impairment or reduction of the good name of the Building. Any default by Tenant
under this Article shall be deemed a material default entitling Landlord to
exercise any or all of the remedies as provided in this Lease.
55. CONTROL OF TENANT: If the Tenant is a corporation (other than one whose
shares are regularly and publicly traded on a recognized stock exchange),
partnership or other entity other than an individual, Tenant represents that the
ownership and power to vote the majority of its entire outstanding capital stock
or other controlling interest (collectively "Controlling Interest") belongs to
and is vested in the person(s) executing this Lease or members of his or their
immediate family.
56. ADDENDUM TO ARTICLE 22: If Tenant shall default in surrendering the Demised
Premises upon the expiration or termination of the term, Tenant's occupancy
subsequent to such expiration or termination, whether or not with the consent or
acquiescence of Landlord, shall be deemed to be that of a tenancy at will and in
no event from month-to-month or from year-to-year, and it shall be subject to
all the terms, covenants and conditions of this lease applicable thereto, except
the Minimum Rent and Additional Rent shall be 175% of the amount payable in the
last year of the term, and no extension or renewal of this Lease shall be deemed
to have occurred by such holding over.
57. ADDENDUM TO ARTICLE 18:
Should Tenant fail to pay within ten (10) days of when
due any installments of Minimum Rent, Additional Rent, or any other sum payable
to Landlord under the terms of this Lease, then a late charge in the amount of
$0.075 per $1.00 due shall be added to the sum due and shall be deemed
Additional Rent hereunder. If Tenant shall issue a check to Landlord which is
returnable unpaid for any reason, Tenant shall pay Landlord an additional charge
of $100.00 for Landlord's expenses in connection therewith. If Tenant shall
default (i) in the timely (10 days) payment of Fixed Rent or Additional Rent for
any two (2) consecutive months or for a total of three (3) months in any period
of twelve (12) months then, notwithstanding, that such defaults shall have each
been cured within the applicable period, if any, any further similar default
shall be deemed to be deliberate and Landlord thereafter may serve Tenant with a
three (3) days' notice of termination without affording to Tenant an opportunity
to cure such further default at which time the term of this Lease shall
terminate as if that day were the Expiration Date.
58. ENTIRE AGREEMENT: No earlier statement or prior written matter shall have
any force or effect. Tenant agrees that it is not relying on any representations
or agreements other than those contained in this Lease. This agreement shall not
be modified or canceled except by writing subscribed by all parties.
59. SAVING PROVISION: If any provision of this Lease, or its application to any
situation shall be invalid or unenforceable to any extent, the remainder of this
Lease, or the application thereof to situations other than that as to which it
is invalid or unenforceable, shall not be affected thereby, and every provision
of this Lease shall be valid and enforceable to the fullest extent permitted by
law.
60. LEASE NOT BINDING UNLESS EXECUTED: Submission by Landlord of the within
Lease for execution by Tenant shall confer no rights nor impose any obligations
on either party unless and until both Landlord and Tenant shall have executed
this Lease and duplicate originals thereof shall have been delivered to the
respective parties.
61. HEATING. VENTILATION AND AIR-CONDITIONING: OVERTIME AIR CONDITIONING
AND OTHER SERVICES SERVICES: AND SUPPLEMENTARY AIR-CONDITIONING UNIT:
(A) Landlord shall deliver the Demised Premises to
Tenant with properly functioning heating, ventilation and air-conditioning
("HVAC") of sufficient capacity to service the Demised Premises for normal
office use.
(B) Tenant acknowledges that the Unit servicing the
Demised Premises may be connected to the Building's cooling tower which is in
operation during normal working hours on normal weekdays only. There shall be no
charge to Tenant for the furnishing of any necessary HVAC or Building
engineering services to the Demised Premises from 8:00 a.m. to 6:00 p.m. Mondays
through Fridays, holidays excepted and for the furnishing of freight elevator
facilities to the Demised Premises from 8:00 a.m. to 5:00 p.m. Mondays through
Fridays, holidays excepted. However, the Minimum Rent does not reflect or
include any charge to Tenant for the furnishing of any such freight elevator
facilities, Building engineering services or HVAC to the Demised Premises during
any other periods ("Overtime Periods"); provided, however, that Landlord shall
not charge Tenant for freight elevator service provided to Tenant during six (6)
continuous, uninterrupted hours during Overtime Periods occurring during
Tenant's initial move-in. Accordingly, if Landlord furnishes any such freight
elevator facilities, Building engineer's services or HVAC to the Demised
Premises at the request of Tenant during Overtime Periods, Tenant shall pay
Landlord Additional Rent for such services at the standard rates then fixed by
Landlord for the Building or if no such rates are then fixed, at comparable
rates then being charged by first-class office buildings in the lower Manhattan
vicinity. Landlord's current rate for air conditioning during Overtime Periods
is $440 per hour per Building floor, Landlord's current rate for freight
elevator service during Overtime Periods is $100 per hour and the Landlord's
current rate for Building engineer's service during Overtime Periods is $125 per
hour, provided, however, that Tenant acknowledges that such rates may change in
the Building as Landlord determines in its sole discretion. Landlord shall not
be required to furnish any such services during any Overtime Periods unless
Tenant shall notify Landlord in writing of its requirement for services prior to
12:00 p.m. of the day before which such services are requested or by 12:00p.m.
of the last preceding Business Day if such Overtime Periods are to occur on a
day other than a Business Day. If Tenant fails to give Landlord such advance
notice, then failure by Landlord to furnish or distribute any such services
during such Overtime Periods shall not constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution
of rental, or relieve Tenant from any of its obligations under this Lease, or
impose any liability upon Landlord or its agents by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant's business or
otherwise. For purposes of this Lease, "Business Day" shall mean any day,
excluding Saturdays, Sundays and all days observed as holidays by the State of
New York, the federal government or the labor unions servicing the Building.
