Exhibit 10.9
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AGREEMENT OF LEASE
between
MADISON 45 LLC,
Landlord,
and
PRIMUS FINANCIAL PRODUCTS, LLC,
Tenant,
Dated: July 25, 2002
PREMISES:
The entire rentable area of the Twenty-Third (23rd) Floor
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
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TABLE OF CONTENTS
Page
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ARTICLE 1 RENT..............................................................1
ARTICLE 2 PREPARATION OF THE DEMISED PREMISES...............................2
ARTICLE 3 ADJUSTMENTS OF RENT...............................................6
ARTICLE 4 ELECTRICITY......................................................15
ARTICLE 5 USE..............................................................16
ARTICLE 6 ALTERATIONS AND INSTALLATIONS....................................17
ARTICLE 7 REPAIRS..........................................................20
ARTICLE 8 REQUIREMENTS OF LAW..............................................22
ARTICLE 9 INSURANCE, LOSS, REIMBURSEMENT, LIABILITY........................23
ARTICLE 10 DAMAGE BY FIRE OR OTHER CAUSE....................................26
ARTICLE 11 ASSIGNMENT, MORTGAGING, SUBLETTING, ETC..........................28
ARTICLE 12 CONDEMNATION.....................................................34
ARTICLE 13 ACCESS TO DEMISED PREMISES; CHANGES..............................36
ARTICLE 14 CONDITIONS OF LIMITATION.........................................37
ARTICLE 15 RE-ENTRY BY LANDLORD; INJUNCTION.................................39
ARTICLE 16 DAMAGES..........................................................40
ARTICLE 17 LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS.................42
ARTICLE 18 QUIET ENJOYMENT..................................................42
ARTICLE 19 SERVICES AND EQUIPMENT...........................................42
ARTICLE 20 DEFINITIONS......................................................46
ARTICLE 21 INTENTIONALLY OMITTED............................................47
ARTICLE 22 BROKERAGE........................................................47
ARTICLE 23 SUBORDINATION....................................................47
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ARTICLE 24 CERTIFICATE OF TENANT............................................49
ARTICLE 25 LEGAL PROCEEDINGS; WAIVER OF JURY TRIAL..........................50
ARTICLE 26 SURRENDER OF PREMISES............................................50
ARTICLE 27 RULES AND REGULATIONS............................................50
ARTICLE 28 CONSENTS AND APPROVALS...........................................51
ARTICLE 29 NOTICES..........................................................52
ARTICLE 30 NO WAIVER........................................................52
ARTICLE 31 INABILITY TO PERFORM.............................................53
ARTICLE 32 INDEMNITY........................................................53
ARTICLE 33 SECURITY.........................................................53
ARTICLE 34 MISCELLANEOUS....................................................56
ARTICLE 35 ICIP.............................................................58
SCHEDULES
A Floor Plan
B Rules and Regulations
C Approved Contractors List
D Cleaning Specifications
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AGREEMENT OF LEASE, made as of this 25th day of July, 2002, between
MADISON 45 LLC, a New York limited liability company, having an office at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "Landlord")
and PRIMUS FINANCIAL PRODUCTS, LLC, a Delaware limited liability company, having
an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to
as "Tenant").
W I T N E S S E T H:
Landlord hereby leases and Tenant hereby hires from Landlord, in the
building (hereinafter referred to as the "Building") known as ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, the following space: the entire rentable area
of the twenty-third (23rd) floor, as shown hatched on the plan annexed hereto as
Schedule A (which space is hereinafter referred to as the "demised premises");
for a term of approximately ten (10) years to commence on the date hereof
(hereinafter referred to as the "Commencement Date") and to end on the last day
of the month preceding the month in which occurs the expiration of ten (10)
years after the Commencement Date (such date on which the term of the Lease
expires is hereinafter referred to as the "Expiration Date") or until such term
shall sooner cease and terminate as hereinafter provided.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, trustees, successors and
assigns, hereby covenant as follows:
ARTICLE 1
RENT
1.01. Tenant shall pay to Landlord a fixed annual rent (hereinafter
referred to as "fixed annual rent") as follows:
(i) SEVEN HUNDRED TWENTY THOUSAND FOUR HUNDRED NINETY-FOUR AND 50/100
($720,494.50) DOLLARS per annum during the period commencing on
the Commencement Date and ending on the day immediately preceding
the third (3rd) anniversary of the Commencement Date;
(ii) SEVEN HUNDRED FIFTY-SIX THOUSAND TWO HUNDRED TWENTY-ONE AND
50/100 ($756,221.50) DOLLARS per annum during the period
commencing on the third (3rd) anniversary of the Commencement
Date and ending on the day immediately preceding the seventh
(7th) anniversary of the Commencement Date; and,
(iii) SEVEN HUNDRED NINETY-ONE THOUSAND NINE HUNDRED FORTY-EIGHT AND
50/100 ($791,948.50) DOLLARS per annum during the period
commencing on the seventh (7th) anniversary of the Commencement
Date and ending on the Expiration Date;
Tenant agrees to pay the fixed annual rent in lawful money of the
United States of America, in equal monthly installments in advance on the first
day of each calendar month during said term, at the office of Landlord or such
other place in the United States of America as Landlord may designate, without
any setoff or deduction whatsoever except as otherwise expressly provided
herein. Should the obligation to pay fixed annual rent commence on any day other
than on the first day of a month, then the fixed annual rent for such month
shall be prorated on a per diem basis. The first month's installment of fixed
annual rent due under this Lease shall be paid by Tenant upon the execution of
this Lease.
