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Exhibit 10.05
AGREEMENT OF LEASE
Between
00 XXXXX XXXXXX COMPANY,
Owner
and
NYSERNet, INC.,
Tenant
Premises
Portion of Sixteenth (16th) Floor
New York Information Technology Center
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Dated May 1, 1996
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TABLE OF CONTENTS
ARTICLE 1 Demised Premises, Term, Rents
ARTICLE 2 Use and Occupancy
ARTICLE 3 Alterations
ARTICLE 4 Ownership of Improvements
ARTICLE 5 Repairs
ARTICLE 6 Compliance With Laws
ARTICLE 7 Subordination, Attornment, Etc.
ARTICLE 8 Property Loss, Etc.
ARTICLE 9 Destruction-Fire or Other Casualty
ARTICLE 10 Eminent Domain
ARTICLE 11 Assignment and Subletting
ARTICLE 12 Tenant's Initial Installation and Owner's Work
Contribution
ARTICLE 13 Access to Demised Premises
ARTICLE 14 Vault Space
ARTICLE 15 Certificate of Occupancy
ARTICLE 16 Default
ARTICLE 17 Remedies
ARTICLE 18 Damages
ARTICLE 19 Fees and Expenses; Indemnity
ARTICLE 20 Entire Agreement
ARTICLE 21 End of Term
ARTICLE 22 Quiet Enjoyment
ARTICLE 23 Escalation
ARTICLE 24 No Waiver
ARTICLE 25 Mutual Waiver of Trial by Jury
ARTICLE 26 Inability to Perform
ARTICLE 27 Notices
ARTICLE 28 Partnership Tenant
ARTICLE 29 Utilities and Services
ARTICLE 30 Table of Contents, Etc.
ARTICLE 31 Miscellaneous Definitions, Severability and
Interpretation Provisions
ARTICLE 32 Adjacent Excavation
ARTICLE 33 Building Rules
ARTICLE 34 Broker
ARTICLE 35 Security
ARTICLE 36 Arbitration, Etc.
ARTICLE 37 Parties Bound
ARTICLE 38 Single Rights for Additional Option Space
SCHEDULE A Building Rules
EXHIBIT 1 Plan of Demised Premises
EXHIBIT 2 Core Work
EXHIBIT 3 Certificate of Occupancy
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LEASE dated as of the 1st day of May, 1996, between 00 XXXXX XXXXXX
COMPANY, a New York partnership having its principal office at 000 Xxxx Xxxxxx,
Xxxxxxx of Manhattan, City, County, and State of New York, as landlord
(referred to as "Owner"), and NYSERNet, INC., a New York corporation, having
its principal office at 000 Xxxxxx Xxxxx Xxxx, Xxxxx 0000, Xxxxxxxxx, XX,
00000-0000, as tenant (referred to as "Tenant").
W I T N E S S E T H:
Owner and Tenant hereby covenant and agree as follows:
ARTICLE I
DEMISED PREMISES, TERM, RENTS
Section 1.01. Demised Premises: Owner hereby leases to Tenant and Tenant
hereby hires from Owner that portion of the sixteenth (16th) floor indicated by
outlining and diagonal markings in the floor plan initialled by the parties and
annexed hereto as Exhibit "1" in the building known as 00 Xxxxx Xxxxxx, in the
Borough of Manhattan, City of New York (said building is referred to as the
"Building", and the Building together with the plot of land upon which it stands
is referred to as the "Real Property"), at the annual rental rate or rates set
forth in Section 1.03, and upon and subject to all of the terms, covenants and
conditions contained in this Lease. The premises leased to Tenant, together with
all appurtenances, fixtures, improvements, additions and other property attached
thereto or installed therein at the commencement of, or at any time during, the
term of this Lease, other than Tenant's Personal Property (as defined in Article
4), are referred to, collectively, as the "Demised Premises".
Section 1.02. Demised Term: A. The Demised Premises are leased for a term
(referred to as the "Demised Term") to commence on the 1st day of May, 1996,
and the Demised Term shall end on the 30th day of September, 2006 unless sooner
terminated pursuant to any of the terms, covenants or conditions of this Lease
or pursuant to law. The date upon which the Demised Term shall commence
pursuant to this Subsection A is referred to as the "Commencement Date" and the
date fixed pursuant to this Subsection A as the date upon which the Demised
Term shall end is referred to as the "Expiration Date".
B. Owner shall perform the core work ("Core Work") referred
to in Exhibit "2", which Core Work shall be performed by Owner, at Owner's
expense, prior to the Commencement Date, except that Owner shall have the right
to enter the Demised Premises after the Commencement Date to complete
unfinished details of such work and the performance of such work by Owner shall
not constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of rent or relieve Tenant of any
of its obligations under this Lease or impose any liability upon Owner or its
agents or upon any lessor under a "Superior Lease" (as hereinafter defined) or
upon the holder of any "Mortgage" (as hereinafter defined) by reason of any
annoyance or interference with Tenant's business or otherwise. Owner agrees
that the performance by Owner of the completion of unfinished details of the
Core Work shall be done in a manner designed to minimize interference with the
performance by Tenant of Tenant's Initial Alterations, without any obligation
on Owner's part to employ labor at overtime or other premium pay rates.
Section 1.03. Fixed Rent: A. This Lease is made at the annual rental rates
(referred to as "Fixed Rent") of NINETY-NINE THOUSAND SEVEN HUNDRED FIFTY and
00/100 ($99,750.00) DOLLARS with respect to the period ("First Rent Period")
from the Commencement Date to the last day of the calendar month in which the
day immediately preceding the date which is five (5) months next following the
first anniversary of the Commencement Date shall occur, both dates inclusive,
ONE HUNDRED FIVE THOUSAND and 00/100 ($105,000.00) DOLLARS with respect to the
next year of the Demised Term ("Second Rent Period") and ONE
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HUNDRED TEN THOUSAND TWO HUNDRED FIFTY and 00/100 ($110,250.00) DOLLARS with
respect to each of the next three (3) years of the Demised Term ("Third Rent
Period") and ONE HUNDRED TWENTY-THREE THOUSAND THREE HUNDRED SEVENTY-FIVE and
00/100 ($123,375.00) DOLLARS ("Fourth Rent Period") with respect to the
remainder of the Demised Term.
B. The Fixed Rent, any increases in the Fixed Rent and any
additional rent payable pursuant to the provisions of this Lease shall be
payable by Tenant to Owner at its office (or at such other place as Owner may
designate in a notice to Tenant) 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 or by Tenant's good check drawn on a bank or trust company
whose principal office is located in New York City and which is a member of the
New York Clearinghouse Association, without prior demand therefor and without
any offset or deduction whatsoever except as otherwise specifically provided in
this Lease. The Fixed Rent shall be payable in equal monthly installments of
EIGHT THOUSAND THREE HUNDRED TWELVE and 50/100 ($8,312.50) DOLLARS, with
respect to the First Rent Period, EIGHT THOUSAND SEVEN HUNDRED FIFTY and 00/100
($8,750.00) DOLLARS with respect to the Second Rent Period, NINE THOUSAND ONE
HUNDRED EIGHTY-SEVEN and 50/100 ($9,187.50) DOLLARS with respect to the Third
Rent Period and TEN THOUSAND TWO HUNDRED EIGHTY-ONE and 25/100 ($10,281.25)
DOLLARS with respect to the Fourth Rent Period and shall be payable in advance,
on the first (1st) day of each month during the Demised Term (except as
otherwise provided in Subsection C of this Section).
C. The sum of EIGHT THOUSAND THREE HUNDRED TWELVE and
50/100 ($8,312.50) DOLLARS, representing the installment of Fixed Rent for the
first (1st) full calendar month of the Demised Term after the expiration of
the Rent Holiday Period (as hereinafter defined), is due and payable at the
time of the execution and delivery of this Lease.
Section 1.04. Tenant's General Covenant: Tenant covenants (i) to pay the
Fixed Rent, any increases in the Fixed Rent, and any additional rent payable
pursuant to the provisions of this Lease, and (ii) to observe and perform, and
to permit no violation of, the terms, covenants and conditions of this Lease on
Tenant's part to be observed and performed.
Section 1.05. Rent Holiday: Provided Tenant is not then in default in the
observance and performance of any of the terms, covenants and conditions of
this Lease on Tenant's part to be observed and performed, Tenant shall be
entitled to a rent holiday and shall not be required to pay any portion of the
Fixed Rent with respect to the period (the "Rent Holiday Period") from the
Commencement Date to and including the date one hundred fifty (150) days next
following the Commencement Date but, during such period of one hundred fifty
(150) days, Tenant shall otherwise be required to comply with all of the other
terms, covenants and conditions of this Lease on Tenant's part to be observed
and performed, including, but not limited to, the payment of all sums payable
pursuant to the provisions of Article 23 and Article 29. The date next
following the expiration of the Rent Holiday Period is referred to as the "Rent
Commencement Date".
ARTICLE 2
USE AND OCCUPANCY
Section 2.01. General Covenant of Use: Tenant shall use and occupy the
Demised Premises for the following purpose: general offices of Tenant for
Tenant's information technology business and a staging facility for Tenant's
products, but at all times in compliance with the provisions of this Lease and
in accordance with the Certificate of Occupancy affecting the Building and the
Demised Premises.
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SECTION 2.02. NO ADVERSE USE: Tenant shall not use or occupy, or permit the
use or occupancy of, the Demised Premises or any part thereof, for any purpose
other than the purpose specifically set forth in Section 2.01, or in any manner
which (a) shall adversely affect or interfere with (i) any services required to
be furnished by Owner to Tenant or to any other tenant or occupant of the
Building, or (ii) the proper and economical rendition of any such service, or
(iii) the use or enjoyment of any part of the Building by any other tenant or
occupant, or (b) shall impair the character or dignity of the Building below
that of a First-Class Building.
ARTICLE 3
ALTERATIONS
SECTION 3.01. GENERAL ALTERATION COVENANTS: Tenant shall not make or
perform, or permit the making or performance of, any alterations,
installations, decorations, improvements, additions or other physical changes
in or about the Demised Premises (referred to collectively, as "Alterations"
and individually as an "Alteration") without Owner's prior consent in each
instance. Owner agrees not unreasonably to withhold its consent to any
non-structural Alterations proposed to be made by Tenant to adapt the Demised
Premises for Tenant's business purposes. Notwithstanding the foregoing
provisions of this Section or Owner's consent to any Alterations, all
Alterations shall be made and performed in conformity with and subject to the
following provisions:
A. All Alterations shall be made and performed at Tenant's sole
cost and expense and at such time and in such manner as Owner may, from time to
time, reasonably designate;
B. No Alteration shall adversely affect the structural integrity of
the Building;
C. Alterations shall be made only by contractors or mechanics
approved by Owner, such approval not unreasonably to be withheld
(notwithstanding the foregoing, all Alterations requiring mechanics in heating,
ventilation air conditioning, electrical, plumbing, sprinklers and other
mechanical trades with respect to which Owner has adopted or may hereafter
adopt a list or lists of approved contractors shall be made only by contractors
selected by Tenant from such list or lists provided there are at least three
[3] contractors on each such list and the prices charged by such contractors
are competitive for similar work in the Borough of Manhattan in comparable
first class office buildings);
D. No Alteration shall affect any part of the Building other than
the Demised Premises or adversely affect any service required to be furnished
by Owner to Tenant or to any other tenant or occupant of the Building
(including, without limitation, the Building-wide standard systems required to
provide elevator, heat, ventilation, air-conditioning and electrical and
plumbing services in the Building);
E. No Alteration shall intentionally reduce the value or utility of
the Building or any portion thereof as a First-Class building;
F. No Alteration shall affect the Certificate of Occupancy for the
Building or the Demised Premises;
G. No Alteration shall affect the outside appearance of the
Building or the color or style of any venetian blinds (except that Tenant may
remove any venetian blinds provided that they are promptly replaced by Tenant
with blinds of a similar type, material and color);
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H. All business machines and mechanical equipment shall be placed
and maintained by Tenant in settings sufficient, in Owner's reasonable
judgment, to absorb and prevent vibration, noise and annoyance to other
tenants or occupants of the Building;
I. Tenant shall submit to Owner detailed plans and specifications
stamped by Tenant's architect (including layout, architectural, mechanical and
structural drawings) for each proposed Alteration and shall not commence any
such Alteration without first obtaining Owner's approval of such plans and
specifications, such approval not unreasonably to be withheld or delayed,
notwithstanding the foregoing. Tenant shall not be required to submit any
detailed plans and specifications for any Alterations unless such plans and
specifications are, in the ordinary course, prepared for such Alterations or are
required to be prepared in connection with any filings or other applicable
requirements of any law, order, rule or regulation of any federal, state, county
or municipality, including but not limited to, the Department of Building of the
City of New York, and in those cases where Tenant shall not be required to
submit such detailed plans and specifications, Tenant shall submit to Owner, in
lieu thereof, information with respect to such Alterations in reasonably
sufficient detail so as to enable Owner to determine the nature and extent of
the work to be performed, and following the completion of each Alteration,
Tenant shall submit to Owner a computerized "as built" drawing file for the
Demised Premises (or if the Demised Premises comprise more than one (1) floor,
for each floor of the Demised Premises being altered) and in those cases where
Tenant shall not be so required to submit such detailed plans and
specifications, Tenant shall submit to Owner, in lieu thereof, information with
respect to such Alterations in reasonably sufficient detail so as to enable
Owner to determine the nature and extent of the work to be performed; such file
will be in DXF format and contain, on a separate layer, all ceiling-height
partitions and doors within the Demised Premises (or if the Demised Premises
comprise more than one (1) floor, within each floor of the Demised Premises
being altered);
J. Prior to the commencement of each proposed Alteration, Tenant
shall have procured and paid for and exhibited to Owner, so far as the same may
be required from time to time, all permits, approvals and authorizations of all
Governmental Authorities (as defined in Section 6.01.) having or claiming
jurisdiction;
K. Prior to the commencement of each proposed Alteration, Tenant
shall furnish to Owner duplicate original policies of workmen's compensation
insurance covering all persons to be employed in connection with such
Alteration, including those to be employed by all contractors and
subcontractors, and of comprehensive public liability insurance (including
property damage coverage) in which Owner, its agents, the holder of any Mortgage
(as defined in Section 7.01.) and any lessor under any Superior Lease (as
defined in Section 7.01.) shall be named as parties insured, which policies
shall be issued by companies, and shall be in form and amounts, satisfactory to
Owner and shall be maintained by Tenant until the completion of such Alteration;
L. In the event Owner or its agents employ any independent
architect or engineer to examine any plans or specifications submitted by
Tenant to Owner in connection with any proposed Alteration, Tenant agrees to
pay to Owner a sum equal to any reasonable actual out-of-pocket fees incurred
by Owner in connection therewith.
M. All fireproof wood test reports, electrical and air conditioning
certificates, and all other permits, approvals and certificates required by all
Governmental Authorities shall be timely obtained by Tenant and submitted to
Owner;
N. All Alterations, once commenced, shall be made promptly and in a
good and workmanlike manner;
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O. Notwithstanding Owner's approval of plans and specifications for
any Alteration, all Alterations shall be made and performed in full compliance
with all Legal Requirements (as defined in Section 6.01.) and with all
applicable rules, orders, regulations and requirements of the New York Board of
Fire Underwriters and the New York Fire Insurance Rating Organization or any
similar body;
P. All Alterations shall be made and performed in accordance with
the Building Rules and Building Rules for Alterations;
Q. All materials and equipment to be installed, incorporated or
located in the Demised Premises as a result of all Alterations shall be new and
first quality;
R. No materials or equipment shall be subject to any lien,
encumbrance, chattel mortgage or title retention or security agreement of any
kind, except for Tenant's business equipment;
S. Tenant, before commencement of each Alteration, the estimated
cost of which constituting a single project shall exceed ONE HUNDRED THOUSAND
and 00/100 ($100,000.00) DOLLARS, shall furnish to Owner a performance bond or
other security satisfactory to Owner, in an amount at least equal to the
estimated cost of such Alteration, guaranteeing the performance and payment
thereof. Such sum of ONE HUNDRED THOUSAND and 00/100 ($100,000.00) DOLLARS set
forth in this subsection shall be deemed increased annually by the percentage
increase in the Consumer Price Index for the month in which the first
anniversary of the Commencement Date and each subsequent anniversary date
thereof occurs over the Consumer Price Index in the month in which the
Commencement Date shall occur. The foregoing requirement to furnish a
performance bond or other security satisfactory to Owner shall not apply with
respect to the performance of Tenant's Initial Installation;
T. Other than with respect to Tenant's Initial Installation, unless
such Alteration was payable by Owner in full, no Alteration shall be commenced
unless any preceding Alteration shall have been fully paid for and proof of such
payment furnished to Owner;
U. Following the completion of each Alteration, Tenant, at Tenant's
expense, shall obtain certificates of final approval of such Alteration required
by any Governmental Authority and shall furnish Owner with copies thereof.
V. Tenant agrees that Tenant will not install, affix, add or paint
in or on, nor permit, any work of visual art (as defined in the Federal Visual
Artists' Rights Act of 1990 or any successor law of similar import) or other
Alteration to be installed in or on, or affixed, added to, or painted on, the
interior or exterior of the Demised Premises, or any part thereof, including,
but not limited to, the walls, floors, ceilings, doors, windows, fixtures and on
land included as part of the Demised Premises, which work of visual art or other
Alteration would, under the provisions of the Federal Visual Artists' Rights Act
of 1990, or any successor law of similar import, require the consent of the
author or artist of such work or Alteration before the same could be removed,
modified, destroyed or demolished.
W. Under no circumstances shall Tenant be permitted to locate any
telecommunications facilities in the telecommunications closets of the Building.
With respect to Tenant's telecommunications facilities, (i) Tenant shall
contract separately with all providers of Tenant's telecommunications facilities
(each of which is referred to as a "Provider") and pay each Provider for all
services provided by it to Tenant, and (ii) each Provider shall use,
exclusively, the telecommunications cable distribution system in the Building
designated by Owner and shall contract separately with the company providing
cable distribution service in the Building (referred to as the
"Telecommunications Cable Distribution Company") for the supply and
maintenance of distribution cables. The Provider and Tenant shall comply with
all reasonable rules and regulations adopted by Owner and the Telecommunications
Cable Distribution Company. Except for Owner's acts, Owner shall
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not be liable to Tenant or anyone claiming through or under Tenant for any
damages, including, but not limited to, special, incidental, remote or
consequential damages, including, without limitation, lost revenue, lost
profits and additional operating or personnel expenses arising from any acts,
omissions or negligence of the Provider and the Telecommunications Cable
Distribution Company.
SECTION 3.02. NO CONSENT TO CONTRACTOR/NO MECHANICS LIEN: Nothing in this
Lease shall be deemed or construed in any way as constituting the consent or
request of Owner, express or implied, by inference or otherwise, to any
contractor, subcontractor, laborer or materialmen, for the performance of any
labor or the furnishing of any material for any specific Alteration to, or
repair of, the Demised Premises, the Building, or any part of either. Any
mechanic's or other lien filed against the Demised Premises or the Building or
the Real Property for work claimed to have been done for, or materials claimed
to have been furnished to, Tenant or any person claiming through or under
Tenant or based upon any act or omission or alleged act or omission of Tenant or
any such person shall be discharged by Tenant, at Tenant's sole cost and
expense, within ten (10) days after the filing of such lien.
SECTION 3.03. LABOR HARMONY: Tenant shall not, at any time prior to or
during the Demised Term, directly or indirectly employ, or permit the employment
of, any contractor, mechanic or laborer in the Demised Premises, whether in
connection with any Alteration or otherwise, if such employment will interfere
or cause any conflict with other contractors, mechanics, or laborers engaged in
the construction, maintenance or operation of the Building by Owner, Tenant or
others. In the event of any such interference or conflict, Tenant, upon demand
of Owner, shall cause all contractors, mechanics or laborers causing such
interference or conflict to leave the Building immediately. Notwithstanding the
foregoing, Owner agrees that all work performed by Owner in the Demised Premises
pursuant to Article 1 herein shall be performed using so-called "Union labor".
Owner represents and warrants to Tenant that similar requirements are contained
in all present leases in the Building and will be contained in all future leases
in the Building during the Demised Term. Owner agrees that Owner shall enforce
all similar requirements in all other leases in the Building against the tenants
thereof and all persons claiming through or under such tenants.
SECTION 3.04. COMPLIANCE WITH FIRE SAFETY: Without in any way limiting
the generality of the provisions of Section 3.01, all Alterations shall be made
and performed in full compliance with all standards and practices adopted by
Owner for fire safety in the Building. No Alteration shall affect all or any
part of any Class E Fire Alarm and Communication system installed in the Demised
Premises, except that in connection with any such Alteration Tenant may relocate
certain components of such system, provided (i) such relocation shall be
performed in a manner first approved by Owner such approval not to be
unreasonably withheld or delayed, (ii) the new location of any such component
shall be first approved by Owner such approval not to be unreasonably withheld
or delayed, (iii) prior to any such relocation Tenant shall submit to Owner
detailed plans and specifications therefor which shall be first approved by
Owner such approval not to be unreasonably withheld or delayed and (iv) Owner
shall have the election of relocating such components either by itself or by its
contractors, in which event all reasonable expenses incurred by Owner shall be
reimbursed by Tenant upon demand of Owner, as additional rent. Owner represents
that the Demised Premises will be in compliance with Local Law #5 of 1973, Local
Law #16 of 1984 and Local Law #58 and the Americans With Disabilities Act on the
Commencement Date, and as Owner completes Alterations in the public portions of
the Building such public portions of the Building will be completed in
compliance with Local Law #5 of 1973, Local Law #16 of 1984 and Local Law #58
and the Americans With Disabilities Act.
SECTION 3.05. SPRINKLERS: The Demised Premises shall contain a sprinkler
system and notwithstanding anything to the contrary set forth in Sections 5.01
and 6.01, Owner, at Owner's expense, shall perform routine maintenance of, and
shall repair and replace if necessary, said sprinkler system and any
replacements thereof, unless such repair or replacement is due to Tenant's acts,
omissions or negligence, in which event Owner shall repair or replace same, at
Tenant's sole cost and expense. Owner shall also perform controlled inspections
of said sprinkler system as and when required by law and Tenant shall give Owner
reasonable access
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to perform such repairs, maintenance and inspections. Any sprinkler system and
any replacements thereof whether made at Tenant's expense or Owner's expense,
shall be deemed the property of Owner.
SECTION 3.06. HAZARDOUS MATERIAL: If any Legal Requirement of any
Governmental Authority requires that any hazardous material contained in or
about the Demised Premises and installed therein by Tenant or any person
claiming through or under Tenant be removed or dealt with in any particular
manner in connection with any Alterations of the Demised Premises or otherwise,
then it shall be Tenant's obligation, at Tenant's expense, to remove or so deal
with such hazardous material in accordance with all such laws, orders, rules and
regulations. In the event Tenant is required to remove or so deal with such
hazardous material in accordance with the provisions of the foregoing sentence
then, notwithstanding anything to the contrary contained herein, Owner, at
Owner's election, shall have the option to itself remove or so deal with such
hazardous material and, in such event, Tenant shall pay to Owner all of Owner's
costs in connection therewith within ten (10) days next following the rendition
of a statement thereof by Owner to Tenant.
SECTION 3.07. DISPUTE RESOLUTION: Any dispute with respect to the
reasonability of any failure or refusal of Owner to grant its consent or
approval to any request for such consent or approval pursuant to the provisions
of Section 3.01 with respect to which request Owner has agreed, in such Section
not unreasonably to withhold such consent or approval, shall be determined by
arbitration in accordance with the provisions of Article 36.
SECTION 3.08. FIRE ALARM AND COMMUNICATION SYSTEM CONNECTION FEES: In the
event that Tenant, pursuant to the provisions of this Lease, including, but not
limited to, the provisions of this Article 3 and Article 6, connects any of the
following equipment to any Class E Fire Alarm and Communication system installed
in the Demised Premises, Tenant shall pay to Owner as a one (1) time connection
fee the following sums set forth opposite the equipment listed below (which sums
shall be subject to increases due to increases in the cost to Owner of operating
and maintaining such Class E Fire Alarm and Communication system over such costs
on the date of this Lease):
A. Speakers in excess of 4 per floor of
the Demised Premises (or if the Demised
Premises contain less than one (1) floor,
in excess of four in the Demised Premises) $500.00 per device
B. Strobe Lights (single unit) $100.00 per device
C. Combination Speakers/Strobe light $250.00 per device
D. Duct Detectors (supplementary air
conditioning systems) $500.00 per point
E. Smoke Detectors (multi-purpose) $500.00 per point
F. Preaction Sprinkler System:
waterflow $500.00 per point
tamper $500.00 per point
X. Xxxxxx Phone (additional) $1,000.00 per unit
H. Fail Safe Door Release $250.00 per connection
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SECTION 3.09. A. In the event that, at any time during the Demised Term,
in connection with any Alterations proposed to be performed by Tenant in the
Demised Premises Tenant is unable to obtain a New York City Department of
Environmental Protection Form ACP5 dated 9/91 (or any successor form), signed by
a certified asbestos investigator, or any other form or approval required by
Federal, State, County or Municipal authorities, indicating that said
Alterations do not constitute an asbestos project, Owner agrees, upon notice
from Tenant to such effect, to perform such work as shall be required to enable
Tenant to obtain any such form or approval.
B. If any laws, orders, rules or regulations of any Federal,
State, County or Municipal authority require that any asbestos or other
hazardous material contained in or about the Demised Premises be removed or
dealt with in any particular manner, then it shall be Owner's obligation, at
Owner's expense, with due diligence, to remove or so deal with such asbestos or
other hazardous material in accordance with such laws, orders, rules and
regulations.
C. Notwithstanding the provisions of subsections A and B of
this Section, in the event any work performed by Owner pursuant to the
provisions of either or both of such subsections is in any way disturbed or
damaged by Tenant or any person claiming through or under Tenant, or asbestos or
other hazardous material is installed in the Demised Premises by or on behalf of
Tenant, or any person claiming through or under Tenant, Owner shall have no
responsibility in connection with the disturbed or damaged work or the asbestos
or other hazardous material so installed by Tenant or any person claiming
through or under Tenant and no obligation to perform any work with respect to
the disturbed or damaged work or the asbestos or other hazardous material so
installed by Tenant or any person claiming through or under Tenant, but it shall
be Tenant's obligation, at Tenant's expense, to (i) perform such work with
respect to such disturbed or damaged work or the asbestos or other hazardous
material so installed by Tenant or any person claiming through or under Tenant
as shall be required to enable Tenant to obtain any form or approval referred to
in subsection A, and (ii) remove or so deal with such asbestos or other
hazardous material in accordance with all such laws, orders, rules and
regulations referred to in subsection B.
D. Owner shall cause to perform any such work it is so
required to perform hereunder with reasonable diligence and, if required in
Owner's reasonable judgment in connection therewith, the employment of labor or
contractors at overtime or other premium pay rates.