(C) SUPPLEMENTARY AIR-CONDITION1NG UNIT:
Tenant may at its sole cost and expense (and same may constitute a portion
of Tenant's Initial Installation, Tenant's Costs and the Landlord's
Contribution) install a Building-standard supplementary airconditioning unit
utilizing up to two (2) windows in the window louvre located at the northeast
corner of each of the 19k" and 20t!~ floors of the Building facing the northeast
corner of Xxx Street in the locations shown on Exhibit "A" annexed hereto and
made a part hereof (the "Supplementary Unit") provided same always complies with
any and all applicable law and the provisions of this Lease and further
satisfies the following conditions: (a) same may not be installed on the roof of
the Building and same may only be an air-cooled unit, (b) the electricity used
in connection with the usage of the Supplementary Unit shall be measured by a
submeter and shall be paid by Tenant in accordance with Article 41 of this Lease
and (c) the installation of same shall not exceed the capacity of any of the
electrical conductors and facilities in or otherwise serving the Demised
Premises and the Building. The Supplementary Unit shall be maintained by Tenant
at its sole cost and expense. Tenant hereby indemnifies and holds Landlord
harmless for any and all damage to the Building caused by the installation and
maintenance of the aforesaid Supplemental Unit except if same was proximately
caused by the gross negligence or wrongful acts of Landlord or that of its
agents, contractors or employees. Tenant will obtain insurance as required under
Article 46 of this Lease to protect Landlord against any damage by reason of the
foregoing, and will deliver insurance certificates naming Landlord and any of
its designees as additional insureds under such policy prior to commencing
installation.
62. WAIVER OF JURY TRIAL AND RIGHT TO COUNTERCLAIM. Tenant hereby waives all
right to trial by jury in any summary or other action, proceeding or
counterclaim arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, the Demised Premises and the use and
occupancy thereof any claim of injury or damages, and any emergency statutory or
other statutory remedy. Tenant also hereby waives all right to assert or
interpose any noncompulsory counterclaim in any summary proceeding or other
action or proceeding to recover or obtain possession of the Demised Premises
unless such waiver would result in Tenant's loss of the right to bring such
claim in a separate proceeding.
63. INJUNCTIVE RELIEF: In the event of a breach or threatened breach by Tenant
of any of the covenants or provisions of this Lease, Landlord 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
Landlord from any other remedy, at law or in equity. Tenant hereby expressly
waives any and all rights of redemption granted by or under any present or
future laws in the event of Tenant's being evicted or dispossessed, or in the
event of Landlord's obtaining possession of the Demised Premises by reason of
Tenant's violation of the provisions of this Lease. Tenant further agrees that
it shall not interpose any counterclaim or counterclaims in a summary proceeding
or in any other action or proceeding to evict the Tenant or otherwise recover
possession of the Demised Premises and Tenant hereby waives the right to
interpose any noncompulsory counterclaim or noncompulsory counterclaims in any
such proceeding(s).
64. RECORDATION: Tenant covenants not to place this Lease on record or to record
this Lease without the prior written consent of Landlord. At the request of
Landlord, Tenant will execute a memorandum of lease for recording purposes
containing references to such provisions of this Lease as Landlord, in its sole
discretion, shall deem necessary.
65. ATTORNEYS' FEES: Tenant agrees to pay Landlord upon demand, as an Additional
Rental, a sum equal to all costs and expenses (including reasonable attorneys'
fees, costs of investigation and disbursements) incurred by Landlord in
enforcing any or all of its rights hereunder, specifically including the cost of
collecting sums due, whether or not an action or proceeding is commenced, or
levying and collecting on any judgment or arbitration award in Landlord's favor.
66. FORCE MAJEURE: In the event that either party hereto shall be delayed or
hindered in or prevented from the performance or any act required hereunder
other than Tenant's obligation to pay rent by reason of strikes, lockouts, labor
troubles, failure of power, riots, insurrection, war or other reason of like
nature not the fault of the party delayed in performing work or doing acts, such
party shall be excused for the period of delay. The period of performance of any
such act shall then be extended for the period of such delay.
67. ELECTRICITY AND HEAT: Landlord shall not in any way be liable or responsible
to Tenant for any loss or damage or expense which Tenant may sustain or incur if
either the quantity or character of electric service, gas service or other
utility is changed or is no longer available or suitable for Tenant's
requirements. Tenant's use of electric current or other utilities in the Demised
Premises shall not at any time exceed the capacity of any of the electrical
conductors, facilities and other systems in or otherwise serving the Demised
Premises.
