EXHIBIT 10.49
STANDARD FORM OF OFFICE LEASE
THE REAL ESTATE BOARD OF NEW YORK, INC.
AGREEMENT OF LEASE, made as of this 9th day of MAY 2000, between
HACIENDA INTERCONTINENTAL REALTY, N.V., c/o Williamson, Picket, Gross, Inc.,
having an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
party of the first part, hereafter referred to as OWNER, and ARISTA INVESTORS
CORP., having offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
party of the second part, hereinafter referred to as TENANT.
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner
the ENTIRE 18TH FLOOR & A PORTION OF THE 17TH FLOOR as shown as cross-hatched
area on plan attached as ATTACHMENT A
in the building known as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
in the Borough of Manhattan, City of New York, for the term of seven (7)
years (or until such term shall sooner cease and expire as hereinafter
provided) to commence on the
First day of June two thousand, and to end on the
Thirty-first day of May two thousand and seven
both dates inclusive, at an annual rental rate of See Article 53
which Tenant agrees to pay in lawful money of the United States which shall
be legal tender in payment of all debts and dues, public and private, at the
time of payment, in equal monthly installments in advance on the first day of
each month during said term, at the office of Owner or such other place as
Owner may designate, without any set off or deduction whatsoever, except that
Tenant shall pay the first monthly installment(s) on the execution hereof
(unless this lease be a renewal).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
RENT 1. Tenant shall pay the rent as above and as hereinafter provided.
OCCUPANCY 2. Tenant shall use and occupy demised premises for general and
executive offices and no other purpose.
TENANT ALTERATIONS: 3. Tenant shall make no changes in or to the demised
premises of any nature without Owner's prior written consent. Subject to the
prior written consent of Owner, and to the provisions of this Article, Tenant at
Tenant's expense, may make alterations, installations, additions or improvements
which are non-structural and which do not affect utility services or plumbing
and electrical lines, or to the interior of the demised premises by using
contractors or mechanics first approved by Owner. Tenant shall, before making
any alterations, additions, installations or improvements, at its expense,
obtain all permits, approvals and certificates required by any governmental or
quasi-governmental bodies and (upon completion) certificates of final approval
thereof and shall deliver promptly duplicates of all such permits, approvals and
certificates to Owner and Tenant agrees to carry and will cause Tenant's
contractors and sub-contractors to carry such ▇▇▇▇▇▇▇'▇ compensation, general
liability, personal and property damage insurance as Owner may require. If any
mechanic's lien is filed against the demised premises, or the building of which
the same forms a part, for work claimed to have been done for, or materials
furnished to, Tenant, whether or not done pursuant to this article, the same
shall be discharged by Tenant within thirty (30) days thereafter, at Tenant's
expense, by filing the bond required by law. All fixtures and all paneling,
partitions, railings and like installations, installed in the premises at any
time, either by Tenant or by Owner in Tenant's behalf, shall, upon installation,
become the property of Owner and shall remain upon and be surrendered with the
demised premises unless Owner, by notice to Tenant no later than twenty (20)
days prior to the date fixed as the termination of this lease, elects to
relinquish Owner's right thereto and to have them removed by Tenant, in which
event the same shall be removed from the premises by Tenant prior to the
expiration of the lease, at Tenant's expense. Nothing in this Article shall be
construed to give Owner title to or to prevent Tenant's removal of trade
fixtures, moveable office furniture and equipment, but upon removal of any such
from the premises or upon removal of other installations as may be required by
Owner, Tenant shall immediately and at its expense, repair and restore the
premises to the condition existing prior to installation and repair any damage
to the demised premises or the building, due to such removal. All property
permitted or required to be removed, by Tenant at the end of the term remaining
in the premises after Tenant's removal shall be deemed abandoned and may, at the
election of Owner, either be retained as Owner's property or may be
removed from the premises by Owner, at Tenant's expense. (See Article 41)
MAINTENANCE AND REPAIRS 4. Tenant shall, throughout the term of this lease,
take good care of the demised premises and the fixtures and appurtenances
therein. Tenant shall be responsible for all damage or injury to the demised
premises or any other part of the building and the systems and equipment
hereof, whether requiring structural or non-structural repairs caused by or
resulting from carelessness, omission, neglect or improper conduct of Tenant,
Tenant's subtenants, agents, employees, invitees or licensees, or which arise
of any work, labor, service or equipment done for or supplied to Tenant or
any subtenant or arising out of the installation, use or operation of the
property or equipment of Tenant or any subtenant. Tenant shall also repair
all damage to the building and the demised premises caused by the moving of
Tenant's fixtures, furniture and equipment. Tenant shall promptly make, at
Tenant's expense, all repairs in and to the demised premises for which Tenant
is responsible, using only the contractor for the trade or trades in
question, selected from a list of at least two contractors per trade
submitted by Owner. Any other repairs in or to the building or the facilities
and systems thereof for which Tenant is responsible shall be performed by
Owner at the Tenant's expense. Owner shall maintain in good working order and
repair the exterior and the structural portions of the building, including
the structural portions of its demised premises, and the public portions of
the building interior and the building plumbing, electrical, heating and
ventilating systems (to the extent such systems presently exist) serving the
demised premises. Tenant agrees to give prompt notice of any defective
condition in the premises for which Owner may be responsible hereunder. There
shall be no allowance to Tenant for diminution of rental value and no
liability on the part of Owner by reason of inconvenience, annoyance or
injury to business arising from Owner or others making repairs, alterations,
additions or improvements in or to any portion of the building or the demised
premises or in and to the fixtures, appurtenances or equipment thereof. It is
specifically agreed that Tenant shall not be entitled to any set-off or
reduction of rent by reason of any failure of Owner to comply with the
covenants of this or any other article of this Lease. Tenant agrees that
Tenant's sole remedy at law in such instance will be by way of an action for
damages for breach of contract. The provisions of this Article 4 shall not
apply in the case of fire or other casualty which are dealt with in Article 9
hereof.
WINDOW CLEANING: 5. Tenant will not clean nor require, permit, suffer or allow
any window in the demised premises to be cleaned from the outside in violation
of Section 202 of the Labor Law or any other applicable law or of the Rules of
the Board of Standards and Appeals, or of any other Board or body having or
asserting jurisdiction.
REQUIREMENTS OF LAW, FIRE INSUR. FLOOR LOADS: 6. Prior to the commencement of
the lease term, if Tenant is then in possession, and at all times thereafter,
Tenant, at Tenant's sole cost and expense, shall promptly comply with all
present and future laws, orders and regulations of all state, federal,
municipal and local governments, departments, commissions and boards and any
direction of any public officer pursuant to law, and all orders, rules and
regulations of the New York Board of Fire Underwriters, Insurance Services
Office, or any similar body which shall impose any violation, order or duty
upon Owner or Tenant with respect to the demised premises, whether or not
arising out of Tenant's use or manner of use thereof, (including Tenant's
permitted use) or, with respect to the building if arising out of Tenant's
use or
manner of the demised premises or the building (including the use permitted
under the lease). Nothing herein shall require Tenant to make structural
repairs or alterations unless Tenant has, by its manner of use of the demised
premises or method of operation therein, violated any such laws, ordinances,
orders, rules, regulations or requirements with respect thereto. Tenant may,
after securing Owner to Owner's satisfaction against all damages, interest,
penalties and expenses, including, but not limited to, reasonable attorney's
fees, by cash deposit or by surety bond in an amount and in a company
satisfactory to Owner, contest and appeal any such laws, ordinances, orders,
rules, regulations or requirements provided same is done with all reasonable
promptness and provided such appeal shall not subject Owner to prosecution
for a criminal offense or constitute a default under any lease or mortgage
under which Owner may be obligated, or cause the demised premises or any part
thereof to be condemned or vacated. Tenant shall not do or permit any act or
thing to be done in or to the demised premises which is contrary to law, or
which will invalidate or be in conflict with public liability, fire or other
policies of insurance at any time carried by or for the benefit of Owner with
respect to the demised premises or the building of which the demised premises
form a part, or which shall or might subject Owner to any liability or
responsibility to any person or for property damage. Tenant shall not keep
anything in the demised premises except as now or hereafter permitted by the
Fire Department, Board of Fire Underwriters, Fire Insurance Rating
Organization or other authority having jurisdiction, and then only in such
manner and such quantity so as not to increase the rate for fire insurance
applicable to the building, nor use the premises in a manner which will
increase the insurance rate for the building or any property located therein
over that in effect prior to the commencement of Tenant's occupancy. Tenant
shall pay all costs, expenses, fines, penalties, or damages, which may be
imposed upon Owner by reason of Tenant's failure to comply with the
provisions of this article and if by reason of such failure the fire
insurance rate shall, at the beginning of this lease or at any time
thereafter, be higher than it otherwise would be, then Tenant shall reimburse
Owner, as additional rent hereunder, for that portion of all fire insurance
premiums thereafter paid by Owner which shall have been charged because of
such failure by Tenant. In any action or proceeding wherein Owner and Tenant
are parties, a schedule or "make-up" of rate for the building or demised
premises issued by the New York Fire Insurance Exchange, or other body making
fire insurance rates applicable to said premises shall be conclusive evidence
of the facts therein stated and of the several items and charges in the fire
insurance rates then applicable to said premises. Tenant shall not place any
load upon any floor of the demised premises exceeding the floor load per
square foot area, which it was designed to carry and which is allowed by law.
Owner reserves the right to prescribe the weight and position of all safes,
business machines and mechanical equipment. Such installations shall be
placed and maintained by Tenant, at Tenant's expense, in settings sufficient,
in Owner's judgement, to absorb and prevent vibration, noise and annoyance.
SUBORDINATION: 7. This lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or hereafter affect such
leases or the real property of which demised premises are a part and to all
renewals, modifications, consolidations, replacements and extensions of any
such underlying leases and mortgages. This clause shall be self-operative and
no further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real
property of which the demised premises are a part. In confirmation of such
subordination, Tenant shall execute promptly any certificate that Owner may
request.
