1
Exhibit 10.14
==================================================================
STANDARD FORM OF OFFICE LEASE The Real
Estate Board of New York, Inc.
==================================================================
Agreement of Lease, made as of this 28th day of February 1996, between XXXXXX
TELEGRAPH ASSOCIATES, a New York limited partnership, having an address x/x
Xxxxxxxx Xxxx Xxxxxx Xx. Xxx., 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 ("Owner" or
"Landlord") and STAR VENDING, INC. (doing business as Star Telecommunications,
Inc.), a Nevada corporation, having an address at 000 Xxxxx Xxxxxx, Xxxxx
Xxxxxxx, XX 00000 ("Tenant").
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner a
portion of the twelfth (12th) floor as shown hatched on Exhibit A annexed hereto
(the "premises" or "demised premises") in the building known as 00 Xxxxxx Xxxxxx
(the "Building"), in the Borough of Manhattan, City of New York, for the term
(the "Term") of approximately ten (10) years and two (2) months, to commence on
the date hereof (the "Commencement Date") and to expire on April 30, 2006 (the
"Expiration Date") (or until such Term shall cease and expire as hereinafter
provided), at the fixed annual rental rate (the "Fixed Rent") of $166,362 per
annum, subject to adjustment as hereinafter provided,
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 the demised premises for general office purposes,
and, to the extent permitted by the certificate of occupancy for the Building,
for the installation, operation and maintenance of equipment and facilities in
connection with Tenant's telecommunications business, and for no other purpose.
2
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 prior written consent of
Owner, and to the provisions of this article, Tenant, at Tenant's expense, may
make alterations, installations, additions or improvements which are
non-structural and which do not affect utility services or plumbing and
electrical lines, in or to the interior of the demised premises by using
contractors or mechanics first approved in each instance 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 xxxxxxx'x
compensation, general liability, personal and property damage insurance as Owner
may require. If any mechanic's lien is filed against the demised premises, or
the building of which the same forms a part, for work claimed to have been done
for, or materials furnished to, Tenant, whether or not done pursuant to this
article, the same shall be discharged by Tenant within thirty days thereafter,
at Tenant's expense, by payment or 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 on Tenant's behalf, shall,
upon installation, become the property of Owner and shall remain upon and be
surrendered with the demised premises unless Owner, by notice to Tenant no later
than twenty days prior to the date fixed as the termination of this lease,
elects to relinquish Owner's right thereto and to have them removed by Tenant,
in which event the same shall be removed from the premises by Tenant prior to
the expiration of the lease, at Tenant's expense. 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.
Maintenance and Repairs:
4. Tenant shall, throughout the term of this lease, take good care of the
demised premises and the fixtures and appurtenances therein. Tenant shall be
responsible for all damage or injury to the demised premises or any other part
of the building and the systems and equipment thereof, whether requiring
structural or nonstructural repairs caused by or resulting from carelessness,
omission, neglect or improper conduct of Tenant, Tenant's subtenants, agents,
employees, invitees or licensees, or which arise out of any work, labor, service
or equipment done for or supplied to Tenant or any subtenant or arising out of
the installation, use or operation of the property or equipment of Tenant or any
subtenant. Tenant shall also repair all damage to the building and the demised
premises caused by the moving of Tenant's fixtures, furniture and equipment.
Tenant shall promptly make, at Tenant expense, all repairs in and to the demised
premises for which Tenant is responsible, using only the contractor for the
trade or trades in question, selected from a list of at least two contractors
per trade submitted by Owner. Any other repairs in or to the building or the
facilities and systems thereof for which Tenant is responsible shall be
performed by Owner at the Tenant's expense. Owner shall maintain in good working
order and repair the exterior and the structural portions of the building,
including the structural portions of its demised premises, and the public
portions of the building interior and the building plumbing, electrical, heating
and ventilating systems (to the extent such systems presently exist) serving the
demised premises. Tenant agrees to give prompt notice of any defective condition
in the premises for which Owner may be responsible hereunder. There shall be no
allowance to Tenant for diminution of rental value and no liability on the part
of Owner by reason of inconvenience, annoyance or injury to business arising
from Owner or others making repairs, alterations, additions or improvements in
or to any portion of the building or the demised premises or in and to the
fixtures, appurtenances or equipment thereof. It is specifically agreed that
Tenant shall not be entitled to any setoff or reduction of rent by reason of any
failure of Owner to comply with the covenants of this or any other article of
this Lease. Tenant agrees that Tenant's sole remedy at law in such instance will
be by way of an action for damages for breach of contract. The provisions of
this Article 4 shall not apply in the case of fire or other casualty which are
dealt with in Article 9 hereof.
Window Cleaning:
5. Tenant will not clean nor require, permit, suffer or allow any window in the
demised premises to be cleaned from the outside in violation of Section 202 of
the Labor Law or any other applicable law or of the Rules of the
3
Board of Standards and Appeals, or of any other Board or body having or
asserting jurisdiction.
Requirements of Law, Fire Insurance, Floor Loads:
6. Prior to the commencement of the lease term, if Tenant is then in possession,
and at all times thereafter, Tenant, at Tenant's sole cost and expense, shall
promptly comply with all present and future laws, orders and regulations of all
state, federal, municipal and local governments, departments, commissions and
boards and any direction of any public officer pursuant to law, and all orders,
rules and regulations of the New York Board of Fire Underwriters, Insurance
Services Office, or any similar body which shall impose any violation, order or
duty upon Owner or Tenant with respect to the demised premises, 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 use of the premises or the building (including the use permitted
under the lease). Nothing herein shall require Tenant to make structural repairs
or alterations unless Tenant has by its manner 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 satisfactions against all damages, interest, penalties and
expenses, including, but not limited to, reasonable attorney's fees, by cash
deposit or by safety bond in an amount and in a company satisfactory to Owner,
contest and appeal any such laws, ordinances, orders, rules, regulations or
requirements provided same is done with all reasonable promptness and provided
such appeal shall not subject Owner to prosecution for a criminal offense or
constitute a default under any lease or mortgage under which Owner may be
obligated, or cause the demised premises or any part thereof to be condemned or
vacated. Tenant shall not do or permit any act or thing to be done in or to the
demised premises which is contrary to law, or which will invalidate or be in
conflict with public liability, fire or other policies of insurance at any time
carried by or for the benefit of Owner with respect to the demised premises or
the building of which the demised premises form a part, or which shall or might
subject Owner to any liability or responsibility to any person or for property
damage. Tenant shall not keep anything in the demised premises except as now or
hereafter permitted by the Fire Department, Board of Fire Underwriters, Fire
Insurance Rating Organization or other authority having jurisdiction, and then
only in such manner and such quantity so as not to increase the rate for fire
insurance applicable to the building, nor use the premises in a manner which
will increase the insurance rate for the building or any property located
therein over that in effect prior to the commencement of Tenant's occupancy.
Tenant shall pay all costs, expenses, fines, penalties, or damages, which may be
imposed upon Owner by reason of Tenant's failure to comply with the provisions
of this article and if by reason of such failure the fire insurance rate shall,
at the beginning of this lease or at any time thereafter, be higher than it
otherwise would be, then Tenant shall reimburse Owner, as additional rent
hereunder, for that portion of all fire insurance premiums thereafter paid by
Owner which shall have been charged because of such failure by Tenant. In any
action or proceeding wherein Owner and Tenant are parties, a schedule or
"make-up" of rate for the building or demised premises issued by the New York
Fire Insurance Exchange, or other body making fire insurance rates applicable to
said premises shall be conclusive evidence of the facts therein stated and of
the several items and charges in the fire insurance rates then applicable to
said premises. Tenant shall not place a load upon any floor of the demised
premises exceeding the floor load per square foot area which it was designed to
carry and which is allowed by law. Owner reserves the right to prescribe the
weight and position of all safes, business machines and mechanical equipment.
Such installations shall be placed and maintained by Tenant, at Tenant's
expense, in settings sufficient, in Owner's judgement, to absorb and prevent
vibration, noise and annoyance.
Subordination:
7. This lease is subject and subordinate to all ground or underlying leases and
to all mortgages which may now or hereafter affect such leases or the real
property of which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall from time to time 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
4
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 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 and other items of additional 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 and other items of additional rent as
hereinafter expressly provided 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 (or sooner reoccupied in part by Tenant
then rent shall be apportioned as provided in subsection (b) above), 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, or 30 days after adjustment of
the insurance claim for such fire or casualty, whichever is sooner, 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 noticed 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
moveable 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, including Owner's
obligation to restore under subparagraph (b) above, each party shall look first
to any insurance in its favor before making any claim against the other party
for recovery for loss or damage resulting from fire or other casualty, and to
the extent that such insurance is in force and collectible and to the extent
permitted by law, Owner and Tenant each hereby releases and waives all right of
recovery with respect to subparagraphs (b), (d), and (e) above, against the
other or any one claiming through or under each of them by way of subrogation or
otherwise. The release and waiver herein referred to shall be deemed to include
any loss or damage to the demised premises and/or to any personal property,
equipment, trade fixtures, goods and merchandise located therein. The foregoing
release and waiver shall be in force only if both releasors' insurance policies
contain a clause providing that such a release or waiver shall not invalidate
the insurance. If, and to the extent, that such waiver can be obtained only by
the payment of additional premiums,
5
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 appurtenances removable by Tenant and
agrees that Owner will not be obligated to repair any damage thereto or replace
the same. (f) Tenant hereby waives the provisions of Section 227 of the Real
Property Law and agrees that the provisions of this article shall govern and
control in lieu thereof.
Eminent Domain:
10. If the whole or any part of the demised premises shall be acquired or
condemned by Eminent Domain for any public or quasi public use or purpose, then
and in that event, the term of this lease shall cease and terminate from the
date of title vesting in such proceeding and Tenant shall have no claim for the
value of any unexpired term of said lease and assigns to Owner, Tenant's entire
interest in any such award. Tenant shall have the right to make an independent
claim to the condemning authority for the value of Tenant's moving expenses and
personal property, trade fixtures and equipment, provided Tenant is entitled
pursuant to the terms of the lease to remove such property, trade fixture and
equipment at the end of the term and provided further such claim does not reduce
Owner's award.
Assignment, Mortgage, Etc.:
11. Tenant, for itself, its heirs, distributees, executors, administrators,
legal representative, successor and assigns, expressly covenants that it shall
not assign, mortgage or encumber this agreement, nor underlet, or suffer or
permit the demised premises or any part thereof to be used by others, without
the prior written consent of Owner in each instance. Transfer of the majority of
the stock of a corporate Tenant or the majority partnership interest of a
partnership Tenant shall be deemed an assignment. If this lease be assigned, or
if the demised premises or any part thereof be underlet or occupied by anybody
other than Tenant, Owner may, after default by Tenant, collect rent from the
assignee, under-tenant or occupant, and apply the net amount collected to the
rent herein reserved, but no such assignment, underletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of the
assignee, under-tenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Owner to an assignment or underletting shall not in
any wise be construed to relieve Tenant from obtaining the express consent in
writing of Owner to any further assignment or underletting.
Electric Current:
[GRAPHIC]
12. Rates and conditions in respect to submetering or rent inclusion, as the
case may be, to be added in RIDER attached hereto. Tenant covenants and agrees
that at all times its use of electric current shall not exceed the capacity of
existing feeders to the building or the risers or wiring installation and Tenant
may not use any electrical equipment which, in Owner's opinion, reasonably
exercised, will overload such installations or interfere with the use thereof by
other tenants of the building. The change at any time of the character of
electric service shall in no wise make Owner liable or responsible to Tenant,
for any loss, damages or expenses which Tenant may sustain.
Access to Premises:
13. Owner to 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 interruption 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
_______. If Tenant is not present to open and permit an entry into the demised
premises, Owner or Owner's agent may enter the same whenever such entry may be
necessary or permissible by master key or forcibly and provided reasonable care
is exercised to safeguard Tenant's property, such entry shall not render Owner
or its agents liable therefor, nor in any event shall the obligations of Tenant
hereunder be affected. If during the last month of the term Tenant shall have
removed all
----------
[GRAPHIC] Rider to be added if necessary.
6
or substantially all of Tenant's property therefrom Owner may immediately enter,
alter, renovate or redecorate the demised premises without limitation or
abatement of rent, or incurring liability to Tenant for any compensation and
such act shall have no effect on this lease or Tenant's obligations hereunder.
Vault, Vault Space, Area:
14. No Vaults, vault space or area, whether or not enclosed or covered, not
within the property line of the building is leased hereunder, anything contained
in or indicated on any sketch, blue print or plan, or anything contained
elsewhere in this lease to the contrary notwithstanding. Owner makes no
representation as to the location of the property line of the building. All
vaults and vault space and all such areas not within the property line of the
building, which Tenant may be permitted to use and/or occupy, is to be used
and/or occupied under a revocable license, and if any such license be revoked,
or if the amount of such space or area be diminished or required by any federal,
state or municipal authority or public utility, Owner shall not be subject to
any liability nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation, diminution or requisition be
deemed constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by Tenant.