ARTICLE 4
OWNERSHIP OF IMPROVEMENTS
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SECTION 4.01. GENERAL RIGHTS OF OWNER AND TENANT: All appurtenances,
fixtures, improvements, additions and other property attached to or installed in
the Demised Premises, whether by Owner or Tenant or others, and whether at
Owner's expense, or Tenant's expense, or the joint expense of Owner and Tenant,
shall be and remain the property of Owner, except that any such fixtures,
improvements, additions and other property installed at the sole expense of
Tenant with respect to which Tenant has not been granted any credit or allowance
by Owner, whether pursuant to Addendum A or otherwise, and which are removable
without material damage to the Demised Premises shall be and remain the property
of Tenant and are referred to as "TENANT'S PERSONAL PROPERTY". Any replacements
of any property of Owner, whether made at Tenant's expense or otherwise, shall
be and remain the property of Owner.
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ARTICLE 5
REPAIRS
SECTION 5.01. TENANT'S REPAIR OBLIGATIONS: Tenant shall take good care of
the Demised Premises (including, but not limited to, any Class E Fire Alarm and
Communication system and any sprinkler system installed therein and any
installations made or equipment installed therein as a result of any requirement
of New York City Local Law #16 of 1984 or any successor law or like import) and,
at Tenant's sole cost and expense, shall make all repairs and replacements,
structural and otherwise, ordinary and extraordinary, foreseen and unforeseen as
and when needed to preserve the Demised Premises (including, but not limited to,
any Class E Fire Alarm and Communication system and any installations made or
equipment installed therein as a result of any requirement of New York City
Local Law #16 of 1984 or any successor law of like import) in good and safe
working order and in first class repair and condition, except that Tenant shall
not be required to make any repairs or replacements to the Demised Premises
unless necessitated or occasioned by the acts, omissions or negligence of Tenant
or any person claiming through or under Tenant or any of their servants,
employees, contractors, agents, visitors or licensees, or by the manner of use
or occupancy of the Demised Premises by Tenant or any such person (in
contradistinction to the mere use or occupancy of the Demised Premises for the
purposes set forth in Section 2.01). For the purposes of this Article, any
repairs or work involving asbestos or other hazardous materials or involving
compliance with Local Laws #5 of 1973, #16 of 1984, #58 of 1987 and the
Americans With Disabilities Act and any successor laws of like import shall be
deemed to be non-structural repairs or replacements. Without affecting Tenant's
obligations set forth in the preceding sentence, Tenant, at Tenant's sole cost
and expense, shall also (i) make all repairs and replacements, and perform all
maintenance as and when necessary, to the lamps, tubes, ballasts, and starters
in the lighting fixtures installed in the Demised Premises, (ii) make all
repairs and replacements, as and when necessary, to Tenant's Personal Property
and to any Alterations made or performed by or on behalf of Tenant or any person
claiming through or under Tenant, and (iii) if the Demised Premises shall
include any space on any ground, street, mezzanine or basement floor in the
Building, make all replacements, as and when necessary, to all windows and plate
and other glass in, on or about such space, and obtain and maintain, throughout
the Demised Term, plate glass insurance policies issued by companies, and in
form and amounts, satisfactory to Owner, in which Owner, its agents and any
lessor under any ground or underlying lease shall be named as parties insured,
and (iv) perform all maintenance and make all repairs and replacements, as and
when necessary, to any air conditioning equipment, private elevators,
escalators, conveyors or mechanical systems (other than the Building's standard
equipment and systems) which may be installed in the Demised Premises by Owner,
Tenant or others. However, the provisions of the foregoing sentence shall not be
deemed to give to Tenant any right to install air conditioning equipment,
elevators, escalators, conveyors or mechanical systems. All repairs and
replacements made by or on behalf of Tenant or any person claiming through or
under Tenant shall be made and performed in conformity with, and subject to the
provisions of Article 3 and shall be at least equal in quality and class to the
original work or installation. The necessity for, and adequacy of, repairs and
replacements pursuant to this Article 5 shall be measured by the standard which
is appropriate for first class office buildings of similar construction and
class in the Borough of Manhattan, City of New York.
SECTION 5.02. Supplementing the provisions of Section 5.01, Owner, at
Owner's sole cost and expense, shall timely make (i) all structural repairs to
the Demised Premises as and when required, (ii) all repairs necessary to
furnish the plumbing, electrical, air conditioning, ventilating, heating and
elevator services required to be furnished by Owner to Tenant under the
provisions of Article 29, and (iii) all necessary repairs to the public
portions of the Building which affect Tenant's use and enjoyment of the Demised
Premises, except that Owner shall not be required to make any of the repairs
referred to in subdivision (i), (ii) or (iii) of this sentence if Tenant is
obligated to make such repairs pursuant to the provisions of Section 5.01.
Notwithstanding the foregoing provisions of this Section, Owner shall have no
obligation to make any repairs unless and until notice of any repair claimed
necessary shall have been given to Owner.
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ARTICLE 6
COMPLIANCE WITH LAWS
SECTION 6.01. GENERAL COVENANTS: Tenant, at Tenant's sole cost and expense,
shall comply with all Legal Requirements (hereinafter defined) which shall
impose any duty upon Owner or Tenant with respect to the Demised Premises or the
use or occupation thereof, including, but not limited to, any requirement that
asbestos or other hazardous material installed in the Demised Premises by Tenant
or any person claiming through or under Tenant be removed or dealt with in any
particular manner, except that Tenant shall not be required to make any
Alterations in order so to comply unless such Alterations shall be necessitated
or occasioned, in whole or in part, by the acts, omissions, or negligence of
Tenant or any person claiming through or under Tenant, or any of their servants,
employees, contractors, agents, visitors or licensees, or by the manner of use
or occupancy of the Demised Premises by Tenant or by any such person (in
contradistinction to the mere use or occupancy of the Demised Premises for the
purposes set forth in Section 2.01). For all purposes of this Lease the term
"Legal Requirements" shall mean all present and future laws, codes, ordinances,
statutes, requirements, orders and regulations, ordinary and extraordinary,
foreseen and unforeseen (including, but not limited to, the New York State
Energy Conservation Construction Code, New York City Local Laws #5 of 1973, #16
of 1984 and #58 of 1987 and the Americans with Disabilities Act, and any
successor laws of like import) of any Governmental Authority (hereinafter
defined) and all directions, requirements, orders and notices of violations
thereof. For all purposes of this Lease, the term "Governmental Authority" shall
mean the United States of America, the State of New York, the County of New
York, the Borough of Manhattan, the City of New York, any political subdivision
thereof and any agency, department, commission, board, bureau or instrumentality
of any of the foregoing, now existing or hereafter created, having jurisdiction
over Owner, Tenant, this Lease or the Real Property or any portion thereof. Any
work or installations made or performed by or on behalf of Tenant or any person
claiming through or under Tenant pursuant to the provisions of this Article
shall be made in conformity with, and subject to the provisions of Article 3.
Compliance with any requirement regarding other hazardous material which is
Tenant's obligation to so remove shall be made in conformity with the provisions
of Section 3.06.
SECTION 6.02. TENANT'S COMPLIANCE WITH OWNER'S FIRE INSURANCE: Tenant
shall not do anything, or permit anything to be done, in or about the Demised
Premises which shall (i) invalidate or be in conflict with the provisions of
any fire and/or other insurance policies covering the Building or any property
located therein, or (ii) result in a refusal by fire insurance companies of
good standing to insure the Building or any such property in amounts reasonably
satisfactory to Owner, or (iii) subject Owner to any liability or
responsibility for injury to any person or property by reason of any business
operation being conducted in the Demised Premises, or (iv) cause any increase
in the fire insurance rates applicable to the Building or property located
therein at the beginning of the Demised Term or at any time thereafter. Tenant,
at Tenant's expense, shall comply with all present and future rules, orders,
regulations and/or requirements of the New York Board of Fire Underwriters and
the New York Fire Insurance Rating Organization or any similar body and the
issuer of any insurance obtained by Owner covering the Building and/or the Real
Property, whether ordinary or extraordinary, foreseen or unforeseen, including,
but not limited to, any requirement that asbestos or other hazardous material
be removed or dealt with in any particular manner and any requirement of New
York City Local Law #5 of 1973, #16 of 1984, #58 of 1987 and the Americans With
Disabilities Act or any successor laws of like import.
SECTION 6.03. FIRE INSURANCE RATES: In any action or proceeding wherein
Owner and Tenant are parties, a schedule or "make up" of rates applicable to the
Building or property located therein issued by the New York Fire Insurance
Rating Organization, or other similar body fixing such fire insurance rates,
shall be conclusive evidence of the facts therein stated and of the several
items and charges in the fire insurance rates then applicable to the Building or
property located therein.
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\ ARTICLE 7
SUBORDINATION, ATTORNMENT, ETC.
SECTION 7.01. LEASE SUBORDINATION: This Lease and all rights of Tenant
under this Lease are, and shall remain, unconditionally subject and subordinate
in all respects to all ground and underlying leases now or hereafter in effect
affecting the Real Property or any portion thereof, and to all mortgages which
may now or hereafter affect such leases or the Real Property, of which Tenant
has been given notice and to all advances made or hereafter to be made under
such mortgages, and to all renewals, modifications, consolidations,
correlations, replacements and extensions of, and substitutions for, such leases
and mortgages (such leases as above described are referred to herein
collectively as the "Superior Lease" and such mortgages as above described are
referred to herein collectively as the "Mortgage"). The foregoing provisions of
this Section shall be self-operative and no further instrument of subordination
shall be required. In confirmation of such subordination, Tenant shall execute
and deliver promptly any certificate or other instrument which Owner, or any
lessor under any Superior Lease, or any holder of any Mortgage may request. If,
in connection with obtaining financing with respect to the Building, the Real
Property, or the interest of the lessee under any Superior Lease, any recognized
lending institution shall request reasonable modifications of this Lease as a
condition of such financing, Tenant covenants not unreasonably to withhold or
delay its agreement to such modifications, provided that such modifications do
not materially increase the obligations, or materially and adversely affect the
rights, of Tenant under this Lease. No act or failure to act on the part of
Owner which would entitle Tenant under the terms of this Lease, or by law, to be
relieved of Tenant's obligations hereunder or to terminate this Lease shall
result in a release or termination of such obligations or a termination of this
Lease unless (i) Tenant shall have first given written notice of Owner's act or
failure to act to the holder or holders of any Mortgage and/or the lessor under
any Superior Lease of whom Tenant has been given written notice, specifying the
act or failure to act on the part of Owner which could or would give basis to
Tenant's rights; and (ii) the holder or holders of such Mortgage and/or the
lessors under any Superior Lease, after receipt of such notice, have failed or
refused to correct or cure the condition complained of within a reasonable time
thereafter, but nothing contained in this sentence shall be deemed to impose any
obligation on any such holder or lessor to correct or cure any such condition
but in no event shall Owner be relieved of its obligations hereunder.
"Reasonable time" as used above means and includes a reasonable time to obtain
possession of the Building if any such holder or lessor elects to do so
(provided such holder or lessor institutes proceedings to obtain possession
within a reasonable time after notice from Tenant pursuant to the foregoing
provisions and conducts such proceedings with reasonable diligence) and a
reasonable time after so obtaining possession to correct or cure the condition
if such condition is determined to exist (provided such holder or lessor
commences said cure within ten (10) days after obtaining possession and
prosecutes the work required to cure with reasonable diligence).
SECTION 7.02. TENANT ATTORNMENT: If, at any time prior to the
expiration of the Demised Term, any Superior Lease under which Owner then shall
be the lessee shall terminate or be terminated for any reason, or the holder of
any Mortgage comes into possession of the Real Property or the Building or the
estate created by any Superior Lease by a receiver or otherwise, Tenant agrees,
at the election and upon demand of any owner of the Real Property, or of the
holder of any Mortgage so in possession, or of any lessee under any Superior
Lease covering the premises which include the Demised Premises, to attorn, from
time to time, to any such owner, holder, or lessee, upon the then executory
terms and conditions of this Lease, for the remainder of the term originally
demised in this Lease, provided that such owner, holder or lessee, as the case
may be, shall then be entitled to possession of the Demised Premises. The
provisions of this Section shall enure to the benefit of any such owner, holder,
or lessee, shall apply notwithstanding that, as a matter of law, this Lease may
terminate upon the termination of any Superior Lease, shall be self-operative
upon any such demand, and no further instrument shall be required to give effect
to said provisions. Tenant, however, upon demand of any such owner, holder, or
lessee, agrees to execute, from time to time, instruments in confirmation of the
foregoing provisions of this Section, satisfactory to any such owner, holder, or
lessee, acknowledging such attornment and setting forth the terms and conditions
of its tenancy. Nothing contained in this Section shall be construed to impair
any right otherwise exercisable by any such owner, holder, or lessee.
Notwithstanding anything to the contrary set forth in this Article
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no such owner, holder or lessee shall be bound by (i) any payment of any
instalment of Fixed Rent or increases therein or any additional rent which may
have been made more than thirty (30) days before the due date of such
installment (except prepayments in the nature of security for the performance of
Tenant's obligations under this Lease), or (ii) any amendment or modification to
this Lease which is made without its consent.
SECTION 7.03. TENANT ESTOPPEL CERTIFICATE: From time to time, within seven
(7) days next following Owner's request, Tenant shall deliver to Owner a written
statement executed and acknowledged by Tenant, in form satisfactory to Owner,
(i) stating that this Lease is then in full force and effect and has not been
modified (or if modified, setting forth the specific nature of all
modifications), and (ii) setting forth the date to which the Fixed Rent has been
paid, and (iii) stating whether or not, to the best knowledge of Tenant, Owner
is in default under this Lease, and, if Owner is in default, setting forth the
specific nature of all such defaults and (iv) stating that Tenant has accepted
and occupied the Demised Premises and all improvements required to be made by
Owner pursuant to the provisions of this Lease, have been made, if such be the
case. Tenant acknowledges that any statement delivered pursuant to this Section
may be relied upon by any purchaser or owner of the Building, or of the Real
Property, or any part thereof, or of Owner's interest in the Building or the
Real Property or any Superior Lease, or by the holder of any Mortgage, or by any
assignee of the holder of any Mortgage, or by any lessor under any Superior
Lease.
SECTION 7.04. OWNER ASSIGNMENT OF LEASE AND RENTS: If Owner assigns its
interest in this Lease, or the rents payable hereunder, to the holder of any
Mortgage or the lessor under any Superior Lease, whether the assignment shall be
conditional in nature or otherwise, Tenant agrees that (a) the execution thereof
by Owner and the acceptance by such holder or lessor shall not be deemed an
assumption by such holder or lessor of any of the obligations of the Owner under
this Lease unless such holder or lessor shall, by written notice sent to Tenant,
specifically otherwise elect; and (b) except as aforesaid, such holder or lessor
shall be treated as having assumed Owner's obligations hereunder only upon the
foreclosure of such holder's Mortgage or the termination of such lessor's
Superior Lease and the taking of possession of the Demised Premises by such
holder or lessor, as the case may be.
SECTION 7.05. Owner agrees within a reasonable time after the execution and
delivery of this Lease to request the then holder or holders of the existing
Mortgage to enter into an agreement substantially to the effect that in the
event of any foreclosure of the existing Mortgage, such holder or holders will
not make Tenant a party-defendant to such foreclosure (unless required by law in
order to obtain jurisdiction, but in such event, no judgment foreclosing this
Lease will be sought) nor disturb its possession under this Lease so long as
there shall be no default by Tenant under this Lease beyond applicable grace
periods (any such agreement, or any agreement of similar import, is referred to
as a "Non-Disturbance Agreement" and any provisions in any Mortgage
substantially to the same effect as those contained in a Non-Disturbance
Agreement are referred to as "Non-Disturbance Provisions"). At or about the time
that Owner executes any future Mortgage, Owner agrees to request the then holder
or holders of such future Mortgage to enter into a Non-Disturbance Agreement or
include Non-Disturbance Provisions in such future Mortgage. At or about the time
that Owner executes any future Superior Lease of the Real Property or the
Building, Owner shall request the lessor thereof to enter into an agreement
substantially to the effect that in the event of the termination of such
Superior Lease by reason of the default or insolvency of the lessee thereunder,
such lessor will permit Tenant to attorn to such lessor and will not disturb its
possession under this Lease so long as there shall be no default by Tenant under
this Lease beyond applicable grace periods (any such agreement, or any agreement
of similar import, is referred to as a "Tenant Recognition Agreement" and any
provisions in any such Superior Lease substantially to the same effect as those
contained in a Tenant Recognition Agreement are referred to as ""Tenant
Recognition Provisions"). If Owner is unable in good faith to obtain any such
Non-Disturbance Agreement, Non-Disturbance Provisions, Tenant Recognition
Agreement or Tenant Recognition Provisions, neither the validity of this Lease
nor the obligations of Tenant under this Lease shall be affected hereby and
Owner shall not be liable to Tenant for its failure to obtain any such
Non-Disturbance Agreement, Non-Disturbance Provisions, Tenant Recognition
Agreement or Tenant Recognition Provisions, it being intended that Owner's sole
obligation with respect to any Non-Disturbance Agreement, Non-Disturbance
Provisions,
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Tenant Recognition Agreement or Tenant Recognition Provisions, shall be to
request, in good faith, (a) within a reasonable time after the execution and
delivery of this Lease (with respect to the existing Mortgage) and (b) at or
about the date of execution of any future Mortgage or Superior Lease (with
respect to any future Mortgage or Superior Lease) the then holders of any
Mortgage or the then lessor under the Superior Lease, as the case may be, to
enter into such Non-Disturbance Agreement (with respect to the existing
Mortgage) or enter into such Non-Disturbance Agreement or include
Non-Disturbance Provisions in any future Mortgage or enter into such Tenant
Recognition Agreement or include Tenant Recognition Provisions in any future
Superior Lease, as the case may be. If required by the holder of any Mortgage
or by the lessor under any Superior Lease, Tenant shall promptly join in any
commercially reasonable Non-Disturbance Agreement or Tenant Recognition
Agreement to indicate its concurrence with the provisions thereof. Owner will
pay any commercially reasonable fee charged by any holder or lessor for
preparing such Agreement or Provisions.
ARTICLE 8
PROPERTY LOSS, ETC.
SECTION 8.01. Any Building employee to whom any property shall be
entrusted by or on behalf of Tenant shall be deemed to be acting as Tenant's
agent with respect to such property and neither Owner nor Owner's agents shall
be liable for any loss of or damage to any such property by theft or otherwise.
Neither (i) the performance by Owner, Tenant or others of any decorations,
repairs, alterations, additions or improvements in or to the Building or the
Demised Premises, nor (ii) the failure of Owner or others to make any such
decorations, repairs, alterations, additions or improvements, nor (iii) any
damage to the Demised Premises or to the property of Tenant, nor any injury to
any persons, caused by other tenants or persons in the Building, or by
operations in the construction of any private, public or quasi-public work, or
by any other cause, nor (iv) any latent defect in the Building or in the Demised
Premises, nor (v) any temporary or permanent closing, darkening or bricking up
of any windows of the Demised Premises for any reason whatsoever including, but
not limited to, Owner's own acts, nor (vi) any inconvenience or annoyance to
Tenant or injury to or interruption of Tenant's business by reason of any of the
events or occurrences referred to in the foregoing subdivisions (i) through (v),
shall constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of rent, or relieve Tenant from
any of its obligations under this Lease, or impose any liability upon Owner, or
its agents, or any lessor under any Superior Lease, other than such liability as
may be imposed upon Owner by law for Owner's negligence or the negligence of
Owner's agents, servants or employees in the operation or maintenance of the
Building or for the breach by Owner of any express covenant of this Lease on
Owner's part to be performed. Tenant's taking possession of the Demised Premises
shall be conclusive evidence, as against Tenant, that, at the time such
possession was so taken, the Demised Premises and the Building were in good and
satisfactory condition and Owner's Initial Construction was substantially
completed.
ARTICLE 9
DESTRUCTION-FIRE OR OTHER CASUALTY
SECTION 9.01. OWNER'S REPAIR OBLIGATIONS: If the Demised Premises
shall be damaged by fire or other casualty and if Tenant shall give prompt
notice to Owner of such damage, Owner, at Owner's expense, shall repair such
damage. However, Owner shall have no obligation to repair any damage to, or to
replace, Tenant's Personal Property or any other property or effects of Tenant.
Except as otherwise provided in Section 9.03, if the entire Demised Premises
shall be rendered untenantable by reason of any such damage, the Fixed Rent
shall xxxxx for the period from the date of such damage to the earlier of
(x) the date ten (10) days next following the date when such damage shall have
been repaired or (y) the date upon which Tenant shall have completed its
repairs thereto and commenced the conduct of its business therein, and if only
a part of the Demised Premises shall
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be so rendered untenantable, the Fixed Rent shall xxxxx for such period in the
proportion which the area of the part of the Demised Premises so rendered
untenantable bears to the total area of the Demised Premises. However, if,
prior to the date when all of such damage shall have been repaired, any part of
the Demised Premises so damaged shall be rendered tenantable and shall be used
or occupied by Tenant or any person or persons claiming through or under
Tenant, then the amount by which the Fixed Rent shall xxxxx shall be equitably
apportioned for the period from the date of any such use or occupancy to the
date when all such damage shall have been repaired. Tenant hereby expressly
waives the provisions of Section 227 of the New York Real Property Law, and of
any successor law of like import then in force, and Tenant agrees that the
provisions of this Article shall govern and control in lieu thereof.
Notwithstanding the foregoing provisions of this Section, if, prior to or
during the Demised Term, (i) the Demised Premises shall be totally damaged or
rendered wholly untenantable by fire or other casualty, and if Owner shall
decide not to restore the Demised Premises, or (ii) the Building shall be so
damaged by fire or other casualty that, in Owner's opinion, substantial
alteration, demolition, or reconstruction of the Building shall be required
(whether or not the Demised Premises shall have been damaged or rendered
untenantable), then, in any of such events, Owner, at Owner's option, may give
to Tenant, within ninety (90) days after such fire or other casualty, a five
(5) days' notice of termination of this Lease and, in the event such notice is
given, this Lease and the Demised Term shall come to an end and expire (whether
or not said term shall have commenced) upon the expiration of said five (5)
days with the same effect as if the date of expiration of said five (5) days
were the Expiration Date, the Fixed Rent shall be apportioned as of such date
or as of any earlier date upon which the Fixed Rent shall have abated as
hereinabove provided in this Section and any prepaid portion of Fixed Rent for
any period after such date shall be refunded by Owner to Tenant.
Section 9.02. OWNER'S SUBROGATION WAIVER PROVISIONS: Owner now has
and shall attempt to maintain, throughout the Demised Term, in Owner's fire
insurance policies covering the Building, provisions to the effect that such
policies shall not be invalidated should the insured waive, in writing, prior to
a loss, any or all right of recovery against any party for loss occurring to the
Building. In the event that at any time Owner's fire insurance carriers shall
exact an additional premium for the inclusion of such or similar provisions,
Owner shall give Tenant notice thereof. In such event, if Tenant agrees, in
writing, to reimburse Owner for such additional premium for the remainder of the
Demised Term, Owner shall require the inclusion of such or similar provisions by
Owner's fire insurance carriers. As long as such or similar provisions are
included in Owner's fire insurance policies then in force, Owner hereby waives
(i) any obligation on the part of Tenant to make repairs to the Demised Premises
necessitated or occasioned by fire or other casualty that is an insured risk
under such policies, and (ii) any right of recovery against Tenant, any other
permitted occupant of the Demised Premises, and any of their servants,
employees, agents or contractors, for any loss occasioned by fire or other
casualty which is an insured risk under such policies. In the event that at any
time Owner's fire insurance carriers shall not include such or similar
provisions in Owner's fire insurance policies, the waivers set forth in the
foregoing sentence shall, upon notice given by Owner to Tenant, be deemed of no
further force or effect.
Section 9.03. TENANT NEGLIGENCE: Except to the extent expressly
provided in Section 9.02, nothing contained in this Lease shall relieve Tenant
of any liability to Owner or to its insurance carriers which Tenant may have
under law or the provisions of this Lease in connection with any damage to the
Demised Premises or the Building caused by fire or other casualty.
Notwithstanding the provision of Section 9.01, if any such damage, occurring
after any date when the waivers set forth in Section 9.02 are no longer in force
and effect, is due to the fault or neglect of Tenant, any person claiming
through or under Tenant, or any of their servants, employees, agents,
contractors, visitors or licensees, then there shall be no abatement of Fixed
Rent by reason of such damage.
Section 9.04. TENANT SUBROGATION WAIVER PROVISIONS: Tenant
acknowledges that it has been advised that Owner's insurance policies do not
cover Tenant's Personal Property or any other property of Tenant in the Demised
Premises; accordingly, it shall be Tenant's obligation to obtain and maintain
insurance covering its property in the Demised Premises and loss of profits
including, but no limited to, water damage coverage and business interruption
insurance. Tenant shall attempt to obtain and maintain, throughout the Demised
Term, in
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Tenant's fire and other insurance policies covering Tenant's Personal Property
and other property of Tenant in the Demised Premises, and Tenant's use and
occupancy of the Demised Premises, and/or Tenant's profits (and shall cause any
other permitted occupants of the Demised Premises to attempt to obtain and
maintain, in similar policies), provisions to the effect that such policies
shall not be invalidated should the insured waive, in writing, prior to a loss,
any or all right of recovery against any party for loss occasioned by fire or
other casualty which is an insured risk under such policies. In the event that
at any time the fire insurance carriers issuing such policies shall exact an
additional premium for the inclusion of such or similar provisions, Tenant
shall give Owner notice thereof. In such event, if Owner agrees, in writing, to
reimburse Tenant or any person claiming through or under Tenant, as the case
may be, for such additional premium for the remainder of the Demised Term,
Tenant shall require the inclusion of such or similar provisions by such
insurance carriers. As long as such or similar provisions are included in such
insurance policies then in force, Tenant hereby waives (and agrees to cause any
other permitted occupants of the Demised Premises to execute and deliver to
Owner written instruments waiving) any right of recovery against Owner, any
lessors under any Superior Leases, the holders of any Mortgage, and all other
tenants or occupants of the Building, and any servants, employees, agents or
contractors of Owner, or of any such lessor, or holder or any such other
tenants or occupants, for any loss occasioned by fire or other casualty which
is an insured risk under such policies. In the event that at any time such
insurance carriers shall not include such or similar provisions in any such
insurance policy, the waiver set forth in the foregoing sentence (or in any
written instrument executed by any other permitted occupant of the Demised
Premises) shall, upon notice given by Tenant to Owner, be deemed of no further
force or effect with respect to any insured risks under such policy from and
after the giving of such notice. During any period while any such waiver of
right of recovery is in effect, Tenant, or any other permitted occupant of the
Demised Premises, as the case may be, shall look solely to the proceeds of such
policies to compensate Tenant or such other permitted occupant for any loss
occasioned by fire or other casualty which is an insured risk under such
policies.
SECTION 9.05. Supplementing the provisions of Section 9.01, if as a result
of any damage to fifty (50%) percent or more of the Demised Premises by fire or
other casualty, (a) it shall become impractical for Tenant to conduct its
business in any part of the Demised Premises, and (b) no part of the Demised
Premises shall be used or occupied for business purposes by Tenant or any other
person claiming through or under Tenant, the entire Demised Premises shall be
deemed untenantable for the purposes of Section 9.01.