PROPERTY--LOSS, DAMAGE, REIMBURSEMENT, INDEMNITY: 8. Owner or its agents shall
not be liable for any damage to property of Tenant or of others entrusted to
employees of the building, nor for loss of or damage to any property of Tenant
by theft or otherwise, nor for any injury or damage to persons or property
resulting from any cause of whatsoever nature, unless caused by or due to the
negligence of Owner, its agents, servants or employees. Owner or its agents will
not be liable for any such damage caused by other tenants or persons in, upon or
about said building or caused by operations in construction of any private,
public or quasi public work. If at any time any windows of the demised premises
are temporarily closed, darkened or bricked up (or permanently closed, darkened
or bricked up, if required by law) for any reason whatsoever including, but not
limited to Owner's own acts, Owner shall not be liable for any damage Tenant may
sustain thereby and Tenant shall not be entitled to any compensation therefor
nor abatement or diminution of rent nor shall the same release Tenant from its
obligations hereunder nor constitute an eviction. Tenant shall indemnify and
save harmless Owner against and from all liabilities, obligations, damages,
penalties, claims, costs and expenses for which Owner shall not be reimbursed by
insurance, including reasonable attorneys fees, paid, suffered or incurred as a
result of any breach by Tenant, Tenant's agents, contractors, employees,
invitees, or licensees, of any covenant or condition of this lease, or the
carelessness, negligence or improper conduct of the Tenant, Tenant's agents,
contractors, employees, invitees or licensees. Tenant's liability under this
lease extends to the acts and omissions of any sub-tenant, and any agent,
contractor, employee, invitee or licensee of any sub-tenant. In case any action
or proceeding is brought against Owner by reason of any such claim, Tenant, upon
written notice from Owner, will, at Tenant's expense, resist or defend such
action or proceeding by counsel approved by Owner in writing, such approval not
to be unreasonably withheld.
DESTRUCTION, FIRE AND OTHER CASUALTY: 9. (a) If the demised premises or any part
thereof shall be damaged by fire or other casualty, Tenant shall give immediate
notice thereof to Owner and this lease shall continue in full force and effect
except as hereinafter set forth, (b) If the demised premises are partially
damaged or rendered partially unusable by fire or other casualty, the damages
thereto shall be repaired by and at the expense of Owner and the rent, until
such repair shall be substantially completed, shall be apportioned from the day
following the casualty according to the part of the premises which is usable,
(c) If the demised premises are totally damaged or rendered wholly unusable by
fire or other casualty, then the rent shall be proportionately paid up to the
time of the casualty and thenceforth shall cease until the date when the
premises shall have been repaired and restored by Owner, subject to Owner's
right to elect not to restore the same as hereinafter provided, (d) If the
demised premises are rendered wholly unusable or (whether or not the demised
premises are damaged in whole or in part) if the building shall be so damaged
that Owner shall decide to demolish it or to rebuild it, then, in any of such
events, Owner may elect to terminate this lease by written notice to Tenant,
given within 90 days after such fire or casualty, specifying a date for the
expiration of the lease, which date shall not be more than 60 days after the
giving of such notice, and upon the date specified in such notice the term of
this lease shall expire as fully and completely as if such date were the date
set forth above for the termination of this lease and Tenant shall forthwith
quit, surrender and vacate the premises without prejudice however, to Landlord's
rights and remedies against Tenant under the lease provisions in effect prior to
such termination, and any rent owing shall be paid up to such date and any
payments of rent made by Tenant which were on account of any period subsequent
to such date shall be returned to Tenant. Unless Owner shall serve a termination
notice as provided for herein, Owner shall make the repairs and restorations
under the conditions of (b) and (c) hereof, with all reasonable expedition,
subject to delays due to adjustment of insurance claims, labor troubles and
causes beyond Owner's control. After any such casualty, Tenant shall cooperate
with Owner's restoration by removing from the premises as promptly as reasonably
possible, all of Tenant's salvageable inventory and movable equipment,
furniture, and other property. Tenant's liability for rent shall resume five (5)
days after written notice from Owner that the premises are substantially ready
for Tenant's occupancy, (e) Nothing contained hereinabove shall relieve Tenant
from liability that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, each party shall look first to any insurance in
its favor before making any claim against the other party for recovery for loss
or damage resulting from fire or other casualty and to the extent that such
insurance is in force and collectible and to the extent permitted by law, Owner
and Tenant each hereby releases and waives all right of recovery against the
other or any one claiming through or under each of them by way of subrogation or
otherwise. The foregoing release and waiver shall be in force only if both
releasors' insurance policies contain a clause providing that such a release or
waiver shall not invalidate the insurance. If, and to the extent, that such
waiver can be obtained only by the payment of additional premiums, then the
party benefiting from the waiver shall pay such premium within ten days after
written demand or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under the provisions
hereof with respect to waiver of subrogation. Tenant acknowledges that Owner
will not carry insurance on Tenant's furniture and/or furnishings or any
fixtures or equipment, improvements, or appurtenance removable by Tenant and
agrees that Owner will not be obligated to repair any damage thereto or replace
the same, (f) Tenant hereby waives the provisions of Section 227 of the Real
Property Law and agrees that the provisions of this article shall govern and
control in lieu thereof.
EMINENT DOMAIN: 10. If the whole or any part of the demised premises shall be
acquired or condemned by Eminent Domain for any public or quasi public use or
purpose, then and in that event, the terms of this lease shall cease and
terminate from the date of title vesting in such proceeding and Tenant shall
have no claim for the value of any unexpired term of said lease and assigns to
Owner, Tenant's entire interest in any such award.
ASSIGNMENT, MORTGAGE, ETC.: 11. Tenant, for itself, its heirs, distributees,
executors, administrators, legal representatives, successors and assigns,
expressly covenants that it shall not assign, mortgage or encumber this
agreement, nor underlet, or suffer or permit the demised premises or any part
thereof to be used by others, without the prior written consent of Owner in each
instance. Transfer of the majority of the stock of a corporate Tenant shall be
deemed an assignment. If this lease be assigned, or if the demised premises or
any part thereof be underlet or occupied by anybody other than Tenant, Owner
may, after default by Tenant, collect rent from the assignee, under-tenant or
occupant, and apply the net amount collected to the rent herein reserved, but no
such assignment, underletting, occupancy or collection shall be deemed a waiver
of this covenant, or the acceptance of the assignee, under-tenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any further assignment
or underletting. (See Article 40)
ELECTRIC CURRENT: 12. Rates and conditions in respect to submetering or rent
inclusion, as the case may be, to be added in RIDER attached hereto. Tenant
covenants and agrees that at all times its use of electric current shall not
exceed the capacity of existing feeders to the building or the risers or wiring
installation and Tenant may not use any electrical equipment which, in Owner's
opinion, reasonably exercised, will overload such installations or interfere
with the use thereof by other tenants of the building. The change at any time of
the character of electric service by the public utility shall in no wise make
Owner liable or responsible to Tenant, for any loss, damages or expenses, which
Tenant may sustain.
ACCESS TO PREMISES: 13. Owner or Owner's agents shall have the right (but shall
not be obligated) to enter the demised premises in any emergency at any time,
and, at other reasonable times, to examine the same and to make such repairs,
replacements and improvements as Owner may deem necessary and reasonably
desirable to the demised premises or to any other portion of the building or
which Owner may elect to perform. Tenant shall permit Owner to use and maintain
and replace pipes and conduits in and through the demised premises and to erect
new pipes and conduits therein provided they are concealed within the walls,
floor, or ceiling. Owner may, during the progress of any work in the demised
premises, take all necessary materials and equipment into said premises without
the same constituting an eviction nor shall the Tenant be entitled to any
abatement of rent while such work is in progress nor to any damages by reason of
loss or interrupting of business or otherwise. Throughout the term hereof Owner
shall have the right to enter the demised premises at reasonable hours for the
purpose of showing the same to prospective purchasers or mortgagees of the
building, and during the last six months of the term for the purpose of showing
the same to prospective tenants. If Tenant is not present to open and permit an
entry into the premises, Owner or Owner's agents may enter the same whenever
such entry may be necessary or permissible by master key or forcibly and
provided reasonable care is exercised to safeguard Tenant's property, such entry
shall not render Owner or its agents liable therefor, nor in any event shall the
obligations of Tenant hereunder be affected. If during the last month of the
term Tenant shall have removed all or substantially all of Tenant's property
therefrom, Owner may immediately enter, alter, renovate or redecorate the
demised premises without limitation or abatement of rent, or incurring liability
to Tenant for any compensation and such as shall have no effect on this lease
or Tenant's obligations hereunder.
VAULT, VAULT SPACE, AREA: 14. No Vaults, vault space or area, whether or not
enclosed or covered, not within the property line of the building is leased
here-Area: under, anything contained in or indicated on any sketch, blueprint
or plan, or anything contained elsewhere in this lease to the contrary
notwithstanding. Owner makes no representation as to the location of the
property line of the building. All vaults and vault space and all such areas not
within the property line of the building, which Tenant may be permitted to use
and/or occupy, is to be used and/or occupied under a revocable license, and if
any such license be revoked, or if the amount of such space or area be
diminished or required by any federal, state or municipal authority or public
utility, Owner shall not be subject to any liability nor shall Tenant be
entitled to any compensation of diminution or abatement of rent, nor shall such
revocation, diminution
or requisition be deemed constructive or actual eviction. Any tax, fee or
charge of municipal authorities for such vault or area shall be paid by
Tenant.
OCCUPANCY: 15. Tenant will not at any time use or occupy the demised Premises in
violation of the certificate of occupancy issued for the building of which the
demised premises are a part. Tenant has inspected the premises and accepts them
as is, subject to the riders annexed hereto with respect to Owner's work, if
any. In any event, Owner makes no representation as to the condition of the
premises and Tenant agrees to accept the same subject to violations, whether or
not of record.
BANKRUPTCY: 16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be cancelled by Owner by the sending of a
written notice to Tenant within a reasonable time after the happening of any one
or more of the following events: (1) the commencement of a case in bankruptcy or
under the laws of any state naming Tenant as the debtor; or (2) the making by
Tenant of an assignment or any other arrangement for the benefit of creditors
under any state statute. Neither Tenant nor any person claiming through or under
Tenant, or by reason of any statute or order of court, shall thereafter be
entitled to possession of the premises demised but shall forthwith quit and
surrender the premises. If this lease shall be assigned in accordance with its
terms, the provisions of this Article 16 shall be applicable only to the party
then owning Tenant's interest in this lease.