Occupancy:
15. Tenant will not at any time use or occupy the demised premises in violation
of the certificate of occupancy issued for the building of which the demised
premises are 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 re-let by the Owner for the unexpired term of said lease, or any
part thereof, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the amount of rent reserved upon such re-letting
shall be deemed to be the fair and reasonable rental value for the part or the
whole of the premises so re-let during the term of the re-letting. Nothing
herein contained shall limit or prejudice the right of the Owner to prove for
and obtain as liquidated damages by reason of such termination, an amount equal
to the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved, whether
or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
Default:
17. (1) If Tenant defaults in fulfilling any of the covenants of this lease
other than the covenants for the payment of rent or additional rent; or if the
demised premises become vacant or deserted; or if any execution or attachment
shall be issued against Tenant or any of Tenant's property whereupon the demised
premises shall be taken or occupied by someone other than Tenant; or if this
lease be rejected under 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 thirty (30) days after the commencement of the term of this lease, then,
in any one or more of such events, upon Owner serving a written fifteen (15)
days notice upon Tenant specifying the nature of said default and upon the
expiration of said fifteen (15) days, if Tenant shall have failed to comply with
or remedy such default, or if the said default or omission complained of shall
be of a nature that the same cannot be completely cured or remedied within said
fifteen (15) day period, and if Tenant shall not have
7
diligently commenced curing such default within such fifteen (15) day period,
and shall not thereafter with reasonable diligence and in good faith, proceed to
remedy or cure such default, then Owner may serve a written five (5) days'
notice of cancellation of this lease upon Tenant, and upon the expiration of
said five (5) days this lease and the term thereunder shall end and expire as
fully and completely as if the expiration of such five (5) day period were the
day herein definitely fixed for the end and expiration of this lease and the
term thereof and Tenant shall then quit and surrender the demised premises to
Owner but Tenant shall remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given, and
the term shall expire as aforesaid; 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 dispossess by
summary proceedings or other wise, (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, reasonable attorneys' fees, brokerage,
advertising and for keeping the demised premises in good order or for preparing
the same for re-letting. Any such liquidated damages shall be paid in monthly
installments by Tenant on the rent day specified in this lease and any suit
brought to collect the amount of the deficiency for any month shall not
prejudice in any way the rights of Owner to collect the deficiency for any
subsequent month by a similar proceeding. Owner, in putting the demised premises
in good order or preparing the same for re-rental may, at Owner's option, make
such alterations, repairs, replacements, and/or decorations in the demised
premises as Owner, in Owner's sole judgement, considers advisable and necessary
for the purpose of re-letting the demised premises, and the making of such
alterations, repairs, replacements, and/or decorations shall not operate or be
construed to release Tenant from liability hereunder as aforesaid. Owner shall
in no event be liable in any way whatsoever for failure to re-let the demised
premises, or in the event that the demised premises are re-let, for failure to
collect the rent thereof under such re-letting, and in no event shall Tenant be
entitled to receive any excess, if any, of such net rents collected over the
sums payable by Tenant to Owner hereunder. In the event of a breach or
threatened breach by Tenant of any of the covenants or provisions hereof, Owner
shall have the right of injunction and the right to invoke any remedy allowed at
law or in equity as if re-entry, summary proceedings and other remedies were not
herein provided for. Mention in this lease of any particular remedy, shall not
preclude Owner from any other remedy, in law or in equity. Tenant hereby
expressly waives any and all rights of redemption granted by or under any
present or future laws in the event of Tenant being evicted or dispossessed for
any cause, or in the event of Owner obtaining possession of demised premises, by
reason of the violation by Tenant of any of the covenants and conditions of this
lease, or otherwise.
Fees and Expenses:
19. If Tenant shall default in the observance or performance of any term or
covenant on Tenant's part to be observed or performed under or by virtue of any
of the terms or provisions in any article of this lease, after notice if
required and upon expiration of any applicable grace period if any, (except in
an emergency), then, unless otherwise provided elsewhere in this lease, Owner
may immediately or at any time thereafter and without notice perform the
obligation of Tenant thereunder. If Owner, in connection with the foregoing or
in connection with any
8
default by Tenant in the covenant to pay rent hereunder, makes any expenditures
or incurs any obligations for the payment of money, including but not limited to
reasonable attorneys' fees, in instituting, prosecuting or defending any action
or proceeding, and prevails in any such action or proceeding then Tenant will
reimburse Owner for such sums so paid or obligations incurred with interest and
costs. The foregoing expenses incurred by reason of Tenant's default shall be
deemed to be additional rent hereunder and shall be paid by Tenant to Owner
within ten (10) days of rendition of any xxxx or statement to Tenant therefor.
If Tenant's lease term shall have expired at the time of making of such
expenditures or incurring of such obligations, such sums shall be recoverable by
Owner, as damages.
Building Alterations and Management:
20. Owner shall have the right at any time without the same constituting an
eviction and without incurring liability to Tenant therefor to change the
arrangement and/or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other public parts of the building and
to change the name, number or designation by which the building may be known.
There shall be no allowance to Tenant for diminution of rental value and no
liability on the part of Owner by reason of inconvenience, annoyance or injury
to business arising from Owner or other Tenants making any repairs in the
building or any such alterations, additions and improvements. Furthermore,
Tenant shall not have any claim against Owner by reason of Owner's imposition of
such controls of the manner of access to the building by Tenant's social or
business visitors as the Owner may deem necessary for the security of the
building and its occupants.
No Representations by Owner:
21. Neither Owner nor Owner's agents have made any representations or promises
with respect to the physical condition of the building, the land upon which it
is erected or the demised premises, the rents, leases, expenses of operation or
any other matter or thing affecting or related to the premises except as herein
expressly set forth and no rights, easements or licenses are acquired by Tenant
by implication or otherwise except as expressly set forth in the provisions of
this lease. Tenant has inspected the building and the demised premises and is
thoroughly acquainted with their condition and agrees to take the same "as is"
and acknowledges that the taking of possession of the demised premises by Tenant
shall be conclusive evidence that the said premises and the building of which
the same form a part were in good and satisfactory condition at the time such
possession was so taken, except as to latent defects. All understandings and
agreements heretofore made between the parties hereto are merged in this
contract, which alone fully and completely expresses the agreement between Owner
and Tenant and any executory agreement hereafter made shall be ineffective to
change, modify, discharge or effect an abandonment of 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 paying the rent and
additional rent and observing and performing all the terms, covenants and
conditions, on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the premises hereby demised, subject, nevertheless, to the
terms and conditions of this lease including, but not limited to, Article 31
hereof and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
Failure to Give Possession:
24. If Owner is unable to give possession of the demised premises on the date of
the commencement of the term hereof, because of the holding-over or retention of
possession of any tenant, undertenant or occupants or if the demised premises
are located in a building being constructed, because such building has not been
sufficiently completed to make the premises ready for occupancy or because of
the fact that a certificate of occupancy has not been procured or for any other
reason, Owner shall not be subject to any liability for failure to give
possession on said date and the validity of the lease shall not be impaired
under such circumstances, nor shall the same be construed in any wise to extend
the term of this lease, but the rent payable hereunder shall be abated (provided
Tenant is not responsible for Owner's inability to obtain possession or complete
construction) until after
9
Owner shall have given Tenant written notice that the Owner is able to deliver
possession in condition required by this lease. If permission is given to Tenant
to enter into the possession of the demises premises or to occupy premises other
than the demised premises prior to the date specified as the commencement of the
term of this lease, Tenant covenants and agrees that such possession and/or
occupancy shall be deemed to be under all the terms, covenants, conditions and
provisions of this lease except the obligation to pay the fixed annual rent set
forth in the preamble to this lease. The provisions of this article are intended
to constitute "an express provision to the contrary" within the meaning of
Section 223-a of the New York Real Property Law.
No Waiver:
25. The failure of Owner to seek redress for violation of, or to insist upon the
strict performance of any covenant or condition of this lease or of any of the
Rules or Regulations, set forth or hereafter adopted by Owner, shall not prevent
a subsequent act which would have originally constituted a violation from having
all the force and effect of an original violation. The receipt by Owner of rent
and/or additional rent with knowledge of the breach of any covenant of this
lease shall not be deemed a waiver of such breach and no provision of this lease
shall be deemed to have been waived by Owner unless such waiver be in writing
signed by Owner. No payment by Tenant or receipt by Owner of a lesser amount
than the monthly rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or statement
of any check or any letter accompanying any check or payment as rent be deemed
an accord and satisfaction, and Owner may accept such check or payment without
prejudice to Owner's right to recover the balance of such rent or pursue any
other remedy in this lease provided. No act or thing done by Owner or Owner's
agents during the term hereby demised shall be deemed an acceptance of a
surrender of said premises, and no agreement to accept such surrender shall be
valid unless in writing signed by Owner. No employee of Owner or Owner's agent
shall have any power to accept the keys of said premises prior to the
termination of the lease and the delivery of keys to any such agent or employee
shall not operate as a termination of the lease or a surrender of the premises.
Waiver of Trial by Jury:
26. It is mutually agreed by and between Owner and Tenant that the respective
parties hereto shall and they hereby do waive trial by jury in any action
proceeding or counterclaim brought by either of the parties hereto against the
other (except for personal injury or property damage) on any matters whatsoever
arising out of or in any way connected with this lease, the relationship of
Owner and Tenant, Tenant's use of or occupancy of said premises, and any
emergency statutory or any other statutory remedy. It is further mutually agreed
that in the event Owner commences any proceeding or action for possession
including a 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 except for statutory
mandatory counterclaims.
Inability to Perform:
27. This Lease and the obligation of Tenant to pay rent hereunder and perform
all of the other covenants and agreements hereunder on part of Tenant to be
performed shall in no wise be affected, impaired or excused because Owner is
unable to fulfill any of its obligations under this lease or to supply or is
delayed in supplying any service expressly or impliedly to be supplied or is
unable to make, or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment,
fixtures, or other materials if Owner is prevented or delayed from so doing by
reason of strike or labor troubles or any cause whatsoever including, but not
limited to, government preemption or restrictions or by reason of any rule,
order or regulation of any department or subdivision thereof of any government
agency or by reason of the conditions which have been or are affected, either
directly or indirectly, by war or other emergency.
Bills and Notices
28. Except as otherwise in this lease provided, a xxxx, statement, notice or
communication which Owner may desire or be required to give to Tenant, shall be
deemed sufficiently given or rendered if, in writing, delivered to Tenant
personally or sent by registered or certified mail addressed to Tenant at the
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 xxxx or
statement and of the giving of such notice or communication shall be deemed to
be the time when the same is delivered to Tenant, mailed, or left at the
premises as herein provided. Any notice by Tenant to Owner must be served by
registered or certified mail addressed to Owner at the address first hereinabove
given or at such other address as Owner shall designate by written notice.
Services Provided by Owners:
29. As long as Tenant is not in default under any of the covenants of this lease
beyond the applicable grace period
10
provided in this lease for the curing of such defaults, Owner shall provide: (a)
necessary elevator facilities on business days from 8 a.m. to 6 p.m. and have
one elevator subject to call at all other times; (b) heat to the demised
premises when and as required by law, on business days from 8 a.m. to 6 p.m.;
(c) water for ordinary lavatory purposes, but if Tenant uses or consumes water
for any other purposes or in unusual quantities (of which fact Owner shall be
the sole judge), Owner may install a water meter at Tenant's expense which
Tenant shall thereafter maintain at Tenant's expense in good working order and
repair to register such water consumption and Tenant shall pay for water
consumed as shown on said meter as additional rent as and when bills are
rendered; (d) the demised premises are to be kept clean by Tenant, at Tenant's
sole expense, in a manner reasonably satisfactory to Owner and no one other than
persons approved by Owner shall be permitted to enter said premises or the
building of which they are a part for such purpose. Tenant shall pay Owner the
cost of removal of any of Tenant's refuse and rubbish from the building; (e)
Deleted; (f) Owner reserves the right to stop services of the heating,
elevators, plumbing, electric, power systems or other services, if any, when
necessary by reason of accident or for repairs, alterations, replacements or
improvements necessary or desirable in the judgment of Owner for as long as may
be reasonably required by reason thereof. If the building of which the demised
premises are a part supplies manually operated elevator service, Owner at any
time may substitute automatic control elevator service and proceed diligently
with alterations necessary therefor without in any wise affecting this lease or
the obligation of Tenant hereunder.
Captions:
30. The Captions are inserted only as a matter of convenience and for reference
and in no way define, limit or describe the scope of this lease nor the intent
of any provisions thereof.