SECTION 9.06. Supplementing the provisions of Section 9.02, if any damage
to the Demised Premises or the Building by fire or other casualty occurring
after any date when the waivers set forth in Section 9.02 are no longer in
force and effect is due to the fault or negligence of Tenant, any person
claiming through or under Tenant, or any of their servants, employees, agents,
contractors, visitors or licensees, and if Owner shall have rent insurance
policies in force at that time covering the loss of Fixed Rent for the Demised
Premises, and if such policies shall not be affected by the provisions of this
Section, then, notwithstanding anything contained in Section 9.03 to the
contrary, the Fixed Rent shall xxxxx in accordance with the provisions of
Section 9.01, but only to the extent of any proceeds received by Owner under
such rent insurance policies with respect to the Demised Premises and the
Demised Term. Owner presently has such rent insurance policies in force and
shall attempt to maintain same during the entire Demised Term.
ARTICLE 10
EMINENT DOMAIN
SECTION 10.01. TAKING OF THE DEMISED PREMISES: If the whole of the
Demised Premises shall be acquired for any public or quasi-public use or
purpose, whether by condemnation or by deed in lieu of condemnation, this Lease
and the Demised Term shall end as of the date of the vesting of title with the
same effect as if said date were the Expiration Date. If only a part of the
Demised Premises shall be so acquired or condemned then, except as otherwise
provided in this Section, this Lease and the Demised Term shall continue in
force and
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effect but, from and after the date of the vesting of title, the Fixed Rent
shall be reduced in the proportion which the area of the part of the Demised
Premises so acquired or condemned bears to the total area of the Demised
Premises immediately prior to such acquisition or condemnation. If only a part
of the Real Property shall be so acquired or condemned, then (i) whether or not
the Demised Premises shall be affected thereby, Owner, at Owner's option, may
give to Tenant, within sixty (60) days next following the date upon which Owner
shall have received notice of vesting of title, a five (5) days' notice of
termination of this Lease, and (ii) if the part of the Real Property so
acquired or condemned shall contain more than ten (10%) percent of the total
area of the Demised Premises immediately prior to such acquisition or
condemnation, or if, by reason of such acquisition or condemnation, Tenant no
longer has reasonable means of access to the Demised Premises, Tenant, at
Tenant's option, may give to Owner, within sixty (60) days next following the
date upon which Tenant shall have received notice of vesting of title, a five
(5) days' notice of termination of this Lease. In the event any such five (5)
days' notice of termination is given, by Owner or Tenant, this Lease and the
Demised Term shall come to an end and expire upon the expiration of said five
(5) days with the same effect as if the date of expiration of said five (5)
days were the Expiration Date. If a part of the Demised Premises shall be so
acquired or condemned and this Lease and the Demised Term shall not be
terminated pursuant to the foregoing provisions of this Section, Owner, at
Owner's expense, shall restore that part of the Demised Premises not so
acquired or condemned to a self-contained rental unit. In the event of any
termination of this Lease and the Demised Term pursuant to the provisions of
this Section, the Fixed Rent shall be apportioned as of the date of such
termination and any prepaid portion of Fixed Rent for any period after such
date shall be refunded by Owner to Tenant.
SECTION 10.02. CONDEMNATION AWARD OR CLAIMS: In the event of any such
acquisition or condemnation of all or any part of the Real Property, Owner
shall be entitled to receive the entire award for any such acquisition or
condemnation, Tenant shall have no claim against Owner or the condemning
authority for the value of any unexpired portion of the Demised Term and Tenant
hereby expressly assigns to Owner all of its right in and to any such award.
Nothing contained in this Section shall be deemed to prevent Tenant from making
a claim in any condemnation proceedings for the value of any items of Tenant's
Personal Property which are compensable, in law, as trade fixtures.
ARTICLE 11
ASSIGNMENT AND SUBLETTING
SECTION 11.01. GENERAL COVENANT: Tenant, for itself, its heirs,
distributees, executors, administrators, legal representatives, successors and
assigns, covenants that, without the prior consent of Owner in each instance, it
shall not (i) assign whether by merger, consolidation or otherwise, mortgage or
encumber its interest in this Lease, in whole or in part, except as set forth in
Section 11.05 (ii) sublet, or permit the subletting of, the Demised Premises or
any part thereof, or (iii) permit the Demised Premises or any part thereof to be
occupied, or used for desk space, (other than affiliates), mailing privileges or
otherwise, by any person other than Tenant. The sale, pledge, transfer or other
alienation of (a) any controlling interest of the issued and outstanding capital
stock of any corporate Tenant (unless such stock is publicly traded on a
recognized security exchange or over-the counter market) or (b) any controlling
interest in any partnership or joint venture Tenant, however accomplished, and
whether in a single transaction or in a series of related and/or unrelated
transactions, shall be deemed for the purposes of this Section as an assignment
of this Lease which shall require the prior consent of Owner in each instance.
SECTION 11.02. OWNER'S RIGHTS UPON ASSIGNMENT: If Tenant's interest in
this Lease is assigned, whether or not in violation of the provisions of this
Article, Owner may collect rent from the assignee; if the Demised Premises or
any part thereof are sublet to, or occupied by, or used by, any person other
than Tenant, whether or not in violation of this Article, Owner, after default
by Tenant under this Lease, may collect rent from the subtenant, user or
occupant. In either case, Owner shall apply the net amount collected to the
rents reserved
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in this Lease, but neither any such assignment, subletting, occupancy, or use,
whether with or without Owner's prior consent, nor any such collection or
application, shall be deemed a waiver of any term, covenant or condition of this
Lease or the acceptance by Owner of such assignee, subtenant, occupant or user
as tenant. The consent by Owner to any assignment, subletting, occupancy or use
shall not relieve Tenant from its obligation to obtain the express prior consent
of Owner to any further assignment, subletting, occupancy or use. If this Lease
is assigned to any person or entity pursuant to any proceeding of the type
referred to in Subsections 16.01(c) and 16.01(d), any and all monies or other
consideration payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Owner, shall be and remain the
exclusive property of Owner and shall not constitute property of Tenant or of
the estate of Tenant within the meaning of any proceeding of the type referred
to in Subsections 16.01(c) and 16.01(d). Any and all monies or other
considerations constituting Owner's property under the preceding sentence not
paid or delivered to Owner shall be held in trust for the benefit of Owner and
shall be promptly paid to or turned over to Owner. Any person or entity to which
this Lease is assigned pursuant to any proceeding of the type referred to in
Subsections 16.01(c) and 16.01(d) shall be deemed without further act or deed to
have assumed all of the obligations arising under this Lease on and after the
date of such assignment. Any such assignee shall execute and deliver to Owner
upon demand an instrument confirming such assumption. The listing of any name
other than that of Tenant on any door of the Demised Premises or on any
directory or in any elevator in the Building, or otherwise, shall not operate to
vest in the person so named any right or interest in this Lease or in the
Demised Premises, or the Building, or be deemed to constitute, or serve as a
substitute for, any prior consent of Owner required under this Article, and it
is understood that any such listing shall constitute a privilege extended by
Owner which shall be revocable at Owner's will by notice to Tenant. Tenant
agrees to pay to Owner reasonable counsel fees incurred by Owner in connection
with any proposed assignment of Tenant's interest in this Lease or any proposed
subletting of the Demised Premises or any part thereof. Neither any assignment
of Tenant's interest in this Lease nor any subletting, occupancy or use of the
Demised Premises or any part thereof by any person other than Tenant, nor any
collection of rent by Owner from any person other than Tenant as provided in
this Section, nor any application of any such rent as provided in this Section
shall, in any circumstances, relieve Tenant of its obligation fully to observe
and perform the terms, covenants and conditions of this Lease on Tenant's part
to be observed or performed.
SECTION 11.03 SUBLET RIGHTS. A. (1) As long as Tenant is not in
default under any of the terms, covenants or conditions of this Lease on
Tenant's part to be observed or performed, Owner agrees not to unreasonably
withhold Owner's prior consent to sublettings by Tenant of all or parts of the
Demised Premises to not more than two (2) subtenants. Each such subletting shall
be for undivided occupancy by the subtenant of that part of the Demised Premises
affected thereby, for the use expressly permitted in this Lease, i.e., as
general offices for an information technology business, and at no time shall
there be more than two (2) occupants, including Tenant, in the Demised Premises.
(2) Without Owner's prior consent, Tenant shall not (a)
negotiate or enter into a proposed subletting with any tenant, subtenant or
occupant of any space in the Building or (b) list or otherwise publicly
advertise the Demised Premises or any part thereof for subletting at a rental
lower than the higher of (i) the Fixed Rent then in effect under this Lease,
allocable to the space sought to be sublet or (ii) the rental at which the Owner
is then actively negotiating comparable space in the Building.
(3) At least thirty (30) days prior to any proposed
subletting, Tenant shall submit to Owner a statement (the "Proposed Sublet
Statement") containing the name and address of the proposed subtenant, the
nature of the proposed subtenant's business and its current financial status,
if such status is obtained or obtainable by Tenant, and all of the principal
terms and conditions of the proposed subletting including, but not limited to,
the proposed commencement and expiration dates of the term thereof. Unless the
proposed sublet area shall constitute only an entire floor (or floors), the
Proposed Sublet Statement shall be accompanied by a floor plan delineating the
proposed sublet area.
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(4) Owner may arbitrarily withhold consent to a proposed
subletting if, (a) the occupancy of the proposed subtenant will impair the
character or dignity of the Building or impose any material additional burden
upon Owner in the operation of the Building or (b) the occupancy of the proposed
subtenant will impair the reputation of (i) the Building as an information
technology center or (ii) the floor on which the proposed sublet area is located
as a floor devoted to information technology tenants, or (c) the proposed
subtenant shall be a person or entity with whom Owner is then actively
negotiating to lease space in the Building.
(5) In the event of any dispute between Owner and Tenant
as to the reasonableness of Owner's failure or refusal to consent to any
subletting, such dispute shall be submitted to arbitration in accordance with
the provisions of Article 36.
B. Notwithstanding the foregoing provisions of this Section
11.03, Owner shall have the following rights with respect to each proposed
subletting by Tenant:
(1) In the event Tenant proposes to sublet all or
substantially all of the Demised Premises, Owner, at Owner's option, may give
to Tenant, within thirty (30) days after the submission by Tenant to Owner of
the Proposed Sublet Statement, a notice terminating this Lease on the date
(referred to as the "Earlier Termination Date") immediately prior to the
proposed commencement date of the term of the proposed subletting, as set forth
in such statement, and, in the event such notice is given, this Lease and the
Demised Term shall come to an end and expire on the Earlier Termination Date
with the same effect as if it were the Expiration Date, the Fixed Rent shall be
apportioned as of said Earlier Termination Date and any prepaid portion of
Fixed Rent for any period after such date shall be refunded by Owner to Tenant;
or
(2) In the event Tenant proposes to sublet all or any
portion of the Demised Premises, Owner, at Owner's option, may give to Tenant,
within thirty (30) days after the submission by Tenant to Owner, of the Proposed
Sublet Statement, a notice electing to eliminate such portion of the Demised
Premises (said portion is referred to as the "Eliminated Space") from the
Demised Premises during the period (referred to as the "Elimination Period")
commencing on the date (referred to as "Elimination Date") immediately prior to
the proposed commencement date of the term of the proposed subletting, as set
forth in the Proposed Sublet Statement, and ending on the proposed expiration
date of the term of the proposed subletting, as set forth in the Proposed Sublet
Statement, and in the event such notice is given the following shall apply:
(a) The Eliminated Space shall be eliminated from the Demised
Premises during the Elimination Period;
(b) Tenant shall surrender the Eliminated Space to Owner on or prior
to the Elimination Date in the same manner as if said Date were the
Expiration Date;
(c) If the Eliminated Space shall constitute less than an entire
floor, (i) Owner, at Owner's expense, shall have the right to make any
alterations and installations in the Demised Premises required, in Owner's
judgment, reasonably exercised, to make the Eliminated Space a
self-contained rental unit with access through corridors to the elevators
and core toilets serving the Eliminated Space, and if the Demised Premises
shall contain any core toilets (for the purposes of this Article core
toilets shall be deemed to include any unisex toilets) or any corridors
(including any corridors proposed to be constructed by Owner pursuant to
this subdivision (c), providing access from the Eliminated Space to the
core area), (ii) Owner and any tenant or other occupant of the Eliminated
Space shall have the right to use such toilets and corridors in common with
Tenant and any other permitted occupants of the Demised Premises, and the
right to install signs and directional indicators in or about such
corridors indicating the name and location of such tenant or other
occupant;
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(d) During the Elimination Period, the Fixed Rent, the Demised Premises
Area (as defined in Article 23), and Tenant's Electrical Share (as defined in
Section 29.05) shall each be reduced in the proportion which the area of the
Eliminated Space bears to the total area of the Demised Premises immediately
prior to the Elimination Date (including an equitable portion of the area of any
corridors referred to in subdivision (c) of this Subsection 11.03.B.(2) as part
of the area of the Eliminated Space for the purpose of computing such
reduction), and in the event that the Eliminated Space shall be the entire
Demised Premises, during the Elimination Period, Tenant shall have no rights
with respect to the Demised Premises nor any obligations with respect to the
Demised Premises, including, but not limited to, any obligations to pay Fixed
Rent or any increases therein or any additional rent, and any prepaid portion of
Fixed Rent for any period after the Elimination Date allocable to the
Elimination Space shall be refunded by Owner to Tenant;
(e) There shall be an equitable apportionment of any increase in the Fixed
Rent pursuant to Article 23 for the Escalation Year and Tax Escalation Year (as
defined in Article 23) in which said Elimination Date shall occur;
(f) If the Elimination Period shall end prior to the Expiration Date, the
Eliminated Space, in its then existing condition (provided it is usable for
general offices as an information technology business or is put in such
condition by Owner at Owner's expense prior to the Restoration Period), shall be
deemed restored to and once again a part of the Demised Premises during the
period (referred to as the "Restoration Period") commencing on the date next
following the expiration of the Elimination Period and ending on the Expiration
Date;
(g) During the Restoration Period, if any, the Fixed Rent, the Demised
Premises Area and Tenant's Electrical Share shall each be increased in the
proportion which the area of the Eliminated Space bears to the total area of the
Demised Premises immediately prior to the commencement of the Restoration Period
(including an equitable portion of the area of any corridors referred to in
subdivision (c) of this Subsection 11.03.B.(2) as part of the area of the
Eliminated Space for the purpose of computing such increase) and in the event
that the Eliminated Space shall be the entire Demised Premises, during the
Restoration Period, the Demised Premises, in its then existing condition,
(provided it is usable for general offices as an information technology business
or is put in such condition by Owner at Owner's expense prior to the Restoration
Period) shall be deemed restored to Tenant and Tenant shall have all rights with
respect to the Demised Premises which are set forth in this Lease and all
obligations with respect to the Demised Premises which are set forth in this
Lease, including, but not limited to, the obligations for the payment of Fixed
Rent and any increases therein (as it would have been adjusted if Tenant
occupied the Demised Premises during the Elimination Period) and any additional
rent; and
(h) There shall be an equitable apportionment of any increase in the Fixed
Rent pursuant to Article 23 for the Escalation Year and Tax Escalation Year in
which the Restoration Period, if any, shall commence.
However, notwithstanding the foregoing, Owner and Tenant acknowledge the
possibility that all or any of the tenants or occupants of the Eliminated Space
may not have vacated and surrendered all or any portions of the Eliminated Space
to Owner by the commencement of the Restoration Period; accordingly,
notwithstanding anything to the contrary contained in the foregoing provisions
of this Subsection B, the following shall apply:
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(x) The Restoration Period applicable to the Eliminated Space shall
commence on the commencement date of the Restoration Period with respect to
those portions, if any, of the Eliminated Space which are vacant on the
commencement of the Restoration Period and with respect to these portions,
if any, of the Eliminated Space which are not vacant on the commencement of
the Restoration Period on the respective later date or dates upon which
such portions of the Eliminated Space become vacant and Owner gives notice
to Tenant of such vacancy but the Expiration Date shall not be affected
thereby, the increases in the Fixed Rent, the Demised Premises Area and
Tenant's Electrical Share shall be equitably adjusted to reflect the fact
that all or any portions of the Eliminated Space have not been restored to
Tenant on the commencement of the Restoration Period but are restored to
Tenant and included back in the Demised Premises on a date or dates after
the commencement of the Restoration Period;
(y) except as expressly set forth in this Subsection 11.03.B. to the
contrary, neither the validity of this Lease nor the obligations of Tenant
under this Lease shall be affected thereby; and
(z) Tenant waives any rights to rescind this Lease and to recover any
damages which may result from the failure of Owner to deliver possession of
all or any portions of the Eliminated Space on the commencement of the
Restoration Period; Owner agrees to institute within ten (10) business days
after the commencement of the Restoration Period, possession proceedings
against any tenants and occupants who have not so vacated and surrendered
all or any portions of the Eliminated Space, and agrees to prosecute such
proceedings with reasonable diligence.
At the request of Owner, Tenant shall execute and deliver an instrument or
instruments, in form satisfactory to Owner, setting forth any modifications to
this Lease contemplated in or resulting from the operation of the foregoing
provisions of this Subsection 11.03; however, neither Owner's failure to request
any such instrument nor Tenant's failure to execute or deliver any such
instrument shall vitiate the effect of the foregoing provisions of this Section.
The failure by Owner to exercise any option under this Section 11.03 with
respect to any subletting shall not be deemed a waiver of such option with
respect to any extension of such subletting or any subsequent subletting of the
premises affected thereby or any other portion of the Demised Premises. Tenant
agrees to indemnify Owner from all loss, cost, liability, damage and expense,
including, but not limited to, reasonable counsel fees and disbursements,
arising from any claims against Owner by any broker or other person, for a
brokerage commission or other similar compensation in connection with any such
proposed subletting, in the event (a) Owner shall (i) fail or refuse to consent
to any proposed subletting, or (ii) exercise any of its options under this
Section 11.03, or (b) any proposed subletting shall fail to be consummated for
any reason whatsoever.
C. Tenant agrees that (1) one-half (1/2) of any increase in the
rental value of the Demised Premises over and above the Fixed Rent payable
pursuant to the provisions of this Lease, as such Fixed Rent may be increased
from time to time pursuant to the provisions of this Lease, and (2) any
consideration paid to Tenant or any subtenant or other person claiming through
or under Tenant in connection with an assignment of Tenant's interest in this
Lease or the interest of any subtenant or other person claiming through or under
Tenant under any sublease whether or not such assignment shall be effected with
court approval in a proceeding of the types described in Subsection 16.01(c) or
(d), or in any similar proceeding, or otherwise, shall accrue to the benefit of
Owner and not to the benefit of Tenant, or of any subtenant or other person
claiming through or under Tenant, or of the creditors of Tenant or of any such
subtenant or other person claiming through or under Tenant. Accordingly, Tenant
agrees that if Owner shall fail to exercise its option to sooner terminate this
Lease in connection with any proposed subletting by Tenant of all or
substantially all of the Demised Premises, or its option to eliminate the
Demised Premises or to eliminate from the Demised Premises any portion thereof,
in connection with any proposed subletting by Tenant of the entire Demised
Premises or any portion thereof, or if any subtenant or other person claiming
through or under Tenant shall sublet all or any portion of the Demised Premises,
Tenant shall pay to Owner a sum equal to one-half (1/2) to any Subletting
Profit, as such term is hereinafter defined. All rentals and
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other sums (including, but not limited to, sums payable for the sale or rental
of any fixtures, leasehold improvements, equipment, furniture or other personal
property, less, in the case of the sale thereof, the then net unamortized [on a
straight-line basis over the term of this Lease or, in the event of a further
subletting, over the term of the initial sublease, as the case may be] cost
thereof, which were provided and installed in the sublet premises at the sole
cost and expense of the Tenant or such subtenant or other person claiming
through or under Tenant and for which no allowance or other credit has been
given by Owner) payable by any subtenant to Tenant or to any subtenant or other
person claiming through or under Tenant in connection with (i) any subletting
of the entire Demised Premises in excess of the Fixed Rent then payable by
Tenant to Owner under this Lease, or (ii) any subletting of a portion of the
Demised Premises in excess of that proportion of the Fixed Rent applicable to
the floor on which the portion of the Demised Premises so sublet is located
payable by the Tenant to Owner under this Lease which the area of the portion
of the Demised Premises so sublet bears to the total area of the Demised
Premises on said floor on which the portion of the Demised Premises so sublet
is located, are referred to, in the aggregate, as "Subletting Profit"; in
computing any Subletting Profit it shall be deemed that the rental reserved
under any such subletting shall commence to accrue as of the commencement of
the term of such subletting even if such rental actually commences to accrue as
of a date subsequent to such commencement, and there shall be deducted a
reasonable single brokerage commission, if any such commission shall be
incurred by Tenant or any such subtenant or other person claiming through or
under Tenant in connection with such subletting which deduction for such
reasonable single brokerage commission shall be amortized on a straight-line
basis over the entire term of such subletting. Tenant agrees that if Tenant, or
any subtenant or other person claiming through or under Tenant, shall assign or
have assigned its interest as Tenant under this Lease or its interest as
subtenant under any sublease, as the case may be, whether or not such
assignment shall be effected with court approval in a proceeding of the types
described in Subsections 16.01(c) or (d), or in any similar proceeding, or
otherwise, Tenant shall pay to Owner a sum equal to any consideration payable
to Tenant or any subtenant or other person claiming through or under Tenant for
such assignment. All sums payable hereunder to Tenant shall be paid to Owner as
additional rent immediately upon such sums becoming payable to Tenant or to any
subtenant or other person claiming through or under Tenant and, if requested by
Owner, Tenant shall promptly enter into a written agreement with Owner setting
forth the amount of such sums to be paid to Owner, however, neither Owner's
failure to request the execution of such agreement nor Tenant's failure to
execute such agreement shall vitiate the provisions of this Section. For the
purposes of this Article, a trustee, receiver or other representative of the
Tenant's or any subtenant's estate under any federal or state bankruptcy act
shall be deemed a person claiming through or under Tenant.
D. Neither Owner's consent to any subletting nor anything contained in this
Section shall be deemed to grant to any subtenant or other person claiming
through or under Tenant the right to sublet all or any portion of the Demised
Premises or to permit the occupancy of all or any portion of the Demised
Premises by others. Neither any subtenant referred to in this Section nor its
heirs, distributees, executors, administrators, legal representatives,
successors nor assigns, without the prior consent of Owner in each instance,
shall (i) assign, whether by merger, consolidation or otherwise, mortgage or
encumber its interest in any sublease, in whole or in part, or (ii) sublet, or
permit the subletting of, that part of the Demised Premises affected by such
subletting or any portion thereof, or (iii) permit such part of the Demised
Premises affected by such subletting or any portion thereof to be occupied or
used for desk space, mailing privileges or otherwise, by any person other than
such subtenant and any sublease shall provide that any violation of the
foregoing provisions of this sentence shall be an event of default thereunder.
Except as otherwise set forth in this Article 11, the sale, pledge, transfer or
other alienation of (a) any of the issued and outstanding capital stock of any
corporate subtenant (unless such stock is publicly traded on any recognized
security exchange or over-the-counter market) or (b) any interest in any
partnership or joint venture subtenant, however accomplished, and whether in a
single transaction or in a series of related or unrelated transactions, shall be
deemed for the purposes of this Section to be an assignment of such sublease
which shall require the prior consent of Owner in each instance and any sublease
shall so provide.
Section 11.04. OWNER'S RIGHTS UPON LEASE DISAFFIRMANCE: A. In the event
that, at any time after Tenant may have assigned Tenant's interest in this
Lease, this Lease shall be disaffirmed or rejected in any proceeding of the
types described in Subsections 16.01(c) and (d), or in any similar proceeding,
or in the event of
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termination of this Lease by reason of any such proceeding or by reason of lapse
of time following notice of termination given pursuant to Section 16.01 based
upon any of the Events of Default set forth in said Subsections, Tenant, upon
request of Owner given within thirty (30) days next following any such
disaffirmance, rejection or termination (and actual notice thereof to Owner in
the event of a disaffirmance or rejection or in the event of termination other
than by act of Owner), shall (i) pay to Owner all Fixed Rent, additional rent
and other charges due and owing by the assignee to Owner under this Lease to and
including the date of such disaffirmance, rejection or termination, and (ii) as
"tenant", enter into a new lease with Owner of the Demised Premises for a term
commencing on the effective date of such disaffirmance, rejection or termination
and ending on the Expiration Date unless sooner terminated as in such lease
provided, at the same Fixed Rent and then executory terms, covenants and
conditions as are contained in this Lease, except that (a) Tenant's rights under
the new lease shall be subject to the possessory rights of the assignee under
this Lease and the possessory rights of any person claiming through or under
such assignee or by virtue of any statute or of any order of any court, and (b)
such new lease shall require all defaults existing under this Lease to be cured
by Tenant with due diligence, and (c) such new lease shall require Tenant to pay
all increases in the Fixed Rent reserved in this Lease which, had this Lease not
been so disaffirmed, rejected or terminated, would have accrued under the
provisions of Article 23 of this Lease after the date of such disaffirmance,
rejection or termination with respect to any period prior thereto. In the event
Tenant shall default in its obligation to enter into said new lease for a period
of ten (10) days next following Owner's request therefor, then, in addition to
all other rights and remedies by reason of such default, either at law or in
equity, Owner shall have the same rights and remedies against Tenant as if
Tenant had entered into such new lease and such new lease had thereafter been
terminated as at the commencement date thereof by reason of Tenant's default
thereunder. Nothing contained in this Section shall be deemed to grant to Tenant
any right to assign Tenant's interest in this Lease.
SECTION 11.05. As long as Tenant is not then in default under any of the
terms, covenants or conditions of this Lease on Tenant's part to be observed or
performed, Owner's consent shall not be required to an assignment of Tenant's
interest in this Lease to any person, corporation, partnership, or other
business entity which is a successor of Tenant, either by merger or
consolidation or the purchase of all or substantially all of the assets,
business and goodwill of NYSERNet, Inc., Tenant named herein, provided that said
person, corporation, partnership or other business entity shall have a net
worth, as determined in accordance with generally accepted accounting principles
consistently applied, at least equal to that of Tenant named herein as of the
date of this Lease, and provided further that such successor, person,
corporation, partnership or other business entity shall continue to operate
Tenant's present business in the Demised Premises and the interest of Tenant
named herein in this Lease is not the sole or principal asset of Tenant named
herein and such assignment is made for a good business purpose. At the time of
said proposed assignment, Tenant shall deliver to Owner a reasonably detailed
statement of the financial condition of the aforesaid proposed assignee,
prepared in accordance with generally accepted accounting principles applied on
a consistent basis, sworn to by an executive officer of Tenant and the proposed
Assignee, which statement shall reflect the financial condition of the aforesaid
proposed assignee at that time. Notwithstanding anything contained in this
Section to the contrary, such assignment shall not be valid if the aforesaid
proposed assignee shall not have a net worth, at least equal to that of Tenant
as of the date of this Lease or the interest of Tenant named herein in this
Lease is the sole or principal asset of Tenant named herein or such assignment
is not made for a good business purpose. In the event of any dispute between
Owner and Tenant as to the validity of any such assignment such dispute shall be
determined by arbitration in the City of New York in accordance with the
provisions of Article 36. Any such determination shall be final and binding upon
the parties whether or not a judgment shall be entered in any court. If the
determination of any such arbitration shall be adverse to Owner, Owner,
nevertheless, shall not be liable to Tenant and Tenant's sole remedy in such
event shall be to have the proposed assignment deemed valid. No such assignment
shall be valid, unless, within ten (10) days after the execution thereof, Tenant
shall deliver to Owner (1) a duplicate original instrument of assignment in form
and substance reasonably satisfactory to Owner duly executed by Tenant,
acknowledged before a notary public, in customary and reasonable form and
substance in which Tenant shall (a) waive all notices of default given to the
assignee and all other notices of every kind or description, now or hereafter
provided in this Lease, by statute or by rule of law; (b) acknowledge that
Tenant's obligations with respect to this Lease shall not be discharged,
released
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or impaired by (i) such assignment; (ii) any amendment or modification of this
Lease (whether or not the obligations of Tenant are increased thereby); (iii)
any further assignment or transfer of Tenant's interest in this Lease; (iv) any
exercise, non-exercise or waiver by Owner of any right, remedy, power or
privilege under or with respect to this Lease; (v) any waiver, consent,
extension, indulgence or other act or omission with respect to any of the
obligations of Tenant under this Lease; (vi) any act or thing which, but for the
provisions of such assignment, might be deemed a legal or equitable discharge of
a surety or assignor, to all of which Tenant shall consent in advance; it being
the purpose and intent of Owner and Tenant that the obligations of Tenant
hereunder as assignor shall be absolute and unconditional under any and all
circumstances; and (II) an instrument in form and substance reasonably
satisfactory to Owner, duly executed by the proposed assignee, acknowledged
before a notary public, in which such proposed assignee shall assume observance
and performance of, and agree to be bound by, all of the terms, covenants and
conditions of this Lease on Tenant's part to be performed.