(b) It is stipulated and agreed that in the event of the
termination of this lease pursuant to (a) hereof, Owner shall forthwith,
notwithstanding any other provisions of this lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount equal to the
difference between the rent reserved hereunder for the unexpired portion of the
term demised and the fair and reasonable rental value of the demised premises
for the same period. In the computation of such damages the difference between
any installment of rent becoming due hereunder after the date of termination and
the fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such premises or any
part thereof be relet by the Owner for the unexpired term of said lease, or any
part thereof, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the amount of rent reserved upon such reletting
shall be deemed to be the fair and reasonable rental value for the part or the
whole of the premises so relet during the term of the reletting. Nothing herein
contained shall limit or prejudice the right of the Owner to prove for and
obtain as liquidated damages by reason of such termination, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved, whether
or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
DEFAULT: 17. (1) If Tenant defaults in fulfilling any of the covenants of
this lease other than the covenants for the payment of rent or additional rent
or if any of the demised premises becomes vacant or deserted; or if any
execution or attachment shall be issued against Tenant or any of Tenant's
property whereupon the demised premises shall be taken or occupied by someone
other than Tenant; or if this lease be rejected under Section 235 of Title 11
of the U.S. Code (bankruptcy code); or if Tenant shall fail to move into or
take possession of the premises within fifteen (15) days after the commencement
of the term of this lease, then, in any one or more of such events, upon Owner
serving a written five (5) days notice upon Tenant specifying the nature of said
default and upon the expiration of said five (5) days if Tenant shall have
failed to comply with or remedy such default, or if the said default or omission
complained of shall be of a nature that the same cannot be completely cured or
remedied within said five (5) day period, and if Tenant shall not have
diligently commenced during such default within such five (5) day period, and
shall not thereafter with reasonable diligence and in good faith, proceed to
remedy or cure such default, then Owner may serve a written three (3) days'
notice of cancellation of this lease upon Tenant, and upon the expiration of
said three (3) days this lease and the term thereunder shall end and expire as
fully and completely as if the expiration of such three (3) day period were the
day herein definitely fixed for the end and expiration of this lease and the
term thereof and Tenant shall then quit and surrender the demised premises to
Owner but Tenant shall remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been
given, and the terms shall expire as aforesaid; or if Tenant shall make default
in the payment of the rent reserved herein or any item of additional rent herein
mentioned or any part of either or in making any other payment herein required;
then and in any of such events Owner may without notice, re-enter the demised
premises either by force or otherwise, and dispossess Tenant by summary
proceedings or otherwise, and the legal representative of Tenant or other
occupant of demised premises and remove their effects and hold the premises as
if this lease had not been made, and Tenant hereby waives the service of notice
of intention to re-enter or to institute legal proceedings to that end. If
Tenant shall make default hereunder prior to the date fixed as the commencement
of any renewal or extension of this lease, Owner may cancel and terminate such
renewal or extension agreement by written notice.
REMEDIES OF OWNER AND WAIVER OF REDEMPTION: 18. In case of any such default,
re-entry, expiration and/or and dispossess by summary proceedings or otherwise
(a) the rent shall become due thereupon and be paid up to the time of such
re-entry, dispossess and/or expiration, (b) Owner may re-let the premises or any
part or parts thereof, either in the name of Owner or otherwise, for a term or
terms, which may at Owner's option be less than or exceed the period which would
otherwise have constituted the balance of the term of this lease and may grant
concessions or free rent or charge a higher rental than that in this lease,
and/or (c) Tenant or the legal representatives of Tenant shall also pay Owner as
liquidated damages for the failure of Tenant to observe and perform said
Tenant's covenants herein contained, any deficiency between the rent hereby
reserved and/or covenanted to be paid and the net amount, if any, of the rents
collected on account of the lease or leases of the demised premises for each
month of the period which would otherwise have constituted the balance of the
term of this lease. The failure of Owner to re-let the premises or any part or
parts thereof shall not release or affect Tenant's liability for damages. In
computing such liquidated damages there shall be added to the said deficiency
such expenses as Owner may incur in connection with re-letting, such as legal
expenses, attorneys' fees, brokerage, advertising and for keeping the demised
premises in good order or for preparing the same for re-letting. Any such
liquidated damages shall be paid in monthly installments by Tenant on the rent
day specified in this lease and any suit brought to collect the amount of the
deficiency for any month shall not prejudice in any way the rights of Owner to
collect the deficiency of any subsequent month by a similar proceeding. Owner,
in putting the demised premises in good order or preparing the same for
re-rental may, at Owner's option, make such alterations, repairs, replacements,
and/or decorations in the demised premises as Owner, in Owner's sole judgment,
considers advisable and necessary for the purpose of re-letting the demised
premises, and the making of such alterations, repairs, replacements, and/or
decorations shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Owner shall in no event be liable in any way whatsoever
for failure to re-let the demised premises, or in the event that the demised
premises are re-let, for failure to collect the rent thereof under such
re-letting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant of any of the
covenants or provisions hereof, Owner shall have the right of injunction and the
right to invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for. Mention in this
lease of any particular remedy, shall not preclude Owner from any other remedy,
in law or in equity. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of Tenant
being evicted or dispossessed for any cause, or in the event of Owner obtaining
possession of demised premises, by reason of the violation by Tenant of any of
the covenants and conditions of this lease, or otherwise.
FEES AND EXPENSES: 19. If Tenant shall default in the observance or performance
of any term or covenant on Tenant's part to be observed or performed under or by
virtue of any of the terms or provisions in any article of this lease, then,
unless otherwise provided elsewhere in this lease, Owner may immediately or at
any time thereafter and without notice perform the obligation of Tenant
thereunder. If Owner, in connection with the foregoing or in connection with any
default by Tenant in the covenant to pay rent hereunder, makes any expenditures
or incurs any obligations for the payment of money, including but not limited to
attorney's fees, in instituting, prosecuting or defending any action or
proceeding, then Tenant will reimburse Owner for such sums so paid or
obligations incurred with interest and costs. The foregoing expenses incurred by
reason of Tenant's default shall be deemed to be additional rent hereunder and
shall be paid by Tenant to Owner within five (5) days of rendition of any ▇▇▇▇
or statement to Tenant therefor. If Tenant's lease term shall have expired at
the time of making of such expenditures or incurring of such obligations, such
sums shall be recoverable by Owner as damages.
BUILDING ALTERATIONS AND MANAGEMENT: 20. Owner shall have the right at any time
without the same constituting an eviction and without incurring liability to
Tenant therefor to change the arrangement and/or location of public
entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets
or other public parts of the building and to change the name, number or
designation by which the building may be known. There shall be no allowance to
Tenant for diminution of rental value and no liability on the part of Owner by
reason of inconvenience, annoyance or injury to business arising from Owner or
other Tenants making any repairs in the building or any such alterations,
additions and improvements. Furthermore, Tenant shall not have any claim against
owner by reason of Owner's imposition of such controls of the manner of access
to the building by Tenant's social or business visitors as the Owner may deem
necessary for the security of the building and its occupants.
NO REPRESENTATIONS BY OWNER: 21. Neither Owner nor Owner's agents have made any
representations or promises with respect to the physical condition of the
building, the land upon which it is erected or the demised premises, the rents,
leases, expenses of operation or any other matter or thing affecting or related
to the premises except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this lease. Tenant has inspected the building and
the demised premises and is thoroughly acquainted with their condition and
agrees to take the same "as is" and acknowledges that the taking of possession
of the demised premises by Tenant shall be conclusive evidence that the said
premises and the building of which the same form a part were in good and
satisfactory condition at the time such possession was so taken, except as to
latent defects. All understandings and agreements heretofore made between the
parties hereto are merged in this contract, which alone fully and completely
expresses the agreement between Owner and Tenant and any executory agreement
hereafter made shall be in effective to change, modify, discharge or effect an
abandonment of it in whole or in part, unless such executory agreement is in
writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
END OF TERM: 22. Upon the expiration or other termination of the term of this
lease, Tenant shall quit and surrender to Owner the demised premises, broom
clean, in good order and condition, ordinary wear and damages which Tenant is
not required to repair as provided elsewhere in this lease excepted, and Tenant
shall remove all its property. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination of this lease. If the
last day of the term of this Lease or any renewal thereof, falls on Sunday, this
lease shall expire at noon on the preceding Saturday unless it be a legal
holiday in which case it shall expire at noon on the preceding business day.
QUIET ENJOYMENT: 23. Owner covenants and agrees with Tenant that upon Tenant
paying the rent and additional rent and observing and performing all the terms,
covenants and conditions, on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the premises hereby demised, subject,
nevertheless, to the terms and conditions of this lease including, but not
limited to, Article 31 hereof and to the ground leases, underlying leases and
mortgages hereinbefore mentioned.
NO WAIVER: 24. The failure of Owner to seek redress for violation of, or to
insist upon the strict performance of any covenant or condition of this lease or
of any of the Rules or Regulations, set forth or hereafter adopted by Owner,
shall not prevent a subsequent act which would have originally constituted a
violation from having all the force and effect of an original violation. The
receipt by Owner of rent with knowledge of the breach of any covenant of this
lease shall not be deemed a waiver of such breach and no provision of this lease
shall be deemed to have been waived by Owner unless such waiver be in writing
signed by Owner. No payment by Tenant or receipt by Owner of a lesser amount
than the monthly rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or statement
of any check or any letter accompanying any check or payment without prejudice
to Owner's right to recover the balance of such rent or pursue any other remedy
in this lease provided. No act or thing done by Owner or Owner's agents during
the term hereby
demised shall be deemed an acceptance of a surrender of said premise, and no
agreement to accept such surrender shall be valid unless in writing signed by
Owner. No employee of Owner or Owner's agent shall have any power to accept the
keys of said premises prior to the termination of the lease and the delivery of
keys to any such agent or employee shall not operate as a termination of the
lease or a surrender of the premises.
WAIVER OF TRIAL BY JURY: 25. It is mutually agreed by and between Owner and
Tenant that the respective parties hereto shall and they hereby do waive trial
by jury in any action, proceeding or counter-claim brought by either of the
parties hereto against the other (Except for personal injury or property damage)
on any matters whatsoever arising out of or in any way connected with this
lease, the relationship of Owner and Tenant, Tenant's use of or occupancy of
said premises, and any emergency statutory or any other statutory remedy. It is
further mutually agreed that in the event Owner commence any summary proceeding
for possession of the premises, Tenant will not interpose any counterclaim of
whatever nature or description in any such proceeding including a counterclaim
under Article 4.
INABILITY TO PERFORM: 26. This Lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenants and agreements hereunder on
part of Tenant to be performed shall in no wise be affected, impaired or excused
because Owner is unable to fulfill any of its obligations under this lease or to
supply or is delayed in supplying any service expressly or impliedly to be
supplied or is unable to make, or is delayed in making any repair, additions,
alterations or decorations or is unable to supply or is delayed in supplying any
equipment or fixtures if Owner is prevented or delayed from so doing by reason
of strike or labor troubles or any cause whatsoever including, but not limited
to, government preemption in connection with a National Emergency or by reason
of any rule, order or regulation of any department or subdivision thereof of any
government agency or by reason of the conditions of supply and demand which have
been or are affected by war or other emergency.