68. SECURITY:
(A) (i) Tenant has deposited with Landlord the sum of
$585,620.00 upon the execution of this Lease, as security for the performance by
Tenant of all of the terms, covenants and conditions of this Lease on Tenant's
part to be performed. The security deposit shall be deposited in Landlord's
regular banking institution which it uses for deposits for the Building.
Landlord shall have the right, without notice to Tenant, and regardless of the
exercise of any other remedy Landlord may have by reason of a default, to apply
any part of said deposit to cure any default of Tenant, and, if Landlord does
so, Tenant shall upon demand deposit with Landlord the amount so applied so that
Landlord shall have the full amount of the security ($585,620.00) at all times
during the term of this Lease. If Tenant shall fail to make such deposit,
Landlord shall have the same remedies for such failure as Landlord has for a
default in the payment of Minimum Rent. In the event of an assignment or
transfer of the leasehold estate under the Lease, (a) Landlord shall have the
right to transfer the security to the assignee, (b) Landlord shall thereupon be
automatically released by Tenant from all liability for the return of such
security, and (c) Tenant shall look solely to the assignee for the return of
said security, and the foregoing provisions of this sentence shall apply to
every transfer made of the security to a new assignee of Landlord's interest in
the Lease. The security deposited under this Lease shall not be assigned or
encumbered by Tenant without the prior consent of Landlord, and any such
assignment or encumbrance shall be void. Landlord and Tenant acknowledge and
agree that any cash security in the actual physical possession of the Landlord
shall be deposited in an interest-bearing account of a type which is standard
and customary for security deposits in the industry, and any interest earned
thereon shall accrue and be added to the security deposited hereunder. The
parties agree that Landlord shall be entitled to deduct from the interest on the
security a 1% fee for the administrative costs incurred in holding said security
in an interest-bearing account.
(ii) On or about April 1,2004, provided that this Lease
remains in full force and effect, and the Tenant named herein remains in
possession of the Demised Premises and is not then in default under this Lease
after the expiration of any grace or cure period expressly provided for in this
Lease, the Landlord acknowledges that upon Tenant's written request thereto it
shall return to Tenant a portion of the cash security deposit held by Landlord
in the amount of an equivalent of three (3) months of the initial Minimum Rent
under this Lease payable during the first Lease Year. Landlord shall remit a
check to Tenant for this sum within 30 days of Tenant's written request to
Landlord if same is due pursuant to the provisions of this Article.
(iii) On or about April 1,2006, provided that this
Lease remains in full force and effect, and the Tenant named herein remains in
possession of the Demised Premises and is not then in default under this Lease
after the expiration of any grace or cure period expressly provided for in this
Lease, the Landlord acknowledges that upon Tenant's written request thereto it
shall return to Tenant a portion of the cash security deposit held by Landlord
in the amount of an equivalent of three (3) months of the initial Minimum Rent
under this Lease payable during the first Lease Year. Landlord shall remit a
check to Tenant for this sum within 30 days of Tenant's written request to
Landlord if same is due pursuant to the provisions of this Article.
(iv) In the event that a Letter of Credit has been
delivered by Tenant to Landlord pursuant to subparagraph (B) herein below, any
reduction in or return of security mandated by subparagraphs (A)(ii) and (iii)
here in above may be implemented by Tenant delivering to the Landlord a
replacement Letter of Credit in the reduced amount indicated in subparagraphs
(A)(ii) and (iii) hereinabove provided such replacement Letter of Credit is
acceptable to the Landlord.
[INFORMATION OMITTED]
to draw upon the existing Letter of Credit and to hold such sums for the balance
of the Lease term as cash security for Tenant's performance under this Lease and
(ii) at Landlord's option, such failure shall be deemed to be a material default
by Tenant under this Lease and Landlord shall have all of its remedies thereof
under the Lease, at law and at equity. Tenant shall ensure that the foregoing
sentence shall appear in bold" on the face of the letter of credit.
(ii) In the event Tenant shall default during the
period in which the Letter of Credit shall be in place after the expiration of
any applicable grace periods expressly stated in this Lease, Landlord shall have
the right, and regardless of the exercise of any other remedy Landlord may have
by reason of a default, to immediately draw against the Letter of Credit to the
extent necessary to cure the amount of any default and to apply any part of said
Letter of Credit to the extent necessary to cure any default of Tenant, and, if
Landlord does so, Tenant shall upon demand issue a new Letter of Credit in favor
of Landlord in the face amount of the original amount so drawn down so that
Landlord shall at all times have the full amount of the Letter of Credit
required under this Article during the entire term of this Lease. If Tenant
shall fail to issue such new Letter of Credit, Landlord shall have the same
remedies for such failure as Landlord has for a default in the payment of
Minimum Rent. Landlord's right to draw on the Letter of Credit shall continue
for so long as Tenant shall remain in default.
(iii) In the event of an assignment or transfer by the
Landlord of the leasehold estate under the Lease, (a) Landlord shall have the
right without any charge, cost, fee or expense charged to any party, to transfer
or assign the Letter of Credit to the assignee by delivering to said assignee a
blanket assignment of said Letter of Credit (using a form acceptable to Landlord
in its sole discretion), (b) Landlord shall thereupon upon such transfer be
automatically released by Tenant from all liability, if any, for the return of
such Letter of Credit, and (c) Tenant shall look solely to the assignee for the
return of said Letter of Credit, and the foregoing provisions of this sentence
shall apply to every transfer made of the Letter of Credit to a new assignee of
Landlord's interest in the Lease. The Letter of Credit issued under this Lease
shall not be assigned or encumbered by Tenant or by the issuing bank without the
prior consent of Landlord, and any such assignment or encumbrance shall be void.