SECTION 11.06. A. Supplementing the provisions of Article 11, as long as
Tenant is not in default under any of the terms, covenants or conditions of this
Lease on Tenant's part to be observed and performed, after notice and expiration
of applicable cure periods, NYSERNet, Inc., Tenant named herein, shall have the
right, without the prior consent of Owner, to assign its interest in this Lease,
for the use permitted in this Lease to Netcast Communications Corp. or to any
subsidiary or affiliate of Tenant named herein, which is in the same general
line of business as Tenant named herein and only for such period as it shall
remain such subsidiary or affiliate. For the purposes of this Article: (a) a
"subsidiary" of Tenant named herein shall mean any corporation not less than
fifty-one (51%) percent of whose outstanding voting stock at the time shall be
owned by Tenant named herein, and (b) an "affiliate" of Tenant named herein
shall mean any corporation, partnership or other business entity which controls
or is controlled by, or is under common control with Tenant. For the purpose of
the definition of "affiliate" the word "control" (including, "controlled by" and
"under common control with") as used with respect to any corporation,
partnership or other business entity, shall mean the possession of the power to
direct or cause the direction of the management and policies of such
corporation, partnership or other business entity, whether through the ownership
of voting securities or contract. No such assignment shall be valid or effective
unless, within ten (10) days after the execution thereof, Tenant shall deliver
to Owner all of the following: (I) a duplicate original instrument of
assignment, in form and substance reasonably satisfactory to Owner, duly
executed by Tenant, in customary and reasonable form and substance in which
Tenant shall (a) waive all notices of default given to the assignee, and all
other notices of every kind or description now or hereafter provided in this
Lease, by statute or rule of law, and (b) acknowledge that Tenant's obligations
with respect to this Lease shall not be discharged, released or impaired by (i)
such assignment, (ii) any amendment or modification of this Lease, whether or
not the obligations of Tenant are increased thereby, (iii) any further
assignment or transfer of Tenant's interest in this Lease, (iv) any exercise,
non-exercise or waiver by Owner of any right, remedy, power or privilege under
or with respect to this Lease, (v) any waiver, consent, extension, indulgence or
other act or omission with respect to any other obligations of Tenant under this
Lease, (vi) any act or thing which, but for the provisions of such assignment,
might be deemed a legal or equitable discharge of a surety or assignor, to all
of which Tenant shall consent in advance, it being the purpose and intent of
Owner and Tenant that the obligations of Tenant hereunder as assignor shall be
absolute and unconditional under any and all circumstances, and (II) an
instrument, in form and substance reasonably satisfactory to Owner, duly
executed by the assignee, in which such assignee shall assume the observance and
performance of, and agree to be bound by, all of the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed.
B. Further supplementing the provisions of Article 11, as
long as Tenant is not in default under any of the terms, covenants or conditions
of this Lease on Tenant's part to be observed and performed, after notice and
the expiration of applicable cure periods NYSERNet, Inc., Tenant named herein,
shall have the right without the prior consent of Owner, to sublet to, or permit
the use or occupancy of, all or any part of the Demised Premises to Netcast
Communications Corp. or by any subsidiary or affiliate (as said terms are
defined in Section 11.06A.) of Tenant named herein for the use permitted in this
Lease provided that such subsidiary or affiliate is in the same general line of
business as the Tenant named herein and only for such period as it shall remain
such subsidiary or affiliate and in the same general line of business as the
Tenant named herein. However,
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no such subletting shall be valid unless, prior to the execution thereof, Tenant
shall give notice to Owner of the proposed subletting, and within ten (10) days
prior to the commencement of said subletting, Tenant shall deliver to Owner an
agreement, in form and substance reasonably satisfactory to Owner, duly executed
by Tenant and said subtenant, in which said subtenant shall assume performance
of and agree to be bound by, all of the terms, covenants and conditions of this
Lease which are applicable to said subtenant and such subletting. Tenant shall
give prompt notice to Owner of any such use or occupancy of all or any part of
the Demised Premises and such use or occupancy shall be subject and subordinate
to all of the terms, covenants and conditions of this Lease. No such use or
occupancy shall operate to vest in the user or occupant any right or interest in
this Lease or the Demised Premises. For the purposes of determining the number
of subtenants or occupants in the Demised Premises, the occupancy of any such
permitted subsidiary or affiliate of Tenant shall be deemed the occupancy of
Tenant and such subsidiary or affiliate shall not be counted as a subtenant or
occupant for the purposes of Section 11.03 and the provisions of Section 11.03
relating to Owner's option to terminate this Lease and the provisions of Section
11.03 relating to Subletting Profits shall not be applicable to any proposed
subletting to any such subsidiary or affiliate of Tenant pursuant to the
provisions of this Section.
SECTION 11.07. TENANT'S DIRECTORY LISTINGS: Supplementing the provisions
of Section 11.02, (i) so long as Owner shall maintain a directory in the lobby
of the Building, Owner shall make available to Tenant space for the listing of
Tenant's name and the names of any of the officers or employees of Tenant and
any permitted occupants of the Demised Premises provided that the names so
listed shall not require more than Tenant's Proportionate Share of the space of
said directory, and (ii) so long as Owner shall maintain the names of occupants
of the Building and the floors on which they are located in the elevators
serving the Demised Premises, Owner shall list the names of Tenant and any
permitted occupants of the Demised Premises (not to exceed the number of names
which can reasonably be placed in the space proportionately allocated to Tenant
in such elevators using Building standard size lettering) for the sixteenth
(16th) floor in such elevators.
SECTION 11.08. Notwithstanding anything to the contrary contained in the
foregoing provisions of this Lease, including, but not limited to, the
provisions of this Article, a public offering of the stock or interest of Tenant
named herein on a recognized security exchange or over-the-counter market shall
not be considered an assignment of this Lease requiring the prior approval of
Owner.
ARTICLE 12
TENANT'S INITIAL INSTALLATION AND OWNER'S WORK CONTRIBUTION
SECTION 12.01. "AS IS": Tenant acknowledges that Owner has made no
representations to Tenant with respect to the condition of the Demised Premises
and Tenant agrees to accept possession of the Demised Premises in the condition
which shall exist on the Commencement Date "as is" and further agrees that Owner
shall have no obligation to perform any work or make any installations in order
to prepare the Demised Premises for Tenant's occupancy.
SECTION 12.02. TENANT'S INITIAL INSTALLATION. A. Promptly after the
Commencement Date, Tenant shall, at Tenant's cost and expense, perform various
Alterations in the Demised Premises required for Tenant's occupancy and use of
the Demised Premises and conduct of its business therein. Such Alterations
(referred to as "Tenant's Initial Installation") shall be made and performed in
accordance with the provisions of this Lease, including, without limitation, the
provisions of Articles 3 and 6 hereof. Tenant shall prosecute Tenant's Initial
Installation to completion with all reasonable diligence.
SECTION 12.03. OWNER'S CONTRIBUTION. A. Subject to the provisions and
requirements of this Article 12, and provided that Tenant is not then in default
under any of the terms, covenants or conditions of this Lease on the part of
Tenant to be observed or performed, Owner shall contribute the sum of not more
than ONE
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HUNDRED EIGHTY-THREE THOUSAND SEVEN HUNDRED FIFTY AND 00/100 ($183,750.00)
DOLLARS in the aggregate toward the cost and expense actually incurred by
Tenant with respect to Tenant's Initial Installation including the cost of all
architectural, engineering and designers fees and, if there is any portion of
such sum remaining thereafter, for the purchase of furniture, fixtures and
telephone equipment incurred by Tenant in connection therewith. Owner's
contribution on account of Tenant's Initial Installation is referred to as
"Owner's Work Contribution". Irrespective of the actual cost and expense of
Tenant's Initial Installation, in no event shall Owner's Work Contribution
exceed the aggregate sum of ONE HUNDRED EIGHTY-THREE THOUSAND SEVEN HUNDRED
FIFTY AND 00/100 ($183,750.00) DOLLARS.
B. (1) Subject to the provisions of the following Paragraph (2) of this
Subsection B, and provided that Tenant is not then in default under any of the
terms, covenants or conditions of this Lease on Tenant's part to be observed and
performed after notice and the expiration of applicable cure periods, Owner
shall distribute Owner's Work Contribution on account of Tenant's Initial
Installation as the work with respect thereto progresses, upon Tenant's
submission to Owner of (i) vouchers or bills, in form reasonably acceptable to
Owner, for the cost and expense of Tenant's Initial Installation, and (ii)
partial waivers of mechanic's liens from all contractors, subcontractors,
materialmen and laborers who performed any services or delivered any materials
in connection with Tenant's Initial Installation and which services or materials
were the subject of the previous month's distribution by Owner to Tenant of
Owner's Work Contribution, provided however, that at no time shall Owner be
required to pay more than the value of the work in place, and provided further
that any such work shall comply with any plans and specifications previously
approved by Owner and shall otherwise comply with the requirements of this Lease
and Tenant's request for distribution shall be accompanied by a certification of
Tenant's architect or designer to that effect. Distributions of Owner's Work
Contribution shall be made not more than monthly.
(2) Notwithstanding the aforesaid, Owner shall not be required to
disburse the last fifteen (15%) percent of Owner's Work Contribution until
occurrence of all of the following: (i) completion of Tenant's Initial
Installation in accordance with the plans and specifications approved by Owner
and otherwise in accordance with the provisions of this Lease and a
certification by Tenant's architect or designer to that effect, (ii) proof in
form reasonably satisfactory to Owner of complete payment by Tenant of the cost
and expense of such Tenant's Initial Installation (including receipt of waivers
of mechanics liens from all contractors, subcontractors, materialmen and
laborers who performed any services or delivered any materials in connection
with such Tenant's Initial Installation; (upon request Tenant shall furnish the
Owner such documentation as Owner shall reasonably request to confirm such
complete payment), and (iii) proof that all consents, approvals or signoffs to
be obtained by Tenant under any Legal Requirements or as required by any
Governmental Authority have been obtained; upon compliance of the aforesaid,
then, provided that Tenant is not then in default under any of the terms,
covenants or conditions of this Lease on the part of Tenant to be observed or
performed, the balance of Owner's Work Contribution shall thereafter be
distributed to Tenant in accordance with provisions of this Section 12.03.
C. The making of the Owner's Work Contribution by Owner shall
constitute a single nonrecurring obligation on the part of Owner. In the event
this Lease is renewed or extended for a further term by agreement or operation
of law, Owner's obligation to give Owner's Work Contribution or any part thereof
shall not apply to any such renewal or extension.
D. Tenant acknowledges and agrees that Owner is merely acting on behalf of
Tenant in connection with the disbursement of the Owner's Work Contribution in
accordance with the provisions of this Section 12.03 to the contractors,
suppliers and materialmen employed in connection with Tenant's Initial
Installation, and that Owner shall have no obligation, liability or
responsibility to any of the contractors, suppliers or materialmen seeking any
of the Owner's Work Contribution pursuant to any of the aforesaid contracts or
agreements with such contractors, suppliers or materialmen or otherwise,
provided that Owner shall be obligated to disburse such Owner's Work
Contribution only as expressly provided by the provisions of this Section
12.03. Nothing contained in this Section 12.03 shall relieve Tenant of any
obligations or liabilities to such contractors, suppliers
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or materialmen under such contracts, agreements or otherwise. Nothing contained
in this Article 12 shall relieve any obligations of Tenant under Section 3.02.
or 3.03. of this Lease. Tenant shall indemnify Owner and Owner's Indemnitees
from all loss, cost, liability and expense, including but not limited to
reasonable counsel fees, incurred in connection with, or arising from, any
claims or actions by any contractors, suppliers or materialmen employed in
connection with Tenant's Initial Installation.
ARTICLE 13
ACCESS TO DEMISED PREMISES
SECTION 13.01. OWNER'S RIGHT TO ENTER: Owner and its agents shall have the
following rights in and about the Demised Premises: (i) to enter the Demised
Premises at all times to examine the Demised Premises or for any of the purposes
set forth in this Article or for the purpose of performing any obligation of
Owner under this Lease or exercising any right or remedy reserved to Owner in
this Lease, or complying with any Legal Requirement which Owner is obligated to
comply with hereunder, and if Tenant, its officers, partners, agents or
employees shall not be personally present or shall not open and permit any entry
into the Demised Premises at any time when such entry shall be necessary or
permissible, to use a master key or to forcibly enter the Demised Premises; (ii)
to erect, install, use and maintain pipes, ducts and conduits in and through the
Demised Premises; (iii) to exhibit the Demised Premises to others; (iv) to make
such decorations, repairs, alterations, improvements or additions, or to perform
such maintenance, including, but not limited to, the maintenance of all heating,
air conditioning, ventilating, elevator, plumbing, electrical, telecommunication
and other mechanical facilities, as Owner may deem necessary or desirable; (v)
to take all materials into and upon the Demised Premises that may be required in
connection with any such decorations, repairs, alterations, improvements,
additions or maintenance; and (vi) to alter, renovate and decorate the Demised
Premises at any time during the Demised Term if Tenant shall have removed all or
substantially all of Tenant's property from the Demised Premises. The lessors
under any Superior Lease and the holders of any Mortgage shall have the right to
enter the Demised Premises from time to time through their respective employees,
agents, representatives and architects to inspect the same or to cure any
default of Owner or Tenant relating thereto. Owner shall have the right, from
time to time, to change the name, number or designation by which the Building is
commonly known which right shall include, without limitation, the right to name
the Building after any tenant of the Building.
SECTION 13.02. OWNER'S RESERVATION OF RIGHTS TO PORTIONS OF THE BUILDING:
All parts (except surfaces facing the interior of the Demised Premises) of all
walls, windows and doors bounding the Demised Premises (including exterior
Building walls, core corridor walls, doors and entrances), all balconies,
terraces and roofs adjacent to the Demised Premises, all space in or adjacent to
the Demised Premises used for shafts, stacks, stairways, chutes, pipes,
conduits, ducts, fan rooms, heating, air conditioning, ventilating, plumbing,
electrical, telecommunication and other mechanical facilities, closets, service
closets and other Building facilities, and the use thereof, as well as access
thereto through the Demised Premises for the purposes of operation, maintenance,
alteration and repair, are hereby reserved to Owner. Owner also reserves the
right at any time to change the arrangement or location of entrances,
passageways, doors, doorways, corridors, elevators, stairs, toilets and other
public parts of the Building, provided any such change does not permanently and
unreasonably obstruct Tenant's access to the Demised Premises. Nothing contained
in this Article shall (i) impose any obligation upon Owner with respect to the
operation, maintenance, alteration or repair of the Demised Premises or the
Building or (ii) permit Owner to reduce the Building services provided to the
Demised Premises.
SECTION 13.03. ACCESS TO THIRD PARTIES: Owner and its agents shall have
the right to permit access to the Demised Premises, whether or not Tenant shall
be present, to any receiver, trustee, assignee for the benefit of creditors,
sheriff, marshal or court officer entitled to, or reasonably purporting to be
entitled to, such access for the purpose of taking possession of, or removing,
any property of Tenant or any other occupant of the Demised Premises, or for
any other lawful purpose, or by any representative of the fire, police,
building, sanitation
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or other department of the City, State or Federal Governments. Neither anything
contained in this Section, nor any action taken by Owner under this Section,
shall be deemed to constitute recognition by Owner that any person other than
Tenant has any right or interest in this Lease or the Demised Premises.
SECTION 13.04. NO ACTUAL OR CONSTRUCTIVE EVICTION: The exercise by Owner
or its agents or by the lessor under any Superior Lease or by the holder of any
Mortgage of any right reserved to Owner in this Article shall not constitute an
actual or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of rent, or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Owner, or its agents, or upon
any lessor under any Superior Lease or upon the holder of any Mortgage, by
reason of inconvenience or annoyance to Tenant, or injury to or interruption of
Tenant's business, or otherwise.
SECTION 13.05. Supplementing the provisions of Sections 13.01, 13.02 and
13.03, Owner agrees that except in cases of emergency, any entry upon the
Demised Premises pursuant to the provisions of said Sections shall be made at
reasonable times, and only after reasonable advance notice (which may be mailed,
delivered or left at the Demised Premises, notwithstanding any contrary
provisions of Article 27), and any work performed or installation made pursuant
to said Section shall be made with reasonable diligence and any such entry, work
or installations shall be made in a manner designed to minimize interference
with Tenant's normal business operations (however, nothing contained in this
Section shall be deemed to impose upon Owner any obligation to employ
contractors or labor at so-called overtime or other premium pay rates).
SECTION 13.06. Further supplementing the provisions of Sections 13.01
and 13.03. Owner's right to exhibit the Demised Premises to others shall be
limited to insurance carriers and representatives thereof, prospective
purchasers of the Real Property or the Building, holders or prospective holders
of any mortgage affecting the Real Property or the Building or any ground or
underlying lease, and other legitimate business visitors, and, during the last
eighteen (18) months of the Demised Term, any prospective tenant of the Demised
Premises.
SECTION 13.07. Further supplementing the provisions of Section 13.01,
Owner agrees that any pipes, ducts or conduits installed in or through the
Demised Premises during the Demised Term pursuant to the provisions of Section
13.01, shall either be concealed behind, beneath or within partitioning,
columns, ceilings or floors, or completely furred at points immediately
adjacent to partitioning, columns or ceilings, and that when the installation
of such pipes, ducts or conduits shall be completed, such pipes, ducts or
conduits shall not materially reduce the usable area of the Demised Premises.
SECTION 13.08. In the event that all or part of the Demised Premises are
rendered untenantable by reason of interruption or reduction of services,
Tenant may give to Owner written notice thereof. Owner agrees that if after the
expiration of twenty (20) consecutive business days following receipt of such
notice, in which the Demised Premises are so untenantable as hereinabove
provided the Demised Premises or the applicable portion thereof shall continue
to be untenantable by reason of such interruption or reduction of services,
(but excluding any interruption caused by, or repair necessitated by, a
casualty, a taking by exercise of the right of eminent domain or the wrongful
acts, wrongful omissions or negligence of Tenant or anyone claiming by, through
or under Tenant, or their respective employees, agents, contractors or
invitees), then, commencing on the day after the expiration of such consecutive
twenty (20) day period, in which the Demised Premises are so untenantable as
hereinabove provided, Fixed Rent under Article 1 and increases thereof under
Article 23 shall xxxxx until the Demised Premises, or such portion thereof as
has been rendered untenantable, are rendered tenantable, provided, (i) Tenant
shall not have been using or occupying all or such portion of the Demised
Premises for the conduct of its business; and (ii) if less than substantially
all of the Demised Premises are untenantable, Tenant shall continue to pay
Fixed Rent under Article 1 and increases thereof under Article 23 with respect
to the tenantable portion of the Demised Premises which is satisfactory for the
conduct of Tenant's normal business based on the proportion that the rentable
square feet of the tenantable portion of the Demised Premises bears to the
total rentable square feet of the Demised Premises.
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ARTICLE 14
VAULT SPACE
SECTION 14.01. The Demised Premises do not contain any vaults,
vault space or other space outside the boundaries of the Real Property,
notwithstanding anything contained in this Lease or indicated on any sketch,
blueprint or plan. Owner makes no representation as to the location of the
boundaries of the Real Property. All vaults and vault space and all other space
outside the boundaries of the Real Property which Tenant may be permitted to
use or occupy are to be used or occupied under a revocable license, and if any
such license shall be revoked, or if the amount of such space shall be
diminished or required by any Federal, State or Municipal Authority or by any
public utility company, such revocation, diminution or requisition shall not
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of rent, or relieve Tenant from any of
its obligations under this Lease, or impose any liability upon Owner. Any fee,
tax or charge imposed by any governmental authority for any such vault, vault
space or other space shall be paid by Tenant.
ARTICLE 15
CERTIFICATE OF OCCUPANCY
SECTION 15.01. Tenant will not at any time use or occupy, or permit
the use or occupancy of, the Demised Premises in violation of any Certificate(s)
of Occupancy covering the Demised Premises. Owner agrees that a temporary or
permanent Certificate(s) of Occupancy covering the Demised Premises will be in
force on the Commencement Date permitting the Demised Premises to be used as
"offices". However, neither such agreement, nor any other provision of this
Lease, nor any act or omission of Owner, its agents or contractors, shall be
deemed to constitute a representation or warranty that the Demised Premises, or
any part thereof, may be lawfully used or occupied for any particular purpose or
in any particular manner, in contradistinction to mere "office" use. A true copy
of the existing Certificate of Occupancy is annexed hereto as Exhibit 3.
ARTICLE 16
DEFAULT
SECTION 16.01. EVENT OF DEFAULT: Upon the occurrence, at any time
prior to or during the Demised Term, of any one or more of the following events
(referred to herein, singly, as an "Event of Default" and collectively as
"Events of Default"):
(a) if Tenant shall default in the payment when due of any
installment of Fixed Rent or any increase in the Fixed Rent or in
the payment when due of any additional rent and such default shall
continue for a period of ten (10) days after notice by Owner to
Tenant of such default; or
(b) if Tenant shall default in the observance or performance of
any term, covenant or condition of this Lease on Tenant's part to be
observed or performed (other than the covenants for the payment of
Fixed Rent, any increase in the Fixed Rent and additional rent) and
Tenant shall fail to remedy such default within thirty (30) days after
notice by Owner to Tenant of such default, or if such default is of
such a nature that it cannot be completely remedied within said period
of thirty (30) days and Tenant shall not commence, promptly after
receipt of such notice, or shall not thereafter diligently prosecute
to completion, all steps necessary to remedy such default; or
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(c) if Tenant shall file a voluntary petition in bankruptcy or
insolvency, or shall be adjudicated a bankrupt or insolvent, or shall file
any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
the present or any future federal bankruptcy act or any other present or
future applicable federal, state or other statute or law, or shall make an
assignment for the benefit of creditors, or shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of
Tenant or of all or any part of Tenant's property; or
(d) if, within ninety (90) days after the commencement of any
proceeding against Tenant, whether by the filing of a petition or
otherwise, seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present
or any future federal bankruptcy act or any other present or future
applicable federal, state or other statute or law, such proceeding shall
not have been dismissed, or if, within thirty (30) days after the
appointment of any trustee, receiver or liquidator of Tenant, or of all or
any part of Tenant's property, without the consent or acquiescence of
Tenant, such appointment shall not have been vacated or otherwise
discharged, or if any execution or attachment shall be issued against
Tenant or any of Tenant's property pursuant to which the Demised Premises
shall be taken or occupied or attempted to be taken or occupied; or
(e) if Tenant shall default in the observance or performance of any
term, covenant or condition on Tenant's part to be observed or performed
under any other lease with Owner of space in the Building and such default
shall continue beyond any grace period set forth in such other lease for
the remedying of such default; or
(f) if the Demised Premises shall become deserted or abandoned for a
period of ninety (90) consecutive days or more; or
(g) if (i) Tenant's interest in this Lease shall devolve upon or pass
to any person, whether by operation of law or otherwise, or (ii) there
shall be any sale, pledge, transfer or other alienation described in
Section 11.01 of this Lease which is deemed an assignment of this Lease for
purposes of said Section 11.01, except as expressly permitted under Article
11;
then, during such time as such Event(s) of Default is/are continuing, Owner may
at any time, at Owner's option, give to Tenant a five (5) days' notice of
termination of this Lease and, in the event such notice is given, this Lease
and the Demised Term shall come to an end and expire (whether or not said term
shall have commenced) upon the expiration of said five (5) days with the same
effect as if the date of expiration of said five (5) days were the Expiration
Date, but Tenant shall remain liable for damages and all other sums payable
pursuant to the provisions of Article 18.
SECTION 16.02. "TENANT"/MONEYS RECEIVED: If, at any time (i) Tenant
shall be comprised of two (2) or more persons, or (ii) Tenant's obligations
under this Lease shall have been guaranteed by any person other than Tenant, or
(iii) Tenant's interest in this Lease shall have been assigned, the word
"Tenant", as used in Subsections (c) and (d) of Section 16.01, shall be deemed
to mean any one or more of the persons primarily or secondarily liable for
Tenant's obligations under this Lease. Any monies received by Owner from or on
behalf of Tenant during the pendency of any proceeding of the types referred to
in said Subsections (c) and (d) shall be deemed paid as compensation for the
use and occupation of the Demised Premises and the acceptance of any such
compensation by Owner shall not be deemed an acceptance of rent or a waiver on
the part of Owner of any rights under Section 16.01.
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ARTICLE 17
REMEDIES
SECTION 17.01. OWNER'S RIGHT OF RE-ENTRY AND RIGHT TO RELET: If Tenant
shall default in the payment when due of any installment of Fixed Rent or in the
payment when due of any increase in the Fixed Rent or any additional rent, after
notice and the expiration of applicable cure periods or if this Lease and the
Demised Term shall expire and come to an end as provided in Article 16:
(a) Owner and its agents and servants may immediately, or at any
time after such default or after the date upon which this Lease and
the Demised Term shall expire and come to an end, re-enter the Demised
Premises or any part thereof, after notice, either by summary
proceedings or by any other applicable action or proceeding, or
otherwise which is specifically permitted by law (without being liable
to indictment, prosecution or damages therefor), and may repossess the
Demised Premises and dispossess Tenant and any other persons from the
Demised Premises and remove any and all of their property and effects
from the Demised Premises; and
(b) Owner, at Owner's option, may relet the whole or any part or
parts of the Demised Premises, from time to time, either in the name
of Owner or otherwise, to such tenant or tenants, for such term or
terms ending before, on or after the Expiration Date, at such rental
or rentals and upon such other conditions, which may include
concessions and free rent periods, as Owner, in its sole discretion,
may determine. Owner shall have no obligation to relet the Demised
Premises or any part thereof and shall in no event be liable for
refusal or failure to relet the Demised Premises or any part thereof,
or, in the event of any such reletting, for refusal or failure to
collect any rent due upon any such reletting, and no such refusal or
failure shall operate to relieve Tenant of any liability under this
Lease or otherwise to affect any such liability; Owner, at Owner's
option, may make such repairs, replacements, alterations, additions,
improvements, decorations and other physical changes in and to the
Demised Premises as Owner, in its sole discretion, considers advisable
or necessary in connection with any such reletting or proposed
reletting, without relieving Tenant of any liability under this Lease
or otherwise affecting any such liability.