1.02. Tenant shall pay the fixed annual rent and additional rent as above
and as hereinafter provided, at Landlord's election by either (i) wire transfer
in accordance with Landlord's instructions or (ii) good and sufficient check
(subject to collection) drawn on ▇▇▇▇▇▇ Bank or a New York City bank which is a
member of the New York Clearing House Association or a successor thereto. All
sums other than fixed annual rent payable by Tenant hereunder shall be deemed
additional rent (for default in the payment of which Landlord shall have the
same remedies as for a default in the payment of fixed annual rent), and shall
be payable on demand, unless other payment dates are hereinafter provided.
1.03. If Tenant shall fail to pay on or before the fifth (5th) day
following the date due any installment of fixed annual rent or any payment of
additional rent, Tenant shall pay interest thereon at the Interest Rate (as such
term is defined in Article 22 hereof), from the date when such installment or
payment shall have become due to the date of the payment thereof, and such
interest shall be deemed additional rent.
1.04. Notwithstanding anything contained in Section 1.01 of this Lease to
the contrary, and provided that Tenant is not in default under any of the terms,
covenants or provisions of this Lease beyond the expiration of any applicable
notice or cure period, the monthly installments of fixed annual rent payable by
Tenant hereunder shall be abated during the period commencing on the
Commencement Date and ending on the date that is seven (7) months and seven (7)
days thereafter (the day following the end of such period is hereinafter called
the "Rent Commencement Date").
ARTICLE 2
PREPARATION OF THE DEMISED PREMISES
2.01. Tenant acknowledges that Tenant has inspected the demised premises,
is fully familiar with the condition thereof and accepts the demised premises
absolutely "as is". Landlord is to perform no work in readying the demised
premises for Tenant's occupancy.
2.02. Tenant hereby covenants and agrees that Tenant will, at Tenant's own
cost and expense, and in a good and workmanlike manner, make and complete the
work and installations in and to the demised premises set forth below in such
manner so that the demised premises will be tasteful and dignified executive and
general offices and a trading floor.
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2.03. Tenant, at Tenant's expense, has prepared a final set of plans and
specifications (which said final plan or final set of plans, as the case may be,
and specifications are hereinafter called the "final plan") for the construction
and finishing of the demised premises. Tenant's plans have been approved by
Landlord.
2.04. In accordance with the final plan, Tenant, at Tenant's expense, will
make and complete in and to the demised premises (hereinafter sometimes called
the "Work Area") the work and installations (hereinafter called "Tenant's Work")
specified in the final plan. Tenant agrees that Tenant's Work will be performed
with the least possible disturbance to the occupants of other parts of the
Building and to the structural and mechanical parts of the Building and Tenant
will, at its own cost and expense leave all structural and mechanical parts of
the Building which shall or may be affected by Tenant's Work in good and
workmanlike operating condition. Tenant, in performing Tenant's Work will, at
its own cost and expense, promptly comply with all laws, rules and regulations
of all public authorities having jurisdiction in the Building with reference to
Tenant's Work. Tenant shall not do or fail to do any act which shall or may
render the Building of which the demised premises are a part, liable to any
mechanic's lien or other lien and if any such lien or liens be filed against the
Building of which the demised premises are a part, or against Tenant's Work, or
any part thereof, Tenant will, at Tenant's own cost and expense, promptly remove
the same of record by bonding or otherwise within thirty (30) days after notice
to Tenant of the filing of such lien or liens; or in default thereof, Landlord
may cause any such lien or liens to be removed of record by payment of bond or
otherwise, as Landlord may elect, and Tenant will reimburse Landlord for all
costs and expenses incidental to the removal of any such lien or liens incurred
by Landlord. Tenant shall indemnify and save harmless Landlord of and from all
claims, counsel fees, loss, damage and expenses whatsoever by reason of any
liens, charges or payments of any kind whatsoever that may be incurred or become
chargeable against Landlord or the Building of which the demised premises are a
part, or Tenant's Work or any part thereof, by reason of any work done or to be
done or materials furnished or to be furnished to or upon the demised premises
in connection with Tenant's Work. Tenant hereby covenants and agrees to
indemnify and save harmless Landlord of and from all claims, counsel fees, loss,
damage and expenses whatsoever by reason of any injury or damage, howsoever
caused, to any person or property occurring prior to the completion of Tenant's
Work or occurring after such completion, as a result of anything done or omitted
in connection therewith or arising out of any fine, penalty or imposition or out
of any other matter or thing connected with any work done or to be done or
materials furnished or to be furnished in connection with Tenant's Work. At any
and all times during the progress of Tenant's Work, Landlord shall be entitled
to have a representative or representatives on the site to inspect Tenant's Work
and such representative or representatives shall have free and unrestricted
access to any and every part of the demised premises. Tenant shall advise
Landlord in writing of Tenant's general contractor and subcontractors who are to
do Tenant's Work, and such general contractor and subcontractors shall be chosen
by Tenant from the Approved Contractors List annexed hereto as Schedule C. All
such contractors shall, to the extent permitted by law, use employees for
Tenant's Work who will work harmoniously with other employees on the job. Tenant
has requested and Landlord has approved the inclusion in Schedule C of ▇▇▇▇
▇▇▇▇▇▇ & Son, Inc. as a general contractor. If hereafter Tenant shall request
Landlord's approval to the replacement of such contractor with the firm of ▇.▇.