BILLS AND NOTICES: 27. Except as otherwise in this lease provided, a ▇▇▇▇,
statement, notice or communication which Owner may desire or be required to give
to Tenant, shall be deemed sufficiently given or rendered if, in writing,
delivered to Tenant personally or sent by registered or certified mail addressed
to Tenant at the building of which the demised premises form a part or at the
last known residence address or business address of Tenant or left at any of the
aforesaid premises addressed to Tenant, and the time of the rendition of such
▇▇▇▇ or statement and of the giving of such notice or communication shall be
deemed to be the time when the same is delivered to Tenant, mailed, or left at
the premises as herein provided. Any notice by Tenant to Owner must be served by
registered or certified mail addressed to Owner at the address first hereinabove
given or at such other address as Owner shall designate by written notice.
SERVICES PROVIDED BY OWNERS: 28. As long as Tenant is not in default under
any of covenants of this lease, Owners shall provide: (a) necessary elevator
facilities on business days from 8 a.m. to 6 p.m. and on Saturdays from 8
a.m. to 1 p.m. and have one elevator subject to call at all other times; (b)
heat to the demised premises when and as required by law, on business days
from 8 a.m. to 6 p.m. and on Saturdays from 8 a.m. to 1 p.m.; (c) water for
ordinary lavatory purposes, but if Tenant uses or consumes water for any
other purposes or in unusual quantities) of which fact Owner shall be the
sole judge); Owner may install a water meter at Tenant's expense which Tenant
shall thereafter maintain at Tenant's expense in good working order and
repair to register such water consumption and Tenant shall pay for water
consumed as shown on said meter as additional rent as and when bills are
rendered; (d) cleaning service for the demised premises on business days at
Owner's expense provided that the same are kept in order by Tenant. If,
however, said premises are to be kept clean by Tenant, it shall be done at
Tenant's sole expense, in a manner satisfactory to Owner and no one other
than persons approved by Owner shall be permitted to enter said premises or
the building of which they are a part for such purpose. Tenant shall pay
Owner the cost of removal of any of Tenant's refuse and rubbish from the
building. RIDER to be added in respect to rates and conditions for such
additional service; (f) Owner reserves the right to stop services of the
heating, elevators, plumbing, air-conditioning, power systems or cleaning or
other services, if any, when necessary by reason of accident or for repairs,
alterations, replacements or improvements necessary or desirable in the
judgment of Owner for as long as may be reasonably required by reason
thereof. If the building of which the demised premises are a part supplies
manually operated elevator service, Owner at any time may substitute
automatic control elevator service and upon ten days' written notice to
Tenant, proceed with alterations necessary therefor without in any wise
affecting this lease or the obligation of Tenant hereunder. The same shall be
done with a minimum of inconvenience to Tenant and Owner shall pursue the
alteration with due diligence.
CAPTIONS: 29. The Captions are inserted only as a matter of convenience and
for reference and in no way define, limit or describe the scope of this lease
nor the intent of any provisions thereof.
DEFINITIONS: 30. The term "office", or "offices", wherever used in this lease,
shall not be construed to mean premises used as a store or stores, for the sale
or display, at any time, of goods, wares or merchandise, of any kind, or as a
restaurant, shop, booth, bootblack or other stand, ▇▇▇▇▇▇ shop, or for other
similar purposes or for manufacturing. The term "Owner" means a landlord or
lessor, and as used in this lease means only the owner, or the mortgagee in
possession, for the time being of the land and building (or the owner of a lease
of the building or of the land and building) of which the demised premises form
a part, so that in the event of any sale or sales of said land and building or
of said lease, or in the event of a lease of said building, or of the land and
building, the said Owner shall be and hereby is entirely freed and relieved of
all covenants and obligations of Owner hereunder, and it shall be deemed and
construed without further agreement between the parties or their successors in
interest, or between the parties and the purchaser, at any such sale, or the
said lessee of the building, or of the land and building, that the purchaser or
the lessee of the building has assumed and agreed to carry out any and all
covenants and obligations of Owner, hereunder. The words "re-enter" and
"re-entry" as used in this lease are not restricted to their technical legal
meaning. The term "business days" as used in this lease shall exclude Saturdays
(except such portion thereof as is covered by specific hours in Article 28
hereof), Sundays and all days observed by the State or Federal Government as
legal holidays and those designated as holidays by the applicable building
service union employees service contract or by the applicable Operating
Engineers contract with respect to HVAC service.
ADJACENT EXCAVATION -- SHORING: 31. If an excavation shall be made upon land
adjacent to the demised premises, or shall be authorized to be made, Tenant
shall afford to the person causing or authorized to cause such excavation,
license to enter upon the demised premises for the purpose of doing such work as
said person shall deem necessary to preserve the wall or the building of which
demised premises form a part from injury or damage and to support the same by
proper foundations without any claim for damages or indemnity against Owner, or
diminution or abatement of rent.
RULES AND REGULATIONS: 32. Tenant and Tenant's servants, employees, agents,
visitors and licensees shall observe faithfully, and comply strictly with, the
Rules and Regulations and such other and further reasonable Rules and
Regulations as Owner or Owner's agents may from time to time adopt. Notice of
any additional rules or regulations shall be given in such manner as Owner may
elect. In case Tenant disputes the reasonableness of any additional Rule or
Regulation hereafter made or adopted by Owner or Owner's agents, the parties
hereto agree to submit the question of the reasonableness of such Rule or
Regulation for decision to the New York office of the American Arbitration
Association, whose determination shall be final and conclusive upon the parties
hereto. The right to dispute the reasonableness of any additional Rule or
Regulation upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice, in writing upon Owner within ten (10) days
after the giving of notice thereof. Nothing in this lease contained shall be
construed to impose upon Owner any duty or obligation to enforce the Rules and
Regulations or terms, covenants or conditions in any other lease, as against
any other tenant and Owner shall not be liable to Tenant for violation of the
same by any other tenant, its servants, employees, agents, visitors or
licensees.
SECURITY: 33. Tenant has deposited with Owner the sum of $66,723.00 in cash or
in the form of an acceptable Letter of Credit as security for the faithful
performance and observance by Tenant of the terms, provisions and conditions of
this lease; it is agreed that in the event Tenant defaults in respect of any of
the terms, provisions and conditions of this lease, including, but not limited
to, the payment of rent and additional rent, Owner may use, apply or retain the
whole or any part of the security so deposited to the extent required for the
payment of any rent and additional rent or any other sum as to which Tenant is
in default or for any sum which Owner may expend or may be required to expend by
reason of Tenant's default in respect of any of the terms, covenants and
conditions of this lease, including but not limited to, any damages or
deficiency in the re-letting of the premises, whether such damages or deficiency
accrued before or after summary proceedings or other re-entry by Owner. In the
event that Tenant shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this lease, the security shall be
returned to Tenant after the date fixed as the end of the Lease and after
delivery of entire possession of the demised premises to Owner. In the event of
a sale of the land and building or leasing of the building, of which the demised
premises form a part, Owner shall have the right to transfer the security to the
vendee or lessee and Owner shall thereupon be released by Tenant from all
liability for the return of such security; and Tenant agrees to look to the new
Owner solely for the return of said security, and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
security to a new Owner. Tenant further covenants that it will not assign or
encumber or attempt to assign or encumber the monies deposited herein as
security and that neither Owner nor its successors or assigns shall be bound by
any such assignment, encumbrance, attempted assignment or attempted encumbrance.
ESTOPPEL CERTIFICATE: 34. Tenant, at any time, and from time to time, upon at
least 10 days' prior notice by Owner, shall execute, acknowledge and deliver
to Owner, and/or to any other person, firm or corporation specified by Owner,
a statement certifying that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), stating the dates to
which the rent and additional rent have been paid, and stating whether or not
there exists any default by Owner under this Lease, and, if so, specifying
each such default.
SUCCESSORS AND ASSIGNS: 35. The covenants, conditions and agreement contained
in this lease shall bind and inure to the benefit of Owner and Tenant and
their respective heirs, distributees, executors, administrators, successors,
and except as otherwise provided in this lease, their assigns.
Riders containing Articles 36 through 56 inclusive is annexed hereto
and made part hereof
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
HACIENDA INTERCONTINENTAL REALTY, N.V.
Witness for Owner:
By: /s/ [ILLEGIBLE] [CORP. SEAL]
------------------ ----------------------------
ARISTA INVESTORS CORP.
Witness for Tenant:
By: /s/ [ILLEGIBLE] [CORP. SEAL]
------------------- ----------------------------
ACKNOWLEDGEMENTS
CORPORATE OWNER
STATE OF NEW YORK, ss.:
COUNTY OF
On this ______ day of __________, 19__, before me personally came to me
known, who being by me duly sworn, did depose and say that he resides
in_______________; that he is the __________ of _______________________; the
corporation described in and which executed the foregoing instruments, as
OWNER; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of
the Board of Directors of said corporation, and that he signed his name
thereto by like order.
INDIVIDUAL OWNER
STATE OF NEW YORK, ss.:
COUNTY OF
to me known and known to be the individual described in and who, as OWNER,
executed the foregoing instrument and acknowledged to me that he executed the
same
CORPORATE TENANT
STATE OF NEW YORK, ss.:
COUNTY OF
On this ______ day of ______, 19___, before me personally came to me known,
who being by me duly sworn, did depose and say that he resides in
_______________; that he is the _______________ of _______________; the
corporation described in and which executed the foregoing instrument, as
OWNER; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of
the Board of Directors of said corporation, and that he signed his name
thereto by like order.
INDIVIDUAL TENANT
STATE OF NEW YORK, ss.:
COUNTY OF
to me known and known to be the individual described in and who, as OWNER,
executed the foregoing instrument and acknowledged to me that
________________________ he executed the same.
RIDER ANNEXED TO LEASE DATED MAY 9TH, 2000 BY AND BETWEEN HACIENDA
INTERCONTINENTAL REALTY, N.V., AS LANDLORD AND ARISTA INVESTORS CORP., AS
TENANT, OF THE ENTIRE 18TH FLOOR & A PORTION OF THE 17TH FLOOR OF THE BUILDING
KNOWN AS ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
36. RIDER PROVISIONS PARAMOUNT:
If and to the extent that any of the provisions of this Rider conflict
or are otherwise inconsistent with any of the preceding printed provisions of
this lease, whether or not such inconsistency is expressly noted in this Rider,
the provisions of this Rider shall prevail, and in case of inconsistency with
said Rules and Regulations, shall be deemed a waiver of such Rules and
Regulations with respect to Tenant to the extent of such inconsistency.