SECTION 17.02. WAIVER OF RIGHT TO REDEEM, ETC.: Tenant hereby waives
the service of any notice of intention to re-enter or to institute legal
proceedings to that end which may otherwise be required to be given under any
present or future law. Tenant, on its own behalf and on behalf of all persons
claiming through or under Tenant, including all creditors, does further hereby
waive any and all rights which Tenant and all such persons might otherwise have
under any present or future law to redeem the Demised Premises, or to re-enter
or repossess the Demised Premises, or to restore the operation of this Lease,
after (i) Tenant shall have been dispossessed by a judgment or by warrant of any
court or judge, or (ii) any re-entry by Owner, or (iii) any expiration or
termination of this Lease and the Demised Term, whether such dispossess,
re-entry, expiration or termination shall be by operation of law or pursuant to
the provisions of this Lease. The words "re-enter", "re-entry" and "re-entered"
as used in this Lease shall not be deemed to be restricted to their technical
legal meanings. In the event of a breach or threatened breach by Tenant, or any
persons claiming through or under Tenant, of any term, covenant or condition of
this Lease on Tenant's part to be observed or performed, Owner shall have the
right to enjoin such breach and the right to invoke any other remedy allowed by
law or in equity as if re-entry, summary proceedings and other special remedies
were not provided in this Lease for such breach. The right to invoke the
remedies hereinbefore set forth in this Lease is cumulative and shall not
preclude Owner from invoking any other remedy allowed by law or in equity.
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SECTION 17.03. Owner agrees that the first sentence of Section 17.02 shall
not be deemed a waiver of Tenant's right to be served with any notice of
petition and petition in any summary proceedings under the provisions of the
Real Property Actions and Proceedings Law of the State of New York and of any
successor law of like import then in force.
SECTION 17.04. The right of Tenant to invoke remedies set forth in this
Lease is cumulative and shall not preclude Tenant from invoking any other
remedy allowed by law or in equity, unless otherwise specifically provided in
this Lease.
ARTICLE 18
DAMAGES
SECTION 18.01. AMOUNT OF OWNER'S DAMAGES: If this Lease and the Demised
Term shall expire and come to an end as provided in Article 16, or by or under
any summary proceeding or any other action or proceeding, or if Owner shall
re-enter the Demised Premises as provided in Article 17, or by or under any
summary proceeding or any other action or proceeding, then, in any of said
events:
(a) Tenant shall pay to Owner all Fixed Rent, additional rent and
other charges payable under this Lease by Tenant to Owner to the date upon
which this Lease and the Demised Term shall have expired and come to an end
or to the date of re-entry upon the Demised Premises by Owner, as the case
may be; and
(b) Tenant shall also be liable for and shall pay to Owner, as
damages, any deficiency (referred to as a "Deficiency") between the Fixed
Rent reserved in this Lease for the period which otherwise would have
constituted the unexpired portion of the Demised Term and the net amount,
if any, of rents collected under any reletting effected pursuant to the
provisions of Section 17.01 for any part of such period (first deducting
from the rents collected under any such reletting all of Owner's expenses
in connection with the termination of this Lease or Owner's re-entry upon
the Demised Premises and with such reletting including, but not limited to,
all repossession costs, brokerage commissions, legal expenses, attorneys'
fees, alteration costs and other expenses of preparing the Demised Premises
for such reletting). Any such Deficiency shall be paid in monthly
installments by Tenant on the days specified in this Lease for payment of
installments of Fixed Rent, Owner shall be entitled to recover from Tenant
each monthly Deficiency as the same shall arise, and no suit to collect the
amount of the Deficiency for any month shall prejudice Owner's right to
collect the Deficiency for any subsequent month by a similar proceeding.
Solely for the purposes of this Subsection (b), the term "Fixed Rent" shall
mean the Fixed Rent in effect immediately prior to the date upon which this
Lease and the Demised Term shall have expired and come to an end, or the
date of re-entry upon the Demised Premises by Owner, as the case may be,
adjusted, from time to time, to reflect any increases which would have been
payable pursuant to any of the provisions of this Lease including, but not
limited to, the provisions of Article 23 of this Lease if the term hereof
had not been terminated; and
(c) At any time after the Demised Term shall have expired and come to
an end or Owner shall have re-entered upon the Demised Premises, as the
case may be, whether or not Owner shall have collected any monthly
Deficiencies as aforesaid, Owner shall be entitled to recover from Tenant,
and Tenant shall pay to Owner, on demand, as and for liquidated and agreed
final damages, a sum equal to the amount by which the Fixed Rent reserved
in this Lease for the period which otherwise would have constituted the
unexpired portion of the Demised Term exceeds the then fair and reasonable
rental value of the Demised Premises for the same period,
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both discounted to present worth at the rate of seven and one-half (7 1/2%)
percent per annum. If, before presentation of proof of such liquidated
damages to any court, commission or tribunal, the Demised Premises, or any
part thereof, shall have been relet by Owner for the period which otherwise
would have constituted the unexpired portion of the Demised Term, or any
part thereof, the amount of rent reserved upon such reletting shall be
deemed, prima facie, to be the fair and reasonable rental value for the
part or the whole of the Demised Premises so relet during the term of the
reletting. Solely for the purposes of this Subsection (c), the term "Fixed
Rent" shall mean the Fixed Rent in effect immediately prior to the date
upon which this Lease and the Demised Term shall have expired and come to
an end, or the date of re-entry upon the Demised Premises by Owner, as the
case may be, adjusted to reflect any increases pursuant to the provisions
of Article 23 for the Escalation Year and Tax Escalation Year immediately
preceding such event.
SECTION 18.02. RENTS UNDER RELETTING: If the Demised Premises, or any
part thereof, shall be relet together with other space in the Building, the
rents collected or reserved under any such reletting and the expenses of any
such reletting shall be equitably apportioned for the purposes of this Article
18. Tenant shall in no event be entitled to any rents collected or payable
under any reletting, whether or not such rents shall exceed the Fixed Rent
reserved in this Lease. Nothing contained in Articles 16, 17 or this Article
shall be deemed to limit or preclude the recovery by Owner from Tenant of the
maximum amount allowed to be obtained as damages by any statute or rule of law,
or of any sums or damages to which Owner may be entitled in addition to the
damages set forth in Section 18.01.
ARTICLE 19
FEES AND EXPENSES; INDEMNITY
SECTION 19.01. OWNER'S RIGHT TO CURE TENANT'S DEFAULT: If Tenant shall
default in the observance or performance of any term, covenant or condition of
this Lease on Tenant's part to be observed or performed after notice and the
expiration of applicable cure periods, Owner, at any time thereafter and
without notice in cases of emergency and in other cases after the expiration of
thirty (30) days after notice by Owner to Tenant thereof, may remedy such
default for Tenant's account and at Tenant's expense, without thereby waiving
any other rights or remedies of Owner with respect to such default.
SECTION 19.02. TENANT'S INDEMNITY AND LIABILITY INSURANCE OBLIGATIONS: A.
Tenant agrees to indemnify and save Owner and "Owner's Indemnitees" (as
hereinafter defined) harmless of and from all loss, cost, liability, damage and
expense including, but not limited to, reasonable counsel fees, penalties and
fines, incurred in connection with or arising from (i) any default by Tenant in
the observance or performance of any of the terms, covenants or conditions of
this Lease on Tenant's part to be observed or performed, or (ii) the breach or
failure of any representation or warranty made by Tenant in this Lease, or
(iii) the use or occupancy or manner of use or occupancy of the Demised
Premises by Tenant or any person claiming through or under Tenant, or (iv) any
improper acts, improper omissions or negligence of Tenant or any such person,
or the contractors, agents, servants, employees, visitors or licensees of
Tenant or any such person, in or about the Demised Premises or the Building
either prior to, during, or after the expiration of, the Demised Term,
including, but not limited to, any improper acts, improper omissions or
negligence in the making or performing of any Alterations. Tenant further
agrees to indemnify and save harmless Owner and Owner's Indemnitees of and from
all loss, cost, liability, damage and expense, including, but not limited to,
reasonable counsel fees and disbursements incurred in connection with or
arising from any claims by any persons by reason of injury to persons or damage
to property occasioned by any use, occupancy, act, omission or negligence
referred to in the preceding sentence, except with respect to the performance
of the Core Work by Owner or its agents. "Owner's Indemnitees" shall mean the
Owner, the shareholders or the partners comprising Owner and its and their
partners and shareholders, officers, directors, employees, agents (including
without limitation, any leasing and managing agents) and contractors together
with the
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lessor under any Superior Lease and the holder of any Mortgage. If any action or
proceeding shall be brought against Owner or Owner's Indemnitees based upon any
such claim and if Tenant, upon notice from Owner, shall cause such action or
proceeding to be defended at Tenant's expense by counsel acting for Tenant's
insurance carriers in connection with such defense or by other counsel
reasonably satisfactory to Owner, without any disclaimer of liability by Tenant
or such insurance carriers in connection with such claim, Tenant shall not be
required to indemnify Owner and Owner's Indemnitees for counsel fees in
connection with such action or proceeding.
B. Throughout the Demised Term Tenant shall maintain
comprehensive public liability and water legal liability insurance against any
claims by reason of personal injury, death and property damage occurring in or
about the Demised Premises covering, without limitation, the operation of any
private air conditioning equipment and any private elevators, escalators or
conveyors in or serving the Demised Premises or any part thereof, whether
installed by Owner, Tenant or others, and shall furnish to Owner duplicate
original policies of such insurance at least ten (10) days prior to the
Commencement Date and at least ten (10) days prior to the expiration of the term
of any such policy previously furnished by Tenant, in which policies Owner, and
Owner's Indemnitees shall be named as parties insured, which policies shall be
issued by companies, and shall be in form and amounts, satisfactory to Owner.
SECTION 19.03. PAYMENTS: Tenant shall pay to Owner, within fifteen
(15) days next following rendition by Owner to Tenant of bills or statements
therefor: (i) sums equal to all expenditures made and monetary obligations
incurred by Owner including, but not limited to, expenditures made and
obligations incurred for reasonable counsel fees and disbursements, in
connection with the remedying by Owner, for Tenant's account pursuant to the
provisions of Section 19.01, of any default of Tenant, and (ii) sums equal to
all losses, costs, liabilities, damages and expenses referred to in Section
19.02, and (iii) sums equal to all expenditures made and monetary obligations
incurred by Owner including, but not limited to, expenditures made and
obligations incurred for reasonable counsel fees and disbursements, in
collecting or attempting to collect the Fixed Rent, any additional rent or any
other sum of money accruing under this Lease or in enforcing or attempting to
enforce any rights of Owner under this Lease or pursuant to law, whether by the
institution and prosecution of summary proceedings or otherwise; and (iv) all
other sums of money (other than Fixed Rent) accruing from Tenant to Owner under
the provisions of this Lease. Any sum of money (other than Fixed Rent) accruing
from Tenant to Owner pursuant to any provision of this Lease whether prior to or
after the Commencement Date, may, at Owner's option, be deemed additional rent,
and Owner shall have the same remedies for Tenant's failure to pay any item of
additional rent when due as for Tenant's failure to pay any installment of Fixed
Rent when due. Tenant's obligations under this Article shall survive the
expiration or sooner termination of the Demised Term. The foregoing shall not
apply to the performance of the Core Work by Owner or the payment by Owner of
legal fees to counsel for Owner with respect to the preparation and negotiation
of this Lease.
SECTION 19.04. TENANT'S LATE PAYMENTS--LATE CHARGES: If Tenant shall fail
to make payment of any installment of Fixed Rent or any increase in the Fixed
Rent or any additional rent within ten (10) days after the date when such
payment is due including applicable grace periods, Tenant shall pay to Owner, in
addition to such installment of Fixed Rent or such increase in the Fixed Rent
or such additional rent, as the case may be, as a late charge and as additional
rent, a sum equal to two (2%) percent per annum above the then current prime
rate (as the term "prime rate" is defined in Section 31.03) charged by Chemical
Bank or its successor of the amount unpaid computed from the date such payment
was due to and including the date of payment.
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ARTICLE 20
ENTIRE AGREEMENT
SECTION 20.01. ENTIRE AGREEMENT: This Lease contains the entire
agreement between the parties and all prior negotiations and agreements are
merged in this Lease. Neither Owner nor Owner's agents have made any
representations or warranties with respect to the Demised Premises, the
Building, the Real Property or this Lease except as expressly set forth in this
Lease and no rights, easements or licenses are or shall be acquired by Tenant
by implication or otherwise unless expressly set forth in this Lease. This
Lease may not be changed, modified or discharged, in whole or in part, orally
and no executory agreement shall be effective to change, modify or discharge,
in whole or in part, this Lease or any provisions of this Lease, unless such
agreement is set forth in a written instrument executed by the party against
whom enforcement of the change, modification or discharge is sought. All
references in this Lease to the consent or approval of Owner shall be deemed to
mean the written consent of Owner, or the written approval of Owner, as the
case may be, and no consent or approval of Owner shall be effective for any
purpose unless such consent or approval is set forth in a written instrument
executed by Owner.
ARTICLE 21
END OF TERM
SECTION 21.01. END OF TERM: On the date upon which the Demised Term
shall expire and come to an end, whether pursuant to any of the provisions of
this Lease or by operation of law, and whether on or prior to the Expiration
Date, Tenant, at Tenant's sole cost and expense, (i) shall quit and surrender
the Demised Premises to Owner, broom clean and in good order and condition,
ordinary wear excepted, and (ii) shall remove all of Tenant's Personal Property
and all other property and effects of Tenant and all persons claiming through or
under Tenant (including, but not limited to, all telecommunications (facilities)
from the Demised Premises and the Building, and (iii) shall repair all damage to
the Demised Premises and the Building occasioned by such removal and (iv) shall,
at Owner's election, exercisable within six (6) months following the expiration
or earlier termination of the Demised Term, remove any private interior
staircases in the Demised Premises or connecting the Demised Premises or any
part thereof with any other space (referred to herein as the "Other Space") in
the Building occupied by Tenant, and restore those portions of the Demised
Premises, the Other Space and the Building affected by any such staircases
(including, but not limited to, the slabbing over of any openings) to the
condition of each which existed prior to the installation of any such
staircases, and repair any damage to the Demised Premises, Other Space and the
Building occasioned by such removal. Notwithstanding the provisions of
subdivision (iv) of the foregoing sentence, in the event Owner does not elect to
have removed any such staircase referred to therein, any such staircase shall be
and remain the property of Owner at no cost or expense to Owner. Owner shall
have the right to retain any property and effects which shall remain in the
Demised Premises after the expiration or sooner termination of the Demised Term,
and any net proceeds from the sale thereof, without waiving Owner's rights with
respect to any default by Tenant under the foregoing provisions of this Section.
Tenant expressly waives, for itself and for any person claiming through or under
Tenant, any rights which Tenant or any such person may have under the provisions
of Section 2201 of the New York Civil Practice Law and Rules and of any
successor law of like import then in force, in connection with any holdover
summary proceedings which Owner may institute to enforce the foregoing
provisions of this Article. If said date upon which the Demised Term shall
expire and come to an end shall fall on a Sunday or holiday, then Tenant's
obligations under the first sentence of this Section shall be performed on or
prior to the Saturday or business day immediately preceding such Sunday or
holiday. Tenant's obligations under this Section shall survive the expiration or
sooner termination of the Demised Term.
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ARTICLE 22
QUIET ENJOYMENT
SECTION 22.01. QUIET ENJOYMENT: Owner covenants and agrees with Tenant
that upon Tenant paying the Fixed Rent and additional rent reserved in this
Lease and observing and performing all of the terms, covenants and conditions of
this Lease on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the Demised Premises during the Demised Term, subject,
however, to the terms, covenants and conditions of this Lease including, but not
limited to, the provisions of Section 37.01, and subject to the Superior Lease
and the Mortgage referred to in Section 7.01.
ARTICLE 23
TAX PAYMENTS AND OPERATING ESCALATION
SECTION 23.01. DEFINITIONS: In the determination of any increase in
the Fixed Rent under the provisions of this Article, Owner and Tenant agree that
the following terms shall have the following meanings:
A. The term "Tax Escalation Year" shall mean each fiscal
year commencing July 1st and ending on the following June 30th which shall
include any part of the Demised Term.
B. The term "Escalation Year" shall mean each calendar year
which shall include any part of the Demised Term.
C. The term "Taxes" shall be deemed to mean a sum equal to
the aggregate of: (i) the product determined by multiplying (a) the then
applicable full New York City real estate tax rate in effect with respect to the
Borough of Manhattan by (b) the then applicable assessed valuation of the Real
Property plus (ii) amounts assessed by any business improvement district in
which the Real Property is located plus (iii) any other assessments, special or
otherwise, upon or with respect to the Real Property imposed by the City or
County of New York or any other taxing authority. If, due to any change in the
method of taxation, any franchise, income, profit, sales, rental, use and
occupancy or other tax or payments in lieu of any such taxes shall be
substituted for, or levied against Owner or any owner of the Building or the
Real Property, in lieu of any real estate taxes or assessments upon or with
respect to the Real Property, such tax or payments in lieu of any such taxes
shall be included in the term Taxes for the purposes of this Article.
D. The term "Demised Premises Area" shall mean 5,250 square
feet.
E. The term "Building Area" shall mean 398,537 square feet.
F. The term "Tenant's Proportionate Share" shall mean the
fraction, the denominator of which is the Building Area and the numerator of
which is the Demised Premises Area.
G. (1) The term "Operating Expenses" shall, subject to the
provisions of Paragraph (2) of this Subsection 23.01.G, mean the aggregate cost
and expense actually incurred by Owner in the operation, maintenance, management
and security of the Real Property and any plazas, sidewalks and curbs adjacent
thereto including, without limitation, the cost and expense of the following:
(a) salaries, wages, medical, surgical and general welfare
and other so-called "fringe" benefits (including group insurance and retirement
benefits) for employees (including, but not limited to, employees who provide
twenty four (24) hour services,
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seven (7) days per week throughout the year) of Owner or any contractor of
Owner engaged in the cleaning, operation, maintenance or management of the Real
Property, or engaged for security purposes and/or for receiving or transmitting
deliveries to and from the Building, and payroll taxes and workmen's
compensation insurance premiums relating thereto,
(b) gas, steam, water and sewer rental,
(c) thirty five (35%) percent of all electrical costs
incurred in the operation of the Building, provided, however, in the event that
Owner discontinues the redistribution or furnishing of electrical energy to the
tenants and occupants of the Building, then the cost and expense incurred by
Owner for electricity shall thereafter be deemed to be one hundred (100%)
percent of (i) the total cost and expense to Owner of purchasing electricity
for the Building less (ii) any reimbursement to Owner by the tenants in the
Building for the payment for the Floor HVAC Units and the Floor Public Light
and Power (as said terms are defined in Section 29.05).
(d) utility taxes,
(e) rubbish removal,
(f) fire, casualty, liability, rent and other insurance
carried by Owner,
(g) repairs, repainting, replacement, maintenance of
grounds, and Included Improvements (as provided in Paragraph (2) of this
Subsection 23.01.G),
(h) Building supplies,
(i) uniforms and cleaning thereof,
(j) snow removal,
(k) window cleaning,
(l) service contracts with independent contractors for any
of the foregoing (including, but not limited to, elevator, heating, air
conditioning, ventilation, sprinkler system, fire alarm and telecommunication
equipment maintenance),
(m) management fees (whether or not paid to any person,
firm or corporation having an interest in or under common ownership with Owner
or any of the persons, firms or corporations comprising Owner) in the amount of
one ($1.00) dollar per rentable square foot of the Building Area in the first
Escalation Year which amount for management fees shall increase in each
Escalation Year subsequent to the first Escalation Year by the same percentage
of increase as the percentage of increase in the aggregate of all other
Operating Expenses,
(n) reasonable legal fees and disbursements and other
reasonable expenses (excluding, however, legal fees and expenses incurred in
connection with any application or proceeding brought for reduction of the
assessed valuation of the Real Property or any part thereof or legal fees and
expenses incurred in Landlord/Tenant matters),
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(o) auditing fees,
(p) deleted prior to execution,
(q) all costs of compliance under the provisions of any present or
future Superior Lease other than the payment of rental and impositions
thereunder and increases in the basic rent under such leases as a result of
adjustments in such basic rent, and
(r) all other costs and expenses incurred in connection with the
operation, maintenance, and security of the Real Property, and any plazas,
sidewalks and curbs adjacent thereto.
(2) The cost and expense of the following shall be excluded from the
calculation of operating expenses:
(a) leasing commissions;
(b) executives' salaries above the grade of building manager and
superintendent;
(c) capital improvements and replacements which under generally
accepted accounting principles and practice would be classified as
capital expenditures, except the cost and expense of any improvement,
alteration, replacement or installation which is either (i) required
by any Legal Requirement, or (ii) designed, in Owner's reasonable
judgment, to result in savings or reductions in Operating Expenses or
(iii) designed, in Owner's reasonable judgment, to benefit the tenants
of the Building (such improvements, alterations, replacements and
installations are referred to as "Included Improvements"); the cost
and expense of Included Improvements whenever made shall be included
in Operating Expenses for any Escalation Year subsequent to the Base
Escalation Year to the extent of (x) the annual amortization or
depreciation of the cost and expense to Owner of such Included
Improvements, as amortized on a straight line basis over fifteen (15)
years allocable to such Escalation Year plus (y) an annual charge for
interest upon the unamortized or undepreciated portions of such cost
and expense at the average prime rate during the Escalation Year in
question (provided, however, with respect to the Included Improvements
referred to in (ii), the amount of such Included Improvements included
in Operating Expenses for any such Escalation Year, inclusive of such
charge for interest for such Year allocable to such Included
Improvement, shall not exceed the amount of such savings or reductions
for such Escalation Year unless such savings or reductions in
Operating Expenses for prior Escalation Years exceeded, in the
aggregate, the amounts, inclusive of interest, paid by Tenant to Owner
with respect to such Included Improvements for such prior Escalation
Years (any such excess is referred to as a "Shortfall"), in which
event the amount of such Included Improvements inclusive of interest
included in Operating Expenses for such Escalation Year shall not
exceed the total of the amount of such savings or reductions in
Operating Expenses for such Escalation Year plus such Shortfall as
aforesaid;
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(d) any other item which under generally accepted accounting
principles and practice would not be regarded as an operating,
maintenance or management expense;
(e) any item for which Owner is compensated through proceeds of
insurance;
(f) any specific compensation which Owner receives from any
tenant for services rendered to such tenant by Owner above and beyond
those services generally rendered by Owner to tenants in the Building
without specific compensation therefor;
(g) sixty-five (65%) percent of all electrical costs incurred in the
operation of the Building, provided however, in the event that Owner
discontinues the redistribution or furnishing of electrical energy to
the tenants and occupants of the Building, then the aforesaid
exclusion of sixty-five (65%) percent of such electrical costs shall
not apply; and
(h) the cost of maintaining and staffing Owner's office in the
Building.
H. The term "Base Operating Expenses" shall mean the sum of $2,391,222.00.
I. The term "Owner's Tax Statement" shall mean an instrument containing a
computation of any increase in the Fixed Rent in reasonable detail pursuant to
the provisions of Section 23.02 A. of this Article.
J. The term "Owner's Operating Expense Statement" shall mean an
instrument in reasonable detail containing a computation of any increase in the
Fixed Rent in reasonable detail pursuant to the provisions of Section 23.04 of
this Article.
K. The term "Monthly Escalation Installment" shall mean a sum equal to
one-twelfth (1/12th) of the increase in the Fixed Rent payable pursuant to the
provisions of Subsection 23.04 A for the Escalation Year with respect to which
Owner has most recently rendered an Owner's Operating Expense Statement,
appropriately adjusted to reflect (i) in the event such Escalation Year is a
partial calendar year, the increase in the Fixed Rent which would have been
payable for such Escalation Year if it had been a full calendar year, and (ii)
the amount by which current Operating Expenses as reasonably estimated by Owner
exceed Operating Expenses as reflected in such Owner's Operating Expense
Statement; and (iii) any net credit balance to which Tenant may be entitled
pursuant to the provisions of Subsection 23.05 C.
L. The term "Monthly Escalation Installment Notice" shall mean a notice
given by Owner to Tenant which sets forth the current Monthly Escalation
Installment; such Notice may be contained in a regular monthly rent xxxx, in an
Owner's Operating Expense Statement, or otherwise, and may be given from time
to time, at Owner's election.
M. Owner has applied for a certificate of eligibility from the Department
of Finance of the City of New York determining that Owner is eligible to apply
for exemption from tax payments for the Real Property pursuant to the
provisions of Section 11-256 through 11-267 (the "ICIP Program") of the
Administrative Code of the City of New York and the regulations promulgated
pursuant to the ICIP Program. Any such tax exemption for the Real Property is
referred to as "Tax Exemption" and the period of such Tax Exemption is referred
to as the "Tax Exemption Period". Owner agrees that Tenant shall not be
required to (a) pay Taxes or charges which become due because of the willful
neglect or fraud by Owner in connection with the ICIP Program
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or (b) otherwise relieve or indemnify Owner from any personal liability arising
under the ICIP Program, except where imposition of such Taxes, charges or
liability is occasioned by actions of Tenant in violation of this Lease. Tenant
agrees to report to Owner, as often as is necessary under such regulations, the
number of workers engaged in employment in the Demised Premises, the nature of
each worker's employment and the residency of each worker and to provide access
to the Demised Premises by employees and agents of the Department of Finance of
the City of New York at all reasonable times at the request of Owner. Tenant
represents to the Owner that, within the seven (7) years immediately preceding
the date of this Lease, Tenant has not been adjudged by a court of competent
jurisdiction to have been guilty of (x) an act, with respect to a building,
which is made a crime under the provisions of Article 150 of the Penal Law of
the State of New York or any similar law of another state, or (y) any act made a
crime or violation by the provisions of Section 235 of the Real Property Law of
the State of New York, nor is any charge for a violation of such laws presently
pending against Tenant. Upon request of Owner, from time to time, Tenant agrees
to update said representation when required because of the ICIP Program and
regulations thereunder. Tenant further agrees to cooperate with Owner in
compliance with such ICIP Program and regulations to aid Owner in obtaining and
maintaining the Tax Exemption and, if requested by Owner, to post a notice in a
conspicuous place in the Demised Premises and to publish a notice in a newspaper
of general circulation in the City of New York, in such form as shall be
prescribed by the Department of Finance stating that persons having information
concerning any violation by Tenant of Section 235 of the Real Property Law or
any Section of Article 150 of the Penal Law or any similar law of another
jurisdiction may submit such information to the Department of Finance to be
considered in determining Owner's eligibility for benefits. Tenant acknowledges
that its obligations under the provisions of Subsection 23.02. A may be greater
if Owner fails to obtain a Tax Exemption, and agrees that Owner shall have no
liability to Tenant nor shall Tenant be entitled to any abatement or diminution
of rent if Owner fails to obtain a Tax Exemption.