▇▇▇▇▇, Landlord shall not unreasonably withhold it approval of such substitution
and shall promptly respond to any request therefor
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which is accompanied by the following: a curriculum vitae for ▇.▇. ▇▇▇▇▇; a
comprehensive list of references and an affidavit to the effect that neither
such contractor nor any of its principals has been charged with or convicted of
engaging in criminal or illegal acts.
2.05. Tenant shall at Tenant's sole cost and expense file all necessary
architectural plans and obtain all necessary approvals and permits in connection
with Tenant's Work being performed by it pursuant to this Article 2.
2.06. The following conditions shall also apply to Tenant's Work:
(1) all Tenant's Work shall be of material, manufacture, design,
capacity and color at least equal to Building Standard;
(2) Tenant, at Tenant's expense shall (i) file all required
architectural, mechanical and electrical drawings and obtain all necessary
permits, and (ii) furnish and perform all engineering and engineering drawings
in connection with Tenant's Work. Tenant shall obtain Landlord's approval of the
drawings referred to in (i) and (ii) hereof, which approval shall not be
unreasonably withheld or delayed;
(3) all of Tenant's Work shall be performed by Tenant in
accordance with all of the rules and regulations adopted by the Building for the
performance of alterations (a copy of which will be furnished to Tenant upon
Tenant's request therefor);
(4) Tenant shall use only an engineer reasonably approved by
Landlord with respect to the preparation of Tenant's engineering drawings for
Tenant's Work;
(5) All of the provisions of Article 6 hereof shall apply to
Tenant's performance of Tenant's Work.
(6) Tenant's Work shall be substantially completed by no later
than nine (9) months after the later of (i) the Commencement Date or (ii)
provided that Tenant has timely submitted its final plan for Landlord's approval
in accordance with Section 2.04 hereof, the date Landlord approves the final
plan.
2.07. Landlord shall, at Tenant's written request, cooperate in all
reasonable respects with Tenant in the performance by Tenant of Tenant's Work in
preparing the demised premises for Tenant's occupancy and Landlord shall
instruct its employees and contractors to render such assistance and to
cooperate with Tenant's employees, representatives and contractors provided that
to the extent that Landlord shall incur any actual, out of pocket expense in so
cooperating or in rendering such assistance, Tenant shall reimburse Landlord for
such expense as additional rent hereunder. To the extent that any such expenses,
other than the cost of plan review, are substantial and unusual, Landlord shall
advise Tenant thereof (orally or in writing) in advance of incurring the same.
2.08. It is understood that of the services to be furnished by Landlord
referred to in Article 19 hereof, Landlord shall not furnish any cleaning
services to the demised premises until Tenant commences occupancy of the demised
premises for the conduct of its business.
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Tenant shall be responsible for removal of Tenant's refuse and rubbish during
the period that Tenant's Work is in progress in the demised premises.
2.09. Landlord shall allow Tenant a credit in the amount of up to
$476,360.00 (hereinafter called the "Work Credit"), which credit shall be solely
applied against the cost and expense of the actual construction performed by
Tenant in connection with Tenant's Work in the demised premises. In the event
that the cost and expense of Tenant's Work shall exceed $476,360.00, Tenant
shall be entirely responsible for such excess. In the event that Tenant does not
use all or any part of the Work Credit, the Work Credit shall be reduced
accordingly.
2.10. Provided that Tenant is not in default beyond notice and the
expiration of any applicable grace period under any of the terms and conditions
of this Lease, the Work Credit shall be payable by Landlord to Tenant upon
written requisition, in installments as Tenant's Work progresses, but in no
event more frequently than monthly. Prior to the payment of any such
installment, Tenant shall deliver to Landlord such written requisition for
disbursement which shall be accompanied by (i) a copy of Tenant's contracts and
bona fide invoices for the Tenant's Work referenced in such request for which
Tenant is seeking reimbursement, (ii) a certificate signed by Tenant's architect
or an officer of Tenant certifying that the Tenant's Work represented by the
aforesaid invoices has been satisfactorily completed substantially in accordance
with the final plan, (iii) partial lien waivers by contractors, subcontractors
and all materialmen for all such work and (iv) copies of all cancelled checks
delivered to contractors or subcontractors for the Tenant's Work for which
Landlord reimbursed Tenant hereunder during the month previous to the month in
which such reimbursement is then being requested (or as an alternative to the
foregoing as to the then current request copies of uncancelled checks together
with a letter from Tenant's bank listing the checks payable to contractors or
subcontractors which have cleared and for which reimbursement is being sought)
and requisitions and partial waivers of lien from all contractors,
subcontractors and materialmen for whose work or materials the same represented
payment. Landlord shall be permitted to retain from each disbursement an amount
equal to ten (10%) percent of the amount requested to be disbursed by Tenant.