37. ADDITIONAL DEFINITIONS:
For the purposes of this Lease and all agreements supplemental to this
lease, and all communications with respect thereto, unless the context otherwise
requires:
A. The term "fixed rent" shall mean rent at the annual rental rate or
rates provided for in the granting clause appearing at the beginning of this
lease.
B. The term "additional rent" shall mean all sums of money, other than
fixed rent, and which become due and payable from Tenant to Landlord hereunder,
and Landlord shall have the same remedies therefor as for a default in payment
of fixed rent.
C. The term "rent" shall mean fixed rent and/or additional rent.
D. The terms "Commencement Date" and "Expiration Date" shall mean the
dates fixed in this lease, or to be determined pursuant to the provisions of
this lease, respectively, as the beginning and the end of the term for which the
demised premises are hereby leased.
38. ESCALATION FOR INCREASE IN REAL ESTATE TAXES:
A. As used herein:
(a) "Taxes" shall mean the real estate taxes and assessments
imposed upon the land and building of which the demised premises are a part.
Penalties and interest on Taxes, and income, franchise, transfer, inheritance
and capital stock taxes shall be deemed excluded from the term Taxes for the
purposes hereof. However, if and to the extent that, due to a change in the
method of assessment or taxation, any franchise, capital stock, capital, rents,
income, profits or other tax or charge shall be substituted in whole or in part
for the Taxes now or hereafter imposed upon said land and building, such
franchise, capital stock, capital, rents, income, profits or other tax or
charge, computed as if Landlord owned or operated no property other than said
land and building, shall be deemed included in the term Taxes for the purposes
hereof.
(b) "Tax Year" shall mean each period of twelve (12) months,
commencing on the first day of July of each such period, in which occurs any
part of the term of this lease or such other period of twelve (12) months
occurring during the term of this lease as hereafter may be duly adopted as the
fiscal year for real estate tax purposes of the City of New York.
(c) "Base Tax" shall mean the Taxes for the period July 1,
2000 through June 30, 2001 (the "Base Tax Year").
B. If the Taxes for any Tax Year shall be greater than the Base Tax,
Tenant shall pay as additional rent for such Tax Year a sum equal to 5.50% of
the amount by which the Taxes for such Tax Year are greater than the Base Tax
(which amount is hereinafter called the "Tax Payment"). Should this lease
commence or terminate prior to the expiration of a Tax Year, such Tax Payment
shall be prorated to, and shall be payable on, or as and when ascertained after,
the Commencement Date or the Expiration Date, as the case may be. Tenant's
obligation to pay such additional rent and Landlord's obligation to refund
pursuant to Paragraph C below, as the case may be, shall survive the termination
of this lease. If the Taxes for any Tax Year subsequent to the Base Tax Year, or
an installment thereof, shall be reduced before such Taxes, or such installment,
shall be paid, the amount of Landlord's reasonable costs and expenses of
obtaining such reduction (but not exceeding the amount of such reduction) shall
be added to and be deemed part of the Taxes for such Tax Year. Payment of
additional rent for any Tax Payment due from Tenant shall be made as and subject
to the conditions hereinafter provided in this Article.
C. Landlord shall be under no obligation to contest the Taxes or the
assessed valuation of the land and the building for any Tax Year or to refrain
from contesting the same, and may settle any such contest on such terms as
Landlord in its sole judgment considers proper. If Landlord shall receive a
refund for any Tax Year for which a Tax Payment shall have been made by Tenant
pursuant to Paragraph B above, Landlord shall repay to Tenant, with reasonable
promptness, 5.50% of such refund after deducting from such refund the reasonable
costs and expenses (including experts' and attorneys' fees) of obtaining such
refund. If the assessment for the Base Tax Year shall be reduced from the amount
originally imposed after Landlord shall have rendered a comparative statement
(as provided
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in Paragraph D below) to Tenant with respect to a Tax Year, the amount of the
Tax Payment shall be adjusted in accordance with such change and Tenant, on
Landlord's demand, shall pay any increase in additional rent resulting from such
adjustment.
D. At any time during a Tax Year after the taxes for such Tax Year
become known Landlord may, or else with reasonable promptness after the end of
each Tax Year, Landlord shall render to Tenant a comparative statement together
with a copy of the tax ▇▇▇▇ showing the amount of the Base Tax, the amount of
the Taxes for such Tax Year and the Tax Payment, if any, due from Tenant for
such Tax Year, indicating thereon in reasonable detail the computation of such
Tax Payment. The Tax Payment shown on such comparative statement may, at
Landlord's option, be payable in full or in such installments (not more frequent
than monthly) as Landlord may determine. Tenant shall pay the amount of the Tax
Payment shown on such comparative statement (or the balance of a proportionate
installment thereof, if only an installment is involved) concurrently with the
installment of fixed rent then or next due, or if such statement shall be
rendered at or after the termination of this lease within thirty (30) days after
such rendition. Whenever so requested, but not more often than once a year,
Landlord will furnish Tenant with a reproduced copy of the ▇▇▇▇ (or receipted
▇▇▇▇) for the Taxes for the current or next preceding Tax Year.
39. ESCALATION FOR WAGE RATES:
A. As used herein:
(a) "Wage Rate" shall mean the minimum regular hourly wage
rate required to be paid to or for the benefit of porters engaged in the general
maintenance and operation of Class A office buildings in the vicinity of the
building pursuant to a collective bargaining agreement negotiated by Realty
Advisory Board on Labor Relations, Inc., or any successor thereto. If length of
service shall be a factor in determining the Wage Rate, it shall be conclusively
presumed that all employees have had three (3) years service. If any such
agreement is not entered into or if said Realty Advisory Board (or its
successor) shall cease to bargain collectively, then the Wage Rate shall be the
minimum regular hourly wage rate as aforesaid payable to or for the benefit of
porters engaged in the maintenance and operation of the building of which the
demised premises are a part, and payable by either Landlord or the contractor
furnishing such services.
(b) "Base Wage Rate" shall mean the Wage Rate in effect for
the calendar year 2000.
B. If the Wage Rate shall be increased at any time after the date of
this lease and shall be greater than the Base Wage Rate, Tenant shall pay to
Landlord as additional rent an annual sum equal to the product obtained by
multiplying (i) one times the number of cents (including any fraction of a
cent), by which the Wage Rate exceeds the Base Wage Rate by (ii) the number of
square feet of rentable area of the demised premises, which for the purposes of
this Paragraph shall be deemed to be 17,406 square feet. Such additional rent
shall be payable in equal monthly installments commencing with the first monthly
installment of fixed rent falling due hereunder after the effective date of such
a change in the Wage Rate and continuing thereafter until a new adjustment in
such additional rent shall be established and become effective in accordance
with the provisions of this Article. If any increase in the Wage Rate shall be
made retroactive, Tenant shall pay Landlord the amount of the consequent
adjustment of fixed rent. Landlord shall give Tenant written notice of each
change in the Wage Rate which will be effective to create or change Tenant's
obligation to pay additional rent pursuant to the provisions of this Paragraph
B, with reasonable promptness after Landlord learns thereof, and such notice
shall contain Landlord's calculation of the annual rate of additional rent
payable resulting from such change in the Wage Rate.
C. Landlord's failure during the lease term to prepare and deliver any
notice, statement or ▇▇▇▇, or Landlord's failure to make a demand, shall not in
any way cause Landlord to forfeit or surrender Landlord's right to collect any
additional rent which may have become due during the term of this lease under
this Article and Tenant's liability for amounts due under this Article shall
survive the termination of this lease.
40. AMENDING ARTICLE 11:
Notwithstanding the provisions of Article 11, and in modification and
amplification thereof:
A. If Tenant's interest in this lease is assigned, whether or not in
violation of the provisions of this lease, Landlord 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 lease, Landlord, after default by Tenant under this lease and expiration of
Tenant's time, if any, to cure such default, may collect rent from the
subtenant, user or occupant. In either case, Landlord shall apply the net amount
collected to the rents reserved in this lease, but neither any such assignment,
subletting, occupancy, nor use, nor any such collection or application shall be
deemed a waiver of any term, covenant or condition of this lease or the
acceptance by Landlord of such assignee, subtenant occupant or user as a tenant.
The consent by Landlord to any assignment, subletting, occupancy or use shall
not relieve Tenant from its obligation to obtain the express prior written
consent of Landlord to any further assignment, subletting, occupancy or use. The
listing of any name other than Tenant's on any door of the demised premises, or
on any directory, other than the names of Tenant's business entity and Tenant's
associates/employees or on any elevator in the building, or otherwise, shall not
operate to vest in the party so named, any right or interest in this lease or in
the demised premises, or be deemed to constitute, or serve as a substitute for,
any prior written consent of Landlord required under this Article, and it is
understood that any such listing shall constitute a privilege extended by
Landlord which shall be revocable at Landlord's will by notice to Tenant. Tenant
agrees to pay to Landlord any reasonable counsel fees incurred by Landlord 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
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subletting, occupancy or use of the demised premises or any part thereof by
any person other than Tenant, nor any collection of rent by Landlord from any
person other than Tenant as provided in this Paragraph A, nor any application
of any such rent as aforementioned as provided in this Paragraph A, shall in
any circumstances relieve Tenant of Tenant's obligation fully to observe and
perform the terms, covenants and conditions of this lease on Tenant's part to
be observed and performed.
B. If Tenant shall desire to assign this lease or to sublet the demised
premises, Tenant shall submit to Landlord a written request for Landlord's
consent to such assignment or subletting, which request shall contain or be
accompanied by the following information (i) the name and address of the
proposed assignee or subtenant; (ii) the terms and conditions of the proposed
assignment or subletting including, without limitation, all consideration of
every nature whatsoever to be paid to Tenant (including, without limitation,
consideration for the sale or rental of Tenant's fixture, leasehold
improvements, equipment, furniture or other personal property) in respect of
such assignment or subletting; (iii) the nature and character of the business of
the proposed assignee or subtenant and its proposed use of the demised premises;
and (iv) banking, financial and other credit information with respect to the
proposed assignee or subtenant reasonably sufficient to enable Landlord to
determine the financial responsibility of the proposed assignee or subtenant.