Definitions:
31. The term "office", or "offices", wherever used in this lease, shall not be
construed to mean premises used as a store or stores, for the sale or display;
at any time, of goods, wares or merchandise, of any kind, or as a restaurant,
shop, booth, bootblack or other stand, xxxxxx shop, or for other similar
purposes or for manufacturing. The term "Owner" means a landlord or lessor, and
as used in this lease means only the owner, or the mortgagee in possession, for
the time being of the land and building (or the owner of a lease of the building
or of the land and building) of which the demised premises form a part, so that
in the event of any sale or sales of said land and building or of said lease, or
in the event of a lease of said building, or of the land and building, the said
Owner shall be and hereby is entirely freed and relieved of all covenants and
obligations of Owner hereunder, and it shall be deemed and construed without
further agreement between the parties or their successor in interest, or between
the parties and the purchaser, at any such sale, or the said lessee of the
building, or of the land and building, that the purchaser or the lessee of the
building has assumed and agreed to carry out any and all covenants and
obligations of Owner, hereunder. The words "re-enter" and "re-entry" as used in
this lease are not restricted to their technical legal meaning. The term
"business days" as used in this lease shall exclude Saturdays, Sundays and all
days as observed by the State or Federal Government as legal holidays and those
designated as holidays by the applicable building service union employees
service contract or by the applicable Operating Engineers contract with respect
to HVAC service. Wherever it is expressly provided in this lease that consent
shall not be unreasonably withheld, such consent shall not be unreasonably
delayed.
Adjacent Excavation-Shoring:
32. If an excavation shall be made upon land adjacent to the demised premises,
or shall be authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the demised premises
for the purpose of doing such work as said person shall deem necessary to
preserve the wall or the building of which demised premises form a part from
injury or damage and to support the same by proper foundations without any claim
for damages or indemnity against Owner, or diminution or abatement of rent.
Rules and Regulations:
33. Tenant and Tenant's servants, employees, agents, visitors, and licensees
shall observe faithfully, and comply strictly with, the Rules and Regulations
and such other and further reasonable 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 fifteen (15) days after the giving of notice thereof.
Nothing in this lease contained shall be construed to impose upon Owner any duty
or
11
obligation to enforce the Rules and Regulations or terms, covenants or
conditions in any other lease, as against any other tenant and Owner shall not
be liable to Tenant for violation of the same by any other tenant, its servants,
employees, agents, visitors or licensees.
Security:
34. Tenant has deposited with Owner the sum of $62,398.00 (the "Security
Deposit") 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:
35. Tenant, at any time, and from time to time, upon at least 10 days' prior
notice by Owner, shall execute, acknowledge and deliver to Owner, and/or to any
other person, firm or corporation specified by Owner, a statement certifying
that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications), stating the dates to which the rent and additional
rent have been paid, and stating whether or not there exists any default by
Owner under this Lease, and, if so, specifying each such default.
Successors and Assigns:
36. The covenants, conditions and agreements contained in this lease shall bind
and inure to the benefit of Owner and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this lease, their assigns. Tenant shall look only to Owner's estate
and interest in the land and building, for the satisfaction of Tenant's remedies
for the collection of a judgment (or other judicial process) against Owner in
the event of any default by Owner hereunder, and no other property or assets of
such Owner (or any partner, member, officer or director thereof, disclosed or
undisclosed), shall be subject to levy, execution or other enforcement procedure
for the satisfaction of Tenant's remedies under or with respect to this lease,
the relationship of Owner and Tenant hereunder, or Tenant's use and occupancy of
the demised premises.
12
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
XXXXXX TELEGRAPH ASSOCIATES
BY: PMFWH NEWCORP., INC., GENERAL PARTNER
Witness for Owner:
By:_______________________________
....................... NAME: Xxxx Xxxxxxx
TITLE: Vice President
STAR VENDING, INC. (dba Star Telecommunications, Inc.)
Witness for Tenant:
BY:___________________________________________________
NAME: Xxxx Xxxxx
....................... TITLE: President
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 instrument, as OWNER; that he knows the seal of said
corporation; 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.
....................................
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 TENANT; that he knows the seal of said
corporation; 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
On this day of , 19 , before me
personally came to be known and known to me to be the individual
described in and who, as OWNER, executed the foregoing instrument
and acknowledged to me that he executed the same.
....................................
INDIVIDUAL TENANT
STATE OF NEW YORK, SS.:
COUNTY OF
On this day of , 19 , before me
personally came to be known and known to me to be the
individual described in and who, as TENANT, executed the
foregoing instrument and acknowledged to me that he executed the same.
....................................
13
IMPORTANT - PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND
MADE A PART OF THIS LEASE
IN ACCORDANCE WITH ARTICLE 33.
1. The sidewalks, entrances, driveways, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by any
Tenant or used for any purpose other than for ingress or egress from the demised
premises and for delivery of merchandise and equipment in a prompt and efficient
manner using elevators and passageways designated for such delivery by Owner.
There shall not be used in any space, or in the public hall of the building,
either by any Tenant or by jobbers or others in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires and
sideguards. If said premises are situated on the ground floor of the building,
Tenant thereof shall further, at Tenant's expense, keep the sidewalk and curb in
front of said premises clean and free from ice, snow, dirt and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for any
purposes other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any window of
the building and no Tenant shall sweep or throw or permit to be swept or thrown
from the demised premises any dirt or other substances into any of the corridors
or halls, elevators, or out of the doors or windows or stairways of the building
and Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the demised premises, or permit or suffer the demised
premises to be occupied or used in a manner offensive or objectionable to Owner
or other occupants of the building by reason of noise, odors, and/or vibrations,
or interfere in any way with other Tenants or those having business therein, nor
shall any bicycles, vehicles, animals, fish, or birds be kept in or about the
building. Smoking or carrying lighted cigars or cigarettes in the elevators of
the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls of the
building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
demised premises or the building or on the inside of the demised premise if the
same is visible from the outside of the premises without the prior written
consent of Owner, except that the name of Tenant may appear on the entrance door
of the premises. In the event of the violation of the foregoing by any Tenant,
Owner may remove same without any liability, and may charge the expense incurred
by such removal to Tenant or Tenants violating this rule. Interior signs on
doors and directory tablet shall be inscribed, painted or affixed for each
Tenant by Owner at the expense of such Tenant, and shall be of a size, color and
style acceptable to Owner.
6. No Tenant shall xxxx, paint, drill into, or in any way deface any part of the
demised premises or the building of which they form a part. No boring, cutting
or stringing of wires shall be permitted, except with the prior written consent
of Owner, and as Owner may direct. No Tenant shall lay linoleum, or other
similar floor covering, so that the same shall come in direct contact with the
floor of the demised premises, and, if linoleum or other similar floor covering
is desired to be used an interlining of builder's deadening felt shall be first
affixed to the floor, by a paste or other material, soluble in water, the use of
cement or other similar adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any Tenant, nor shall any changes be made in existing locks
or mechanism thereof. Each Tenant must, upon the termination of his Tenancy,
restore to Owner all keys of stores, offices and toilet rooms, either furnished
to, or otherwise procured by, such Tenant, and in the event of the loss of any
keys, so furnished, such Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter of any
description shall be delivered to and removed from the premises only on the
freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease or which these Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited and each
Tenant shall cooperate to prevent the same.
10. Owner reserves the right to exclude from the building all persons who do not
present a pass to the building signed by Owner. Owner will furnish passes to
persons for whom any Tenant requests same in writing. Each Tenant shall be
responsible for all persons for whom he requests such pass and shall be liable
to Owner for all acts of such persons. Tenant shall not have a claim against
Owner by reason of Owner excluding from the building any person who does not
present such pass.
11. Owner shall have the right to prohibit any advertising by any Tenant which
in Owner's opinion, tends to impair the reputation of the building or its
desirability as a building for offices, and upon written notice from Owner,
Tenant shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the demised
premises, any inflammable,
14
combustible, explosive, or hazardous fluid, material, chemical or substance, or
cause or permit any odors of cooking or other processes, or any unusual or other
objectionable odors to permeate in or emanate from the demised premises.
13. If the building contains central air conditioning and ventilation, Tenant
agrees to keep all windows closed at all times and to abide by all rules and
regulations issued by Owner with respect to such services. If Tenant requires
air conditioning or ventilation after the usual hours, Tenant shall give notice
in writing to the building superintendent prior to 3:00 p.m. in the case of
services required on weekdays, and prior to 3:00 p.m. on the day prior in case
of after hours service required on weekends or on holidays. Tenant shall
cooperate with Owner in obtaining maximum effectiveness of the cooling system by
lowering and closing venetian blinds and/or drapes and curtains when the sun's
rays fall directly on the windows of the demised premises.
14. Tenant shall not move any safe, heavy machinery, heavy equipment, bulky
matter, or fixtures into or out of the building without Owner's prior written
consent. If such safe, machinery, equipment, bulky matter or fixtures requires
special handling, all work in connection therewith shall comply with the
Administrative Code of the City of New York and all other laws and regulations
applicable thereto and shall be done during such hours as Owner may designate.
15. Refuse and Trash. (1) Compliance by Tenant. Tenant covenants and agrees, at
its sole cost and expense, to comply with all present and future laws, orders,
and regulations of all state, federal, municipal, and local governments,
departments, commissions and boards regarding the collection, sorting,
separation and recycling of waste products, garbage, refuse and trash. Tenant
shall sort and separate such waste products, garbage, refuse and trash into such
categories as provided by law. Each separately sorted category of waste
products, garbage, refuse and trash shall be placed in separate receptacles
reasonably approved by Owner. Such separate receptacles may, at Owner's option,
be removed from the demised premises in accordance with a collection schedule
prescribed by law. Tenant shall remove, or cause to be removed by a contractor
acceptable to Owner, at Owner's sole discretion, such items as Owner may
expressly designate. (2) Owner's Rights in Event on Noncompliance. Owner has the
option to refuse to collect or accept from Tenant waste products, garbage,
refuse or trash (a) that is not separated and sorted as required by law or (b)
which consists of such items as Owner may expressly designate for Tenant's
removal, and to require Tenant to arrange for such collection at Tenant's sole
cost and expense, utilizing a contractor satisfactory to Owner. Tenant shall pay
all costs, expenses, fines, penalties, or damages that may be imposed on Owner
or Tenant by reason of Tenant's failure to comply with the provisions of this
Building Rule 15, and, at Tenant's sole cost and expense, shall indemnity,
defend and hold Owner harmless (including reasonable legal fees and expenses)
from and against any actions, claims and suits arising from such noncompliance,
utilizing counsel reasonably satisfactory to Owner.
15
RIDER TO LEASE DATED AS OF FEB. 28, 1996 BETWEEN
XXXXXX TELEGRAPH ASSOCIATES, AS LANDLORD, AND
STAR VENDING, INC., AS TENANT
If and to the extent that any of the provisions of this rider conflict
or are otherwise inconsistent with any of the printed provisions of this lease,
whether or not such inconsistency is expressly noted in this rider, the
provisions of this rider shall prevail.
37. Definitions
The following terms contained in this Article 37 shall have the
meanings hereinafter set forth as such terms are used throughout this lease,
including the exhibits, schedules and riders hereto (if any).
(A) "Base Tax Year" shall mean the calendar year 1996.
(B) "Base Year Taxes" shall mean the Real Estate Taxes as finally
determined for the Base Tax Year (to wit, the average of the
Real Estate Taxes as finally determined for the July 1, 1995 -
June 30, 1996 and July 1, 1996 - June 30, 1997 tax fiscal
years).
(C) "Subsequent Tax Year" shall mean any tax fiscal year
commencing on or after July 1, 1996.
(D) "Tenant's Proportionate Share" shall mean 0.94%.
(E) "Base Operating Expenses" shall mean the Operating Expenses
incurred for 1996.
(F) "Operational Year" shall mean each calendar year during the
Term commencing with 1997.
(G) "Broker" shall mean, collectively, Xxxxxxxx Real Estate Co.
Inc. and Xxxxxxx & Xxxxxxxxx, Inc.
(H) "Rent Commencement Date" shall mean May 1, 1996.
38. Rental Payments
(A) All payments other than Fixed Rent to be made by Tenant pursuant to
this lease shall be deemed additional rent and, in the event of any non-payment
thereof, Landlord shall have all rights and remedies provided for herein or by
law for non-payment of rent.
(B) All payments of Fixed Rent and additional rent (collectively,
"rent" or "rental") to be made by Tenant pursuant to this lease shall be made by
checks drawn upon a New York City bank which is a member of the New York
Clearing House Association or any successor thereto.
(C) If Landlord receives from Tenant any payment less than the sum of
the Fixed Rent and additional rent then due and owing pursuant to this lease,
Tenant hereby waives its right, if any, to
16
designate the items to which such payment shall be applied and agrees that
Landlord in its sole discretion may apply such payment in whole or in part to
any Fixed Rent, any additional rent or to any combination thereof then due and
payable hereunder.
(D) Unless Landlord shall otherwise expressly agree in writing,
acceptance of Fixed Rent or additional rent from anyone other than Tenant shall
not relieve Tenant of any of its obligations under this lease, including the
obligation to pay Fixed Rent and additional rent, and Landlord shall have the
right at any time, upon notice to Tenant, to require Tenant to pay the Fixed
Rent and additional rent payable hereunder directly to Landlord. Furthermore,
such acceptance of Fixed Rent or additional rent shall not be deemed to
constitute Landlord's consent to an assignment of this lease or a subletting or
other occupancy of the demised premises by anyone other than Tenant, nor a
waiver of any of Landlord's rights or Tenant's obligations under this lease.