N. Owner and Tenant acknowledge that Tenant may apply for a certificate of
abatement from the Department of Finance of the City of New York pursuant to the
provisions of Title 4 of the Real Property Law of the State of New York (the
"Tax Abatement Program"). Owner agrees, at no cost or expense to Owner, to
cooperate with Tenant in its efforts to procure a certificate of abatement
including, if necessary, and if Owner approves of its contents, co-signing
Tenant's application for a certificate of abatement. Pursuant to the Tax
Abatement Program, Owner hereby informs Tenant that:
"(1) an application for abatement of real property taxes pursuant to
this title will be made for the premises;
(2) the rent, including amount payable by the tenant for real property
taxes, will accurately reflect any abatement of real property taxes granted
pursuant to this title for the premises;
(3) at least ten dollars per square foot or thirty-five dollars per
square foot must be spent on improvements to the premises and the common areas,
the amount being dependent upon the length of the lease and whether it is a new
or a renewal lease; and
(4) all abatements granted with respect to a building pursuant to this
title will be revoked if, during the benefit period, real estate taxes or water
or sewer charges are unpaid for more than one year, unless such delinquent
amounts are paid as provided in subdivision four of section four hundred
ninety-nine-f of this title."
Tenant agrees that Owner shall have no liability to Tenant nor shall Tenant
be entitled to any abatement or diminution of rent if Tenant fails to obtain a
certificate of abatement under the Tax Abatement Program.
SECTION 23.02. Taxes: A. The Fixed Rent for each Tax Escalation Year shall
be increased by a sum equal to Tenant's Proportionate Share of Taxes for such
Tax Escalation Year.
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B. Unless the Commencement Date shall occur on a July 1st, any
increase in the Fixed Rent pursuant to the provisions of Subsection A of this
Section 23.02 for the Tax Escalation Year in which the Commencement Date shall
occur shall be apportioned in that percentage which the number of days in the
period from the Commencement Date to June 30th of such Tax Escalation Year, both
inclusive, bears to the total number of days in such Tax Escalation Year. Unless
the Demised Term shall expire on a June 30th, any increase in the Fixed Rent
pursuant to the provisions of said Subsection A for the Tax Escalation Year in
which the date of the expiration of the Demised Term shall occur shall be
apportioned in that percentage which the number of days in the period from July
1st of such Tax Escalation Year to such date of expiration, both inclusive,
bears to the total number of days in such Tax Escalation Year.
SECTION 23.03. CALCULATION AND PAYMENT OF TAXES: A. Owner shall render to
Tenant, either in accordance with the provisions of Article 27 or by personal
delivery at the Demised Premises, an Owner's Tax Statement or Statements with
respect to each Tax Escalation Year, either prior to or during such Tax
Escalation Year. Owner's failure to render an Owner's Tax Statement with respect
to any Tax Escalation Year shall not prejudice Owner's right to recover any sums
due to Owner hereunder with respect to such Tax Escalation Year nor shall it
deprive Tenant of any credit to which it otherwise might be entitled to for any
Tax Escalation Year pursuant to the provisions of subsection B of this Section
23.03. Tenant acknowledges that under present law, Taxes are payable by Owner
(i) with respect to a fiscal year commencing July 1st and ending on the
following June 30th, and (ii) in two (2) installments, in advance, the first of
which is payable on July 1st, and the second and final payment of which is
payable on the following January 1st. Within ten (10) days next following
rendition of the first Owner's Tax Statement which shows an increase in the
Fixed Rent for any Tax Escalation Year, Tenant shall pay to Owner one-half of
the amount of the increase shown upon such Owner's Tax Statement for such Tax
Escalation Year (including any apportionment pursuant to the provisions of
subsection B of Section 23.02); and, subsequently, provided Owner shall have
rendered to Tenant an Owner's Tax Statement, Tenant shall pay to Owner not later
than thirty (30) days prior to the date on which the installment of Taxes is
required to be paid by Owner a sum equal to one half (1/2) of Tenant's
Proportionate Share of Taxes payable with respect to such Tax Escalation Year as
shown on such Owner's Tax Statement. Tenant further acknowledges that it is the
purpose and intent of this Section 23.03 to provide Owner with Tenant's
Proportionate Share of Taxes thirty (30) days prior to the time such installment
of Taxes is required to be paid by Owner without penalty or interest.
Accordingly, Tenant agrees if the number of such installments and/or the date of
payment thereof and/or the fiscal year used for the purpose of Taxes shall
change then (a) at the time that any such revised installment is payable by
Owner, Tenant shall pay to Owner the amount which shall provide Owner with
Tenant's Proportionate Share of Taxes applicable to the revised installment of
Taxes then required to be paid by Owner, and (b) this Article shall be
appropriately adjusted to reflect such change and the time for payment to Owner
of Tenant's Proportionate Share of Taxes as provided in this Article shall be
appropriately revised so that Owner shall always be provided with Tenant's
Proportionate Share of Taxes thirty (30) days prior to the installment of Taxes
required to be paid by Owner. Notwithstanding the foregoing provisions of this
subsection A to the contrary, in the event the holder of any mortgage affecting
the Real Property shall require Owner to make monthly deposits on account of
real estate taxes, then this Article shall be appropriately adjusted to reflect
the requirement that Owner make monthly deposits on account of real estate taxes
so that Owner shall always be provided with one-twelfth (1/12th) of Tenant's
Proportionate Share of Taxes with respect to any Tax Escalation Year thirty (30)
days prior to the payment by Owner of such monthly deposits on account of real
estate taxes.
B. If, as a result of any application or proceeding brought by or on
behalf of Owner for reduction of the assessed valuation of the Real Property
there shall be a decrease in Taxes for any Tax Escalation Year with respect to
which Owner shall have previously rendered an Owner's Tax Statement, the next
monthly installment or installments of Fixed Rent following such decrease shall
include an adjustment of the Fixed Rent for such Tax Escalation Year reflecting
a credit to Tenant equal to the amount by which (i) the Fixed Rent actually paid
by Tenant with respect to such Tax Escalation Year (as increased pursuant to the
operation of the provisions of subsection A of Section 23.02), shall exceed (ii)
the Fixed Rent payable with respect to such Tax Escalation Year (as increased
pursuant to the operation of the provisions of subsection A of Section 23.02)
based
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upon such reduction of the assessed valuation. Tenant shall pay to Owner within
thirty (30) days after demand, as additional rent under this Lease, a sum equal
to Tenant's Proportionate Share of all reasonable costs and expenses, including,
without limitation, reasonable counsel fees, actually paid or incurred by Owner
in connection with any application or proceeding brought for reduction of the
assessed valuation of the Real Property or any other contest of Taxes upon the
Real Property for any Tax Escalation Year, whether or not such application,
proceeding or other contest was commenced and/or settled and/or determined prior
to the Tax Escalation Year in question, which counsel fees shall be consistent
with counsel fees incurred for similar proceedings affecting First-Class
buildings for the same period.
SECTION 23.04. OPERATING EXPENSES: A. If Operating Expenses in any
Escalation Year shall be in such an amount as shall constitute an increase above
Base Operating Expenses, the Fixed Rent for such Escalation Year shall be
increased by a sum equal to Tenant's Proportionate Share of any such increase.
In the event that Base Operating Expenses shall be in excess of Operating
Expenses in any Escalation Year, in no event shall Tenant be entitled to any
such excess and the Fixed Rent shall not be reduced in any way.
B. Unless the Commencement Date shall occur on a January 1st, any
increase in the Fixed Rent pursuant to the provisions of Subsection A of this
Section 23.04 for the Escalation Year in which the Commencement Date shall occur
shall be apportioned in that percentage which the number of days in the period
from the Commencement Date to December 31st of such Escalation Year, both dates
inclusive, bears to the total number of days in such Escalation Year. Unless the
Demised Term shall expire on December 31st any increase in the Fixed Rent
pursuant to the provisions of Subsection A of this Section 23.04 for the
Escalation Year in which the date of the expiration of the Demised Term shall
occur shall be apportioned in that percentage which the number of days in the
period from January 1st of such Escalation Year to such date of expiration, both
dates inclusive, bears to the total number of days in such Escalation Year.
C. In the determination of any increase in the Fixed Rent pursuant to
the foregoing provisions of this Section 23.04, if the Building shall not have
been fully occupied during any Escalation Year, Operating Expenses for such
Escalation Year shall be equitably adjusted (by including such additional
expenses as Owner would have incurred) to the extent, if any, required to
reflect full occupancy.
SECTION 23.05. CALCULATION AND PAYMENT OF OPERATING EXPENSES: A. Owner
shall render to Tenant, either in accordance with the provisions of Article 27
or by personal delivery at the Demised Premises, an Owner's Operating Expense
Statement with respect to each Escalation Year on or before the next succeeding
October 1st. Owner's failure to render an Owner's Operating Expense Statement
with respect to any Escalation Year shall not prejudice Owner's right to recover
any sums due to Owner hereunder with respect to such Escalation Year.
B. Within twenty (20) days next following rendition of the first
Owner's Operating Expense Statement which shows an increase in the Fixed Rent
for any Escalation Year, Tenant shall pay to Owner the entire amount of such
increase. In order to provide for current payments on account of future
potential increases in the Fixed Rent which may be payable by Tenant pursuant to
the provisions of Subsection 23.04.A, Tenant shall also pay to Owner at such
time, provided Owner has given to Tenant a Monthly Escalation Installment
Notice, a sum equal to the product of (i) the Monthly Escalation Installment set
forth in such Notice multiplied by (ii) the number of months or partial months
which shall have elapsed between January 1st of the Escalation Year in which
such payment is made and the date of such payment, less any amounts theretofore
paid by Tenant to Owner on account of increases in the Fixed Rent for such
Escalation Year pursuant to the provisions of the penultimate sentence of this
Subsection 23.05.B; thereafter Tenant shall make payment of a Monthly Escalation
Installment throughout each month of the Demised Term, Monthly Escalation
Installments shall be added to and payable as part of each monthly installment
of Fixed Rent. Notwithstanding anything to the contrary contained in the
foregoing provisions of this Article, prior to the rendition of the first
Owner's Operating Expense Statement which shows an increase in the Fixed Rent
for any Escalation Year, Owner may render to Tenant a pro-
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forma Owner's Operating Expense Statement containing a bona fide estimate of the
increase in the Fixed Rent for the Escalation Year in which the Commencement
Date shall occur and/or the subsequent Escalation Year. Following the rendition
of such pro-forma Owner's Operating Expense Statement, Tenant shall pay to Owner
a sum equal to one twelfth (1/12th) of the estimated increase in the Fixed Rent
shown thereon for such Escalation Year or Years multiplied by the number of
months which may have elapsed between the Commencement Date and the month in
which such payment is made and thereafter pay to Owner, on the first day of each
month of the Demised Term (until the rendition by Owner of the first Owner's
Operating Expense Statement) a sum equal to one twelfth (1/12th) of the increase
in the Fixed Rent shown on such pro-forma Owner's Operating Expense Statement.
Any sums paid pursuant to the provisions of the immediately preceding sentence
shall be credited against the sums required to be paid by Tenant to Owner
pursuant to the Owner's Operating Expense Statement for the first Escalation
Year for which there is an increase in the Fixed Rent pursuant to the provisions
of Subsection A.
C. Following rendition of the first Owner's Operating Expense
Statement and each subsequent Owner's Operating Expense Statement a
reconciliation shall be made as follows: Tenant shall be debited with any
increase in the Fixed Rent shown on such Owner's Operating Expense Statement and
credited with the aggregate amount, if any, paid by Tenant in accordance with
the provisions of Subsection B of this Section on account of future increases in
the Fixed Rent pursuant to Subsection 23.04. A, which has not previously been
credited against increases in the Fixed Rent shown on Owner's Operating Expense
Statements. Tenant shall pay any net debit balance to Owner within twenty (20)
days next following rendition by Owner, either in accordance with the provisions
of Article 27 or by personal delivery at the Demised Premises of an invoice for
such net debit balance; any net credit balance shall be applied as an adjustment
against the next accruing monthly installments of Fixed Rent.
SECTION 23.06. DISPUTE RESOLUTION: A. In the event of any dispute between
Owner and Tenant arising out of the application of the Operating Expense
provisions of this Article, such dispute shall be determined by arbitration in
New York City in accordance with the provisions of Article 36. Notwithstanding
any such dispute and submission to arbitration, or any dispute with respect to
the Tax Escalation provisions of this Article (which dispute shall not be
subject to arbitration but which can only be prosecuted by the institution of
legal proceedings by Tenant), any increase in the Fixed Rent shown upon any
Owner's Operating Expense Statement or any Monthly Escalation Installment Notice
or any Owner's Tax Statement shall be payable by Tenant within the time
limitation set forth in this Article. If the determination in such arbitration
or legal proceedings shall be adverse to Owner, any amount paid by Tenant to
Owner in excess of the amount determined to be properly payable shall be
credited against the next accruing installments of Fixed Rent due under this
Lease. However, if there are no such installments, such amounts shall be paid by
Owner to Tenant within thirty (30) days following such determination.
B. In the event Tenant disagrees with any computation or other matter
contained in any Owner's Operating Expense Statement or any Monthly Escalation
Installment Notice, Tenant shall have the right to give notice to Owner within
one hundred twenty (120) days next following rendition of such Statement or
Notice setting forth the particulars of such disagreement. If the matter is not
resolved within ninety (90) days next following the giving of such notice by
Tenant, it shall be deemed a dispute which either party may submit to
arbitration pursuant to the provisions of Subsection A of this Section. If (i)
Tenant does not give a timely notice to Owner in accordance with the foregoing
provisions of this Subsection disagreeing with any computation or other matter
contained in any Owner's Operating Expense Statement or any Monthly Escalation
Installment Notice and setting forth the particulars of such disagreement, or
(ii) if any such timely notice shall have been given by Tenant, the matter shall
not have been resolved and neither party shall have submitted the dispute to
arbitration within ninety (90) days next following the giving of such notice by
Tenant, Tenant shall be deemed conclusively to have accepted such Owner's
Operating Expense Statement or Monthly Escalation Installment Notice, as the
case may be, and shall have no further right to dispute the same.
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C. (1) Tenant or its usual auditors of its normal books and records
(provided same are public accountants) in each case at Tenant's expense, shall
have the right to examine those portions of Owner's records which are reasonably
required to verify the accuracy of any amounts shown on any Owner's Operating
Expense Statement provided Tenant shall notify Owner of its desire to so examine
such records within sixty (60) days next following rendition of such Owner's
Operating Expense Statement. Owner shall maintain such records for a period of
three (3) years following the expiration of the Escalation Year to which they
relate. Upon Tenant's timely request, Owner shall make such records available
and any such examination shall be conducted at the office of Owner's accountants
or at such other reasonable place designated by Owner during normal office
hours.
(2) Tenant acknowledges and agrees that not more than three (3) of
its employees or three (3) persons employed by such auditors shall be entitled
to entry to the offices of Owner at any one time for the purposes of such review
and inspection. Tenant hereby recognizes the confidential, privileged and
proprietary nature of such records and the information and data contained
therein, as well as any compromise, settlement or adjustment reached between
Owner and Tenant relating to the results of such examination, and Tenant
covenants and agrees for itself, and its employees, agents and representatives
(including, but not limited to, such auditors, and any attorneys or consultants
retained by Tenant as hereinafter provided), that such books, records,
information, data, compromise, settlement and adjustment will be held in the
strictest confidence and not be divulged, disclosed or revealed to any other
person except (x) to the extent required by law, court order or directive of any
Governmental Authority or (y) to such auditors or any attorneys retained by
Tenant or consultants retained by Tenant in connection with any action or
proceeding between Owner and Tenant as to Operating Expenses or Owner's
Operating Expense Statement and no examination of any such records shall be
permitted unless and until such auditors, attorneys and consultants
affirmatively agree and consent to be bound by the provisions of this Section
23.06C.
(3) Tenant agrees that this Section 23.06C is of material importance
to Owner and that any violation thereof shall result in immediate harm to Owner
and Owner shall have all rights allowed by law or equity if Tenant, its
employees, agents, and representatives (including, but not limited to,
such auditors, attorneys or consultants) violate the terms of this Section
23.06, including, but not limited to, the right to terminate Tenant's right to
audit Owner's records in the future pursuant to this Section 23.06C, and Tenant
shall indemnify and hold Owner harmless of and from all loss, cost, damage,
liability and expense (including, but not limited to counsel fees and
disbursements) arising from a breach of the foregoing obligations of Tenant or
any of its employees, agents and representatives, (including but not limited to,
such auditors, attorneys or consultants). This obligation of Tenant and its
employees, agents and representatives (including, but not limited to, any such
auditors, attorneys or consultants) shall survive the expiration or sooner term
of the Demised Term.
SECTION 23.07. COLLECTION OF INCREASES IN FIXED RENT: The obligations of
Owner and Tenant under the provisions of this Article with respect to any
increase in the Fixed Rent, or any credit to which Tenant may be entitled, shall
survive the expiration or any sooner termination of the Demised Term. All sums
payable by Tenant under this Article shall be collectible by Owner in the same
manner as Fixed Rent.
ARTICLE 24
NO WAIVER
SECTION 24.01 OWNER'S TERMINATION NOT PREVENTED: Neither any option granted
to Tenant in this Lease or in any collateral instrument to renew or extend the
Demised Term, nor the exercise of any such option by Tenant, shall prevent Owner
from exercising any option or right granted or reserved to Owner in this Lease
or in any collateral instrument or which Owner may have by virtue of any law, to
terminate this Lease and the Demised Term or any renewal or extension of the
Demised Term either during the original Demised Term or
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during the renewed or extended term. Any termination of this Lease and the
Demised Term shall serve to terminate any such renewal or extension of the
Demised Term and any right of Tenant to any such renewal or extension, whether
or not Tenant shall have exercised any such option to renew or extend the
Demised Term. Any such option or right on the part of Owner to terminate this
Lease shall continue during any extension or renewal of the Demised Term. No
option granted to Tenant to renew or extend the Demised Term shall be deemed to
give Tenant any further option to renew or extend.
SECTION 24.02. NO TERMINATION BY TENANT/NO WAIVER: No act or thing done by
Owner or Owner's agents during the Demised Term shall constitute a valid
acceptance of a surrender of the Demised Premises or any remaining portion of
the Demised Term except a written instrument accepting such surrender, executed
by Owner. No employee of Owner or of Owner's agents shall have any authority to
accept the keys of the Demised Premises prior to the termination of this Lease
and the Demised Term, and the delivery of such keys to any such employee shall
not operate as a termination of this Lease or a surrender of the Demised
Premises; however, if Tenant desires to have Owner sublet the Demised Premises
for Tenant's account, Owner or Owner's agents are authorized to receive said
keys for such purposes without releasing Tenant from any of its obligations
under this Lease, and Tenant hereby relieves Owner of any liability for loss
of, or damage to, any of Tenant's property or other effects in connection with
such subletting. The failure by Owner to seek redress for breach or violation
of, or to insist upon the strict performance of, any term, covenant or
condition of this Lease on Tenant's part to be observed or performed, shall not
prevent a subsequent act or omission which would have originally constituted a
breach or violation of any such term, covenant or condition from having all the
force and effect of an original breach or violation. The receipt by Owner of
rent with knowledge of the breach or violation by Tenant of any term, covenant
or condition of this Lease on Tenant's part to be observed or performed shall
not be deemed a waiver of such breach or violation. Owner's failure to enforce
any Building Rule against Tenant or against any other tenant or occupant of the
Building shall not be deemed a waiver of any such Building Rule. No provision
of this Lease shall be deemed to have been waived by Owner unless such waiver
shall be set forth in a written instrument executed by Owner. No payment by
Tenant or receipt by Owner of a lesser amount than the aggregate of all Fixed
Rent and additional rent then due under this Lease shall be deemed to be other
than on account of the first accruing of all such items of Fixed Rent and
additional rent then due, no endorsement or statement on any check and no
letter accompanying any check or other rent payment in any such lesser amount
and no acceptance of any such check or other such payment by Owner shall
constitute an accord and satisfaction, and Owner may accept any such check or
payment without prejudice to Owner's right to recover the balance of such rent
or to pursue any other legal remedy.
ARTICLE 25
MUTUAL WAIVER OF TRIAL BY JURY
SECTION 25.01. Owner and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by Owner or Tenant against the other on any
matter whatsoever arising out of or in any way connected with this Lease, the
relationship of landlord and tenant, the use or occupancy of the Demised
Premises by Tenant or any person claiming through or under Tenant, any claim of
injury or damage, and any emergency or other statutory remedy; however, the
foregoing waiver shall not apply to any action for personal injury or property
damage. The provisions of the foregoing sentence shall survive the expiration
or any sooner termination of the Demised Term. If Owner commences any summary
proceeding, or any other proceeding of like import, Tenant agrees: (i) not to
interpose any counterclaim based upon personal injury or property damage in any
such summary proceeding, or any other proceeding of like import, unless failure
to interpose such counterclaim would preclude Tenant from asserting such claim
in a separate action or proceeding; and (ii) not to seek to remove to another
court or jurisdiction or consolidate any such summary proceeding, or other
proceeding of like import, with any action or proceeding which may have been,
or will be, brought by Tenant. In the event the Tenant shall breach any of its
obligations set forth in the immediately preceding sentence, Tenant agrees (a)
to pay all of Owner's attorneys'
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fees and disbursements in connection with Owner's successful enforcement of
such obligations of Tenant and (b) in all events, to pay all accrued, present
and future Fixed Rent and increases therein and additional rent payable
pursuant to the provisions of this Lease when and as same become due and
payable hereunder.
ARTICLE 26
INABILITY TO PERFORM
SECTION 26.01. If, by reason of strikes or other labor disputes, fire or
other casualty (or reasonable delays in adjustment of insurance), accidents, any
Legal Requirements, any orders of any Governmental Authority or any other cause
beyond Owner's reasonable control, whether or not such other cause shall be
similar in nature to those hereinbefore enumerated, Owner is unable to furnish
or is delayed in furnishing any utility or service required to be furnished by
Owner under the provisions of Article 29 or any other Article of this Lease or
any collateral instrument, or is unable to perform or make or is delayed in
performing or making any installations, decorations, repairs, alterations,
additions or improvements, whether or not required to be performed or made under
this Lease or under any collateral instrument, or is unable to fulfill or is
delayed in fulfilling any of Owners other obligations under this Lease or any
collateral instrument, no such inability or delay shall constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent, or relieve Tenant from any of its obligations under this
Lease, or impose any liability upon Owner or its agents by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business, or otherwise.
SECTION 26.02. If by reason of strikes or other labor disputes, fire or
other casualty (or reasonable delays in adjustment of insurance) accidents,
orders or regulations of any Federal, State, County or Municipal authority, or
any other cause beyond Tenant's reasonable control, Tenant is unable to fulfill
any of Tenant's obligations under this Lease or any collateral instrument (with
the exception of any obligations on Tenant's part to pay any sum of money due
Owner, including, without limitation, the payment of Fixed Rent or increases
thereof, or any additional rent, which monetary obligation shall remain
unaffected by the provisions of this Section 26.02), Tenant shall not be
required to fulfill such non-monetary obligations during the period that Tenant
is so unable to fulfill them by reason of the above, provided however, that
Tenant shall employ reasonable diligence to attempt to eliminate the cause of
such inability referred to in this Section 26.02.
ARTICLE 27
NOTICES
SECTION 27.01. Except as otherwise expressly provided in this Lease, any
bills, statements, notices, demands, requests or other communications given or
required to be given under this Lease shall be effective only if rendered or
given in writing, sent by registered or certified mail (return receipt
requested optional), addressed as follows:
(a) To Tenant (i) at Tenant's address set forth in this
Lease if mailed prior to Tenant's taking possession of the Demised Premises, or
(ii) at the Building if mailed subsequent to Tenant's taking possession of the
Demised Premises, or (iii) at any place where Tenant or any agent or employee
of Tenant may be found if mailed subsequent to Tenant's vacating, deserting,
abandoning or surrendering the Demised Premises, or
(b) To Owner at Owner's address set forth in this Lease,
with a copy to Xxxxxxxx & Fleece, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Partner-in-Charge, Xxxxx Management, or
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(c) addressed to such other address as either Owner or
Tenant may designate as its new address for such purpose by notice given to the
other in accordance with the provisions of this Section. Any such xxxx,
statement, notice, demand, request or other communication shall be deemed to
have been rendered or given on the date when it shall have been mailed as
provided in this Section.
Nothing contained in this Section 27.01 shall preclude, limit or modify Owner's
service of any notice, statement, demand or other communication in the manner
required by law, including, but not limited to, any demand for rent under
Article 7 of the New York Real Property Actions and Proceedings Law or any
successor law of like import.
ARTICLE 28
PARTNERSHIP TENANT
SECTION 28.01. If Tenant is a partnership or professional corporation or
limited liability company (or is comprised of two (2) or more persons,
individually and as co-partners of a partnership or shareholders of a
professional corporation or members of a limited liability company) or if
Tenant's interest in this Lease shall be assigned to a partnership or
professional corporation or limited liability company (or to two (2) or more
persons, individually and as co-partners of a partnership or shareholders of a
professional corporation or members of a limited liability company) pursuant to
Article 11 (any such partnership, professional corporation, limited liability
company and such persons are referred to in this Section as "Partnership
Tenant"), the following provisions of this Section shall apply to such
Partnership Tenant: (i) the liability of each of the persons comprising
Partnership Tenant shall be joint and several, individually and as a partner or
shareholder or member, with respect to all obligations of the Tenant under this
Lease whether or not such obligations arose prior to, during, or after any
period when any party comprising Partnership Tenant was a member or shareholder
of Partnership Tenant, and (ii) each of the persons comprising Partnership
Tenant, whether or not such person shall be one of the persons comprising Tenant
at the time in question, hereby consents in advance to, and agrees to be bound
by, any written instrument which may hereafter be executed, changing, modifying
or discharging this Lease, in whole or in part, or surrendering all or any part
of the Demised Premises to Owner, and by any notices, demands, requests or other
communications which may hereafter be given by Partnership Tenant or by any of
the persons comprising Partnership Tenant, and (iii) any bills, statements,
notices, demands, requests or other communications given or rendered to
Partnership Tenant or to any of the persons comprising Partnership Tenant shall
be deemed given or rendered to Partnership Tenant and to all such persons and
shall be binding upon Partnership Tenant and all such persons, and (iv) if
Partnership Tenant shall admit new partners or shareholders or members, all of
such new partners or shareholders or members, as the case may be, shall, by
their admission to Partnership Tenant, be deemed to have assumed performance of
all of the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed, and shall be liable for such performance, together with
all other parties, jointly or severally, individually and as a partner or
shareholder or member, whether or not the obligation to comply with such terms,
covenants or conditions arose prior to, during or after any period when any
party comprising Partnership Tenant was a member or shareholder of Partnership
Tenant and (v) Partnership Tenant shall give prompt notice to Owner of the
admission of any such new partners, or shareholders, or members, as the case may
be, and, upon demand of Owner, shall cause each such new partner or shareholder
or member to execute and deliver to Owner an agreement, in form satisfactory to
Owner, wherein each such new partner or shareholder or member shall so assume
performance of all of the terms, covenants and conditions of this Lease on
Tenant's part to be observed and performed whether or not the obligation to
comply with such terms, covenants or conditions arose prior to, during or after
any period when any party comprising Partnership Tenant was a member or
shareholder of Partnership Tenant (but neither Owner's failure to request any
such agreement nor the failure of any such new partner, shareholder or member to
execute or deliver any such agreement to Owner shall vitiate the provisions of
subdivision (iv) or any other provision of this Section).