Landlord shall then have the following options, to be exercised by notice
("Exercise Notice") given to Tenant within thirty days after receipt of Tenant's
request for consent:
i) Landlord may require Tenant to surrender the demised
premises to Landlord and to accept a termination of this lease as of the date
that Tenant's proposed transaction was to occur (the "Termination Date").
Landlord shall only have the right to recapture the entire space in the event of
an assignment or sublet of all or substantially all of the space.
ii) Landlord may require Tenant to assign this lease to
Landlord without merger of Landlord's estates effective as of the day preceding
the proposed assignment or sublease.
If Landlord shall elect to require Tenant to surrender the
demised premises and accept a termination of this lease, then this lease shall
expire on the Termination Date as if that date had been originally fixed as the
Expiration Date. If option (b) is elected, then Tenant shall be released from
all of its obligations under the lease. Regardless of which option Landlord
exercises under this Paragraph B, whether to terminate this lease or to take an
assignment thereof, Landlord shall be free to, and shall have no liability to
Tenant if Landlord shall, lease the demised premises to Tenant's prospective
assignee or subtenant.
C. If Landlord shall not exercise either of its options under Paragraph
B above within the time period therein provided, then Landlord shall not
unreasonably withhold consent to the proposed assignment or subletting, provided
that Tenant is not then in default under this lease and further provided that
the following further conditions shall be fulfilled:
i) The proposed subtenant or assignee shall not be a school of
any kind, or an employment or placement agency or governmental or
quasi-governmental agency;
ii) The subletting or assignment shall be to a tenant whose
occupancy will be in keeping with the dignity and character of the then use and
occupancy of the building and whose financial standing and occupancy will not be
more objectionable or more hazardous than that of Tenant herein or impose any
additional burden upon Landlord in the operation of the building;
iii) The proposed sublessee or assignee shall not be at a
lower rental rate than that being charged by Landlord at the time for similar
space in the building;
iv) The proposed sublessee or assignee shall not be a tenant,
subtenant or assignee of any premises in the building; nor shall the proposed
sublessee or assignee be a person or entity with whom Landlord is then
negotiating to lease space in the building.
v) In case of a subletting, it shall be expressly subject to
all of the obligations of Tenant under this lease and the further condition and
restriction that the sublease shall not be assigned, encumbered or otherwise
transferred or the subleased premises further sublet by the sublessee in whole
or in part, or any part thereof suffered or permitted by the sublessee to be
used or occupied by others, without the prior written consent of Landlord in
each instance.
vi) The demised premises shall not, without Landlord's prior
written consent, have been listed or otherwise publicly advertised for
assignment or subletting at a rental rate less than the lower of the rate of
fixed rent then payable hereunder for such space or the then prevailing rental
rate for other space in the building. However, this shall not be deemed to
prohibit Tenant from negotiating or consummating a sublease at a lower rental
rate, if and only if, Tenant shall first have offered to sublet the space
involved to Landlord for the same rents and term by notice given with or after
Tenant's request for consent to the subletting or assignment. Landlord may
accept such offer within thirty (30) days from receipt of such request for
consent or twenty (20) days after receipt of the offer, whichever is later. If
Landlord does not accept such offer, Tenant's assignment and subletting rights
shall nevertheless be subject to all the terms and conditions of this Article.
vii)The character of the business to be conducted or the
proposed use of the demised premises by the proposed sublessee or assignee shall
not (i) be likely to increase Landlord's operating expenses beyond that which
would be incurred in accordance with the standards of use of other tenancies in
the building; (ii) increase the burden on existing building services including,
without limitation, cleaning and elevator service over the burden prior to such
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proposed subletting or assignment; or (iii) violate or be likely to violate any
provisions or restrictions herein relating to the use or occupancy of the
demised premises.
D. Anything herein contained to the contrary notwithstanding, but
without releasing Tenant from its obligations for full performance hereunder,
Tenant shall have the right, without the consent of Landlord, to assign or
sublet all or any part of the demised premises to one or more controlled or
subsidiary companies, or to a parent company (existing or future), and Tenant
shall have the right to permit the demised premises or any part thereof to be
used by any controlled subsidiary or affiliated and/or parent companies,
provided that a duplicate original of the assignment or sublease shall be
delivered to Landlord within seven (7) days after execution, and provided that
such assignment or sublease shall permit only such use and occupancy as is
permitted under this lease.
Further, Tenant may assign this lease in its entirety without
the consent of Landlord to any successor corporation (by consolidation or merger
or sale of substantially all of its assets) provided the assets and consolidated
net worth of such successor corporation and its consolidated subsidiaries,
determined in accordance with generally accepted accounting principles on a pro
forma basis from the then most recent audited (by independent certified public
accountants) balance sheets of all corporations which shall have been merged or
consolidated with or into such successor corporation, shall not be materially
less than the assets and consolidated net worth of Tenant and its consolidated
subsidiaries as shown by Tenant's most recent audited (by independent certified
public accountants) balance sheet, provided that Tenant shall have delivered to
Landlord an agreement on the part of such successor corporation whereby such
successor corporation agrees to assume, and does assume, all of the obligations
and duties on the part of the Tenant to be performed hereunder.
E. No permitted or consented to assignment or subletting shall be
effective or valid for any purpose whatsoever unless and until a counterpart of
the assignment or a counterpart or reproduced copy of the sublease shall have
been first delivered to the Landlord and, in the event of an assignment, the
Tenant shall deliver to Landlord a written agreement executed and acknowledged
by the Tenant and such assignee in recordable form wherein such assignee shall
assume jointly and severally with Tenant the due performance of this lease on
Tenant's part to be performed to the full end of the term of this lease
notwithstanding any other or further assignment.
F. Any transfer by operation of law or otherwise, of Tenant's interest
in this lease or of a 50% or greater interest in Tenant (whether stock,
partnership interest or otherwise) shall be deemed an assignment of this lease
for purposes of this Article.
G. If Landlord shall decline to give its consent to any proposed
assignment or sublease or if Landlord shall exercise its option under this
Article, Tenant shall indemnify, defend and hold harmless Landlord against and
from any and all loss, liability, damages, costs and expenses (including
reasonable legal fees) resulting from any claims that may be made against
Landlord by the proposed assignee or sublessee or by any brokers or other
persons claiming a commission or similar compensation in connection with the
proposed assignment or sublease.
41. SUPPLEMENTING ARTICLE 3:
Landlord's consent shall not be required for minor changes to the
demised premises such as painting and installation of cabinets and shelves. All
other renovations, decorations, additions, installations, improvements and or
alterations of any kind or nature in the demised premises (herein "Tenant's
Changes") shall require the prior written consent of Landlord thereto which, in
the case of non-structural Tenant's Changes, Landlord agrees not to unreasonably
withhold. In granting its consent to any Tenant's Changes, Landlord may impose
such conditions (as to guarantee of completion, payment, restoration and
otherwise) as Landlord may reasonably require. In no event shall Landlord be
required to consent to any Tenant's Change, which would physically affect any
part of the building outside of the demised premises or would adversely affect
the proper functioning of the mechanical, electrical, sanitary or other service
systems of the building. At the time Tenant requests Landlord's written consent
to any Tenant's Changes, Tenant shall deliver to Landlord detailed plans and
specifications therefor. Tenant shall pay to Landlord any reasonable fees or
expenses incurred by Landlord in connection with Landlord's submitting such
plans and specifications, it reasonably deems it necessary to an architect or
engineer selected by Landlord for review or examination. Landlord's approval of
any plans or specifications does not relieve Tenant from the responsibility for
the legal sufficiency and technical competency thereof. Tenant before
commencement of any Tenant's Changes shall;
i) Obtain the necessary consents, authorizations and licenses
from all federal, state and/or municipal authorities having jurisdiction over
such work;
ii) Furnish to Landlord a certificate or certificates of
Workmen's Compensation Insurance covering all persons who will perform Tenant's
Changes for Tenant or any contractor, subcontractor or other person;
iii) Furnish to Landlord an original Policy of Public
Liability Insurance covering Landlord in limit of not less than one million
($1,000,000.00) dollars for injuries or damages to person and property, in a
company approved by Landlord. Such policy shall be maintained at all times
during the progress of Tenant's Changes and until completion thereof and shall
provide that no cancellation shall be effective unless ten (10) days prior
written notice has been given to Landlord.
iv) Tenant shall employ as its general contractor for the
performance of Tenant's Work such contractor as Tenant may select and Landlord
shall approve. Landlord shall not unreasonably withhold such approval. Tenant's
contractor shall only use union labor.
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Tenant agrees to indemnify and save Landlord harmless from and
against any and all bills for labor performed and equipment, fixtures and
materials furnished to Tenant and from and against any and all liens, bills
or claims therefor or against the demised premises or the building containing
the same and from and against all losses, damages, costs, expenses, suits and
claims whatsoever in connection with Tenant's Changes. The cost of Tenant's
Changes shall be paid for in cash or its equivalent, so that the demised
premises and the building containing the same shall at all times be free of
liens for labor and materials supplied or claimed to have been supplied.
Tenant, at its expense, shall cause any Tenant's Changes consented to
by Landlord to be performed in compliance with all applicable requirements of
insurance bodies having jurisdiction and in such manner as not to interfere
with, delay or impose any additional expense upon the Landlord in the
maintenance or operation of the building and so as to maintain harmonious labor
relations in the building.
Notwithstanding the provisions of Article 3, Tenant shall not be
required to restore the demised premises to its condition prior to the making of
any Tenant's Change except if and to the extent that such restoration is made an
express condition of Landlord's consent to such Tenant's Change.
If the performance of Tenant's Change shall interfere with the comfort
and/or convenience of other tenants in the building or shall cause damage to or
otherwise interfere with the occupancy of adjacent buildings, Tenant shall upon
Landlord's demand remedy or remove the condition or conditions complained of.
Tenant further covenants and agrees to indemnify and save Landlord harmless from
and against any and all claims, losses, damages, costs, expenses, suits and
demands whatsoever made or asserted against Landlord by reason of the foregoing.
42. CERTIFICATES BY TENANT:
At any time and from time to time, Tenant, for the benefit of Landlord
and the lessor under any ground lease or underlying lease or the holder of any
leasehold mortgage affecting any ground lease or underlying lease, or of any fee
mortgage covering the land or the land and building containing the demised
premises, on at least five (5) days prior written request by Landlord, will
deliver to Landlord a statement, certifying that this lease is not modified and
is in full force and effect as modified, and stating the modifications, the
Commencement and Expiration Dates hereof, the dates to which the fixed rent,
additional rent and other charges have been paid, and whether or not, to the
best knowledge of the signer of such statement, there are any then existing
defaults on the part of either Landlord or Tenant in the performance of the
terms, covenants and conditions of this lease, and if so, specifying the default
of which the signer of such statement has knowledge.