The aggregate amount of the retainages shall be paid by Landlord to Tenant upon
completion of Tenant's Work and upon receipt of (i) a certificate signed by
Tenant's architect and an officer of Tenant certifying that Tenant's Work has
been completed substantially in accordance with the final plan, (ii) all
sign-offs, inspection certificates and any permits required to be issued by any
governmental entities (including, without limitation, the Buildings Department)
having jurisdiction thereover, and (iii) a general release from all contractors
and subcontractors performing Tenant's Work releasing Landlord and Tenant from
all liability for any Tenant's Work. Within thirty (30) business days after
final completion of Tenant's Work, Tenant shall submit to Landlord a general
release or final lien waivers from all contractors and subcontractors performing
Tenant's Work releasing Landlord and Tenant from all liability for any Tenant's
Work. To the extent that the Work Cost at any time exceeds the Work Credit or
the portion thereof available for its completion, Landlord shall apply the Work
Credit toward each installment (subject to ten (10%) percent retainage as
aforesaid) in the same proportion that the Work Credit bears to the Work Cost.
Subsequent installments of the Work Credit shall be adjusted so that the
proportion is maintained on an ongoing basis as to the total Work Cost. Tenant
shall, in accordance with Landlord's request, furnish Landlord with copies of
paid
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invoices and cancelled checks and such other documentation as Landlord may
reasonably request to demonstrate payment by Tenant of its proportion of any
installment
2.11. Landlord shall have the right to withhold payment of any portion of
the Work Credit representing the reasonably estimated cost of completing any
portion of the work which has not been completed as described in a particular
written requisition or correcting any such work which shall not have been
performed in a good and workmanlike manner.
2.12. Subject to Landlord's approval as provided in this Article 2, Tenant
shall have the right to install a double glass door at the entrance to the
demised premises.
ARTICLE 3
ADJUSTMENTS OF RENT
3.01. For the purposes of this Lease:
A. The term "Tenant's Tax Share" shall be deemed to mean 3.26%.
B. "Landlord's Statement" shall mean an instrument with reasonable
detail containing a computation of additional rent due pursuant to the
provisions of this Article 3 furnished by Landlord to Tenant.
C. The term "Real Property" shall mean the Building and the parcel of
land upon which it is constructed (hereinafter called the "Land") and all
easements, air rights, development rights and other appurtenances thereto.
D. The term "Taxes" shall mean (i) all real estate taxes and
assessments (special or otherwise), municipal, district and subdistrict taxes
and impositions and any other governmental levies, impositions or charges of a
similar or dissimilar nature, whether general, special, ordinary, extraordinary,
foreseen or unforeseen, which may be assessed, levied or imposed upon all or any
part of the Real Property, whether or not the same constitutes one or more tax
lots, and (ii) any reasonable expenses (including consultants' and attorneys'
fees and disbursements and experts' and other witness' fees) incurred by or on
behalf of Landlord in evaluating, protesting or contesting any of the foregoing
or the assessed valuation of all or any part of the Real Property. If at any
time after the date hereof the methods of taxation prevailing at the date hereof
shall be altered so that in lieu of or as an addition to or as a substitute for
the whole or any part of the taxes and assessments now assessed, levied or
imposed upon all or any part of the Real Property, there shall be assessed,
levied or imposed (a) a tax, assessment, levy, capital levy or otherwise, or (b)
a tax, assessment, levy, imposition or charge measured by or based in whole or
in part upon all or any part of the Real Property or the value thereof and
imposed upon Landlord, or (c) a license fee measured by the rents, or (d) a net
income, franchise, "value added", or other tax, assessment, levy, imposition,
charge or license fee however described or imposed, then all such taxes,
assessments, levies, impositions, charges or license fees, or the part thereof
so measured or based, shall be deemed to be Taxes; provided that any
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tax, assessment, levy, imposition or charge imposed on income from the Real
Property shall be calculated as if the Real Property were the only asset of
Landlord.
E. The term "Tax Year" shall mean the twelve (12) month period
commencing July 1 of each year, or such other period of twelve (12) months as
may be duly adopted as the fiscal year for real estate tax purposes in The City
of New York.
F. The term "Base Tax" shall be deemed to mean the amount determined
by multiplying (i) the amount for which the Building and Land are assessed by
The City of New York for the purposes of establishing Taxes to be paid by
Landlord for the Tax Year commencing July 1, 2003, as finally determined, by
(ii) the real property tax rate applicable to the Real Property with respect to
the Tax Year commencing July 1, 2003.
G. The term "Tenant's Projected Share of Taxes" shall mean Tenant's
Tax Payment (hereinafter defined), if any, payable by Tenant for the immediately
prior Tax Year divided by twelve (12) and payable monthly by Tenant to Landlord
as additional rent, on the first day of each month, provided, however, that for
the first Tax Year Landlord shall be entitled to receive a Tax Payment, Tenant's
Projected Share of Taxes shall be as reasonably determined by Landlord.