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ARTICLE 29
UTILITIES AND SERVICES
SECTION 29.01. ELEVATORS: Owner, at Owner's expense, shall furnish
necessary passenger elevator facilities twenty-four (24) hours per day on
business days (as defined in Section 31.01) and on Saturdays from 8:00 A.M. to
6:00 P.M. and shall have a passenger elevator subject to call at all other times
twenty-four (24) hours per day, seven (7) days per week. Tenant shall be
entitled to the non-exclusive use of the freight elevator in common with other
tenants and occupants of the Building from 8:00 A.M. to 6:00 P.M. on business
days, subject to such reasonable rules as Owner may adopt for the use of the
freight elevator. At any time or times all or any of the elevators in the
Building may, at Owner's option, be automatic elevators, and Owner shall not be
required to furnish any operator service for automatic elevators. If Owner
shall, at any time, elect to furnish operator service for any automatic
elevators, Owner shall have the right to discontinue furnishing such service
with the same effect as if Owner had never elected to furnish such service.
SECTION 29.02. HEAT: Owner, at Owner's expense, shall furnish heat
to the Demised Premises, as and when required by law, twenty-four (24) hours
per day.
SECTION 29.03. AIR CONDITIONING AND VENTILATION: Owner, at Owner's
expense, shall furnish and distribute to the Demised Premises (i) conditioned
air at reasonable temperatures, pressures and degrees of humidity and in
reasonable volumes and velocities, twenty-four (24) hours per day during the
months of May, June, July, August, September and October when required for the
comfortable occupancy of the Demised Premises; and (ii) mechanical ventilation
through the Building air conditioning system twenty-four (24) hours per day
throughout the year, except when conditioned air or heat is being furnished.
Notwithstanding the foregoing provisions of this Section, Owner shall not be
responsible if the normal operation of the Building air conditioning system
shall fail to provide conditioned air at reasonable temperatures, pressures or
degrees of humidity or in reasonable volumes or velocities in any portions of
the Demised Premises (a) which, by reason of any machinery or equipment
installed by or on behalf of Tenant or any person claiming through or under
Tenant, shall have an electrical load in excess of four (4) xxxxx per square
foot of usable area for all purposes (including lighting and power), or which
shall have a human occupancy factor in excess of one person per 100 square feet
of usable area (the average electrical load and human occupancy factors for
which the Building air conditioning system is designed) or (b) because of any
rearrangement of partitioning or other Alterations made or performed by or on
behalf of Tenant or any person claiming through or under Tenant. Whenever said
air conditioning system is in operation, Tenant agrees to cause all the windows
in the Demised Premises to be kept closed and to cause the venetian blinds in
the Demised Premises to be kept closed if necessary because of the position of
the sun. Tenant agrees to cause all the windows in the Demised Premises to be
closed whenever the Demised Premises are not occupied. Tenant shall cooperate
fully with Owner at all times and abide by all regulations and requirements
which Owner may reasonably prescribe for the proper functioning and protection
of the air conditioning and ventilating system. In addition to any and all other
rights and remedies which Owner may invoke for a violation or breach of any of
the foregoing provisions of this Section, Owner may discontinue heating, air
conditioning and ventilating service during the period of such violation or
breach, and such discontinuance shall not constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution
of rent, or relieve Tenant from any of its obligations under this Lease, or
impose any liability upon Owner, or its agents, by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant's business, or
otherwise.
SECTION 29.04. CLEANING: A. Tenant, at Tenant's expense, shall keep the
Demised Premises in order, shall cause the Demised Premises to be cleaned and
shall cause Tenant's refuse and rubbish to be removed, all at regular intervals
in accordance with standards and practices adopted by Owner for the Building.
Tenant shall cooperate with any waste and garbage recycling program of the
Building and shall comply with all reasonable rules and regulations of Owner
with respect thereto. Tenant, at Tenant's expense, shall cause all portions of
the Demised
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Premises used for the storage, preparation, service or consumption of food or
beverages to be cleaned daily in a manner satisfactory to Owner, and to be
exterminated against infestation by vermin, roaches or rodents regularly and,
in addition, whenever there shall be evidence of any infestation.
B. Owner, at Owner's expense, shall clean the public portions of
the Building at regular intervals in accordance with practices and standards
adopted by Owner for the Building which shall be consistent with similar
building in downtown Manhattan.
C. The removal of refuse and rubbish and the furnishing of
office cleaning services to Tenant by persons other than Owner and its
contractors shall be performed in accordance with such regulations and
requirements as, in Owner's judgment, are necessary for the proper operation of
the Building, and Tenant agrees that Tenant will not permit any person to enter
the Demised Premises or the Building for such purposes, or for the purpose of
providing extermination services required to be performed by Tenant pursuant to
Subsection A of this Section, other than persons first approved by Owner, such
approval not unreasonably to be withheld.
SECTION 29.05. ELECTRICITY: A. Owner shall redistribute or furnish
electrical energy to or for the use of Tenant in the Demised Premises for the
operation of the lighting fixtures and the electrical receptacles installed in
the Demised Premises on the Commencement Date and the operation of the Building
heating, ventilating and air conditioning system unit serving the floor of the
Building on which the Demised Premises are located. If either the quantity or
character of electrical service is changed by the public utility corporation
supplying electrical service to the Building or is no longer available or
suitable for Tenant's requirements, or if any equipment supplementing or
ancillary to such electrical service which is installed in the Building by or
on behalf of said public utility corporation malfunctions or fails to operate
for any reason while Tenant has made any connection to said equipment, no such
change, unavailability, unsuitability, malfunction or failure to operate shall
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of rent, or relieve Tenant from any of
its obligations under this Lease, or impose any liability upon Owner, or its
agents, by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business or otherwise.
B. Owner represents that the electrical feeder or riser capacity
serving the Demised Premises on the Commencement Date shall be adequate to
serve the lighting fixtures and electrical receptacles installed in the Demised
Premises on the Commencement Date. Any additional feeders or risers to supply
Tenant's additional electrical requirements, and all other equipment proper and
necessary in connection with such feeders or risers shall be installed by Owner
upon Tenant's request, at the sole cost and expense of Tenant, provided, that,
in Owner's judgment, such additional feeders or risers are necessary and are
permissible under applicable laws and insurance regulations and the
installation of such feeders or riders will not cause permanent damage or
injury to the Building or the Demised Premises or cause or create a dangerous
or hazardous condition or entail excessive or unreasonable alterations or
repairs to or interfere with or disturb other tenants or occupants of the
Building. Tenant covenants that at no time shall the use of electrical energy
in the Demised Premises exceed the capacity of the existing feeders or risers
or wiring installations then serving the Demised Premises.
C. Prior to the Commencement Date Owner, at Owner's expense,
shall have installed a submeter or submeters in the Demised Premises to measure
Tenant's actual consumption of electricity in the entire Demised Premises.
Tenant shall pay to Owner, from time to time, upon demand, for the electricity
consumed in the Demised Premises, as determined by such submeter or submeters,
the actual cost to Owner of purchasing electricity for the Demised Premises (as
such actual cost is hereinafter defined) plus all applicable taxes thereon.
Owner's actual cost for Tenant's KW and KWH shall be determined by the
application of the Building's electric rate schedule per month to Tenant's
usage. With respect to any period when any such submeter is not in good working
order, Tenant shall pay Owner for electricity consumed in the portion of the
Demised Premises served by such submeter at the rate paid by Tenant to Owner
during the most recent comparable period when such submeter was in good working
order. Tenant shall take good care of any such submeter and all submetering
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installation equipment, at Tenant's sole cost and expense, and make all repairs
thereto occasioned by any acts, omissions or negligence of Tenant or any person
claiming through or under Tenant as and when necessary to insure that any such
submeter is, at all times during the Demised Term, in good working order. With
respect to the period (referred to as the "Interim Period"), if any, from the
Commencement Date through the date immediately prior to the date upon which the
submeter or submeters shall be operable, Tenant shall pay to Owner monthly on
demand of Owner, for the electricity consumed in the Demised Premises, a sum
equal to one-twelfth (1/12th) of the product of (x) $2.00 multiplied by (y) the
Demised Premises Area. With respect to any period during the Interim Period
constituting less than a full calendar month, the monthly payment referred to in
the preceding sentence shall be appropriately prorated.
D. (1) Owner may, at any time, elect to discontinue the
redistribution or furnishing of electrical energy. In the event of any such
election by Owner, (i) Owner agrees to give reasonable advance notice of any
such discontinuance to Tenant, (ii) Owner agrees to permit Tenant to receive
electrical service directly from the public utility corporation supplying
electrical service to the Building and to permit the existing feeders, risers,
wiring and other electrical facilities serving the Demised Premises to be used
by Tenant for such purpose to the extent they are suitable and safely capable,
(iii) Owner agrees to pay such charges and costs, if any, as such public utility
corporation may impose in connection with the installation of Tenant's meters,
(iv) the provisions of Subsection C of this Section 29.05 shall be deemed
deleted from this Lease, and (v) this Lease shall remain in full force and
effect and such discontinuance shall not constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution
of rent, or relieve Tenant from any of its obligations under this Lease, or
impose any liability upon Owner or its agents by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant's business, or
otherwise.
(2) Notwithstanding anything to the contrary
contained in subsection D(1) of this Section 29.05, Owner agrees that Owner
shall not voluntarily discontinue the redistribution or furnishing of electrical
energy until Owner shall have made or paid for all installations required to
provide Tenant with electrical service similar to the electrical service which
Tenant had in the Demised Premises immediately prior to such discontinuance and
the public utility corporation supplying electrical service to the Building has
agreed to furnish such service so that Tenant shall immediately upon such
discontinuance be able to receive electrical service directly from such public
utility corporation. Unless a shorter time is required by the public utility
corporation supplying electrical service to the Building, Owner shall give
Tenant at least sixty (60) days prior notice of any such discontinuance.
E. Notwithstanding anything to the contrary set forth
in this Lease, any sums payable or granted in any way by the public utility
corporation supplying electricity to the Building resulting from the
installation in the Demised Premises of energy efficient lighting fixtures,
lamps, special supplemental heating, ventilation and air conditioning systems or
any other Alterations, which sums are paid or given by way of rebate, direct
payment, credit or otherwise, shall be and remain the property of Owner, and
Tenant shall not be entitled to any portion thereof, unless such lighting
fixtures, lamps, supplemental heating, ventilation and air conditioning systems
or other Alterations were installed by Tenant, solely at Tenant's expense,
without any contribution, credit or allowance by Owner, in accordance with all
of the provisions of this Lease. Nothing contained in the foregoing sentence,
however, shall be deemed to obligate Owner to supply or install in the Demised
Premises any such lighting fixtures, lamps, supplemental heating, ventilation
and air conditioning systems or other Alterations.
F. Tenant acknowledges that the Building heating,
ventilating and air conditioning system unit serving the floor of the Building
on which the Demised Premises are located (referred to herein as the "Floor HVAC
Unit") shall not be connected to the submeter(s) serving the Demised Premises,
but, instead, shall be connected to a separate meter(s) measuring the electrical
energy consumed by such Floor HVAC Unit. Accordingly, Tenant agrees that during
the Demised Term, Tenant shall pay to Owner, from time to time upon demand of
Owner and submission by Owner to Tenant of invoices or bills therefor, fifty-two
and 50/100
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(52.50%) percent (hereinafter "Tenant's Electrical Share") of all amounts shown
on said separate meter(s) for such Floor HVAC Unit.
G. Tenant acknowledges that the light and power
systems serving the public areas of the floor of the Building on which the
Demised Premises are located (referred to herein as the "Floor Public Light and
Power") shall not be connected to the submeter(s) serving the Demised Premises
but, instead, shall be connected to a separate meter(s) measuring the electrical
energy consumed by such Floor Public Light and Power. Accordingly, Tenant agrees
that during the Demised Term, Tenant shall pay to Owner, from time to time upon
demand of Owner and submission by Owner to Tenant of invoices or bills therefor,
Tenant's Electrical Share of all amounts shown on said separate meter(s) for
such Floor Public Light and Power.
SECTION 29.06. WATER: If Tenant requires, uses or consumes water for
any purpose in addition to ordinary lavatory and drinking purposes, Owner may
install a hot water meter and a cold water meter and thereby measure Tenant's
consumption of water for all purposes. Tenant shall pay to Owner the cost of any
such meters and their installation, and Tenant shall keep any such meters and
any such installation equipment in good working order and repair, at Tenant's
cost and expense. Tenant agrees to pay for water consumed as shown on said
meters, and sewer charges, taxes and any other governmental charges thereon, as
and when bills are rendered. In addition to any sums required to be paid by
Tenant for hot water consumed and sewer charges, taxes and any other
governmental charges thereon under the foregoing provisions of this Section.
Tenant agrees to pay to Owner, for the heating of said hot water, an amount
equal to three (3X) times the total of said sums required to be paid by Tenant
for hot water and sewer charges thereon. For the purposes of determining the
amount of any sums required to be paid by Tenant under this Section, all hot and
cold water consumed during any period when said meters are not in good working
order shall be deemed to have been consumed at the rate of consumption of such
water during the most comparable period when such meters were in good working
order.
SECTION 29.07. OVERTIME PERIODS: The Fixed Rent does not reflect or
include any charge to Tenant for the furnishing or distributing of any necessary
elevator facilities, (other than an elevator subject to call at all times) to
the Demised Premises during periods (referred to as "Overtime Periods") other
than the hours and days set forth above in this Article for the furnishing and
distributing of such services. Accordingly, if Owner shall furnish any such
elevator facilities to the Demised Premises at the request of Tenant during
Overtime Periods, Tenant shall pay Owner for such services at the following
rates as of the date of this Lease: $60.00 Dollars per hour for freight elevator
service. Any increases above such rates shall be in an amount equal to the
actual increases after the date of this Lease in the cost to Owner of furnishing
such services. Owner shall not be required to furnish any such services during
Overtime Periods, unless Owner has received reasonable advance notice from
Tenant requesting such services. If Tenant fails to give Owner reasonable
advance notice requesting such services during any Overtime Periods, then,
failure by Owner to furnish 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 rent, or relieve Tenant from
any of its obligations under this Lease, or impose any liability upon Owner or
its agents by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business or otherwise. If other tenants on the
applicable floor of the Demised Premises where overtime heat, conditioned air or
mechanical ventilation are requested by Tenant also request the same service for
the same period, then the hourly charge shall be apportioned among the tenants
requesting the same services during the same periods.
SECTION 29.08. OWNER'S RIGHT TO STOP SERVICE: Owner reserves the
right to stop the service of the heating, air conditioning, ventilating,
elevator, plumbing, electrical or other mechanical systems or facilities in the
Building when necessary by reason of accident or emergency, or for repairs,
alterations, replacements or improvements, which, in the reasonable judgment of
Owner are desirable or necessary, until said repairs, alterations, replacements
or improvements shall have been completed. The exercise of such right by Owner
shall not constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of rent, or relieve Tenant from
any of its obligations under this Lease, or impose any liability upon Owner or
its agents by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's
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business, or otherwise. Owner shall employ reasonable diligence in attempting to
restore the operation of any such system or facilities without any obligation,
however, to employ labor at overtime or other premium pay rates, except that in
cases where there is a material interference with Tenant's business or the
health or safety of the occupants of the Demised Premises is adversely affected,
Owner shall employ contractors or labor at overtime or other premium pay rates.
SECTION 29.09. A. Tenant's Supplemental A/C Unit/Cooling Tower:
Supplementing the provisions of Section 29.05, in the event (a) a separate air
conditioning system to serve the Demised Premises is installed by or on behalf
of Tenant in accordance with the provisions of this Lease (referred to herein as
"Tenant's Supplemental A/C Unit"), (b) Tenant requests that such Unit be hooked
up to any Building cooling tower and associated piping (referred to herein as
the "Cooling Tower") and (c) Owner consents to such hookup, then, in those
events, Owner agrees, subject to the provisions of Article 26 and Section 29.08,
to supply condenser water to Tenant's Supplemental A/C Unit and Tenant agrees
that (i) Tenant shall pay to Owner, upon demand, all costs and expenses incurred
by Owner in connection with the hookup of such Unite to the Cooling Tower,
including, but not limited to, the present Building standard hookup fee of
$345.00 per ton for such Unit, and (ii) from and after the date the hookup is
completed, which hookup shall be performed by Owner, at Owner's cost, the Fixed
Rent reserved in this Lease shall be increased by a sum (referred to herein as
the "Tenant's Cooling Tower Use Charge") equal to (x) the standard per ton
charge then in effect in the Building, multiplied by (xx) the number of tons of
Tenant's Supplemental A/C Unit. Such standard per ton charge is $75.00 per ton
per annum as of the date hereof.
B. If the regular hourly wage rate of operating engineers
employed in the Building shall be increased in any Escalation Year (as defined
in Article 23) over the rate in effect on the January 1st immediately preceding
such hookup, the Fixed Rent for such Escalation Year shall be increased by a sum
equal to that proportion of Tenant's Cooling Tower Use Charge which such
increase in said hourly wage rate bears to the hourly wage rate in effect on the
January 1st immediately preceding such hookup. The increase in Fixed Rent for
any Escalation Year pursuant to the provisions of the immediately preceding
sentence shall be shown on the Owner's Operating Expense Statement with respect
to such Escalation Year rendered by Owner pursuant to the provisions of said
Article 23, and shall be payable by Tenant as if it were an increase in the
Fixed Rent pursuant to the provisions of said Article 23.
C. Any increase in Fixed Rent for Tenant's Cooling Tower Use
Charge shall be effective as of the date Tenant's Supplemental A/C Unit is
hooked up to the Cooling Tower and shall be retroactive to such date if
necessary.
D. Tenant's Supplemental A/C Unit shall be repaired and
maintained by Tenant at Tenant's cost and expense, pursuant to a service
contract.
SECTION 29.10 Tenant acknowledges that Owner has advised Tenant that it is
Owner's intention to maintain at least the following services in the Building
and, accordingly, Owner shall use reasonable diligence to supply and install all
work and installations in the Building necessary to provide and maintain at
least such services (referred to collectively as "Communication Facilities"):
Telecommunications Infrastructure
The base building network is comprised of:
Voice Grade Services: Voice grade services are available on NEC Article
800, Type CMR, 24 AWG, twisted pair copper cable, terminated on a column mounted
RJ21 block. Technical parameters of this Category 3 cable are:
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Mutual Capacitance 15.8 pF/ft.
DC Resistance 25.7 ohms per 1000 ft.
Characteristic Impedance 650 ohms @ 1 Khz
Characteristic Impedance 105 ohms @ 1 MHz
Attenuation @ 1 MHz 0.45 db/1000 ft..
Attenuation @ 1 MHz 6.8 db/100 ft.
High Speed Copper Services: TI.5 service is available on individually shielded
transmit and receive, 22 AWG cables for high reliability. These cables are
terminated on wire-wrap blocks. Technical parameters of this Category 4 cable
are:
Mutual Capacitance 15.6 pF/ft.
DC Resistance 17.6 ohms per 1000 ft.
Characteristic impedance 600 ohms @ 1 Khz
Characteristic impedance 110 ohms @ 1 MHz
Attenuation @ 1 KHz 0.35 db/1000 ft..
Attenuation @ 1 MHz 5.0 db/100 ft.
High Speed Internet Access: Available xxx xxxxxxxxxx, Xxxxxxxx 0, 00 AWG,
Twisted Pair, Type CMR/MPR, with extended distance/extended frequency of 100
Mbps. Technical parameters of this Category 5 cable are:
Mutual Capacitance 14 pF/ft.
DC Resistance 27 ohms per 1000 ft.
Characteristic Impedance 100 ohms +/- 15% from 1-100MHZ
NVP: 72%
Meets EIA/TIA-568 Category 5 and NEMA Extended Frequency Low Loss
Requirements.
Single Mode Ring Configured, Fiber Optic/cable: Fiber optic cable is MIC
(Multifiber Indoor Cable) 10/125 micron OFNR (Riser) with a PVC jacket,
manufactured by Siecor. Technical parameters of this Fiber Optic cable are:
Attenuation @ 1310 nanometers: 1.0 dB/km
Attenuation @ 1550 nanometers: 0.75 dB/km
Maximum tensile load: 600 lb. Short Term
Maximum tensile load: 225 lb. Long Term
Multi-Mode Fiber Optic Cable: For use as intrabuilding, interfloor LAN
connection, Internet access, and interLAN connections between diverse
businesses. This stranded Multifiber building (MFB) cable may be as a backbone
for fiber based data systems, or to connect different fiber based systems
together. Fiber optic cable is MIC (Multifiber Indoor Cable) 62.5/125 micron,
graded index, OFNR (Riser) with a PVC jacket manufactured by Siecor. Technical
parameters of this Fiber Optic cable are:
Attenuation @ 850 nanometers: 3.75 db/km
Attenuation @ 1300 nanometers: 1.5 db/km
Minimum Bandwith @ 850 nanometers: 160 MHz/Km
Minimum Bandwith @ 1300 nanometers: 500 MHz/Km
Maximum tensile load: 125 lb. Short Term
Maximum tensile load: 560 lb. Long Term
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ARTICLE 30
TABLE OF CONTENTS, ETC.
SECTION 30.01. TABLE OF CONTENTS/CAPTIONS: The Table of Contents and the
captions following the Articles and Sections of this Lease have been inserted
solely as a matter of convenience and in no way define or limit the scope or
intent of any provision of this Lease.
ARTICLE 31
MISCELLANEOUS DEFINITIONS, SEVERABILITY AND INTERPRETATION PROVISIONS
SECTION 31.01. The term "business days" as used in this Lease shall exclude
Saturdays, Sundays and holidays, the term "Saturdays" as used in this Lease
shall exclude holidays and the term "holidays" as used in this Lease shall mean
all days observed as legal holidays by either the New York State Government or
the Federal Government.
SECTION 31.02. The terms "person" and "persons" as used in this Lease shall
be deemed to include natural persons, firms, corporations, associations and any
other private or public entities, whether any of the foregoing are acting on
their own behalf or in a representative capacity.
SECTION 31.03. The term "prime rate" shall mean the rate of interest
announced publicly by Chemical Bank, or its successor, from time to time, as
Chemical Bank's or such successor's base rate, or if there is no such base rate,
then the rate of interest charged by Chemical Bank or its successor to its most
credit worthy customers on commercial loans having a ninety (90) day duration.
SECTION 31.04. If any term, covenant or condition of this Lease or any
application thereof shall be invalid or unenforceable, the remainder of this
Lease and any other application of such term, covenant or condition shall not be
affected thereby.
SECTION 31.05. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted. In the event of any action, suit, dispute or proceeding
affecting the terms of this Lease, no weight shall be given to any deletions or
striking out of any of the terms of this Lease contained in any draft of this
Lease and no such deletion or strike out shall be entered into evidence in any
such action, suit or dispute or proceeding given any weight therein.
SECTION 31.06. The term "First-Class Building" shall mean a first-class
office building in the vicinity of the Building used principally as an
information technology center and if none exists, then a first-class office
building in the downtown area of the Borough of Manhattan shall be the criteria.
SECTION 31.07. Any financial information of Tenant given to Owner certified
by a principal of Tenant as confidential shall be held by Owner in confidence.
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ARTICLE 32
ADJACENT EXCAVATION
SECTION 32.01. If an excavation shall be made upon land adjacent to the
Real Property, 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 walls and other portions of the Building from injury
or damage and to support the same by proper foundations and no such entry shall
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of rent, or relieve Tenant from any of its
obligations under this Lease, or impose any liability upon Owner or said person.
ARTICLE 33
BUILDING RULES
SECTION 33.01. Tenant shall observe faithfully, and comply strictly with,
and shall not permit the violation of, the Building Rules set forth in Schedule
A annexed to and made a part of this Lease and such additional reasonable
Building Rules as Owner may, from time to time, adopt. All of the terms,
covenants and conditions of Schedule A are incorporated in this Lease by
reference and shall be deemed part of this Lease as though fully set forth in
the body of this Lease. The term "Building Rules" as used in this Lease shall
include those set forth in Schedule A and those hereafter made or adopted as
provided in this Section. In case Tenant disputes the reasonableness of any
additional Building Rule hereafter adopted by Owner, the parties hereto agree to
submit the question of the reasonableness of such Building Rule for decision to
the Chairman of the Board of Directors of the Management Division of the Real
Estate Board of New York, Inc., or its successor (the "Chairman"), or to such
impartial person or persons as the Chairman may designate, whose determination
shall be final and conclusive upon Owner and Tenant. Tenant's right to dispute
the reasonableness of any additional Building Rule shall be deemed waived unless
asserted by service of a notice upon Owner within ten (10) days after the date
upon which Owner shall give notice to Tenant of the adoption of any such
additional Building Rule. Owner shall have no duty or obligation to enforce any
Building Rule, or any term, covenant or condition of any other lease, against
any other tenant or occupant of the Building, and Owner's failure or refusal to
enforce any Building Rule or any term, covenant or condition of any other lease
against any other tenant or occupant of the Building shall not constitute an
actual or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of rent, or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Owner or its agents by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business, or otherwise.
SECTION 33.02. Any Building Rule not enforced generally against other
tenants of the Building shall not be enforced against Tenant. Wherever the
Building Rules provide for a matter to be determined by Owner or its agents,
Owner or its agents shall exercise their reasonable judgment with respect
thereto and any determination to be made by Owner or its agents thereunder shall
not be unreasonably withheld or delayed.
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ARTICLE 34
BROKER
SECTION 34.01. Tenant represents and warrants to Owner that with the
exception of Xxxxx Realty Company, Owner's consultant, Xxxxx Xxxxxx of The
Xxxxxxxxx Company is the sole broker with whom Tenant has negotiated or
otherwise dealt with in connection with the Demised Premises or in bringing
about this Lease. Tenant shall indemnify Owner from all loss, cost, liability,
damage and expenses, including, but not limited to, reasonable counsel fees and
disbursements, arising from any breach of the foregoing representation and
warranty.