43. LIMITATION OF LIABILITY:
Tenant agrees that the liability of Landlord under this lease and all
matters pertaining to or arising out of the tenancy and the use and occupancy of
the demised premises, shall be limited to Landlord's interest in the building of
which the demised premises form a part and in no event shall Tenant make any
claim against or seek to impose any personal liability upon any general or
limited partner of Landlord, or any principal of any firm or corporation that
may hereafter be or become the Landlord.
44. END OF TERM:
Tenant acknowledges that possession of the demised premises must be
surrendered to Landlord at the expiration or sooner termination of the term of
this Lease. Tenant agrees to indemnify and save Landlord harmless against all
costs, claims, loss or liability resulting from delay by Tenant in so
surrendering the demised premises, including, without limitation, any claims
made by an succeeding tenant founded on such delay. The parties recognize and
agree that the damage to Landlord resulting from any failure by Tenant to timely
surrender possession of the demised premises as aforesaid will be extremely
substantial, will exceed the amount of the monthly rent and additional rent
theretofore payable hereunder, and will be impossible to accurately measure.
Tenant therefore agrees that if possession of the demised premises is not
surrendered to Landlord within twenty-four (24) hours after the Expiration Day
or sooner termination of the term of this Lease, then Tenant shall pay to
Landlord for each month and for each portion of any month during which Tenant
holds over in the demised premises after the expiration or sooner termination of
the term of this Lease, a sum equal to three (3) times the aggregate of that
portion of the fixed rent and additional rent which was payable under this Lease
during the last month of the term hereof. Nothing herein contained shall be
deemed to permit Tenant to retain possession of the demised premises after the
Expiration Date. The provisions of this Article shall survive the expiration or
sooner termination of this Lease.
45.INDEMNIFICATION AND INSURANCE:
Tenant will indemnify and save Landlord harmless from and against all
damages, liabilities, claims, costs and expenses, including reasonable
attorneys' fees, arising out of the use of the demised premises or any work or
thing done, or any condition created by Tenant or its employees, agents or
contractors whether or not caused by negligence or breach of an obligation by
Tenant.
Tenant shall, throughout the terms of this lease, at its own cost and
expense, but for the mutual benefit of Landlord and Tenant, maintain, General
Public Liability Insurance against claims for personal injury, death or property
damage occurring upon, in or about the demised premises, such insurance to
afford protection to the limit of not less than $3,000,000.00 in respect of
personal injury or death and damage to property in respect of any one
occurrence. The Certificate of Insurance should specifically have the proposed
indemnity clause referred to in the first paragraph of this Article typed on the
certificate evidencing that the "hold harmless" clause has been insured. Tenant
shall furnish to
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Landlord certificates of such policies and provide for the insurance
carrier's endorsements and such policies shall not be terminated without ten
(10) days' prior notice to Landlord as well as Tenant.
46. ELECTRICITY:
I. This Subsection pertains to seventeen thousand four hundred and six
(17,406) square feet located on the entire eighteenth (18th) and portion of the
seventeenth (17th) floor.
A. METHOD OF FURNISHING ELECTRIC CURRENT TO THE DEMISED PREMISES
Tenant agrees, that subject to the provisions of Subparagraph 2 hereof and
Subparagraph 4 of Paragraph C hereof, electricity will be furnished to Tenant on
a submetering basis.
a. Submetering: Landlord shall, at Landlord's sole cost and
expense, install a meter or meters (collectively, the "Submeter"), at a location
designated by Landlord, connections from the risers and/or circuits servicing
the demised premises to the Submeter and perform all other work necessary for
the furnishing of electric current by Landlord to the demised premises in the
manner provided for in this Subdivision 1. The Landlord hereby warrants that as
of the date of this lease, it is legal to install a submeter as stated within
this lease. If and so long as electric current is supplied by Landlord to the
demised premises to service Tenant's office equipment and the machinery and
mechanical equipment for the air-conditioning units utilized by Tenant, if any,
Tenant will pay Landlord or Landlord's designated agent, as additional rent for
such service the amounts, as determined by the Submeter, for the purpose of
measuring Tenant's consumption and demand. The additional rent payable by Tenant
pursuant to this Subdivision 1, shall be computed in the same manner as that for
computation of Landlord's Cost, as applied to the demised premises plus an
amount equal to ten (10) percent of the cost of electricity for administrative
costs. The amounts computed from the Submeter together with the Overhead Charge,
are herein collectively called the "Electricity Additional Rent", and such
amounts computed from the Submeter shall be binding and conclusive on Tenant
unless Tenant reasonably disputes the same. If the Submeter should fail to
properly register or operate at any time during the term of this lease for any
reason whatsoever, or if Landlord shall not read the Submeter at the end of each
month, Landlord shall reasonably estimate the Electricity Additional Rent based
upon an ERIF of $2.50 per rentable square foot annual figure, and when the
submeter is again properly operative or read, an appropriate reconciliation
shall be made quarterly, by Tenant paying any deficiency to Landlord within
thirty (30) days after receipt of written notice, or by Landlord crediting
Tenant with the amount of any overpayment, as the case may be. Landlord, at its
option, may from time to time, increase the Electricity Additional Rent based
upon any increase in the rates charged to Landlord from the Utility. The periods
to be used for the aforesaid computation shall be the immediately preceding
month for which submeter readings are available unless the parties agree to the
contrary. Where more than one meter measures the electric service to Tenant, the
electric service rendered through each meter may be computed and billed at
Landlord's option, separately as above set forth, or cumulatively. Bills for the
Electricity Additional Rent (the "Bills") shall be rendered to Tenant at such
time as Landlord may elect.
If any tax is imposed upon Landlord's receipts from the sale
or resale of electric current to Tenant by any Federal, State or municipal
authority, Tenant agrees that, unless prohibited by law, Tenant's Percentage of
such taxes shall be passed on to, and included in the ▇▇▇▇ of, and paid by
Tenant to Landlord as additional rent.
b. Tenant acknowledges and agrees that if Landlord is unable
to furnish electricity on a submetering basis by an law, ordinance, or
regulation, electric current will be furnished to the demised premises on a rent
inclusion basis, and (i) the fixed rent set forth in this lease shall be
increased by the "Electricity Rent Inclusion Factor" (hereinafter defined and
sometimes called the "ERIF") to compensate Landlord for the electrical wiring
and other installations necessary for, and for its obtaining and making
available to Tenant the redistribution of electric current to the demised
premises as additional service, and (ii) the ERIF shall be subject to periodic
adjustments as hereinafter provided. The "Electricity Rent Inclusion Factor"
shall mean the average on a per rentable square foot basis of the charges for
electric current to the demised premises pursuant to Subdivision 1 of this
Subsection of Article 46 for the twelve (12) full calendar months preceding the
month in which the provisions of this Subdivision 2 shall become effective,
multiplied by 17,406. If the provisions of this Subdivision 2 shall be effective
prior to the expiration of a period of twelve (12) full consecutive months
during which Tenant is paying for electric energy to the demised premises
pursuant to said Subdivision 1 of this Subsection of Article 46, so that the
ERIF cannot be determined in the manner described in the preceding sentence,
then the "Electricity Rent Inclusion Factor" shall mean the amount determined by
multiplying Landlord's Cost by Tenant's average kilowatt hour and average
kilowatt demand usage (determined by the most recent survey under this
Subdivision 2, or if no such survey has yet been made, by the estimate of an
electrical consultant selected by Landlord). When a survey has been made by the
electrical consultant selected by Landlord (the "Consultant"), the parties shall
make adjustment for any deficiency owed by Tenant or any average paid by Tenant.
If after the first day of any relevant period for which either of the aforesaid
computations is made there is an increase or decrease in Landlord's Cost
(including, without limitation, electric rates, fuel adjustment charge, transfer
adjustment charge, taxes or charges of any kind imposed with respect to or upon
Landlord's purchase of electricity for the entire building), then, the ERIF for
such relevant period shall be recomputed, effective on and after the change in
Landlord Cost, by applying such changed rate and/or charges to the
aforedescribed consumption and demand.
The parties agreed that the Consultant shall determine (i) the
ERIF in accordance with the provisions of this Subdivision 2 and (ii) the
changes in the ERIF due to Changes in Landlord's Cost. The Consultant may from
time to time make surveys in the demised premises of the electrical equipment
and fixtures and use of current therein, and the ERIF, effective as of the date
of the survey, shall be redeterrnined by the Consultant in accordance with the
survey results and the provisions of this Subdivision 2.
The termination by the Consultant shall be binding and conclusive on Landlord
and Tenant from and after the
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delivery of copies of such determinations to Landlord and Tenant, unless within
sixty (60) days after the delivery of such copies, Tenant disputes such
determinations by having an independent reputable electrical consultant selected
and paid for by Tenant, consult with Landlord or its consultant as to said
determinations. If they shall both agree upon the same, their said agreement
shall be binding upon the parties, or if the difference between them is five
(5%) percent of each other, they shall jointly select a third duly qualified
independent, reputable electrical consultant who shall determine the matter and
whose decision shall be binding upon both parties with the same force and effect
as if a nonapplicable judgment had been entered by a court of competent
jurisdiction. If Landlord or the Consultant and Tenant's consultant cannot agree
upon such a third electrical consultant, the matter shall be submitted to the
American Arbitration Association in New York City to be determined in accordance
with its rules and regulations and the decision of the arbitrators shall be
binding upon the parties with the same force and effect as if a non-appealable
judgment had been entered by a court of competent jurisdiction. Any charges of
such third consultant or of the American Arbitration Association and all costs
and expense of either shall be borne equally by both parties. When the amount of
increase has been determined, the parties shall execute an agreement
supplementary hereto to reflect such adjustment in the amount of the fixed rent
effective from the date determined by such electrical consultant as aforesaid.
Notwithstanding the foregoing, until such final determination, Tenant shall pay
fixed rent to Landlord in accordance with the determinations made by the
Consultant. After such final determinations, the parties shall make adjustment
for any deficiency owed by Tenant or any average paid by Tenant.