3.02. A. Tenant shall pay as additional rent for each Tax Year, all or any
portion of which shall be within the term of this Lease, a sum ("Tenant's Tax
Payment") equal to Tenant's Tax Share of the amount by which the Taxes payable
for such Tax Year exceed the Base Tax. Tenant's Tax Payment for each Tax Year
shall be due and payable by Tenant in full within ten (10) days after receipt of
a demand therefor from Landlord, based upon the most recent Landlord's
Statement. If there shall be any increase of decrease in Taxes for any Tax Year,
whether during or after such Tax Year, Landlord shall furnish a revised
Landlord's Statement for such Tax Year. If a Landlord's Statement is furnished
to Tenant after the commencement of a Tax Year in respect of which such
Landlord's Statement is rendered, Tenant shall, within fifteen (15) days after
receipt of such statement, pay to Landlord the amount of any underpayment of
Tenant's Tax Payment with respect to such Tax Year or in the event of any
overpayment, Landlord shall either pay to Tenant, or, at Landlord's election,
credit against subsequent payments under this Lease, the amount of Tenant's
overpayment. Whenever so requested, but not more often than once a year,
Landlord will furnish Tenant with a reproduced copy of the ▇▇▇▇ for Taxes for
the current or next preceding Tax Year.
B. Commencing with the first Tax Year Landlord shall be entitled to
receive a Tenant's Tax Payment, Tenant shall pay to Landlord as additional rent
for the then Tax Year (on account for the subsequent Tax Year), Tenant's
Projected Share of Taxes. Upon each date that a Tenant's Tax Payment or an
installment on account thereof shall be due from Tenant pursuant to the terms of
this Section 3.02., Landlord shall apply the aggregate of the installments of
Tenant's Projected Share of Taxes then on account with Landlord against the
Tenant's Tax Payment or installment thereof then due from Tenant. In the event
that such aggregate amount shall be insufficient to discharge such Tenant's Tax
Payment or installment, Landlord shall so notify Tenant and the amount of
Tenant's payment obligation with respect to such Tenant's Tax Payment or
installment shall be equal to the amount of the insufficiency. If, however, such
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aggregate amount shall be greater than the Tenant's Tax Payment or installment,
Landlord shall promptly either (i) pay the amount of excess directly to Tenant
concurrently with the notice or (ii) permit Tenant to credit the amount of such
excess against the next payment(s) of fixed annual rent or other sums due to
Landlord hereunder.
C. If the real estate tax fiscal year of The City of New York shall be
changed at any time after the date hereof, any Taxes for such fiscal year, a
part of which is included within a particular Tax Year and a part of which is
not so included, shall be apportioned on the basis of the number of days in such
fiscal year included in the particular Tax Year for the purpose of making the
computations under this Section 3.02. If the imposition or allocation of Taxes
for any Tax Year is delayed for any reason, Tenant shall nevertheless continue
to pay Tenant's Tax Payment then in effect subject to retroactive adjustment at
such time as Taxes are imposed or allocated.
D. Only Landlord shall have the right to institute tax reduction or
other proceedings to reduce the Taxes or the assessed valuation of the Real
Property. If Landlord shall receive a refund of Taxes for any Tax Year in
respect of which Tenant has made a Tenant's Tax Payment, Landlord shall either
repay to Tenant or, at Landlord's election, credit against subsequent payments
due under this Lease, Tenant's Tax Share of the refund after deducting from such
refund the reasonable costs and expenses (including experts' and attorneys'
fees) of obtaining such refund (except to the extent such costs and expenses
have already been included in the computation of Taxes), but in no event to
exceed Tenant's Tax Payment paid for the Tax Year in respect of which the refund
is received. Nothing herein shall obligate Landlord to file any application or
institute any such proceeding. Landlord shall be under no obligation to contest
the Taxes or the assessed valuation of the Real Property or to refrain from
contesting the same, and may settle any such contest on such terms as Landlord
in its sole judgment considers proper. If the assessment for the Base Tax Year
shall be reduced from the amount originally imposed after Landlord shall have
rendered a Landlord's Statement to Tenant with respect to any Tax Year(s), the
amount of the Tenant's Tax Payments shall be adjusted in accordance with such
change and Tenant, on Landlord's demand, shall pay any increase in additional
rent resulting from such adjustment.
3.03. For purposes of this Lease:
A. The term "Escalation Year" shall mean each calendar year which
shall include any part of the term of this Lease.
B. The term "Base Operating Factor" shall mean the "Operating
Expenses" (defined hereinafter) for the 2002 calendar year.
C. The term "Tenant's Proportionate Share" shall be deemed to mean
3.38%.
D. The term "Amortized Expenses" shall mean the annual amortization
(on a straight-line basis over a depreciable life in accordance with generally
accepted accounting principles consistently applied, with interest calculated at
the Interest Rate at the time of Landlord's having made such expenditure) of
expenditures incurred by Landlord
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after the calendar year utilized for the calculation of the Base Operating
Factor for any equipment, device or capital improvement which is required to
comply with Legal Requirements (provided amortized expenses shall not include
costs incurred to comply with Legal Requirements in effect on the date of this
Lease and as to which on the date hereof Landlord is in violation) or insurance
requirements or which is designed as a labor-saving measure or designed and
reasonably anticipated to effect other economies or efficiencies in the
operation or maintenance of the Real Property or the Building equipment.