(iv) The Letter of Credit may not be automatically
self-reducing on its face, but may be replaced and reduced by Tenant to comply
with the express provisions of subparagraphs (A) (ii) and (iii) hereinabove
provided such replacement Letter of Credit is acceptable to the Landlord..
69. CLEANING: Landlord shall provide cleaning services for the Demised Premises
in accordance with building standard specifications annexed hereto as Exhibit
"C", at no extra cost to Tenant.
70. BUILDING DIRECTORY/SIGNAGE: Tenant shall have the right to display the
number of individual names in the Building's Lobby Directory in the same
proportion that the rentable space of the Demised Premises bears to the
aggregate rentable space of the entire Building. Tenant may utilize its own
graphics in implementing signage to be located at the entrance to the Demised
Premises, subject to Landlord's prior written approval as to aesthetics and
location (and subject, also, to the compliance by Tenant with applicable law and
with all of the provisions of this Lease applicable thereto.)
71. BILLING BY LANDLORD: Any xxxx, invoice, statement or other notice rendered
by the Landlord or any other party to the Tenant and which is not disputed or
objected to by the Tenant within 60 days of the rendition of such xxxx, invoice,
statement or other notice shall be deemed to be unconditionally approved and
accepted by the Tenant. In the event that Landlord has been delayed in rendering
or has failed to render any xxxx, invoice, statement or other notice to Tenant
beyond the originally anticipated due date thereof, such delay or failure shall
not prejudice any of Landlord's rights and no waiver of any rights of the
Landlord shall have occurred or be deemed to have occurred as a result of any of
Landlord's delay or failure as described herein above.
[INFORMATION OMITTED]
a demand under any Articles this Lease shall not in any way be denied to be a
waiver of, or cause Landlord to forfeit or surrender its rights to collect, any
Additional Rent which may have become due pursuant to any such Articles of this
Lease during the term of this Lease. Tenant's liability for the Additional Rent
due under any Articles of this Lease shall continue unabated during the
remainder of the term of this Lease and shall survive the expiration or sooner
termination of this Lease.
(B) In no event shall any adjustment of any payments
payable by Tenant in accordance with the provisions of any Articles of this
Lease result in a decrease in Minimum Rent nor shall any adjustment of any
Additional Rent payable by Tenant pursuant to any provision of any Articles of
this Lease result in a decrease in any other Additional Rent payable by Tenant
pursuant to any other provisions of this Lease, it being agreed and understood
that the payment of Additional Rent under any Articles of this Lease is an
obligation supplemental to Tenant's obligations to pay Minimum Rent and any
other Additional Rent pursuant to any other provision of this Lease.
(C) If a Tax Year or lease year shall end after the
expiration or termination of the term of this Lease, the Additional Rent payable
by Tenant in respect thereof shall be prorated to correspond to that portion of
such year occurring within the term of this Lease.
(D) (i) Landlord's failure to render any Tax Statement
with respect to any Tax Year shall not prejudice Landlord's right to thereafter
render a Tax Statement with respect thereto or with respect to any subsequent
Tax Year, nor shall the rendering of a Tax Statement prejudice Landlord's right
to thereafter render a corrected Tax Statement for that Tax Year, as the case
may be. Nothing herein contained shall restrict Landlord from issuing a Tax
Statement at any time there is an increase in Taxes during any Tax Year or any
time thereafter.
(ii)Each Tax Statement shall be conclusive and
binding upon Tenant unless (i) with respect to such Tax Statement, on or before
sixty (60) days after the delivery by Landlord to Tenant of such statement,
Tenant shall notify Landlord that it disputes the correctness of such Tax
Statement, specifying the particular respects in which such Tax Statement is
claimed to be incorrect. Pending the determination of such dispute, Tenant shall
pay any disputed portion of the relevant Tax Payment to the Landlord (as and
when otherwise payable to the Landlord under the appropriate Article of this
Lease) and Tenant shall pay any undisputed portion of the relevant Tax Payment
in accordance with the applicable Tax Statement (and Landlord shall refund or
credit any overpayment by Tenant following the determination of such dispute).
73. INTEREST: If any sums of money or charges required to be paid by Tenant
under this Lease, including but not limited to Minimum Rent and Additional Rent
payable by Tenant hereunder, are not paid at the time provided in the Lease,
they shall nevertheless, if not paid when due, bear interest from the due date
thereof to the date of payment at the highest rate allowed by law to be charged
the Tenant.