B. GENERAL CONDITIONS
a. Landlord except where Landlord is willfully negligent,
shall not be liable to Tenant for any loss or damage or expense which Tenant may
sustain or incur if either the quantity or character of electric service is
changed or is no longer available or suitable for Tenant's requirements.
b. Tenant covenants and agrees that at all times its use of
electric current shall never exceed the capacity of existing feeders to Tenant's
floor(s) or space (if less than an entire floor) or the capacity of the risers
or wiring installation in the building. Any riser or risers to supply Tenant's
electrical requirements, upon written request of Tenant but subject to the prior
written approval of Landlord in each instance, will be installed by Landlord, at
Tenant's sole cost and expense, if, the same are necessary and will not cause
permanent damage or injury to the building or demised premises or cause or
create a dangerous or hazardous condition or entail excessive or unreasonable
alterations, repairs or expense or interfere with or disturb other tenants or
occupants. If in Landlord's reasonable judgment, Landlord shall consent to the
installation of such riser or risers, in addition to such installation, Landlord
will also at Tenant's sole cost and expense, install all other equipment proper
and necessary in connection therewith subject to the aforesaid terms and
conditions.
c. The parties acknowledge that they understand that it is
anticipated that electric rates, charges, etc. may be changed by virtue of
time-of-day rates or other methods of billing, and that the references in the
foregoing subdivisions to changes in methods of or rules and billing are
intended to include any such changes.
d. Landlord reserves the right, solely if required by any law,
rule, regulation or ordinance, upon sixty (60) days prior written notice to
Tenant, to change the furnishing of electricity to Tenant from a rent inclusion
basis to a submetering basis, or visa-versa. Notwithstanding the foregoing,
Landlord shall not change from a submetering basis to a rent inclusion basis,
unless Landlord is unable to furnish Tenant with electricity on a submetering
basis as herein provided by reason of any law, ordinance or regulation. In
addition, solely if required by any law, rules, regulation or ordinance,
Landlord reserves the right to terminate the furnishing of electricity on a rent
inclusion, submetering, or any other basis at any time, upon sixty (60) days'
written notice to the Tenant in which event Tenant may make application directly
to the Utility for Tenant's entire separate supply of electric current to the
demised premises and Landlord shall permit its wires and conduits, to the extent
available and safely capable in Landlord's reasonable judgment, to be used for
such purpose. Any meters, risers or other equipment or connections necessary to
enable Tenant to obtain electric current directly from the Utility shall be
installed at Landlord's cost subject to the provisions of this lease. Rigid
conduit only will be allowed. Landlord, upon the expiration of the aforesaid
sixty (60) days' written notice to the Tenant may discontinue furnishing the
electric current but this lease shall otherwise remain in full force and effect.
Landlord will permit Tenant to continue to receive electricity from Landlord on
a redistribution basis for such period of time as is reasonably required by
Tenant to arrange to obtain electricity service directly from the Utility.
Commencing when Tenant receives such direct service and as long as Tenant shall
continue to receive such service, the fixed rent payable under this lease shall
be reduced where electricity rent inclusion is discontinued, by a sum equal to
what the ERIF portion of the fixed rent was at the time of such discontinuance
(the parties acknowledge that in the case of termination of redistribution by
submetering, the fixed rent payable under this lease would not be affected
thereby).
47. BROKER:
Tenant represents and warrants that it neither consulted nor negotiated
with any broker or finder with regard to the rental of the demised premises from
Landlord other than ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Inc. and Williamson, Picket, Gross, Inc.
Tenant agrees to indemnify and hold Landlord harmless from any damages, costs
and expenses suffered by Landlord by reason of any breach of the foregoing
representation.
48. BINDING EFFECT:
It is specifically understood and agreed that this lease is offered to
Tenant for signature by the managing agent of the building solely in its
capacity as such agent and subject to Landlord's acceptance and approval, and
that Tenant shall have affixed its signature hereto with the understanding that
such act shall not, in any way, bind Landlord or its agent until such time as
this lease shall have been approved and executed by Landlord and delivered to
Tenant.
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49. AIR-CONDITIONING:
Subject to applicable governmental regulations, Tenant shall use the
air-conditioning which is part of the Basic Improvements (as defined in Article
hereof) only from 8:00 AM to 6:00 PM on weekdays (other than holidays) from May
15th through September 30th. Landlord shall make such repairs to the
air-conditioning unit(s) as may be required to keep same in good working order.
50. MISCELLANEOUS:
Without incurring any liability to Tenant, Landlord may permit access
to the demised premises and open the same, whether or not Tenant shall be
present, upon demand of any receiver, trustee, assignee for the benefit of
creditors, sheriff, ▇▇▇▇▇▇▇▇ or court officer entitled to, or reasonably
purporting to be entitled to, such access for the purpose of taking possession
of, or removing, Tenant's property or for any other lawful purpose (but this
provision and any action by Landlord hereunder shall not be deemed a recognition
by Landlord that the person or official making such demand has any right or
interest in or to this lease, or in or to the premises), or upon demand of any
representative of the fire, police, building, sanitation or other department of
the city, state or federal governments.
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.
No receipt of monies by Landlord from Tenant, after any reentry or
after the cancellation or termination of this lease in any lawful manner, shall
reinstate the lease; and after the service of notice to terminate this lease, or
after the commencement of any action, proceeding or other remedy, Landlord may
demand, receive and collect any monies due, and apply them on account of
Tenant's obligations under this lease but without in any respect affecting such
notice, action, proceeding or remedy, except that if a money judgment is being
sought in any such action or proceeding, the amount of such judgment shall be
reduced by such payment.
If Tenant is in arrears in the payment of fixed rent or additional
rent, Tenant waives its right, if any, to designate the items in arrears against
which any payments made by Tenant are to be credited and Landlord may apply any
of such payments to any such items in arrears as Landlord, in its sole
discretion, shall determine, irrespective of any designation or request by
Tenant as to the items against which any such payments shall be credited.
No payment by Tenant nor receipt by Landlord of a lesser amount than
may be required to be paid hereunder shall be deemed to be other than on account
of any such payment, nor shall any endorsement or statement on any check or any
letter accompanying any check tendered as payment be deemed an accord and
satisfaction and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such payment due or pursue any other
remedy in this lease provided.
If in this lease it is provided that Landlord's consent or approval as
to any matter will not be unreasonably withheld, and it is established by a
court or body having final jurisdiction thereover that Landlord has been
unreasonable, the only effect of such finding shall be that Landlord shall be
deemed to have given its consent or approval; but Landlord shall not be liable
to Tenant in any respect for money damages by reason of withholding its consent.
Any statement or notice by Landlord pursuant to this lease of rent
increase, including, without limitation, any statements, notices or valuations
made according to the Article 40 (Escalation for Wage Rates), or 46
(Electricity), shall be conclusive and binding upon Tenant unless within ninety
(90) days after receipt of such notice Tenant shall notify Landlord in writing
that it disputes the correctness thereof, specifying the particular respects in
which such statement or notice is claimed to be incorrect. If Tenant timely
disputes such statement or notice, Tenant shall nevertheless pay the rent in
accordance with the disputed statement or notice until such time as the
Landlord's statement or notice is resolved, either by agreement of the parties
or by decision of a court of competent jurisdiction.
51. AMENDING ARTICLE 7:
A. If, in connection with the procurement, continuation or renewal of
any financing for which the land and/or the building or the interest of the
lessee therein under a superior lease represents collateral in whole or in part
an institutional lender shall request modifications of this lease as a condition
of such financing, Tenant will not withhold its consent thereto provided that
such modifications do not materially increase the obligations of Tenant under
this lease or materially and adversely affect any rights of Tenant under this
lease.
52. RENT:
Tenant hereby covenants and agrees to pay to Landlord, without
deduction or set-off and without demand, at Landlord's office or such other
place as Landlord may from time to time designate 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, rent at the annual rate of:
A. $400,338.00 or $33,361.50 per month for the period June 1,
2000 through May 31, 2002;
B. $417,744.00 or $34,812.00 per month for the period June 1,
2002 through May 31, 2005;
C. $435,150.00 or $36,262.50 per month for the period June 1,
2005 through May 31, 2007.
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53. OPTION SPACE:
A. Tenant has requested Landlord to lease additional space on the 17th
floor of the building that is adjacent to its existing space if same becomes
available during the lease term, and Landlord agrees to give Tenant such
opportunity subject to the terms and conditions set forth in Paragraph B.
B. Landlord, shall give Tenant notice ("Availability Notice") that
other space on the l7th floor of the building is or will become available for
lease. Tenant shall have fifteen (15) days from the giving of such Availability
Notice to notify Landlord that it desires to lease such space. If Tenant does
not notify Landlord that it desires to lease such space within said fifteen (15)
day period or, if Tenant does notify Landlord within said fifteen (15) day
period but Tenant and Landlord do not consummate such lease within fifteen (15)
days thereafter (it being understood that Landlord and Tenant shall diligently
and in good faith endeavor to consummate such lease within said fifteen (15) day
period, then Landlord shall be free to lease such space to any party free from
any rights Tenant may have under Paragraph B of this Article.
54. RENT CREDIT:
Landlord shall provide Tenant with a rent credit of $15,000.00 to cover
the Tenant's cost in painting demised premises. This rent credit shall be
applied at the rate of $5,000.00 per month for the first three (3) months (June,
July and August 2000) of the lease term.
55. AMENDING ARTICLE 33:
The security deposit of $66,723.00 by Tenant under Article 33 hereof
shall be kept in an interest bearing bank account, and Tenant, provided it is
not in default under this lease, shall be entitled to the interest thereto, less
the administrative fee permitted by law to be retained by Landlord.
56. CANCELLATION OPTION:
Tenant shall have the option to terminate this Lease at any time during
the term of this Lease provided (a) Tenant notifies Landlord, in writing, of its
intention to terminate this Lease by registered mail, return receipt requested
at least six (6) months prior to the Cancellation Date, and (b) said notice be
accompanied by a certified check payable to Landlord in a sum equal to six (6)
months of the then existing rent plus all unamortized costs including broker's
commissions incurred by Landlord in connection with leasing the demised premises
to Tenant as fixed and liquidated damages resulting from the exercise of the
right of termination. In such event, upon the Cancellation Date, the term of
this Lease shall expire as fully and completely as if such date were the term
expiration date originally set forth herein, without prejudice, however, to
Landlord's rights and remedies against Tenant under the lease provisions in
effect prior to the termination date and any rents and other charges owing shall
be paid up to the Cancellation Date.
HACIENDA INTERCONTINENTAL, N.V.
BY: /s/ [ILLEGIBLE]
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(Landlord)
ARISTA INVESTORS CORP.
BY: /s/ [ILLEGIBLE]
------------------------------
(Tenant)
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