(E) Landlord's failure to timely xxxx all or any portion of any amount
payable pursuant to this lease for any period during the Term shall neither
constitute a waiver of Landlord's right to ultimately collect such amount or to
xxxx Tenant at any subsequent time retroactively for the entire amount so
unbilled, which previously unbilled amount shall be payable within thirty (30)
days after being so billed.
39. Tax Escalation
(A) For purposes of this lease, "Real Estate Taxes" shall mean all the
real estate taxes and assessments imposed by any governmental authority having
jurisdiction upon the Building and land upon which it is located ("Land")
(including specifically, but without limitation, so-called "BID" taxes) or any
tax or assessment hereafter imposed in whole or in part in substitution for such
real estate taxes and/or assessments.
(B) If the Real Estate Taxes for any Subsequent Tax Year during the
Term exceed the Base Year Taxes (as initially imposed, if not finally determined
when a payment is due pursuant to this Section (B)), Tenant shall pay Landlord
Tenant's Proportionate Share of such excess within fifteen (15) days after
Landlord shall furnish to Tenant a statement (the "Tax Statement") setting forth
the amount thereby due and payable by Tenant. If Real Estate Taxes are payable
by Landlord to the applicable taxing authority in installments, then Landlord
shall xxxx Tenant for Tenant's Proportionate Share of increased Real Estate
Taxes in corresponding installments, such that Tenant's payment is due and not
more than fifteen (15) days prior to the date when Landlord is obligated to pay
the Real Estate Taxes to the applicable taxing authority. If the actual amount
of Real Estate Taxes is not known to Landlord as of the date of Landlord's Tax
Statement, then Landlord may nevertheless xxxx Tenant for such installment on
the basis of a good faith estimate, in which event Tenant shall pay the amount
so estimated within fifteen (15) days after receipt of such xxxx, subject to
prompt refund by Landlord, or payment by Tenant, upon a supplemental billing by
Landlord once the amount actually owed by Tenant is determined. Upon Tenant's
request, Landlord shall provide Tenant with a copy of the current tax xxxx used
in the preparation of the Tax Statement.
(C) If the Base Year Taxes ultimately are reduced to less than the Real
Estate Taxes initially imposed upon the Land and the Building for the Base Tax
Year, Tenant shall pay Landlord, promptly
17
upon demand, any additional amount thereby payable pursuant to Section (B) for
all applicable Subsequent Tax Years.
(D) If Landlord receives any refund of Real Estate Taxes for any
Subsequent Tax Year for which Tenant has made a payment pursuant hereto,
Landlord shall (after deducting from such refund all expenses incurred in
connection therewith) pay Tenant, if not in default hereunder, Tenant's
Proportionate Share of the net refund. Tenant shall pay Landlord Tenant's
Proportionate Share of the costs and expenses of any nature (including, without
limitation, consulting, appraisal and legal fees) incurred by Landlord in
connection with any tax protest or other proceeding or arrangement leading or
intending to lead to a reduction in Real Estate Taxes.
(E) If any Subsequent Tax Year is only partially within the Term, all
payments pursuant hereto shall be appropriately prorated, based on the portion
of the Subsequent Tax Year which is within the Term. Except as limited by
Articles 9 and 10: (1) Tenant's obligation to make the payments required by
Sections (B), (C) and (D) shall survive the Expiration Date or any sooner
termination of this lease; and (2) Landlord's obligation to make the payments
required by Section (D) shall survive the Expiration Date or any sooner
termination of this lease pursuant to Articles 9 and 10.
(F) Each Tax Statement given by Landlord pursuant to Section (B) shall
be binding upon Tenant unless, within thirty (30) days after its receipt of such
Tax Statement, Tenant notifies Landlord of its disagreement therewith,
specifying the portion thereof with which Tenant disagrees. Pending resolution
of such dispute, Tenant shall, without prejudice to its rights, pay all amounts
determined by Landlord to be due, subject to prompt refund by Landlord (without
interest) upon any contrary determination.
40. Operating Expense Escalation
(A) For all purposes of this lease, "Operating Expenses" shall mean all
costs and expenses incurred by Landlord, on an accrual basis, for the operation,
cleaning and maintenance of the Building and its plazas, garage, sidewalks and
curbs (collectively, "Landlord's Property"), including all expenses incurred as
a result of Landlord's compliance with any of its obligations hereunder, and
shall include the following items (without limitation):
(1) salaries, wages, medical, surgical and general welfare
benefits (including group life and medical insurance) and pension payments,
payroll taxes, worker's compensation, union benefits paid by employer,
unemployment insurance, social security and other similar taxes of or with
respect to employees of Landlord and/or independent contractors engaged in
operation and maintenance;
(2) payments made to independent contractors for maintenance,
cleaning and/or operation;
(3) the cost of uniforms, including dry cleaning thereof, for
employees;
(4) the cost of all gas, steam, heat, ventilation, air
conditioning and water (including sewer rental), together with any taxes
thereon;
18
(5) the cost of all rent, casualty, war risk (if obtainable),
liability, excess liability, property damage, indemnification, plate glass,
multi-risk and other insurance covering Landlord and/or all or any portion of
Landlord's Property;
(6) the cost of all supplies (including cleaning supplies),
tools, materials and equipment;
(7) the cost of all charges to Landlord for electricity
consumed for the public areas of the Building and Building systems and
equipment, together with any taxes thereon;
(8) repairs or replacements made by Landlord, at its expense;
(9) straight line depreciation or amortization (including
interest at the rate of two percent (2%) in excess of the "prime rate" or "base
rate" of Citibank, N.A. at the time such expenditure is made) over a ten (10)
year period of any expenditure for a capital improvement which is intended to
result in a reduction of Operating Expenses;
(10) management fees;
(11) vault, sales, use and frontage taxes;
(12) dues and fees for trade and industry associations and
costs of their related activities, all relating to Landlord's Property;
(13) Building and home-office administrative costs and
expenses for bookkeeping and telephone;
(14) attorney's fees and fees paid to other professionals for
services rendered in connection with the maintenance and/or operation of
Landlord's Property;
(15) costs and expenses incurred by Landlord in connection
with compliance with any law, rule, order, ordinance, regulation or requirement
of any governmental authority having or asserting jurisdiction or any order,
rule, requirement or regulation of any utility company, insurer of Landlord or
the Board of Fire Underwriters (or successor organization) (collectively,
"Laws"); and
(16) all other costs and expenses incurred by Landlord for
operation and maintenance of Landlord's Property which are customary for similar
buildings in New York City.
(B) In determining the amount of the Base Operating Expenses or the
Operating Expenses for any Operational Year, if less than ninety-five percent
(95%) of the office portion of the Building shall have been occupied by tenants
at any time during any such year, the Base Operating Expenses or the Operating
Expenses for any such Operational Year shall be adjusted to an amount equal to
the like expenses which would normally be expected to have been incurred had the
occupancy of the office portion of the Building been ninety-five percent (95%)
throughout the applicable year.
(C) If Landlord is not furnishing any particular work or service (the
cost of which if performed by Landlord would constitute an Operating Expense) to
a tenant who has undertaken to
19
perform such work or service in lieu of the performance thereof by Landlord, the
Operating Expenses for each Operational Year during which such situation exists
shall be increased by an amount equal to the additional Operating Expense which
reasonably would have been incurred during such period by Landlord if it had at
its own expense furnished such service or services to such tenant.
(D) In any Operational Year in which Operating Expenses exceed Base
Operating Expenses, Tenant shall pay to Landlord Tenant's Proportionate Share of
such excess.
(E) During or after the first Operational Year, Landlord shall forward
Tenant an itemized statement prepared by Landlord's accountants ("Operating
Statement") of the Base Operating Expenses. Thereafter, during each succeeding
Operational Year during the Term, Landlord shall forward to Tenant an Operating
Statement of the Operating Expenses for the prior Operational Year and a
computation of the amount payable by Tenant pursuant to this Article for such
Operational Year.
(F) With each installment of Fixed Rent payable during the first
Operational Year, Tenant shall pay Landlord the monthly sum of $200 on account
of the amount due pursuant to this Article for such Operational Year.
(G) With each installment of Fixed Rent payable during the Term during
and after the second Operational Year, Tenant shall pay to Landlord on account
of the amount payable pursuant to this Article for the then Operational Year:
(1) until Landlord forwards the applicable Operating Statement
for the preceding Operational Year, the amount of the monthly payment due during
December of such Operational Year; and
(2) after Landlord forwards the applicable Operating Statement
for the preceding Operational Year, one-twelfth (1/12th) of 110% of the amount
payable pursuant to this Article for such preceding Operational Year.
(H) Once Landlord forwards the applicable Operating Statement for the
preceding Operational Year, Landlord and/or Tenant, as the case may be, promptly
shall make appropriate payment to the other (without interest) of any amount
overpaid by Tenant or owing to Landlord for such Operational Year based on the
amount due pursuant to such Operating Statement and amounts theretofore paid by
Tenant for such preceding Operational Year.
(I) The parties' obligation to make any payment pursuant to this
Article shall survive the Expiration Date or any sooner termination of this
lease and shall be appropriately prorated for any Operational Year which is only
partially within the Term.
(J) Each Operating Statement given by Landlord pursuant to Section (E)
shall be binding upon Tenant unless, within thirty (30) days after its receipt
of such Operating Statement, Tenant notifies Landlord of its disagreement
therewith, specifying the portion thereof with which Tenant disagrees. Pending
resolution of such dispute, Tenant shall, without prejudice to its rights, pay
all amounts determined by Landlord to be due, subject to prompt refund by
Landlord (without interest) upon any contrary determination.
20
41. Abatement and Adjustments of Fixed Rent
Anything herein to the contrary notwithstanding:
(A) Provided this lease shall be in full force and effect and Tenant
shall not be in default hereunder beyond any applicable notice and grace period,
the Fixed Rent shall xxxxx from the Commencement Date through the date that is
one day prior to the Rent Commencement Date; and
(B) Effective on May 1, 2001, the Fixed Rent shall be increased to
$182,206 per annum.
42. Electricity
(A) Landlord shall (subject to the provisions of this Article and the
other applicable provisions of this lease) furnish ten (10) xxxxx per rentable
square foot of electric current at 120/208 volts, three phase, at an end box in
the demised premises. Any additional current required by Tenant shall, if
available, be provided by Landlord (at 120/208 volts, three phase) to a location
designated by Landlord at a cost of $250.00 per amp if provided during the
twelve (12) month period after the date hereof, and if later provided, then at
Landlord's standard charge. In bringing such current from such designated
location to the premises, and in performing any other work affecting or
involving the Building electrical infrastructure, Tenant shall use only such
electrical contractors as are specified on Exhibit C. If at any time during the
Term, whether before or after Tenant's power is increased or decreased, Landlord
reasonably determines that Tenant is not using any portion of the electric
capacity then servicing the demised premises, then Landlord shall have the right
to recapture any such power not then being used by Tenant without compensation
to Tenant. (If Landlord recaptures a portion of Tenant's original ten (10) xxxxx
per rentable square foot, and at a later date Landlord provides Tenant with
additional current, Tenant shall only be required to pay the per amp charge for
total current in excess of ten (10) xxxxx per rentable square foot.) Tenant's
consumption of electrical energy at the demised premises shall be measured by
submeters installed by Landlord at Tenant's expense with reasonable diligence
after the Commencement Date.
(B) (1) From and after the Commencement Date, Tenant shall
purchase all electric current consumed in or in connection with the demised
premises from Landlord or Landlord's designated agent and pay therefor an amount
equal to 105% of Landlord's Average Cost (as hereinafter defined) applied to all
electricity consumed in or in connection with the demised premises during the
applicable billing period, as measured by the submeters in the demised premises.
(2) "Landlord's Average Cost" for all purposes of this lease
shall be determined by dividing (y) the total dollar amount billed to Landlord
for the Building by the public utility company providing electric current to the
Building (the "Utility Company") for the relevant billing period (including,
without limitation, all charges for "demand," fuel, "on-peak" and "off-peak"
usage, "time of day" usage and any and all other relevant adjustments and
charges) by (z) the total kilowatt hours utilized by the Building for such
billing period.
(C) Where more than one submeter measures Tenant's consumption of
electricity, the service rendered through each submeter may be computed and
billed separately in accordance with the
21
provisions hereof. Bills therefor shall be rendered at such times as Landlord
may elect and shall be payable on demand as additional rent.
(D) Landlord shall not in any way be liable or responsible to Tenant
for any loss, 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. Tenant's use of electric current shall
never exceed the capacity of existing feeders or risers to, or wiring
installations in, the Building and the demised premises. Any riser or risers to
supply Tenant's electrical requirements will, upon written request of Tenant, be
installed by Landlord at the sole cost and expense of Tenant if, in Landlord's
reasonable judgment, the same are necessary and will not cause adverse damage or
injury to the Building or the operation thereof or the demised premises, cause
or create a dangerous or hazardous condition, entail excessive or unreasonable
alterations, repairs or expense or interfere with or disturb other tenants or
occupants. In addition to the installation of such riser or risers, Landlord
will also, at the sole cost and expense of Tenant, install all other equipment
proper and necessary in connection therewith, subject to the aforesaid terms and
conditions. All of such costs and expense shall be paid by Tenant to Landlord
within fifteen (15) days after rendition of any xxxx or statement to Tenant
therefor.