74. LEGAL RENT RESTRICTIONS:
If any of the rents payable under the terms of
this Lease shall be or become uncollectible, reduced or required to be refunded
because of any applicable law, ordinances, order, rule, requirement or
regulation, Tenant shall enter into such agreement(s) and take such other steps
(without additional expense to Tenant) as Landlord may request and as may be
legally permissible to permit Landlord to collect the maximum rents which from
time to time during the continuance of such legal rent restriction may be
legally permissible (and not in excess of the amounts reserved therefor under
this Lease). Upon the termination of such legal rent restriction, (a) the rents
shall become and thereafter be payable in accordance with the amounts reserved
herein for the periods following such termination and (b) Tenant shall pay to
Landlord, to the maximum extent legally permissible, an amount equal to (i) the
rents which would have
(INFORMATION OMITTED)
and tenant further agrees to execute any modification of this Lease requested by
Lender (provided such modification of Lease does not
serve to alter the material business terms of this Lease). The reasonable cost
of obtaining any nondisturbance agreement in favor of Tenant, including, without
limitation, any reasonable attorneys fees and costs of said lender, shall be
borne solely by the Tenant.
76. TEMPORARY LICENSE SPACE ON THE 11th FLOOR OF THE BUILDIN
(A) Landlord hereby grants to Tenant a license
("License") to use and occupy certain rentable space located on the 11th floor
of the Building as described on Exhibit "D" annexed hereto and made a part
hereof which the parties agree measures 5,863 rentable square feet (the "License
Premises") for the period (the "License Period") commencing from the earlier of
(i) the date Tenant commences its business operations in the License Premises or
(ii) September 1, 1999, and through and including December31, 1999 (as so
extended pursuant to the notice required in subparagraph (B) herein below, the
"License Termination Date"). The License Premises shall be accepted in its
present "as is" condition and Landlord shall have no obligation to do any work
to prepare the License Premises for Tenant's occupancy. Tenant shall pay to
Landlord a monthly licensee fee ("License Fee") for the License Premises in the
amount of $7,328.75 per month commencing on the first day of the License Period
and on the first day of each month during the License Period through the License
Termination Date, Tenant shall occupy the License Premises during the License
Period for the uses set forth in Article 38 hereof only and for no other
purpose.
(B) Tenant hereby agrees that time shall be of the
essence with respect to its obligations to vacate and surrender possession of
the License Premises on the License Termination Date, and Tenant shall vacate
and surrender possession of the License Premises in vacant, broom clean
condition on the License Termination Date. Notwithstanding the foregoing,
provided that Tenant notifies Landlord at least 30 days prior to the License
Termination Date that it desires to remain in possession of the License Premises
subsequent to the expiration of the License Termination Date, then Tenant shall
pay a License Fee in the amount of $14,657.50 for the period from January 1,
2000 through January 31, 2000 and further a License Fee in the amount of$
19,543.33 for the period from February 1,2000 through February 29, 2000. If
Tenant fails to notify Landlord as aforesaid and Tenant remains in possession of
the License Premises after the License Termination Date, then the foregoing fees
shall also be due and payable and Tenant shall nevertheless be in default of
this Article for failing to vacate and surrender the License Premises to
Landlord on the License Termination Date.
(C) This Paragraph does not and shall not be deemed to
constitute a lease or a conveyance of the License Premises by Landlord to Tenant
or to confer upon Tenant any right, title, estate or interest in the License
Premises. This Paragraph grants to Tenant a personal privilege to use and occupy
the License Premises for the License Period on the terms and conditions set
forth herein.
Except as may be otherwise expressly set forth herein
and except that Tenant shall not be required to pay Minimum Rent, electricity
charges (except for electricity charges incurred for use of any supplementary
airconditioning unit which may be located in the License Premises, and as to
such usage Tenant shall pay electricity for same as provided for in Article 41
of this Lease), Tax Payments or Tenant's Operating Payments for the License and
the License Premises, the provisions of this Lease shall apply to the License
and the License Premises and shall be binding on Tenant and Landlord.
(D) Tenant shall not assign, transfer or otherwise
encumber the License Premises or the License, nor shall Tenant permit or suffer
any other person or entity to use or occupy all or any part of the License
Premises.
(E) Tenant shall indemnify and save harmless Landlord
and its agents against arid from (i) any and all claims against Landlord of
whatever nature arising from any act, omission or negligence of Tenant, its
contractors, licensees, agents, servants, employees, invitees or visitors, (ii)
all claims against Landlord arising from any accident, injury or damage
whatsoever caused to any person or to the property of any person and occurring
during the term of this License in or about the License Premises, (iii) all
claims
(INFORMATION OMITTED)
(F) Tenant represents that it has made a thorough
inspection of the License Premises and agrees to take same in its condition
"as is", as of the commencement of the License Period, and Landlord shall have
no obligation to alter, improve, decorate or otherwise prepare the License
Premises for Tenant's use and occupancy whatsoever. Tenant shall not make any
alterations to the License Premises without the prior written approval of
Landlord in each instance. Landlord hereby approves that Tenant may remove the
three (3) walls marked with the letter "X", as indicated on Exhibit "D" (subject
to compliance with all applicable law) and Tenant shall have no obligation to
restore same at the expiration of the License Period. All such approved
alterations shall be made by Tenant at its sole cost and expense, and Tenant
shall comply in all respects with all the terms and conditions contained in the
Lease with respect to alterations made by Tenant. All alterations, decorations,
installations and improvements upon the License Premises shall be removed by
Tenant at the expiration of the License Period and Tenant shall, at its sole
cost and expense, restore the License Premises to their original condition as
existed prior to the commencement of the License Period (except as hereinabove
expressly set forth).