ARTICLE 35
SECURITY
SECTION 35.01. The sum of TWENTY THOUSAND FIVE HUNDRED SIXTY-TWO and
50/100 ($20,562.50) DOLLARS representing security (referred to as "Security")
for the faithful performance and observance by Tenant of the terms, covenants
and conditions of this Lease on Tenant's part to be observed and performed is
due and payable at the time of the execution and delivery of this Lease. In the
event of any default by Tenant in the observance or performance of any of the
terms, covenants or conditions of this Lease on the part of Tenant to be
observed or performed including, but not limited to, any default in the payment
when due of any monthly installment of the Fixed Rent or increase in the Fixed
Rent payable pursuant to the provisions of Articles 23 or 29 or of any
additional rent, Owner may use or apply all or any part of the Security for the
payment to Owner for Tenant's account of any sum or sums due under this Lease,
without thereby waiving any other rights or remedies of Owner with respect to
such default. Tenant agrees to replenish all or any part of the Security so used
or applied during the Demised Term. After (i) the Expiration Date or any other
date upon which the Demised Term shall expire and come to an end, and (ii) the
full observance and performance by Tenant of all of the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed,
including, but not limited to, the provisions of Article 21, Owner shall return
to Tenant the balance of the Security then held or retained by Owner. Owner
agrees that, unless prohibited by law or by the general policies of lending
institutions in New York City, Owner shall deposit the Security in an
interest-bearing savings account with a bank selected by Owner, in which event
all interest accruing thereon shall be added to and become part of the Security
and shall be retained by Owner under the same conditions as the sum originally
deposited as Security. Tenant agrees that Tenant shall not assign or encumber
any part of the Security, and no assignment or encumbrance by Tenant of all or
any part of the Security shall be binding upon Owner, whether made prior to,
during, or after the Demised Term. Owner shall not be required to exhaust its
remedies against Tenant or against the Security before having recourse to any
other form of security held by Owner and recourse by Owner to any form of
security shall not affect any remedies of Owner which are provided in this Lease
or which are available to Owner in law or equity. In the event of any sale,
assignment or transfer by Owner named herein (or by any subsequent Owner) of its
interest in the Building as owner or lessee, Owner (or such subsequent owner)
shall have the right to assign or transfer the Security to its grantee, assignee
or transferee and, in the event of such assignment or transfer, Owner named
herein, (or such subsequent Owner) shall have no liability to Tenant for the
return of the Security and Tenant shall look solely to the grantee, assignee or
transferee for such return. A lease of the entire Building shall be deemed a
transfer within the meaning of the foregoing sentence. Notwithstanding anything
to the contrary set forth in the foregoing provisions of this Article, Owner
shall be entitled to retain the one (1%) percent administrative fee permitted by
law to be retained by landlords with respect to security deposits.
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ARTICLE 36
ARBITRATION, ETC.
SECTION 36.01. Any dispute (i) with respect to the reasonability of
any failure or refusal of Owner to grant its consent or approval to any request
for such consent or approval pursuant to the provisions of Sections 3.01 or
11.03 with respect to which request Owner has agreed, in such Sections, not
unreasonably to withhold such consent or approval, or (ii) arising out of the
application of the Operating Expenses provisions of Article 23, which is
submitted to arbitration shall be finally determined by arbitration in the City
of New York in accordance with the rules and regulations then obtaining of the
American Arbitration Association or its successor. Any such determination shall
be final and binding upon the parties, whether or not a judgment shall be
entered in any court. In making their determination, the arbitrators shall not
subtract from, add to, or otherwise modify any of the provisions of this Lease.
Owner and Tenant may, at their own expense, be represented by counsel and employ
expert witnesses in any such arbitration. Any dispute with respect to the
reasonability of any failure or refusal of Owner to grant its consent or
approval to any request for such consent or approval pursuant to any of the
provisions of this Lease (other than Sections 3.01 and 11.03) with respect to
which Owner has covenanted not unreasonably to withhold such consent or
approval, and any dispute arising with respect to the increases in Fixed Rent
due to the provisions of Section 23.02 shall be determined by applicable legal
proceedings. If the determination of any such legal proceedings, or of any
arbitration held pursuant to the provisions of this Section with respect to
disputes arising under Sections 3.01 and 11.03 or the Operating Expense
provisions of Article 23, shall be adverse to Owner, Owner shall be deemed to
have granted the requested consent or approval, or be bound by any determination
as to Taxes and Operating Expenses and the increases in Fixed Rent relating
thereto, but that shall be Tenant's sole remedy in such event and Owner shall
not be liable to Tenant for a breach of Owner's covenant not unreasonably to
withhold such consent or approval, or otherwise. Each party shall pay its own
counsel and expert witness fees and expenses, if any, in connection with any
arbitration held pursuant to the provisions of this Section and the parties will
share all other expenses and fees of any such arbitration.
ARTICLE 37
PARTIES BOUND
SECTION 37.01. The terms, covenants and conditions contained in this
Lease shall bind and inure to the benefit of Owner and Tenant and, except as
otherwise provided in this Lease, their respective heirs, distributees,
executors, administrators, successors and assigns. However, the obligations of
Owner under this Lease shall no longer be binding upon Owner named herein after
the sale, assignment or transfer by Owner named herein (or upon any subsequent
Owner after the sale, assignment or transfer by such subsequent Owner) of its
interest in the Building as owner or lessee, and in the event of any such sale,
assignment or transfer, such obligations shall thereafter be binding upon the
grantee, assignee or other transferee of such interest, and any such grantee,
assignee or transferee, by accepting such interest, shall be deemed to have
assumed such obligations. A lease of the entire Building shall be deemed a
transfer within the meaning of the foregoing sentence. Neither the partners
(direct or indirect) comprising Owner, nor the shareholders (nor any of the
partners comprising same), partners, directors or officers of any of the
foregoing (collectively, the "Owner's Parties") shall be liable for the
performance of Owner's obligations under this Lease. Tenant shall look solely to
Owner to enforce Owner's obligations hereunder and shall not seek any damages
against any of the Owner's Parties. Notwithstanding anything contained in this
Lease to the contrary, Tenant shall look solely to the estate and interest of
Owner, its successors and assigns, in the Real Property and Building for the
collection or satisfaction of any judgment recovered against Owner based upon
the breach by Owner of any of the terms, conditions or covenants of this Lease
on the part of Owner to be performed, and no other property or assets of Owner
or any of Owner's Parties shall be subject to levy, execution or other
enforcement procedure for the satisfaction of Tenant's remedies under or with
respect to either this Lease, the relationship of landlord and tenant hereunder,
or Tenant's use and occupancy of the Demised Premises.
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ARTICLE 38
SINGLE RIGHTS FOR ADDITIONAL OPTION SPACES
SECTION 38.01. Commencing on the first (1st) day of the fourth (4th)
anniversary of the Commencement Date and expiring on the day which is the date
immediately the sixth (6th) anniversary of the Commencement Date and provided
(a) Tenant is not then in default under any of the terms, covenants or
conditions of this Lease on Tenant's part to be observed and performed after
notice and the expiration of applicable cure periods, and (b) Tenant, in
contradistinction to any subtenants or other occupants, shall then be in
occupancy of at least eighty (80%) percent of the space leased to Tenant under
this Lease (for the purposes of this Article 38, any space leased to Tenant
under this Lease which has been eliminated from the Demised Premises pursuant to
the provisions of Section 11.03 shall be deemed space leased to Tenant under
this Lease), and subject to the rights of any other then tenant or occupant of
the Building Tenant shall have the single option, subject to the provisions of
this Article, exercisable in accordance with the provisions of Section 38.02, to
lease and add to the Demised Premises any space on the entire seventeenth (17th)
or parts of the fifteenth (15th) and fourteenth (14th) floors of the Building
containing from 4,000 to 6,000 rentable square feet (measured in the same manner
as the Demised Premises were measured) which, after the initial leasing by Owner
of such space, becomes, or is about to become, available for leasing during the
Demised Term. Tenant agrees that Owner may initially lease any space on the
fifteenth (15th) or seventeenth (17th) floors of the Building for whatever term,
and upon all other terms, covenants and conditions, and to whomever it desires
in Owner's sole judgment. No such space shall be deemed "available for leasing"
if (a) the then tenant of such space, or any assignee, successor, subtenant or
other occupant holding through or under such tenant, shall enter into (i) any
agreement with Owner extending the letting agreement affecting such space, or
(ii) any new lease with Owner affecting such space, or (b) any other tenant in
the Building, including, but not limited to Netcast Communications, Corp.
(referred to as "Netcast") or any assignee or successor of such other tenant,
shall exercise any contractual option or right which it has to lease such space.
Accordingly, in amplification and not in limitation of the provisions of the
preceding sentence, Tenant acknowledges and agrees that any options granted to
Tenant pursuant to the provisions of this Article are subordinate to the
options granted to Netcast, pursuant to its lease of space on the sixteenth
(16th) floor of the Building, and that Tenant shall not have any option to lease
any space on the fifteenth (15th) or seventeenth (17th) floors of the Building
if Netcast exercises its option to lease such space in question.
SECTION 38.02. In the event that any such space shall become or about to
become available for leasing in accordance with the provisions of Section 38.01,
Owner shall give notice thereof to Tenant (any such notice is referred to as an
"Availability Notice"), which Notice may be given not earlier than eighteen (18)
months prior to the date set forth in such Notice on which such space is
expected to become vacant and available for leasing and, in such event, Tenant
shall have the option, exercisable only by notice given to Owner within twenty
(20) days next following the date of the giving of such Availability Notice to
lease and add such space to the Demised Premises; (any such space is referred to
as an "Additional Option Space"; any such date set forth in an Availability
Notice is referred to as an "Applicable Expected Vacancy Date"; and any notice
given by Tenant to Owner exercising any such option is referred to as an
"Additional Option Notice"). In the event that any Additional Option Space shall
become available for leasing sooner than the Applicable Expected Vacancy Date
because of the termination of the term of the lease affecting such space, or a
voluntary agreement to surrender resulting from the imminent bankruptcy of the
tenant thereof, as opposed to the expiration of said lease prior to its original
expiration date, Owner shall have the right to accelerate the Applicable
Expected Vacancy Date by not less than thirty (30) days' prior notice to Tenant.
Owner shall accompany any Availability Notice with a plan designating the
location and size of the Additional Option Space. Any such space shall be leased
and added to the Demised Premises at an annual rental rate equal to the fair
market annual rental value of the applicable Additional Option Space on the
commencement date of the term applicable thereto, as determined by agreement
between Owner and Tenant or by arbitration in accordance with the provisions of
Section 38.07 (but in no event shall the Fixed Rent per rentable square foot,
from time to time, applicable to the Additional Option Space be less than the
Fixed Rent per rentable
60
square foot in effect, from time to time, applicable to the original portion of
the Demised Premises [before giving effect to any abatement or apportionment of
such Fixed Rent]), and such Additional Option Space shall otherwise be leased
and added to the Demised Premises upon the same executory terms, covenants and
conditions as are contained in this Lease (including, but not limited to, the
provisions of Article 23 and the definition of Base Operating Expenses set forth
therein) except as otherwise provided in this Article, adjusted to reflect (x)
the number of rentable square feet contained in the applicable Additional Option
Space, (determined in the same manner as the rentable square feet were
determined in the original portion of the Demised Premises), and (y) that the
term shall commence on the Applicable Expected Vacancy Date, as the same may
have been accelerated by Owner pursuant to the provisions of this Section 38.02,
subject, however, to the provisions of Section 38.03.
SECTION 38.03. Owner and Tenant acknowledge the possibility that all or any
of the tenants or occupants of the Additional Option Space may not have vacated
and surrendered all or any portions of the Additional Option Space to Owner by
the Applicable Expected Vacancy Date. Accordingly, notwithstanding anything to
the contrary contained in Sections 38.01 to 38.02 or in any Availability Notice,
(a) the term of this Lease applicable to the Additional Option Space in question
shall commence (i) on the Applicable Expected Vacancy Date with respect to those
portions, if any, of the Additional Option Space which are vacant on the
Applicable Expected Vacancy Date, and (ii) with respect to those portions, if
any, of the Additional Option Space which are not vacant on the Applicable
Expected Vacancy Date, on the respective later date or dates upon which such
portions of the Additional Option Space become vacant and Owner gives notice to
Tenant of such vacancy; (b) the Expiration Date shall not be affected thereby;
(c) the increases in the Fixed Rent, the Demised Premises Area, Tenant's
Electrical Share and all other modifications of this Lease resulting from the
application of the provisions of this Article shall be equitably adjusted to
reflect the fact that all or any portions of the Additional Option Space have
not been leased and added to the Demised Premises on the Applicable Expected
Vacancy Date; (d) except as set forth in this sentence, neither the validity of
this Lease nor the obligations of Tenant under this Lease shall be affected
thereby; (e) Tenant waives any rights under Section 223-a of the Real Property
Law of New York or any successor statute of similar import to rescind this Lease
and further waives the right to recover any damages against Owner which may
result from the failure of Owner to deliver possession of all or any portions of
the Additional Option Space on the Applicable Expected Vacancy Date; and (f)
Owner shall institute, within twenty (20) days after the Applicable Expected
Vacancy Date, possession proceedings against any tenants or occupants who have
not vacated and surrendered all or any portion of the Additional Option Space,
and shall prosecute such proceedings to completion with reasonable diligence.
SECTION 38.04. It is understood and agreed that time is of the essence with
respect to the exercise of any option pursuant to this Article and that if
Tenant does not exercise such option within the time limitation set forth in
Section 38.02, any notice purporting to exercise such option given after the
expiration of such time limitation shall be void and of no force and effect and
the provisions of this Article shall be of no further force and effect to the
end that Tenant shall have no right to lease any additional space pursuant to
the provisions of this Article.
SECTION 38.05. In the event that Tenant shall timely exercise the option
set forth in this Article then Tenant shall have no further rights to lease any
further additional space pursuant to the provisions of this Article and on the
effective commencement date of the term applicable to such additional Option
Space, this Lease shall be deemed modified as follows:
A. The Demised Premises shall include the Additional Option
Space (together with all appurtenances, fixtures, improvements, additions and
other property attached thereto or installed therein upon the commencement of
the term applicable to the Additional Option Space or at any time during said
term, other than Tenant's Personal Property) for all purposes of this Lease.
61
B. The Fixed Rent shall be increased by the fair market annual
rental value for the Additional Option Space as of the effective commencement
date of the term applicable thereto as determined by agreement between Owner and
Tenant or by arbitration as provided in Section 38.07; (but in no event shall
such increase in the Fixed Rent per rentable square foot, from time to time, be
less than the Fixed Rent per rentable square foot in effect, from time to time,
applicable to the original portion of the Demised Premises [before giving effect
to any abatement or apportionment of such Fixed Rent]) with respect to the
period from the effective commencement date of the term applicable to the
Additional Option Space to the Expiration Date, both dates inclusive, and the
monthly installments of the Fixed Rent shall each be increased accordingly to
conform with such increase in the Fixed Rent. In the event that the term
applicable to the Additional Option Space shall commence on a date other than
the first day of any month, the monthly installment of the Fixed Rent for the
month during which the term applicable to the Additional Option Space shall
commence shall be equitably apportioned to reflect such increase in the Fixed
Rent;
C. The Demised Premises Area, as defined in Section 23.01, shall
be increased by the number of rentable square feet contained in the Additional
Option Space (computed in the same manner as the number of rentable square feet
contained in the original portion of the Demised Premises).
D. The Tenant's Electrical Share for the Additional Option Space
shall be the percentage obtained by dividing the number of rentable square feet
contained in the Additional Option Space by 10,000 square feet;
E. If, by the effective commencement date of the term applicable
to the Additional Option Space, the Fixed Rent applicable thereto has not yet
been determined, Tenant shall, until such determination, pay for the Additional
Option Space the same Fixed Rent per rentable square foot then allocable to the
original portion of the Demised Premises, and following any such determination,
any additional sums shall be payable by Tenant to Owner.
SECTION 38.06. Tenant agrees to accept the Additional Option Space in
the condition which shall exist on the commencement date of the term applicable
thereto "as is" and further agrees that Owner shall have no obligation to
perform any work or make any installations in order to prepare such space for
Tenant's occupancy except that Owner shall perform all work necessary so that
Tenant's consumption of electricity therein shall be submetered. Owner may enter
the Additional Option Space to perform such work and such entry shall be in
accordance with the provisions of Article 13.
SECTION 38.07. In the event Owner and Tenant are unable to agree as
to the fair market annual rental value of the Additional Option Space, then,
upon the demand of either Owner or Tenant, such fair market annual rental value
shall be determined by arbitration as follows;
(a) Owner and Tenant shall each appoint an arbitrator
within thirty (30) days after notice by either party requesting arbitration of
the issue. If either Owner or Tenant shall have failed to appoint an arbitrator
within such period of time, then such arbitrator shall be appointed by the
American Arbitration Association, or its successor, or if at such time such
association is not in existence and has no successor, then by the presiding
Justice of the Appellate Division, First Department, of the Supreme Court of the
State of New York, or any successor court, upon request of either Owner or
Tenant, as the case may be.
(b) The two arbitrators appointed, as above provided, shall
select a third arbitrator and if they fail to do so within thirty (30) days
after their appointment, such third arbitrator shall be appointed as above
provided for the appointment of an arbitrator in the event either party fails to
do so.
(c) All of such arbitrators shall be real estate appraisers
or brokers having at least fifteen (15) years of experience in such field in the
Borough of Manhattan, City of New York.
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(d) The three arbitrators, selected as aforesaid, forthwith
shall convene and render their decision as promptly as practicable after the
appointment of the third arbitrator. The decision of such arbitrators shall be
in writing and the vote of the majority of them (or, if there be no majority
decision, then the decision of the last appointed arbitrator) shall be the
decision of all and binding upon Owner and Tenant whether or not a judgment
shall be entered in any court. Duplicate original counterparts of such decision
shall be sent by the arbitrators to both Owner and Tenant.
(e) The arbitrators, in arriving at their decision, shall
be entitled to consider all testimony and documentary evidence which may be
presented at any hearing as well as facts and data which the arbitrators may
discover by investigation and inquiry outside of such hearings. The arbitrators
shall be bound by the provisions of this Lease, and shall not add to, subtract
from, or otherwise modify such provisions. The cost and expense of such
arbitration shall be borne equally by Owner and Tenant, except that each party
shall pay its own counsel fees and expenses.
(f) Notwithstanding any findings of the arbitrators, such
fair market annual rental value from time to time per rentable square foot, and
accordingly, the Fixed Rent applicable to the Additional Option Space, from time
to time per rentable square foot, shall not be less than the Fixed Rent per
rentable square foot in effect, from time to time, applicable to the original
portion of the Demised Premises (before giving effect to any abatement or
apportionment of such Fixed Rent).
SECTION 38.08.A. Upon request of Owner or Tenant, the parties from
time to time, shall execute and deliver to the other, instruments, in form
reasonably satisfactory to the parties, stating whether or not Tenant has
exercised any right to lease any Additional Option Space pursuant to the
provisions of this Article.
B. Upon the request of Owner or Tenant, the parties from time to
time, shall execute and deliver to the other, instruments, in form reasonably
satisfactory to the parties, setting forth all of the modifications to this
Lease resulting from the exercise of any such option, including, but not limited
to, the increases in the Fixed Rent resulting therefrom.
C. Neither the failure of Owner or Tenant to request the
execution of any such instrument nor Owner's or Tenant's failure to execute and
deliver such instrument shall vitiate any of the provisions of this Article.
D. Tenant acknowledges and agrees that it is the intention of
the parties that Tenant shall have the single option, as set forth in this
Article, to lease and add to the Demised Premises only one (1) piece of
Additional Option Space and once Tenant so exercises such option in accordance
with the provisions of this Article or fails to so exercise such option in
accordance with the provisions of this Article, as the case may be. Tenant shall
have no further right to lease any further additional space pursuant to the
provisions of this Article.
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IN WITNESS WHEREOF, Owner and Tenant have respectively signed and
sealed this Lease as of the day and year first above written.
00 XXXXX XXXXXX COMPANY
Witness:
/s/ illegible By: /s/ illegible
-------------------------------- --------------------------------
Owner
Name:
Title: Partner
NYSERNet, INC.
Witness:
/s/ illegible By: /s/ Xxxxxxx Xxxxxxxxxx
-------------------------------- --------------------------------
Tenant
Name:
Title:
-00-
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NASSAU )
On this 2nd day of May, 1996, before me personally came Xxxxxxx
Xxxxxxxxxx, to me known, who being by me duly sworn, did depose and say that he
resides in Queens, City of New York, State of New York, that he is the
President of the corporation described in and which executed the foregoing
Lease, as Tenant; and that he signed his name thereto by authority of the Board
of Directors of said corporation.
XXXXXX X. XXX /s/ Xxxxxx X. Xxx
Notary Public, State of New York ---------------------------
No. 00-0000000 Qualified in Queens County Notary Public
Cert. Filed in Nassau County
Commission Expires June 18, 1996
-62-
65
ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT
--------------------------------------------
AGREEMENT made as of the 30 day of January, 1997, among 00 XXXXX XXXXXX
COMPANY, a New York partnership having its principal office at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, as landlord (referred to herein as "OWNER");
XXXXXXxx.XXX, INC. (formerly-known-as NYSERNet, Inc.), a New York corporation
having an office at 000 Xxxxxx Xxxxx Xxxx, Xxxxx 0000, Xxxxxxxxx, Xxx Xxxx, as
tenant (referred to herein as "TENANT-ASSIGNOR"). and APPLIEDTHEORY
COMMUNICATIONS, INC., a New York corporation having an office at 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx (referred to herein as "ASSIGNEE").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS:
1. Under date of May 1, 1996, OWNER entered into a lease with
TENANT-ASSIGNOR for a portion of the sixteenth (16th) floor in the building
known as 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx; and
2. The term demised in said lease is fixed to expire on September 30,
2006 unless sooner terminated pursuant to any of the terms, covenants or
conditions of said lease or pursuant to law (the aforesaid lease, as modified
by various written agreements, including, but not limited to an agreement dated
January 10, 1997, is referred to as the "Lease"; and the premises demised
therein, together with all appurtenances, fixtures, additions and other
property attached thereto or installed therein are referred to herein as the
"Demised Premises"); and
66
3. TENANT-ASSIGNOR now desires to assign its interest as Tenant under the
Lease to ASSIGNEE and ASSIGNEE desires to succeed to the interest of
TENANT-ASSIGNOR as Tenant under the Lease and is willing to assume the
observance and performance of the obligations of Tenant under the Lease; and
4. OWNER is willing to consent to the proposed assignment, subject to the
terms of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants herein contained,
the parties agree as follows:
FIRST: A. TENANT-ASSIGNOR and ASSIGNEE represent and warrant to Owner
that both TENANT-ASSIGNOR and ASSIGNEE are affiliated companies under common
control.
B. TENANT-ASSIGNOR hereby assigns, transfers and sets over unto
ASSIGNEE all of TENANT-ASSIGNOR'S right, title and interest as Tenant under the
Lease as of the date of this Agreement. In addition, TENANT-ASSIGNOR hereby
transfers and sets over to ASSIGNEE all of TENANT-ASSIGNOR's right, title and
interest to all monies held by OWNER, if any, as security under Section 35.01
of the Lease.
SECOND: ASSIGNEE, for the benefit of OWNER and TENANT-ASSIGNOR, hereby
agrees to assume, keep, observe and perform each and every one of the terms,
covenants and conditions of the Lease on Tenant's part to be observed or
performed including, but not limited to, all obligations of the Tenant under
the Lease originating or accruing before the date of this Agreement, all with
the same force and effect as if ASSIGNEE had executed the Lease as the Tenant
originally named therein. ASSIGNEE hereby agrees that the Demised Premises will
be used solely for the purpose set forth in Article 2 of the Lease and for no
other purpose and use.
67
THIRD: TENANT-ASSIGNOR and ASSIGNEE represent and warrant to OWNER that
the Lease and Demised Premises are not encumbered by any prior transfer,
assignment, mortgage, lien, assessment or encumbrance of whatever nature, and
TENANT-ASSIGNOR and ASSIGNEE represent and warrant to OWNER that no broker is
responsible for bringing about this Agreement.
FOURTH: Subject to the provisions of this Agreement, OWNER hereby consents
to the foregoing assignment. OWNER's consent shall not in any way be construed
to relieve ASSIGNEE from obtaining the express consent, in writing, of OWNER to
any further assignment of the Tenant's interest in the Lease.
FIFTH: TENANT-ASSIGNOR, for the benefit of OWNER, (a) waives all notices
of default which may be given to ASSIGNEE and all other notices of every kind or
description now or hereafter provided in the Lease by statute or rule of law,
and (b) agrees that, notwithstanding the foregoing assignment and OWNER's
consent thereto, TENANT-ASSIGNOR's obligations with respect to the Lease shall
not be discharged, released or impaired by (i) this assignment, (ii) any
amendment or modification of the Lease, whether or not the obligations of Tenant
are increased thereby, (iii) any further assignment or transfer of Tenant's
interest in the Lease, (iv) any exercise, non-exercise or waiver by OWNER of any
right, remedy, power or privilege under or with respect to the Lease, (v) any
waiver, consent, extension, indulgence or other act or omission with respect to
any other obligations of Tenant, under the Lease, (vi) any insolvency,
bankruptcy, liquidation, reorganization, arrangement, dissolution, or similar
proceeding involving or affecting ASSIGNEE or any further assignee, (vii) any
act or thing which, but for the provisions of this assignment, might be deemed a
legal or equitable discharge of a surety or assignor, to all of which
TENANT-ASSIGNOR hereby consents in advance, and (c) TENANT-ASSIGNOR expressly
waives and surrenders any defenses as assignor which may now or hereafter exist
to its liability under the Lease, it being the purpose and intent of OWNER and
68
TENANT-ASSIGNOR that the obligations of TENANT-ASSIGNOR hereunder as assignor
shall be absolute and unconditional under any and all circumstances.
SIXTH: TENANT-ASSIGNOR and ASSIGNEE agree to pay to OWNER, upon demand,
as additional rent under the Lease, reasonable counsel fees incurred by OWNER
in connection with the assignment by TENANT-ASSIGNOR to ASSIGNEE of the
Tenant's interest under the Lease and with the preparation and execution of
this Agreement.
SEVENTH: Except as expressly modified by the foregoing provisions of this
Agreement the Lease is hereby ratified and confirmed in all respect by each of
the parties to this Agreement.
EIGHTH: The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective legal representatives,
successors and assigns.
69
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as
of the day and year first above written.
00 XXXXX XXXXXX COMPANY, Owner
By: /s/ illegible
-------------------------------------
XXXXXXXX.XXX, INC., Tenant-Assignor
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
APPLIEDTHEORY COMMUNICATIONS, INC. Assignee
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
00
XXXXX XX XXX XXXX)
:ss.:
COUNTY OF NEW YORK)
On the 23rd day of Jan., 1997, before me personally came Xxxxx X. Xxxxxx,
to me known, who, being by me duly sworn, did depose and say that he resides at
Syracuse that he is the Secretary of XXXXXXxx.xxx, Inc., the corporation
described in and which executed the foregoing Assignment and Assumption of
Lease; as Tenant-Assignor; and that he signed his name thereto by authority of
the Board of Directors of said corporation.
/s/ Xxxxxxxx X. Xxxxxx
----------------------------
Notary Public
XXXXXXXX X. XXXXXX
Notary Public, State of New York
Qualified in Onon, Co. No. 4755760
My Commission Expires Sept. 30, 1998
00
XXXXX XX XXX XXXX)
:ss.:
COUNTY OF NEW YORK)
On the 23rd day of Jan., 1997, before me personally came Xxxxx X. Xxxxxx,
to me known, who, being by me duly sworn, did depose and say that he resides at
Syracuse, that he is the Director of Finance of AppliedTheory Communications,
Inc., the corporation described in and which executed the foregoing Assignment
and Assumption of Lease as Assignee; and that he signed his name thereto by
authority of the Board of Directors of said corporation.
/s/ Xxxxxxxx X. Xxxxxx
----------------------------
Notary Public
XXXXXXXX X. XXXXXX
Notary Public, State of New York
Qualified in Onon, Co. No. 4755760
My Commission Expires Sept. 30, 1998