(E) Landlord may discontinue such service of electric current upon
sixty (60) days notice to Tenant without being liable to Tenant therefor or
without in any way affecting this lease or the liability of Tenant hereunder or
causing a diminution of Fixed Rent. Such discontinuance shall not be deemed to
be a lessening or diminution of service within the meaning of any law, rule or
regulation now or hereafter enacted, promulgated or issued. In the event
Landlord gives such notice of discontinuance, Landlord shall permit Tenant to
receive such service direct from the Utility Company, in which event Tenant
shall, at its own cost and expense, furnish and install all risers, service
wiring, switches and other equipment necessary for such installation and
required by the Utility Company and, at its own cost and expense, maintain and
keep in good repair all such risers, wiring, switches and equipment.
(F) Tenant shall make no alterations or additions to the electric
equipment and/or appliances presently installed in the demised premises without
the prior written consent of Landlord in each instance. Rigid conduit only will
be allowed.
(G) If any tax is imposed upon Landlord's receipt from the sale or
resale of electric energy to Tenant by any federal, state or municipal
authority, where permitted by law, Tenant's pro-rata share of such taxes shall
be paid by Tenant to Landlord.
(H) Anything in Section (B) to the contrary notwithstanding, if the
Commencement Date shall occur prior to the installation and proper calibration
of the submeters, then Tenant shall pay Landlord for Tenant's consumption of
electricity in the demised premises at the rate of $990 per month during any
period when construction is taking place in the demised premises or at the rate
of $1981 per month from and after the date on which Tenant occupies all or a
portion of the demised premises for the conduct of business. In addition, if
during any time during the Term, it shall be determined that the submeters
servicing the demised premises were malfunctioning, Tenant shall pay Landlord an
amount reasonably estimated by Landlord's electrical consultant to be the amount
that would have been payable by Tenant had such malfunction not occurred.
22
43. Restriction on Use
(A) Anything in Article 2 to the contrary notwithstanding, Tenant shall
not use or permit all or any part of the demised premises to be used for the:
(1) storage for purpose of sale of any alcoholic beverage in the demised
premises; (2) storage for retail sale of any product or material in the demised
premises; (3) conduct of a manufacturing, printing or electronic data processing
business, except that Tenant may operate business office reproducing equipment,
electronic data processing equipment and other business machines for Tenant's
own requirements and those with which it has a co-location agreement as provided
in Section 44 (M) (but shall not permit the use of any such equipment by or for
the benefit of any party other than Tenant and those with which it has
co-location agreements as provided in Section 44 (M)); (4) rendition of any
health or related services, conduct of a school or conduct of any business which
results in the presence of the general public in the demised premises; (5)
conduct of the business of an employment agency or executive search firm; (6)
conduct of any public auction, gathering, meeting or exhibition; (7) conduct of
a stock brokerage office or business; or (8) occupancy of a foreign, United
States, state, municipal or other governmental or quasi-governmental body,
agency or department or any authority or other entity which is affiliated
therewith or controlled thereby.
(B) Tenant shall not use or permit all or any part of the demised
premises to be used so as to impair the Building's character or dignity or
impose any additional burden upon Landlord in its operation.
(C) Tenant shall not obtain or accept for use in the demised premises
ice, drinking water, food, beverage, towel, barbering, boot blacking, floor
polishing, lighting maintenance, cleaning or other similar services from any
party not theretofore approved by Landlord (which party's charges shall not be
excessive). Such services shall be furnished only at such hours, in such places
within the demised premises and pursuant to such regulations as Landlord
prescribes.
44. Assignment, Etc.
Supplementing Article 11:
(A) Tenant shall neither: (i) publicly advertise for and/or assign,
sublet or permit the occupancy of all or any part of the demised premises at a
rental rate less than the rental rate at which Landlord is then offering to
lease comparable space in the Building; or (ii) assign this lease to or sublet
to or permit the occupancy of all or any part of the demised premises by any
other party which is then a tenant, subtenant, licensee or occupant of any space
in the Building within the twelve (12) month period preceding the date of
Landlord's receipt of Tenant's Notice pursuant to Section (B) (nor shall Tenant
accept an assignment of a lease or sublet space from any tenant, subtenant,
licensee or occupant of any space in the Building). Tenant shall designate
Xxxxxxxx Real Estate Co. Inc. (or the then rental agent for the Building) as its
exclusive agent in connection with any subletting of all or any part of the
premises or any assignment of this lease.
(B) If Tenant wishes to assign this lease (a transfer of more than a
fifty percent (50%) beneficial interest in Tenant, whether such transfer occurs
at one time, or in a series of related transactions, and whether of stock,
partnership interest or otherwise, by any party in interest being
23
deemed an assignment of this lease), sublet all or any part of the demised
premises or permit the demised premises to be occupied by any other party,
Tenant shall so notify Landlord ("Tenant's Notice"), specifying the name of the
proposed assignee, subtenant or occupant, the nature and character of its
business and the terms of the proposed assignment, sublease or occupancy, and
providing a fully executed counterpart of the assignment, sublease, occupancy
agreement and/or other applicable documents consummating the transaction as well
as current information as to the financial responsibility and standing of the
proposed assignee, sublessee or occupant and Tenant shall also provide Landlord
with such other information as it reasonably requests. If only a portion of the
demised premises (not constituting an entire floor of the Building) is to be so
sublet or occupied, Tenant's Notice shall be accompanied by a reasonably
accurate floor plan, indicating such portion. The portion of the demised
premises to which such proposed assignment, sublease or occupancy is to be
applicable is hereinafter referred to as the "Space."
(C) With reasonable promptness after receipt of the required items as
specified in Section (B), Landlord shall notify Tenant as to whether or not it
consents to the transaction reflected therein. Landlord agrees that it will not
unreasonably withhold such consent.
(D) Anything herein to the contrary notwithstanding, Tenant may not
assign this lease or sublet all or any part of the demised premises prior to the
expiration of the first year of the Term.
(E) No assignment of this lease shall be effective unless and until
Tenant delivers to Landlord duplicate originals of the instrument of assignment
(wherein the assignee assumes the performance of Tenant's obligations under this
lease) and any accompanying documents.
(F) In the event of any such assignment, Landlord and the assignee may
modify this lease in any manner, without notice to Tenant or Tenant's prior
consent, without thereby terminating Tenant's liability for the performance of
its obligations under this lease, except that any such modification which, in
any way, increases any of such obligations shall not, to the extent of such
increase only, be binding upon Tenant.
(G) No sublease of all or any party of the demised premises (except a
Sublease) shall be effective unless and until Tenant delivers to Landlord
duplicate originals of the instrument of sublease (containing the provision
required by Section (H)) and any accompanying documents. Any such sublease shall
be subject and subordinate to this lease.
(H) Any such sublease shall contain substantially the following
provisions:
(1) "In the event of a default under any underlying lease of
all or any portion of the premises demised hereby which results in the
termination of such lease, the subtenant hereunder shall, at the option of the
lessor under any such lease ("Underlying Lessor"), attorn to and recognize the
Underlying Lessor as landlord hereunder and shall, promptly upon the Underlying
Lessor's request, execute and deliver all instruments necessary or appropriate
to confirm such attornment and recognition. Notwithstanding such attornment and
recognition, the Underlying Lessor shall not (a) be liable for any previous act
or omission of the landlord under this sublease, (b) be subject to any offset,
not expressly provided for in this sublease, which shall have accrued to the
subtenant hereunder against said landlord, or (c) be bound by any modification
of this sublease or by any prepayment of more than
24
one month's rent, unless such modification or prepayment shall have been
previously approved in writing by the Underlying Lessor. The subtenant hereunder
hereby waives all rights under any present or future law to elect, by reason of
the termination of such underlying lease, to terminate this sublease or
surrender possession of the premises demised hereby.
(2) This sublease may not be assigned or the premises demised
hereunder further sublet, in whole or in part, without the prior written consent
of the Underlying Lessor."
(I) No assignment or sublease, whether or not consented to by Landlord
and whether or not any such consent is required, shall release Tenant from its
liability for the performance of Tenant's obligations hereunder during the
balance of the Term. Landlord's consent to any assignment or sublease shall not
constitute its consent to any (i) further assignment of this lease or of any
permitted sublease or (ii) further sublease of all or any portion of the
premises demised hereunder or under any permitted sublease. If a sublease to
which Landlord has consented is assigned or all or any portion of the premises
demised thereunder is sublet without the consent of Landlord in each instance
obtained, Tenant shall immediately terminate such sublease, or arrange for the
termination thereof, and proceed expeditiously to have the occupant thereunder
dispossessed.
(J) Tenant shall pay to Landlord, promptly upon demand therefor, all
costs and expenses (including, without limitation, reasonable attorneys' fees
and disbursements) incurred by Landlord in connection with any assignment of
this lease or sublease of all or any part of the demised premises.
(K) If Landlord shall give its consent to any assignment of this lease
or to any sublease or if Tenant shall otherwise enter into any assignment or
sublease permitted hereunder, Tenant shall in consideration therefor, pay to
Landlord, as and when payable to Tenant:
(1) in the case of an assignment, fifty (50%) percent of all
sums and other considerations paid to Tenant by the assignee for or by reason of
such assignment (including, but not limited to, sums paid for the sale of
Tenant's fixtures, leasehold improvements, equipment, furniture, furnishings or
other personal property); and
(2) in the case of a sublease, fifty (50%) percent of the
amount, if any, by which (i) any rents, additional charges or other
consideration payable under the sublease to Tenant by the subtenant (including,
but not limited to, sums paid for the sale or rental of Tenant's fixtures,
leasehold improvements, equipment, furniture or other personal property) exceeds
(ii) the Fixed Rent and additional rent accruing during the term of the sublease
in respect of the Space (at the rate per square foot payable by Tenant
hereunder) pursuant to the terms of this lease.
(L) Notwithstanding the foregoing, Tenant shall not be required to
obtain Landlord's consent to, and Sections (A), (B), (C), (D) and (K) of this
Article shall not apply to, any sublease or assignment from Tenant to any party
controlling, controlled by or under common control with Tenant ("control" and
its variants meaning ownership of more than 50% of the equity interests in the
party in question).
(M) Landlord acknowledges that the business to be conducted by Tenant
on the demised premises requires the installation of certain communications
equipment owned by customers of Tenant
25
on the demised premises, in order for such customers to interconnect with
Tenant's terminal facilities. Landlord expressly agrees that Tenant may license
the use of portions of the demised premises to its customers solely for the
purpose of locating equipment therein without Landlord's further consent;
provided, however, that such license shall be granted only upon the execution by
Tenant and its customers of an agreement that expressly provides that (i) such
license and the rights of such licensee shall at all times be subordinate to
this lease and shall not be binding on Landlord; (ii) such license will expire
no later than the day prior to the expiration or earlier termination of this
lease; and (iii) such license shall be for equipment only and shall not grant to
the licensee the right to occupy any portion of the Building or the demised
premises.
(N) Anything in Article 11 or this Article 44 notwithstanding, subject
to all applicable provisions of this lease (including, without limitation,
Articles 2 and 00 xxx Xxxxxxxx (X)(x), (X), (X), (X), (X), (X), (X) and (M) of
this Article 44, but not including Sections (A)(ii), (B), (C), (D) or (K) of
this Article 44), Landlord's consent shall not be required to (x) Tenant's
assignment of this lease to any purchaser of all or substantially all of
Tenant's assets, (y) an acquisition of more than a fifty (50%) percent interest
in Tenant's stock or partnership interests, or (z) an assignment of this lease
to any corporation which is a successor to Tenant either by merger or
consolidation, provided that in any of such events (a) such purchaser, acquiring
party or successors to Tenant has a combined net worth and/or equity, computed
in accordance with generally accepted accounting principles, consistently
applied, at least equal to that of Tenant immediately preceding such
transaction, and (b) proof reasonably satisfactory to Landlord of such net worth
and/or equity shall have been delivered to Landlord at least ten (10) days prior
to the effective date of any such transaction.
45. Brokerage
Tenant represents that it dealt only with the Broker as broker in
connection with this lease and Landlord shall pay the Broker's commission
therefor pursuant to separate agreement. Tenant shall indemnify Landlord against
all loss, damage, liability, cost and expense (including reasonable attorney's
fees) pertaining to any other brokerage commission or like compensation which is
based on alleged actions of Tenant or its agents or representatives. Tenant's
liability hereunder shall survive any expiration or termination of this lease.
46. Building Directory
(A) Landlord shall, upon Tenant's request, list on the Building's
directory ("Directory"), the names of Tenant, any other party occupying any part
of the demised premises pursuant hereto and their officers or employees,
provided the number of Directory lines so provided by Landlord does not exceed
Tenant's Proportionate Share of the Directory's capacity.
(B) The listing of any party's name other than Tenant's shall neither
grant such party any right or interest in this lease and/or the demised premises
nor constitute Landlord's consent to any assignment or sublease to or occupancy
by such party. Such listing may be terminated by Landlord at any time, without
prior notice. The initial listing(s) on the Directory shall be provided by
Landlord without charge to Tenant. Thereafter, Tenant shall pay Landlord's
standard fee for any work performed in connection with any additions, deletions
or changes to the Directory.