E. The term "Operating Expenses" shall include without being limited
thereto Amortized Expenses and all other costs and expenses (and taxes thereon,
if any) paid or incurred by Landlord or on behalf of Landlord with respect to
the operation, cleaning, repair, safety, management, heating, ventilating and
air conditioning of the Building, including the Building condenser water system
(the "Base Building System"), security and maintenance of the Real Property,
Building equipment, sidewalks, curbs, plazas and other areas adjacent to the
Building, sewer and water rents, rates and charges, and with respect to the
services provided tenants, reasonable annual management fees or, if no managing
agent is employed by Landlord, a sum in lieu thereof not in excess of the then
prevailing rates for management fees payable in the Borough of Manhattan, City
of New York, for first class office buildings (which, in either case, shall
hereinafter be referred to as the "Management Fee") and insurance against loss
or liability with respect to the Real Property or the revenues thereof;
provided, however, that Operating Expenses shall exclude or have deducted from
them, as the case may be:
1. executives' salaries solely to the extent that such
salaries, when added to the Management Fee, exceed the then prevailing rates for
management fees payable in the Borough of Manhattan, City of New York, for first
class office buildings;
2. expenditures for capital improvements or capital
equipment, other than those included in Amortized Expenses;
3. amounts received by Landlord through insurance proceeds,
condemnation awards, warranties and service contracts, or otherwise, to the
extent they are compensation for sums previously included in Operating Expenses
hereunder;
4. amounts paid to an affiliate of Landlord which are in
excess of the amounts which would have been paid in the absence of such
relationship;
5. depreciation, except as the same may be included in
Amortized Expenses;
6. brokerage commissions paid for leasing of space in the
Building;
7. Taxes (as said term is defined in Section 3.01.D);
8. advertising and promotional expenditures incurred in
connection with leasing space in the Building;
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9. costs incurred in performing work or furnishing services
for any tenant (including Tenant), at such tenant's expense, or if at Landlord's
expense, to the extent that such work or service is in excess of any work or
service that Landlord is obligated to furnish to Tenant at Landlord's expense
pursuant to the terms of this Lease or is otherwise furnishing to Tenant;
10. refinancing costs, rents payable under any superior
lease, mortgage interest and mortgage amortization payments; and
11. Air Conditioning Costs (hereinafter defined).
12. the cost of any work done for any tenants or any funds
or money given to tenants in cash or otherwise in connection with the leasing of
space in the Building;
13. the cost of any judgment, settlement or arbitration
award resulting from any liability of Landlord which is the result of Landlord's
negligence or willful misconduct and all expenses incurred in connection
therewith;
14. the cost of any work of fine art;
15. costs associated with the operation of the business
entity which constitutes Landlord (e.g., preparation of partnership tax returns)
as distinguished from the costs of operation of the Building such as the cost of
preparing Landlord's Statements;
16. the cost of utilities supplied directly to tenants of
the Building at such tenant's expense other than pursuant to escalation
provisions in such tenant's lease;
17. the cost of any items to the extent Landlord is actually
specifically reimbursed by any tenant therefor (other than pursuant to
escalation provisions in such tenant's lease);
18. any cost representing an amount paid to an affiliate of
Landlord but only to the extent of the excess of the amount which would
reasonably have been paid in the absence of such relationship;
19. bad debt loss, rent loss or reserve for the same;
20. the cost of repairs to Building equipment to the extent
Landlord is reimbursed for such costs pursuant to a warranty or guaranty;
21. costs incurred in connection with the making of leases,
the resolution of disputes with tenants (except to the extent that such dispute
relates to the operation, maintenance or repair of the Building) or damages
resulting from the breach of any leases by tenants;
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22. the costs of correcting any latent or other defects in
construction of the Building; and
23. the cost of remediating any existing condition relating
to hazardous materials which constitutes a violation of Legal Requirements
existing as of the date hereof.
24. costs incurred by Landlord for repairs, replacements or
other work occasioned by fire, windstorm, other casualty typically covered by
usual property insurance (except for any reasonable or customary deductible
under such policy, which deductible shall be includable as an Operating
Expense).
25. costs for services provided to space occupied by retail
tenants on the ground floor of the Building.
F. If during all or part of any Escalation Year (including the year in
which the Base Operating Factor is calculated), Landlord shall not furnish any
particular item(s) of work or service (the cost of which would otherwise
constitute an Operating Expense) to portions of the Building due to the fact
that such portions are not occupied or leased or because the occupant is itself
furnishing such service or utility or for any other reason, then, for the
purposes of computing Operating Expenses, the amount of such item for such
period shall be deemed to be increased by an amount equal to the additional
costs and expenses which would reasonably have been incurred during such period
by Landlord if it had at its own expense furnished such item of work or service
to such portion of the Building or to such tenant.
3.04. A. Tenant shall pay as additional rent for each Escalation Year an
amount ("Tenant's Operating Payment") equal to Tenant's Proportionate Share of
the amount by which Operating Expenses for such Escalation Year exceeds the Base
Operating Factor.
B. Landlord shall furnish to Tenant, with respect to each Escalation
Year, a reasonably detailed written statement setting forth Landlord's
reasonable estimate of Tenant's Operating Payment for such Escalation Year.