80 LAFAYETTE ASSOCIATES LLC
/s/
By:___________________
Xxxxxxx
XXXXXX, XXXXXXX INC.
/s/
By:___________________
[DIAGRAMS OMITTED]
(INFORMATION OMITTED)
not Landlord, is fully responsible to timely submit, and for the accuracy of,
the Application, all documentation ancillary to the Application (e.g., lease
abstract, statement of expenditures on improvements, statement of number of
employees),and all documentation ancillary to the Abatement (e.g., statement
that requirements have been met, annual Certificate of Continuing Use,
notification of Tenant's vacating), and Tenant agrees to indemnify and hold
Landlord and Landlord's agents harmless from cost, loss, damage and liability
relating to the Abatement and the law covering the Abatement with respect to
this Lease. Landlord's only obligation regarding the Abatement shall be to
reasonably cooperate with Tenant at no cost or expense to Landlord, and Landlord
shall not be required to join Tenant in executing the Application and all
ancillary documentation if doing so would result in any cost, loss, damage or
liability to Landlord or if Landlord has knowledge that the Application and all
ancillary documentation are not accurately completed. Tenant acknowledges that
(i) Landlord makes no representation that this Lease or the Demised Premises
covered by this Lease is eligible for the Abatement, (ii) Landlord makes no
representation that the Abatement covering this Lease, if any, will be obtained
(or once obtained that the Abatement will continue in effect), and (iii) the
effectiveness of this Lease and Tenant's obligation to pay all basic annual
rent, additional rent and other charges (collectively, the "Rent") provided for
under this Lease shall not be affected if the Abatement covering this Lease is
not obtained (or once obtained the Abatement does not continue in effect). The
Rent set forth in this Lease does not reflect the Abatement, and if the
Abatement covering this Lease is granted and is in effect then the amount
Landlord charges Tenant for Rent shall accurately reflect said Abatement.
However, if and to the extent Landlord is not required to pay real estate taxes
for any reason other than the Abatement, Landlord shall charge Tenant for Rent
without reflecting the Abatement. Landlord and Tenant acknowledge that an
expenditure of not less than $35.00 per square foot of the Demised Premises (the
"Expenditure Minimum ) must be timely made to the Demised Premises and/or the
common areas of the Building by Landlord and/or Tenant in order to qualify for
the Abatement; Landlord's acknowledgment set forth above in this sentence does
not require Landlord to (i) make any expenditure that Landlord has not otherwise
agreed to make or (ii) consent to any improvements to be made by Tenant to which
Landlord is not otherwise required to consent, and Landlord makes no
representation that the Expenditure Minimum will be timely reached for this
Lease. The calculation of(i) the amount of the Abatement covering this Lease,
(ii) the Expenditure Minimum, and (iii) the square footage of the Demised
Premises for purposes of completing the Application and calculating the
Abatement covering this Lease only shall be calculated by applying (i) the
Department of Finance number for the square footage of the Building and (ii)
Tenant's Share as set forth in the Article of this Lease covering Real Estate
Tax Payments; Landlord and Tenant agree that the above-mentioned calculations
and square footages shall have no application except with regard to the
Abatement. Landlord and Tenant acknowledge that the Abatement covering this
Lease may be revoked if real estate taxes or water or sewer charges or other
lienable charges on the Building are unpaid for one (1) year (unless delinquent
amounts are paid as provided for in the law covering the Abatement). Tenant
agrees that Tenant is only entitled to the benefits of the Abatement so long as
Landlord's actual real estate tax payments are reduced to reflect the Abatement,
and therefore there shall be no reduction in Tenant's payment of Minimum Rent in
anticipation of the Abatement or for any reason other than the Abatement. The
Additional Rent due and payable under the Article of this Lease regarding Real
Estate Tax Payments is independent of and shall not be affected by or reflect
the Abatement.
EXHIBIT "B"
LOWER MANHATTAN REAL PROPERTY TAX ABATEMENT PROGRAM
Landlord acknowledges that Tenant may request that Landlord join Tenant in
executing the Commercial Revitalization Program Application (the "Application")
for real estate tax abatement (the "Abatement") applicable to pre-1975 buildings
in Lower Manhattan effective October 29, 1995. Landlord agrees to join Tenant in
executing the Application subject to Tenant's agreement to, and compliance with,
the terms of this Article. Tenant agrees to pay (i) all costs and expenses to
make the Application, including but not limited to the filing fee, and (ii) all
other fees regarding the Abatement covering this Lease. Tenant agrees that
Tenant, and not Landlord, (i) shall pursue the Abatement in a reasonable manner
and (ii) shall be responsible to comply with all requirements ancillary to the
Abatement, and in this regard, Tenant, and not Landlord, is fully responsible to
timely submit, and for the accuracy of; the Application, all documentation
ancillary to the Application (e.g., lease abstract, statement of expenditures on
improvements, statement of number of employees),and all documentation ancillary
to the Abatement (e.g., statement that requirements have been met, annual
Certificate of Continuing Use, notification of Tenant's vacating), and Tenant
agrees to indemnify and hold Landlord and Landlord's agents harmless from cost,
loss, damage and liability relating to the Abatement and the law covering the
Abatement with respect to this Lease. Landlord's only obligation regarding the
Abatement shall be to reasonably cooperate with Tenant at no cost or expense to
Landlord, and Landlord shall not be required to join Tenant in executing the
Application and all ancillary documentation if doing so would result in any
cost, loss, damage or liability to Landlord or if Landlord has knowledge that
the Application and all ancillary documentation are not accurately completed.