26
47. Exculpatory Clause
(A) Anything herein to the contrary notwithstanding, the liability of
Landlord and the partners of, or any other party which holds any interest in,
Landlord for negligence, failure to perform lease obligations or otherwise under
or in connection with this lease shall be limited to each of their respective
interests in the Land and Building. Tenant shall neither seek to enforce nor
enforce any judgment or other remedy against any other asset of Landlord, any
partner of Landlord or any party that holds any interest in Landlord.
(B) In any claim made by Tenant against Landlord alleging that Landlord
has acted unreasonably where Landlord had an obligation to act reasonably,
Tenant shall have no right to recover damages from Landlord and Tenant's sole
and exclusive recourse against Landlord shall be an action seeking specific
performance of Landlord's obligation to act reasonably; provided, however, that
Tenant's rights shall not be so limited (except to the extent provided in
Section (A)) in the event that Tenant claims that Landlord acted in bad faith.
48. Submission to Jurisdiction, Etc.
(A) This lease shall be deemed to have been made in New York County,
New York, and shall be construed in accordance with the laws of the State of New
York. All actions or proceedings relating, directly or indirectly, to this lease
shall be litigated only in courts located within the County of New York. Tenant,
any guarantor of the performance of its obligations hereunder ("Guarantor") and
their respective successors and assigns hereby subject themselves to the
jurisdiction of any state or federal court located within such county, waive the
personal service of any process upon them in any action or proceeding therein
and consent that such process may be served by certified or registered mail,
return receipt requested, directed to Tenant and any successor at Tenant's
address hereinabove set forth, to Guarantor and any successor at the address set
forth in the instrument of guaranty and to any assignee at the address set forth
in the instrument of assignment. Such service shall be deemed made two days
after such process is so mailed.
(B) Whenever any default, request, action or inaction by Tenant causes
Landlord to incur attorneys' fees and/or any other costs or expenses, Tenant
agrees that is shall pay and/or reimburse Landlord for such fees, costs or
expenses within ten (10) days after being billed therefor.
(C) If any monies owing by Tenant under this lease are paid more than
fifteen (15) days after the date such monies are payable pursuant to the
provisions of this lease, Tenant shall pay Landlord interest thereon, at the
then maximum lawful rate, for the period from the date such monies are paid.
(D) The submission of this lease to Tenant shall not constitute an
offer by Landlord to execute and exchange a lease with Tenant and is made
subject to Landlord's acceptance, execution and delivery thereof.
27
49. Requests by Mortgagee or Others
(A) If any present or prospective mortgagee of the Land, Building or
any leasehold interest therein requires, as a condition precedent to issuing or
extending its loan, the modification of this lease in such manner as does not
materially lessen Tenant's rights or increase its obligations hereunder, Tenant
shall not delay or withhold its consent to such modification and shall execute
and deliver such confirming documents therefor as such mortgagee requires.
(B) If Landlord, in conjunction with any proposed sale or mortgaging of
all or any portion of the Land and Building or any leasehold interest therein,
requests the delivery of certified financial statements or other information
relating to the financial condition of Tenant, Tenant shall deliver such
certified financial statements or such other information within ten (10) days
after Landlord's written request therefor.
50. Delivery of Demised Premises
(A) Supplementing Article 21, the demised premises shall be leased to
Tenant in their "as is" condition on the Commencement Date (but broom clean) and
Landlord shall not be required to perform any work to prepare the demised
premises for Tenant's occupancy except that, with reasonable diligence after the
Commencement Date, Landlord will perform at Landlord's expense the "Landlord's
Work" hereinafter set forth. The taking of possession of the demised premises by
Tenant shall be conclusive evidence as against Tenant that, at the time such
possession was so taken, the demised premises and the Building were in good and
satisfactory condition, subject to substantial completion of the Landlord's
Work.
(B) The "Landlord's Work" shall consist of the following, which shall,
where applicable, be performed in a Building Standard manner:
(1) Provide the ten (10) xxxxx per rentable square foot of
electric current as set forth in Section 42(A).
(2) Construct a Building Standard demising wall and entrance
door.
(3) Replace window panes that are broken on the Commencement
Date.
(4) Comply with Article 63(B).
51. Insurance
During the Term, Tenant shall pay for and keep in force general
liability policies in standard form protecting against any and all liability
occasioned by accident or occurrence, subject to customary exclusions, such
policies to be written by recognized and well-rated insurance companies
authorized to transact business in the State of New York. The minimum limits of
liability shall be a combined single limit with respect to each occurrence in an
amount of not less than $3,000,000 for injury (or death) and damage to property.
If at any time during the Term it appears that public liability or property
damage limits in the City of New York for buildings similarly situated, due
regard being given to the use and
28
occupancy thereof, are higher than the foregoing limits, then Tenant shall
increase the foregoing limits accordingly. Landlord shall be named as an
additional insured in the aforesaid insurance policies and the policies shall
provide that Landlord shall be afforded not less than thirty (30) days prior
notice of cancellation of said insurance. Tenant shall deliver certificates of
insurance evidencing such policies. All premiums and charges for the aforesaid
insurance shall be paid by Tenant. If Tenant shall fail to make such payment
when due, Landlord may make it and the amount thereof shall be repaid to
Landlord by Tenant on demand and the amount thereof may, at the option of
Landlord, be added to and become a part of the additional rent payable
hereunder. Tenant shall not violate or permit to be violated any condition of
any of said policies and Tenant shall perform and satisfy the requirements of
the companies writing such policies.
52. Bankruptcy
Without limiting any of the provisions of Articles 16, 17 or 18 hereof,
if, pursuant to the Bankruptcy Code of 1978, as the same may be amended, Tenant
is permitted to assign this lease in disregard of the obligations contained in
Articles 11 and 44 hereof, Tenant agrees that adequate assurance of future
performance by the assignee permitted under such Code shall mean the deposit of
cash security with Landlord in an amount equal to the sum of one year's Fixed
Rent then reserved hereunder plus an amount equal to all additional rent payable
under this lease for the calendar year preceding the year in which such
assignment is intended to become effective, which deposit shall be held by
Landlord, without interest, for the balance of the Term as security for the full
and faithful performance of all of the obligations under this lease on the part
of Tenant yet to be performed. If Tenant receives or is to receive any valuable
consideration for such an assignment of this lease, such consideration, after
deducting therefrom (A) the brokerage commissions, if any, and other expenses
reasonably incurred by Tenant for such assignment and (B) any portion of such
consideration reasonably designated by the assignee as paid for the purchase of
Tenant's property in the demised premises, shall be and become the sole and
exclusive property of the Landlord and shall be paid over to Landlord directly
by such assignee. In addition, adequate assurance shall mean that any such
assignee of this lease shall have a net worth, exclusive of good will, equal to
at least fifteen (15) times the aggregate of the Fixed Rent reserved hereunder
plus all additional rent for the preceding calendar year as aforesaid.
53. Local Law 5/Required Alterations
Supplementing Article 6:
(A) All work performed or installations made by Tenant (or by Landlord
at Tenant's request and expense) in and to the demised premises shall be done in
a fashion such that the demised premises and the Building shall be in compliance
with the requirements of Local Law 5 of 1973 of the City of New York, as
heretofore and hereafter amended ("Local Law 5"). The foregoing shall include,
without limitation, (i) compliance with the compartmentalization requirements of
Local Law 5, (ii) relocation of existing fire detection devices, alarm signals
and/or communication devices necessitated by the alteration of the demised
premises, and (iii) installation of such additional fire control or detection
devices as may be required by applicable governmental or quasi-governmental
rules, regulations or requirements (including, without limitation, any
requirements of the New York Board of Fire
29
Underwriters) as a result of Tenant's manner of use of the demised premises. In
addition, Tenant shall cause the demised premises to be connected to the
Building "Class E" system and arrange to have the demised premises and Tenant
added to the "Class E" computer.
(B) Landlord shall not be responsible for any damage to Tenant's fire
control or detection devices nor shall Landlord have any responsibility for the
maintenance or replacement thereof. Tenant shall indemnify Landlord from and
against all loss, damage, cost, liability or expense (including, without
limitation, reasonable attorneys' fees and disbursements) suffered or incurred
by Landlord by reason of the installation and/or operation of any such devices.
(C) All work and installations required to be undertaken by Tenant
pursuant to this Article shall be performed at Tenant's sole cost and expense
and in accordance with plans and specifications and by contractors previously
approved by Landlord.
(D) The fact that Landlord shall have heretofore consented to any
installations or alterations made by Tenant in the demised premises shall not
relieve Tenant of its obligations pursuant to this Article with respect to such
installations or alterations.
(E) If any utility company or governmental or quasi-governmental
authority requires any work, installation or improvement to be made to the
Building in connection with any Alteration performed by Tenant, the installation
or operation of equipment or machinery in the demised premises or for any other
reason relating to Tenant's use or occupancy of the demised premises, Tenant
shall reimburse Landlord for the cost of such work, installation or improvement
on demand.
54. Tenant's Alterations
(A) Tenant shall not make or perform, or permit the making or
performance of, any alterations, installations, improvements, additions or other
physical changes in or about the demised premises (collectively, "Alterations")
without Landlord's prior consent. Landlord agrees not unreasonably to withhold
its consent to any Alterations which are nonstructural and which do not affect
the Building's systems and facilities, provided that such Alterations are
performed only by contractors or mechanics first approved by Landlord (which
approval shall not be unreasonably withheld), do not affect any part of the
Building other than the demised premises (including, without limitation, the
exterior thereof), do not adversely affect any service required to be furnished
by Landlord to Tenant or to any other tenant or occupant of the Building and do
not reduce the value or utility of the Building. Landlord agrees to respond to
Tenant's request for approval of any such plans and specifications within ten
(10) days after receipt thereof together with any other information that may be
reasonably necessary or desirable in order to perform Landlord's review thereof.
All Alterations shall be done at Tenant's expense and at such times and in such
manner as Landlord may from time to time reasonably designate pursuant to the
conditions for Alterations prescribed by Landlord for the Building ("Alteration
Regulations"). Prior to making any Alterations, Tenant (i) shall submit to
Landlord detailed plans and specifications (including layout, architectural,
mechanical and structural drawings) for each proposed Alteration and shall not
commence any such Alteration without first obtaining Landlord's approval of such
plans and specifications, (ii) shall, at its expense, obtain all permits,
approvals and certificates required by any governmental or quasi-governmental
bodies, and (iii) shall furnish to Landlord duplicate original policies of
worker's compensation insurance (covering
30
all persons to be employed by Tenant and Tenant's contractors and subcontractors
in connection with such Alteration) and comprehensive public liability
(including property damage coverage) insurance in such form, with such
companies, for such periods and in such amounts as Landlord may reasonably
require, naming Landlord and its agents as additional insureds. Upon completion
of such Alteration, Tenant, at Tenant's expense, shall obtain certificates of
final approval of such Alteration required by any governmental or
quasi-governmental bodies and shall furnish Landlord with copies thereof and
shall, within thirty (30) days of such completion, deliver a set of final "as
built" drawings to Landlord reflecting the Alteration. All Alterations shall be
made and performed in accordance with the Alteration Regulations. All materials
and equipment to be incorporated in the demised premises as a result of all
Alterations shall be new and first quality. No such materials or equipment shall
be subject to any lien, encumbrance, chattel mortgage, title retention or
security agreement. Tenant shall not, at any time prior to or during the Term,
directly or indirectly employ, or permit the employment of, any contractor,
mechanic or laborer in the demised premises, whether in connection with any
Alteration or otherwise, if, in Landlord's sole discretion, such employment will
interfere or cause any conflict with other contractors, mechanics, or laborers
engaged in the construction, maintenance or operation of the Building by
Landlord, Tenant or others. In the event of any such interference or conflict,
Tenant, upon demand of Landlord, shall cause all contractors, mechanics or
laborers causing such interference or conflict to leave the Building
immediately.
(B) No approval of any plans or specifications by Landlord or consent
by Landlord allowing Tenant to make any Alterations or any inspection of
Alterations made by or for Landlord shall in any way be deemed to be an
agreement by Landlord that the contemplated Alterations comply with any legal
requirements or insurance requirements or the certificate of occupancy for the
Building nor shall it be deemed to be a waiver by Landlord of the compliance by
Tenant of any provision of this lease.
(C) Tenant shall promptly reimburse Landlord for all actual,
out-of-pocket fees, costs and expenses paid to third parties including, but not
limited to, those of attorneys, architects and engineers, incurred by Landlord
in connection with the review of Tenant's plans and specifications and
inspecting the Alterations to determine whether the same are being or have been
performed in accordance with the approved plans and specifications thereof and
with all legal and insurance requirements.
(D) Notwithstanding anything to the contrary contained herein, Tenant
shall not be required to remove any Alterations at the expiration or earlier
termination of the Term unless Landlord so specified in its approval
notification therefor, provided that in its request for such approval Tenant
must refer to this lease provision in all capital bold-face type at least six
points larger than the type used in the rest of its letter.