Tenant shall pay to Landlord on the first day of each month during such
Escalation Year an amount equal to one-twelfth of such Landlord's estimate of
Tenant's Operating Payment for such Escalation Year. If, however, Landlord shall
furnish any such estimate for an Escalation Year subsequent to the commencement
thereof, then (i) until the first day of the month following the month in which
such estimate is furnished to Tenant, Tenant shall pay to Landlord on the first
day of each month an amount equal to the monthly sum payable by Tenant to
Landlord under this Section 3.04. in respect of the last month of the preceding
Escalation Year; (ii) Tenant shall, within fifteen (15) days after receipt by
Tenant of such estimate, pay to Landlord the amount of any underpayment of
Tenant's Operating Payment with respect to the then current Escalation Year
calculated to the end of the month in which such estimate is furnished, or, in
the event of an overpayment, Landlord shall either pay to Tenant, or, at
Landlord's election, credit the amount against subsequent payments under this
Lease, the amount of Tenant's overpayment; and (iii) Tenant shall pay to
Landlord an amount equal to one-twelfth of Tenant's Operating Payment shown on
such estimate on the first day of the month following the month in which such
estimate is
11
furnished to Tenant, and monthly thereafter throughout the remainder of such
Escalation Year unless and until Landlord shall furnish to Tenant a revised
statement of Landlord's reasonable estimate of Tenant's Operating Payment for
such Escalation Year, which Landlord may do at any time or from time to time and
in such case, Tenant's Operating Payment for such Escalation Year shall be
adjusted and paid or refunded, as the case may be, substantially in the same
manner as provided in the preceding clause 3.04.B(ii).
C. After the end of each Escalation Year Landlord shall furnish to
Tenant a Landlord's Statement for such Escalation Year. Each such year end
Landlord's Statement shall be accompanied by a computation of Operating Expenses
for the Building from which Landlord shall make the computation of Operating
Expenses hereunder. In making its computation of Operating Expenses, Landlord
may rely on estimates and allocations when necessary. If the Landlord's
Statement shall show that the sums paid by Tenant under Section 3.04.B exceeded
Tenant's Operating Payment paid by Tenant for such Escalation Year, Landlord
shall either refund to Tenant the amount of such excess or, at Landlord's
election, credit the amount of such excess against subsequent payments under
this Lease; and if the Landlord's Statement for such Escalation Year shall show
that the sums so paid by Tenant were less than Tenant's Operating Payment paid
by Tenant for such Escalation Year, Tenant shall pay the amount of such
deficiency within fifteen (15) days after receipt by Tenant of such year end
Landlord's Statement.
3.05. For purposes of this Lease, "Air Conditioning Costs" shall mean all
costs and expenses (and taxes thereon, if any) paid or incurred by Landlord with
respect to the maintenance, operation, repair and replacement of the air
conditioning and ventilating system and equipment (including all air
conditioning equipment servicing the floor(s) all or part of which comprise the
demised premises, hereinafter referred to as "the Floor Unit(s)") servicing all
leasable areas of the Building (the "A/C Units") except with respect to costs
and expenses caused by the gross negligence or willful misconduct of Landlord or
any tenant, but including, without limitation, wages of employees of Landlord or
employees whose wages are chargeable to Landlord engaged in the maintenance,
operation, repair and replacement of all such air conditioning. Air Conditioning
Costs shall not include costs incurred in the maintenance, operation, repair and
replacement of the Base Building System.
3.06. A. Tenant shall pay, to Landlord, as additional rent for each
Escalation Year an amount ("Tenant's A/C Payment") equal to the product of (i)
the Air Conditioning Costs for such Escalation Year, multiplied by (ii) a
fraction, the numerator of which is the number of hours Tenant uses a Floor
Unit, and the denominator of which is the total number of hours that the A/C
Units are used by all tenants and occupants of the Building (excluding tenants
and occupants of the retail space in the Building).
B. Landlord shall furnish to Tenant, with respect to each Escalation
Year, a written statement setting forth Landlord's reasonable estimate of
Tenant's A/C Payment for such Escalation Year. Tenant shall pay to Landlord on
the first day of each month during such Escalation Year an amount equal to
one-twelfth of Landlord's estimate of Tenant's A/C Payment for such Escalation
Year. If, however, Landlord shall furnish any such estimate for an Escalation
Year subsequent to the commencement thereof, then (i) until the first day of the
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month following the month in which such estimates are furnished to Tenant,
Tenant shall pay to Landlord on the first day of each month the amounts equal to
the monthly sum payable by Tenant to Landlord under this Section 3.06. in
respect of the last month of the preceding Escalation Year; (ii) Tenant shall,
within fifteen (15) days after receipt by Tenant of such estimates, pay to
Landlord the amount of any underpayment of Tenant's A/C Payment with respect to
the then current Escalation Year calculated to the end of the month in which
such estimate is famished, or, in the event of an overpayment, Landlord shall
either pay to Tenant, or, at Landlord's election, credit against subsequent
Tenant's A/C Payments due under this Section 3.06., the amount of Tenant's
overpayment; and (iii) Tenant shall pay to Landlord an amount equal to
one-twelfth of Tenant's A/C Payment shown on such estimate on the first day of
the month following the month in which such estimate is furnished to Tenant, and
monthly thereafter throughout the remainder of such Escalation Year, unless and
until Landlord shall furnish to Tenant a revised statement of Landlord's
reasonable estimate of Tenant's A/C Payment for such Escalation Year, which
Landlord may do at any time or from time to time and in such case, Tenant's A/C
Payment for such Escalation Year shall be adjusted and paid or refunded, as the
case may be, substantially in the same manner as provided in the preceding
clause 3.06.B(ii).