Tenant acknowledges that (i) Landlord makes no representation that this Lease or
the Demised Premises covered by this Lease is eligible for the Abatement, (ii)
Landlord makes no representation that the Abatement covering this Lease, if any,
will be obtained (or once obtained that the Abatement will continue in effect),
and (iii) the effectiveness of this Lease and Tenant's obligation to pay all
basic annual rent, additional rent and other charges (collectively, the "Rent")
provided for under this Lease shall not be affected if the Abatement covering
this Lease is not obtained (or once obtained the Abatement does not continue in
effect). The Rent set forth in this Lease does not reflect the Abatement, and if
the Abatement covering this Lease is granted and is in effect then the amount
Landlord charges Tenant for Rent shall accurately reflect said Abatement.
However, if and to the extent Landlord is not required to pay real estate taxes
for any reason other than the Abatement, Landlord shall charge Tenant for Rent
without reflecting the Abatement. Landlord and Tenant acknowledge that an
expenditure of not less than $35.00 per square foot of the Demised Premises (the
"Expenditure Minimum") must be timely made to the Demised Premises and/or the
common areas of the Building by Landlord and/or Tenant in order to qualify for
the Abatement; Landlord's acknowledgment set forth above in this sentence does
not require Landlord to (i) make any expenditure that Landlord has not otherwise
agreed to make or (ii) consent to any improvements to be made by Tenant to which
Landlord is not otherwise required to consent, and Landlord makes no
representation that the Expenditure Minimum will be timely reached for this
Lease. The calculation of(i) the amount of the Abatement covering this Lease,
(ii) the Expenditure Minimum, and (iii) the square footage of the Demised
Premises for purposes of completing the Application and calculating the
Abatement covering this Lease only shall be calculated by applying (i) the
Department of Finance number for the square footage of the Building and (ii)
Tenant's Share as set forth in the Article of this Lease covering Real Estate
Tax Payments; Landlord and Tenant agree that the above-mentioned calculations
and square footages shall have no application except with regard to the
Abatement. Landlord and Tenant acknowledge that the Abatement covering this
Lease may be revoked if real estate taxes or water or sewer charges or other
lienable charges on the Building are unpaid for one (1) year (unless delinquent
amounts are paid as provided for in the law covering the Abatement). Tenant
agrees that Tenant is only entitled to the benefits of the Abatement so long as
Landlord's actual real estate tax payments are reduced to reflect the Abatement,
and therefore there shall be no reduction in Tenant's payment of Minimum Rent in
anticipation of the Abatement or for any reason other than the Abatement. The
Additional Rent due and payable under the Article of this Lease regarding Real
Estate Tax Payments is independent of and shall not be affected by or reflect
the Abatement.
EXHIBIT "C"
CLEANING SPECIFICATIONS
GENERAL TENANT AREAS
All flooring swept nightly.
All carpeted areas and rugs swept nightly and vacuum
cleaned weekly.
Wastepaper baskets, receptacles, etc., emptied and
cleaned nightly (plastic liners required when
necessary). Food related debris from pantry or excess
paper from computer area are not included in this scope
of work.
All furniture tops, (uncluttered surfaces, i.e., desks,
chairs, tables and bookshelves) and window xxxxx dusted
nightly. All glass furniture tops cleaned nightly.
Slopsink rooms cleaned nightly.
Rub down with cloth all metal hand rails.
COMMON AREA LAVATORIES
All flooring swept and washed nightly using proper
disinfectants. All mirrors, powder shelves, bright work
and enameled surfaces, etc., including flushometers,
piping and toilet seat hinges washed and polished
nightly.
Scour, wash and disinfect all basins, bowls, urinals
and toilet seats (both sides) throughout all lavatories
nightly.
All partitions, tile walls, dispensers and receptacles
dusted nightly, washed and polished as often as
necessary.
Toilet paper and sanitary disposal receptacles emptied
and cleaned nightly and transported to designated
loading area for pick-up by rubbish removal contractor.
HIGH DUSTING OFFICE AREA
Do all high dusting approximately four times a year
which includes the cleaning of all exterior surfaces of
light fixtures, including glass and plastic enclosures.
WINDOW CLEANING
Clean all windows on the outside and inside four times
a year. Windows frames and associated metal to be wiped
clean at all times.
(DIAGRAMS OMITTED)
AMENDMENT OF LEASE
THIS AGREEMENT (this "Amendment" or the "Agreement"), made as of the
19th day of August, 0000, xxxxxxx XXXXXX XXXXXXX LLC AND 80 LAFAYETTE ASSOCIATES
LLC, each a New York limited liability company, having an address at c/o The St.
Xxxxxx Hotel, 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (collectively, the
"Landlord"), and XXXXXX, XXXXXXX INC., a corporation, having an address at 00
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Tenant").