55. Estoppel Certificate
Tenant, at any time, and from time to time, upon at least ten (10)
days' prior notice by Landlord, shall execute, acknowledge and deliver to
Landlord, and/or to any other person, firm or corporation specified by Landlord
("Recipient"), 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 Fixed Rent and additional rent
31
have been paid, stating whether or not there exists any default by Landlord
under this lease, and, if so, specifying each such default, and any other
matters reasonably requested by Landlord or the Recipient.
56. Holdover
In the event Tenant shall hold over after the expiration of the Term,
the parties hereby agree that Tenant's occupancy of the demised premises after
the expiration of the Term shall be upon all of the terms set forth in this
lease except that Tenant shall pay as a use and occupancy charge for the
holdover period an amount equal to the higher of (A) an amount equal to two
times the pro rata Fixed Rent and additional rent payable by Tenant during the
last year of the Term; or (B) an amount equal to the then market rental value
for the demised premises, as established by Landlord's good faith estimate of
such market rental value.
57. Intentionally Omitted
58. Limitation on Rent
If on the Commencement Date, or at any time during the Term, the Fixed
Rent or additional rent reserved in this lease is not fully collectible by
reason of any federal, state, county or city law, proclamation, order or
regulation, or any direction of any public officer or body pursuant to law
(collectively, "Rent Law"), Tenant agrees to take such steps as Landlord may
request to permit Landlord to collect the maximum rents which may be legally
permissible from time to time during the continuance of such legal rent
restriction (but not in excess of the amounts reserved therefor under this
lease). Upon the termination of such legal rent restriction, Tenant shall pay to
Landlord, to the extent permitted by the Rent Law, an amount equal to (A) the
Fixed Rent and additional rent which would have been paid pursuant to this lease
but for such legal rent restriction, less (B) the Fixed Rent and additional rent
paid by Tenant to Landlord during the period such legal rent restriction was in
effect.
59. Acceptance of Keys
If Landlord or Landlord's managing or rental agent accepts from Tenant
one or more keys to the demised premises in order to assist Tenant in showing
the demised premises for subletting or other disposition or for the performance
of work therein for Tenant or for any other purpose, the acceptance of such key
or keys shall not constitute an acceptance of a surrender of the demised
premises nor a waiver of any of Landlord's rights or Tenant's obligations under
this lease including, without limitation, the provisions relating to assignment
and subletting and the condition of the demised premises.
60. Security Deposit
(A) Supplementing Article 34, Tenant may, at the execution of this
lease or at any time during the Term, deliver as the Security Deposit an
irrevocable letter of credit (the "Letter of Credit") in the amount of the
Security Deposit issued by a New York City commercial bank acceptable to
Landlord in its sole discretion, and in the form of the letter of credit annexed
hereto as Exhibit B, to be held by Landlord as the Security Deposit in
accordance with Article 34 and this Article 60. The Letter of Credit shall (i)
initially expire not less than one (1) year from the Commencement Date or the
date
32
of issuance if delivered to Landlord thereafter, (ii) provide for automatic
renewals for periods of not less than one (1) year, and (iii) have a final
expiration date not less than four (4) months after the Expiration Date. Tenant
shall pay to Landlord, on demand and as additional rent hereunder, all fees and
charges paid by Landlord to the bank issuing the Letter of Credit in connection
with the transfer of same to any future owner of the Building. In the event of a
default by Tenant in the performance of any of the terms, provisions and
conditions of this lease, Landlord shall be permitted to draw down any portion
or the entire amount of the Letter of Credit and apply the proceeds or any part
thereof in accordance with Article 34 of this lease and retain the balance for
the Security Deposit. Landlord shall also have the right to draw down any
portion or the entire amount of the Letter of Credit in the event that Landlord
receives notice that the date of expiry of the Letter of Credit will not be
extended by the issuing bank and retain the proceeds for the Security Deposit.
If Landlord shall have drawn against the Letter of Credit and applied all or any
portion thereof, then Tenant shall deposit with Landlord, upon demand, a
sufficient amount of cash to bring the balance of the monies held by Landlord to
the amount of the Security Deposit.
(B) Landlord shall deposit the Security Deposit, if in cash, in
whichever day-of-deposit to day-of-withdrawal account, in one of the banks then
being used by the managing agent of the Building for tenant security deposits,
that is, on the Commencement Date, then paying the highest interest rate. On
April 1, 1997 and on each April 1 thereafter Landlord will move the Security
Deposit to the then highest interest-bearing day-of-deposit to day-of-withdrawal
account in such banks. Provided that Tenant is not then in default hereunder
after expiration of any applicable notice and/or grace period, Landlord will pay
the accrued interest on the Security Deposit, less a one (1%) percent per annum
administrative fee, to Tenant on or about April 1 of each year commencing with
1997.
61. Definitions of "Landlord" and "Owner"
The terms "Owner" and "Landlord," whenever used in this lease
(including, without limitation, in Article 31), shall have the same meaning.
62. Landmark Designation
Tenant acknowledges that the Building has been designated by the New
York City Landmarks Commission (the "Commission") as an historical landmark and,
in connection therewith, Tenant agrees that it shall comply with any rules,
regulations, building and/or construction restrictions of the Commission or
other entity having jurisdiction over the demised premises in connection
therewith.
63. Hazardous Materials
(A) Tenant shall not cause nor permit "Hazardous Materials" (as defined
below) to be used, transported, stored, released, handled, produced or installed
in, or from, the demised premises, except that inflammable or combustible (but
not explosive) items may be brought into and used within the demised premises as
may be needed for the operation of normal office equipment, so long as both in
compliance with all Laws. The term "Hazardous Materials" shall, for the purposes
hereof, mean any flammable, explosives, radio-active materials, hazardous
wastes, hazardous and toxic substances or related materials, asbestos or any
material containing asbestos, or any other substances or material, as defined by
any present or future Law, including, without limitation, the Comprehensive
Environmental
33
Response Compensation and Liability Act of 1980, as amended, the Hazardous
Materials Transportation Act, as amended, the Resources Conservation and
Recovery Act, as amended, Superfund Amendment and Reauthorization Act of 1986
and in the regulations adopted and publications promulgated pursuant to each of
the foregoing. In the event of a breach of the provisions of this Article 63,
Landlord, in addition to all of its rights and remedies under this lease and
pursuant to Law, require Tenant to remove any such Hazardous Materials from the
demised premises or the Building in the manner prescribed for such removal by
all requirements of Law. The provisions of this Article 63 shall survive the
expiration or sooner termination of this lease.
(B) If any friable asbestos (not including asbestos floor tile, as to
which Landlord shall have no responsibility) is discovered in the premises that
is not the responsibility of Tenant as above provided and is required by
applicable Law to be removed or encapsulated, then, as Tenant's sole remedy,
Landlord will at Landlord's expense and with reasonable promptness remove or
encapsulate such asbestos in accordance with Law. Landlord will deliver to
Tenant with reasonable promptness after the Commencement Date a Form ACP-5 for
the premises.
64. Interconnections
(A) Subject to Landlord's prior approval, which will not be
unreasonably withheld, Tenant shall have the right to install and run both
vertical and horizontal communication interconnections, via conduit, wave guide
and ceramic duct, provided that such installation is performed in accordance
with all applicable Laws and the relevant provisions of this lease including,
without limitation, Articles 3, 6 and 54 and in accordance with plans and
specifications previously approved by Landlord. Prior to any cable pulls being
installed through any conduits running through other tenant spaces, Tenant shall
present a copy of an agreement between Tenant and such other tenant (reasonably
satisfactory to Landlord) whereby such other tenant consents to Tenant making
the proposed connection or other installation.
(B) If Tenant makes use of an existing means of interconnection owned
by Landlord, Tenant shall pay:
(1) a Base Charge (one time charge) of $30.00 per foot; and
(2) a Monthly Charge, payable along with monthly installments
of Fixed Rent, as follows: 4" - $.80 per linear foot; 3" - $.60 per linear foot;
2" - $.40 per linear foot; and 1" or less - $.30 per linear foot.
(C) If Tenant installs a new means of interconnection, Tenant shall pay
a Monthly Charge, payable along with monthly installments of Fixed Rent, as
follows: 4" - $.50 per linear foot; 3" - $.40 per linear foot; 2" - $.30 per
linear foot; and 1" or less - $.20 per linear foot.
(D) Tenant agrees that the charges set forth in subsections (B) and (C)
shall be effective as of the date of Landlord's approval of the applicable
installation and shall be increased by four (4%) percent each year commencing on
the first anniversary of the date of Landlord's approval of the applicable
installation and on each anniversary thereafter throughout the Term. If the Term
is extended
34
or this lease is renewed, such charges during the renewal term may, at
Landlord's option, be increased to those then generally prevailing in the
Building.
(E) All interconnections shall conform to the following
specifications:
(1) The conduit shall be supported a minimum of every 10
linear feet.
(2) The conduit shall be tagged each 15 linear feet, with
letters a minimum of 2-1/2 inches in height, as required by
Landlord in its approval letter.
(3) All penetrations of fire-rated partitions or slabs shall
be fire-stopped with a UL approved material of equal or
greater rating.
(4) Tenant shall inform the building manager on completion of
the installation for final inspection and approval.
(5) Tenant's sub-contractor must coordinate all work with the
building manager and other tenants affected by the work.
(6) All conduit shall be rigid conduit or elastic metal
tubing.
(F) All conduit and other items installed pursuant to this Article
shall become the property of Landlord and shall be surrendered with the premises
upon the expiration or earlier termination of the Term unless Landlord, by
notice to Tenant given no later than twenty (20) days after the expiration or
earlier termination of the Term, notifies Tenant that it wishes Tenant to remove
all or any specified portion thereof, in which event Tenant shall remove the
specified items at its expense with reasonable expedition after receipt of such
notice (or by the end of the Term, if later).
65. Landlord's Access
Supplementing Article 13, upon reasonable prior notice to Tenant (which
need not be in writing), except in an emergency when no notice shall be
required, Landlord and other tenants, licensees and occupants of the Building
shall have access to the Building shafts and conduits located within the demised
premises.
66. Landlord's Option to Relocate Tenant
At any time prior to the execution and delivery of this lease, Landlord
shall have the right to relocate Tenant to other space located in the Building
(the "Substitution Space") of substantially comparable size and condition as the
demised premises, in which event this lease shall be modified by (i) deleting
all reference to the demised premises and the insertion of the Substitution
Space in place thereof, (ii) adjusting the Fixed Rent to an amount equal to the
rent per square foot payable by Tenant under this lease multiplied by the number
of square feet in the Substitution Space and (iii) a modification of the
definition of Tenant's Proportionate Share (as currently defined in Article 37
hereof) to accurately represent the percentage by which the rentable area of the
Substitution Space bears to the total rentable area of the Building. In all
other respects, the terms and conditions contained in this lease (including
escalations and base years) shall remain unmodified.
35
67. Tenant's Option to Extend
(A) Provided that this lease is then in full force and effect and
Tenant is not in default hereunder after notice and expiration of any applicable
grace period, Tenant shall have the option to extend the Term for two (2)
additional periods of five (5) years each (each, an "Extension Term" and
collectively the "Extension Terms"). Tenant may not exercise its option for the
second Extension Term unless it has also exercised its option for the first
Extension Term. The first Extension Term shall commence on the day after the
initial Expiration Date (i.e., on May 1, 2006) and shall expire on the fifth
(5th) anniversary of the initial Expiration Date (i.e., on April 30, 2011), and
the second Extension Term shall commence on the day after the extended
Expiration Date (i.e., on May 1, 2011) and shall expire on the fifth (5th)
anniversary of the extended Expiration Date (i.e., on April 30, 2016), unless in
each case such Extension Term shall sooner end pursuant to any of the terms,
covenants or conditions of this lease or pursuant to any of the terms, covenants
or conditions of this lease or pursuant to law. Tenant shall give Landlord
written notice of Tenant's exercise of the first option on or before the date
that is one (1) year prior to the initial Expiration Date (i.e., on or before
April 30, 2005) and of the second option on or before the date that is one (1)
year prior to the extended Expiration Date (i.e., on or before April 30, 2010)
(the time of exercise being of the essence), and upon Tenant timely giving such
notice, the Term shall be extended without execution or delivery of any other or
further documents, with the same force and effect as if the applicable Extension
Term had originally been included in the Term; the word "Term," whenever used
herein, shall include the applicable Extension Term; and the Expiration Date
shall thereupon be deemed to be the last day of the applicable Extension Term.
All of the terms, covenants and conditions of this lease shall continue in full
force and effect during the Extension Term(s), including items of additional
rent and escalation, which shall remain payable on the terms (including the base
years) herein set forth, except that: (i) the Fixed Rent shall be as determined
in accordance with Section (B) of this Article 67, (ii) there shall be no rent
concession, work or work allowance to be furnished by Landlord, and (iii) (x) in
the case of the first Extension Term, Tenant shall have no further right to
extend the Term except for the second Extension Term, and (y) in the case of the
second Extension Term, Tenant shall have no further right to extend the Term.