WITNESSETH:
WHEREAS, by Agreement of Lease (the "Original Lease") dated as of
August 3, 1999, Landlord, as landlord, did demise and let unto Tenant, as tenant
and Tenant did hire and take the entire rentable portion of space located on the
nineteenth (19th ) floor (the "19th Floor Demised Premises") and a portion of
rentable space located on the twentieth (20th ) floor (the "20th Floor Demised
Premises"), as same is more particularly described in the Original Lease
(collectively, the "Demised Premises"), in the building commonly known as 00
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Building");
WHEREAS, the Original Lease and all the amendments thereto are
hereinafter collectively referred to as the "Lease";
WHEREAS, the parties desire to replace the 20th Floor Demised Premises
with certain different premises located on the 20th floor of the Building and
modify certain other terms and provisions of the Original Lease, as hereinafter
set forth.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
promises contained herein and for TEN ($10.00) DOLLARS and other good and
valuable consideration, receipt of which is hereby acknowledged, and intending
to be legally bound hereby, covenant and agree as follows:
1. Incorporation of Recitals. The recitals set forth above and in the
Original Lease referred to therein are hereby incorporated herein by reference
as if set forth in full in the body of this Amendment.
2. All terms used herein and not otherwise defined herein shall have
the meanings ascribed to them in the Original Lease.
3. Effective Date. The effective date ("Effective Date") of this
Amendment shall be upon the date of this Amendment.
4. The Amended 20th Floor Demised Premises. Commencing on the
Effective Date, the 20th Floor Demised Premises are superceded and replaced by
that certain portion of rentable space located on the 20th floor of the Building
as same is described on the floor plan for the 20th floor annexed hereto as
Schedule "1" (such space being referred to herein as the "Amended 20th Floor
Demised Premises"). As such, the floor plan for the 20th floor portion for the
Demised Premises which is annexed to the Original Lease as Exhibit "A" thereto
is deemed herein to be superceded and replaced by the 20th floor floor plan
annexed hereto as Schedule "1". The Demised Premises shall be and is the 19th
floor Demised Premises as described in the Original Lease (a floor plan for
which is annexed to the Original Lease as part of Exhibit "A" thereto) and the
Amended 20th Floor Demised Premises as described and set forth on the 20th floor
floor plan annexed hereto as Schedule "1".
5. Minimum Rent and Additional Rent for the Demised Premises.
(A) The Minimum Rent schedule set forth in Article 39(A) of the
Original Lease is replaced and superceded by the following schedule:
1
"Lease Year(s) Annual Rental Monthly Rental
1 - 5 $ 615,160.00 $ 51,263.33
6 - 10 $ 703,040.00 $ 58,586.67"
and seven (7)
months in Lease
Year 11
On the Effective Date, the Tenant shall deposit with Landlord the
amount of $2,461.66, which sum is the difference between the first month's
Minimum Rental installment set forth in Article 39(A) of the Original Lease and
the first month's Minimum Rental installment recited in this paragraph.
(B) Article 40(I) of the Original Lease is hereby revised such that
the Landlord's Contribution is $738,950.00.
The second full sentence of Article 40(I) of the Original Lease is
replaced and superceded by the following sentence:
"Notwithstanding anything to the contrary set forth in this Lease,
Tenant unconditionally acknowledges and agrees that no more than
$109,850.00 of the Landlord's Contribution may be used by Tenant for
the payment of construction-related soft costs associated with the
Tenant's Initial Installation.
(C) Article 42(A)(iv) of the Original Lease is hereby revised such
that the Tenant's Share is 3.29%.
(D) The last two sentences of the third full paragraph of Article
41(C) of the Original Lease are replaced and superceded by the following:
"For purposes of this paragraph only, the Demised Premises
are deemed to contain 21,970 rentable square feet. In no
event shall Tenant or Landlord be entitled to measure,
remeasure or adjust the square footage of the Demised
Premises after the date of this Lease and none of the
provisions of this Lease, including, without limitation, the
Minimum Rental and Additional Rental, shall ever be modified
based on such square footage."
(E) Article 68(A)(i) and (B)(i) of the Original Lease is hereby
revised such that the security deposit is 615,160.00. On the Effective Date, the
Tenant shall deposit with Landlord the amount of $29,540.00, which sum is the
difference between the security deposit set forth in Article 68(A)(i) of the
Original Lease and the security deposit recited in this paragraph.
6. As modified and amended by this Amendment, all of the terms,
covenants and conditions of the Lease are hereby ratified and confirmed and
shall continue to be and remain in full force and effect throughout the term of
the Lease thereof.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Agreement to
be executed as of the day and year first above written.
0
Xxxxxxxx
XXXXXX XXXXXXX LLC.
/s/
By: ______________________________
80 LAFAYETTE ASSOCIATES LLC
/s/
By: ______________________________
Tenant
XXXXXX, XXXXXXX INC.
/s/
By: ______________________________
3
SCHEDULE "1"
FLOOR PLAN FOR THE AMENDED 20th FLOOR DEMISED PREMISES
4
LIST OF EXHIBITS
Exhibit
1 Demised Premises
2 Site Plan
3 Term Commencement Date
4 Landlord's Work
5 Zoning Resolution
6 HVAC Specification
7 Parking Sketch
8 Tenant's Work
5