(B) The Fixed Rent payable by Tenant for the premises during the
applicable Extension Term shall be the fair market rental value of the premises
based upon the criteria set forth in subsection (3) of this Section (B) (the
"FMRV"), determined as follows:
(1) Beginning on the date that is one (1) year prior to the
commencement of the applicable Extension Term, Landlord and Tenant shall
negotiate in good faith to agree upon the FMRV. If Landlord and Tenant cannot
reach agreement by the date that is nine (9) months prior to the commencement of
the applicable Extension Term, Landlord and Tenant shall each select a
reputable, qualified, licensed real estate broker having an office in New York
County and familiar with the rentals then being charged in the Building and in
comparable buildings in lower Manhattan for the type of space represented by the
premises (such brokers are referred to herein, respectively, as "Landlord's
Broker" and "Tenant's Broker"), who shall confer promptly after their selection
by Landlord and Tenant and shall negotiate in good faith to agree upon the FMRV.
If Landlord's Broker and Tenant's Broker cannot reach agreement by the date that
is seven (7) months prior to the commencement of the applicable Extension Term,
then, no later than the date that is six (6) months prior to the commencement of
the applicable Extension Term, they shall designate a third reputable,
qualified,
36
licensed real estate broker having an office in New York County and familiar
with the rentals then being charged in the Building and in comparable buildings
in lower Manhattan for the type of space represented by the premises (the
"Independent Broker"). Upon the failure of Landlord's Broker and Tenant's Broker
timely to agree upon the designation of the Independent Broker, then the
Independent Broker shall be appointed by a Justice of the Supreme Court of the
State of New York upon ten (10) days notice, or by any other court in New York
County having jurisdiction and exercising functions similar to those exercised
by the Supreme Court of the State of New York. Concurrently with such
appointment, Landlord's Broker and Tenant's Broker shall each submit a letter to
the Independent Broker, with a copy to Landlord and Tenant, setting forth such
broker's estimate of the FMRV, taking into consideration the factors referenced
in subsection (iii) of this Section (B) (respectively "Landlord's Broker's
Letter" and "Tenant's Broker's Letter").
(2) If the FMRV's set forth in Landlord's Broker's Letter and
Tenant's Broker's Letter differ by $18,000 per annum or less for each year
during the Extension Term, the FMRV shall be deemed the average of the FMRV's
set forth in Landlord's Broker's Letter and Tenant's Broker's Letter. If such
differential is more than $18,000 per annum, the Independent Broker shall
conduct such investigations and hearings as he or she may deem appropriate and
shall, within sixty (60) days after the date of his or her designation, choose
either the FMRV set forth in Landlord's Broker's Letter or that set forth in
Tenant's Broker's Letter to be the FMRV and such notice shall be binding upon
Landlord and Tenant. Landlord and Tenant shall each pay the fees and expenses of
its respective broker. The fees and expenses of the Independent Broker shall be
shared equally by Landlord and Tenant.
(3) The FMRV shall be the fair market rental value, as of the
first day of the applicable Extension Term, of space comparable to the premises
in lower Manhattan, taking into account the special character of the Building,
the then existing condition of the premises, the nature of the escalation
provisions and the base years as set forth in this lease, which shall not be
changed, as well as the benefit to Tenant of being able to remain in its
existing space and thus being spared the cost, inconvenience and interruption of
business operations of relocating, the absence of any rent concession or work
contribution from Landlord, and all other relevant terms and conditions of this
lease.
(C) If the Fixed Rent for the applicable Extension Term has not been
determined by the first day thereof, then the Fixed Rent to be paid by Tenant to
Landlord until such determination has been made shall be the FMRV set forth in
Landlord's Broker's Letter. After such determination has been made, any excess
rental theretofore paid by Tenant to Landlord shall be credited by Landlord
against the next ensuing Fixed Rent payable by Tenant to Landlord.
(D) Promptly after the Fixed Rent has been determined, Landlord and
Tenant shall execute, acknowledge and deliver an agreement setting forth the
Fixed Rent for the applicable Extension Term, as finally determined, provided
that the failure of the parties to do so shall not affect their respective
rights and obligations under this lease.
37
68. Non-Disturbance Agreement
Landlord will use its best efforts, but without the obligation to
expend any money or to execute any documents, to obtain for Tenant's benefit an
agreement from the holder of any mortgage or ground lease presently or hereafter
superior to this lease (a "Holder"), in the Holder's then standard form, to the
effect that, in the event of any foreclosure of such mortgage or the termination
of such ground lease, as the case may be, the Holder will not make Tenant a
party defendant to such foreclosure or termination (unless required by
applicable law, in which event Tenant would receive equivalent protection) nor
disturb its possession under this lease, provided Tenant shall not be in default
hereunder beyond any applicable grace period under this lease for the curing of
such default.
69. Access
Subject to the Rules and Regulations and the provisions of Article 27,
(a) Tenant shall have access to the Building 24 hours a day, seven days a week;
and (b) Landlord shall make available, upon prior appointment, overtime freight
elevator service at Landlord's standard charge (including any required minimum
number of hours).
70. Intentionally Omitted
71. Tenant's Proposed Alterations
(A) Subject to Tenant's compliance with all of the applicable
provisions of this lease, Landlord approves, in principle, the following
proposed Alterations to be performed by Tenant at Tenant's expense:
(1) Core drilling from the premises to the lowest level of the
Building as may be necessary to install new conduit. Scheduling of all core
drilling shall be coordinated with Landlord and any Building occupant thereby
affected and shall be conducted so as to cause no interference whatsoever with
the operations of Landlord or of any other Building occupant.
(2) Installation of up to forty (40) tons of HVAC equipment in
the premises, venting through the windows. The location, size and types of the
vents shall be subject to prior approval by Landlord and the Commission.
(3) At Tenant's option, removal or capping of any heating
system exclusively serving the premises. If Tenant does so, it will thereby be
waiving its right to receive heat and acknowledges that it will not be entitled
to any reduction in Fixed Rent or any additional rent as a result thereof.
Notwithstanding anything to the contrary contained herein, Tenant shall restore
the heating system to its working condition prior to the expiration or earlier
termination of the Term without the necessity of any notice or other action by
Landlord.
(4) Installation of a generator plug on the outside of the
Building adjacent to the loading dock area for the purpose of connecting the
premises to a portable generator in the event of a power failure.
38
(5) Installation of a 200 kilowatt diesel generator in the
premises with the fuel storage tanks to be located in the basement in a location
designated by Landlord, at a charge, payable as additional rent in equal monthly
installments in advance along with Fixed Rent, of $10.00 per rentable square
foot of floor space per annum.
(6) Installation of a ground wire connecting to the Building's
water main or other suitable Building ground acceptable to Landlord.
(7) Reinforcement of the floor. Attached hereto is a copy of
the Building's certificate of occupancy indicating the floor load.
(8) Installation of an independent fire suppression system, to
be connected by Tenant to the Building's Class E system at a charge to Tenant of
$3,000 per point of connection.
(B) All such Alterations shall be performed in strict compliance with
Article 54 and only after Landlord shall have approved the plans therefor as
provided in Article 54. No Alteration that affects any other tenant or occupant
may be performed until Tenant shall have received written approval thereof from
the affected tenants, in form and substance reasonably acceptable to Landlord.
(C) Tenant shall comply with all Laws in any manner affecting or
relating to Tenant's installation, repair, maintenance and operation of the
Alterations and any equipment or other installations related thereto
(collectively, the "Installations"). Tenant shall secure all permits and
licenses required for the installation and operation of the Installations as
well as all permits and licenses required for the use and operation of the
Installations.
(D) Tenant shall pay for all electrical service required for Tenant's
use of the Installations (if any) pursuant to the applicable provisions of
Article 42. Such electrical service shall be measured by submeter(s) acceptable
to Landlord and installed and maintained by Tenant at Tenant's expense.
(E) Tenant shall (i) take all necessary preventative action to avoid
damage to the structure or any other part of the Building, and (ii) promptly
repair all damage to the Building caused by or resulting from the installation,
maintenance and repair, operation or removal of the Installations.
(F) All Installations made by Tenant pursuant to the provisions of this
Article shall be at the sole risk of Tenant and neither Landlord nor Landlord's
agents or employees shall be liable for any damage or injury thereto caused in
any manner. The Installations shall be erected, installed, repaired, maintained
and operated by Tenant at the sole cost and expense of Tenant and without
charge, cost or expense to Landlord.
(G) Tenant shall indemnify and save harmless Landlord from and against
all loss, damage, liability, cost and expense of any nature (including, without
limitation, reasonable attorneys' fees and expenses) resulting from or arising
in connection with the performance, installation, removal, maintenance,
operation and repair of the installations, including, without limitation, (i) by
reason of any liens, orders, claims or charges resulting from any work done, or
materials or supplies furnished, in connection with the fabrication,
performance, installation, maintenance and operation of the Installations, and
(ii) all loss, damage, liability, cost and expense of any nature (including,
without
39
limitation, attorneys' fees and expenses), arising out of (x) injury to the
structural integrity of the Building, (y) any claims by other tenants or
occupants of the Building, or (z) any accidents, damage, injury or loss to
persons and property, or either.
(H) All Installations to be done and made by Tenant pursuant to the
provisions of this Article shall be performed in accordance with the terms,
covenants, conditions and provisions of this lease. All plans and specifications
of Tenant's Installations shall be subject to the approval of Landlord, which
shall not be unreasonably withheld, and such Installations shall be further
subject to inspection and reasonable supervision by Landlord.
(I) The Installations shall be maintained and kept in repair by Tenant.
Upon the expiration of the Term or upon the earlier termination of this lease in
any manner, if Landlord so directs by written notice to Tenant, any specified
Installation(s) shall be removed by Tenant and Tenant shall repair any damage to
the Building caused by or resulting from said removal and restore the affected
areas of the Building to their condition prior to the performance of the
Installation(s) in question.
(J) All Installations made by Tenant shall not interfere with or
adversely affect any existing equipment, installations, lines or machinery of
the Building or any other tenant of the Building premises.
40
EXHIBIT A
(GRAPHIC)
41
EXHIBIT B
[Name and Address
of Landlord]
Re: Irrevocable Clean Letter of Credit
Gentlemen:
By order of our client, ____________________________________________,
we hereby open our clean irrevocable Letter of Credit No. ______________ in your
favor for an amount not to exceed in the aggregate $_________ US Dollars
effective immediately.
Funds under this credit are available to you against your sight draft
drawn on us mentioning thereon our Credit No. ____.
This Letter of Credit shall expire sixteen (16) months from the date
hereof; provided, however, that it is a condition of this Letter of Credit that
it shall be deemed automatically extended, from time to time, without amendment,
for one year from the expiry date hereof and from each and every future expiry
date, unless at least sixty (60) days prior to any expiry date we shall notify
you by registered mail that we elect not to consider this Letter of Credit
renewed for any such additional period.
This Letter of Credit is transferable and may be transferred one or
more times. However, no transfer shall be effective unless advice of such
transfer is received by us in the form attached signed by you.
We hereby agree with you that all drafts drawn or negotiated in
compliance with the terms of this Letter of Credit will be duly and promptly
honored upon presentment and delivery of your draft to our office at
____________________________ if negotiated on or prior to the expiry date as the
same may from time to time be extended.
Except as otherwise specified herein, this Letter of Credit is subject
to the Uniform Customs and Practice for Documentary Credits (1983 Revision),
International Chamber of Commerce Publication No. 400.
Very truly yours,
(Name of Bank)
By:________________________________
42
EXHIBIT B-1
Re: Credit Issued by
Gentlemen:
For value received, the undersigned beneficiary irrevocably transfers
to:
--------------------------------------------------------------------------------
(Name and Second Beneficiary)
--------------------------------------------------------------------------------
(Address)
all rights of the undersigned beneficiary to draw under the above Letter of
Credit in its entirety.
By this transfer, all rights of the undersigned beneficiary in such
letter of Credit are transferred to the second beneficiary and the second
beneficiary shall have the sole rights as beneficiary thereof, including sole
rights relating to any amendments whether increases or extensions or other
amendments and whether now existing or hereafter made. All amendments are to be
advised direct to the second beneficiary without necessity of any consent of or
notice of the undersigned beneficiary.
The advice of such Letter of Credit is returned herewith, and we ask
you to endorse the assignment on the reverse thereof and forward it directly to
the second beneficiary with your customary notice of transfer.
Enclosed is remittance of $100.00 in payment of your transfer
commission and in addition thereto we agree to pay you on demand any expenses
which may be incurred by you in connection with this transfer.
Yours very truly,
SIGNATURE AUTHENTICATED
(Bank) Signature of Beneficiary
(Authorized Signature)
43
EXHIBIT C
PERMITTED ELECTRICAL CONTRACTORS
This list of approved contractors is subject to change and reflects
only those contractors who are approved on the date of the lease.
Xxxxxxx & Xxxxxxx, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
J.W.P. Xxxxxxx Electric
0 Xxxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxx Electric Corp.
00-00 Xxxxxx Xxxxxx
Xxxx Xxxxxx Xxxx, XX 00000
Xxxxxxxxxxx Electric Company, Inc.
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Xxxxxx X. Xxxxxxx Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