C. Each year end Landlord's Statement shall be accompanied by a
computation of Air Conditioning Costs from which Landlord shall make the
computation of Tenant's A/C Payment hereunder. In making such computation the
managing agent or certified public accountant may rely on Landlord's estimates
and allocations when necessary. If the Landlord's Statement shall show that the
sums paid by Tenant under this Section 3.06. exceeded the payments required to
be paid by Tenant pursuant to said Section for such Escalation Year, Landlord
shall either refund to Tenant the amount of such excess or, at Landlord's
election, credit the amount of such excess against subsequent payments under
this Lease; and if the, Landlord's Statement for such Escalation Year shall show
that the sums so paid by Tenant were less than the Tenant's A/C Payment for such
Escalation Year, Tenant shall pay the amount of such deficiency within fifteen
(15) days after receipt by Tenant of such year end Landlord's Statement.
3.07. In the event of a termination of this Lease, any additional rent
under this Article shall be paid or adjusted within thirty (30) days after
submission of a Landlord's Statement. In no event shall fixed rent ever be
reduced by operation of Section 3.02., Section 3.04. or Section 3.06. The rights
and obligations of Landlord and Tenant under the provisions of this Article with
respect to any additional rent shall survive the termination of this Lease.
3.08. Landlord's failure during the Lease term to prepare and deliver any
of the foregoing statements or bills, or Landlord's failure to make a demand,
shall not in any way cause Landlord to forfeit or surrender its rights to
collect any of the foregoing items of additional rent which may have become due
during the tern of this Lease. Tenant's and Landlord's liability for the amounts
due under this Article shall survive the expiration of the term.
3.09. A. Landlord's failure to render Landlord's Statements with respect to
any Tax Year or Escalation Year shall not prejudice Landlord's right to
thereafter render a
13
Landlord's Statement with respect thereto or with respect to any subsequent Tax
Year or Escalation Year, nor shall the rendering of a Landlord's Statement
prejudice Landlord's right to thereafter render a corrected Landlord's Statement
for that Tax Year or Escalation Year, as the case may be. Nothing herein
contained shall restrict Landlord from issuing a Landlord's Statement at any
time there is an increase in Taxes, Operating Expenses or Air Conditioning Costs
during any Tax Year or Escalation Year or any time thereafter.
B. Each Landlord's Statement shall be conclusive and binding upon
Tenant, and each of Landlord's estimates given pursuant to Section 3.01.G,
Section 3.04.B and 3.06.B shall be conclusively deemed to be a reasonable
estimate, unless (i) within ninety (90) days after receipt of such Landlord's
Statement or estimate, as the case may be, Tenant shall notify Landlord that it
disputes the correctness of Landlord's Statement or the reasonableness of such
estimate, specifying the particular respects in which such Landlord's Statement
is claimed to be incorrect or such estimate is claimed to be unreasonable, and
(ii) if such dispute shall not be resolved within one hundred twenty (120) days
after the giving of such Landlord's Statement or estimate, as the case may be,
then Landlord may refer the matter or matters in dispute to a firm of
independent reputable certified public accountants approved by Tenant (which
approval shall not be unreasonably withheld) and the decision of such
accountants shall be conclusive and binding upon the parties. If the parties are
unable to agree upon accountants to determine the matter in dispute, such
accountants shall be appointed upon the application of either party by the
American Arbitration Association, New York, New York. The accountants selected
by the American Arbitration Association shall be chosen from among the
twenty-five largest accounting firms in New York City and shall not then
otherwise be retained by either Landlord or Tenant. The fees and expenses of
said accountants in determining such matter or matters shall be home by the
unsuccessful party (and if both parties are partially unsuccessful, the
accountant shall apportion the fees and disbursements between the parties based
upon the degree of success of each party). Pending the determination of such
dispute, Tenant shall pay additional rent in accordance with the applicable
Landlord's Statement without prejudice to Tenant's position. If such dispute is
ultimately determined in Tenant's favor, Landlord shall promptly after such
determination pay or credit to Tenant any amount so overpaid by Tenant.
C. Tenant, upon no less than ten (10) days prior notice, may elect to
have Tenant's regular outside auditors (certified public accountants) or other
reputable firm of independent, certified public accountants examine, at
Landlord's offices or such other offices as Landlord shall designate in New York
City, such of Landlord's books and records (collectively, the "Records") that
are directly relevant to the Landlord's Statement in question, provided any such
examination shall be commenced within ninety (90) days after Tenant's receipt of
Landlord's Statement and concluded within sixty (60) days after the commencement
of such examination and further provided that Tenant shall have reasonable
access to the Records during such period. In making such examination, Tenant
agrees, and shall cause its designated representative to agree in form
reasonably satisfactory to Landlord to keep confidential any and all information
contained in the Records unless such representative is required to disclose such
information under applicable law, pursuant to the order of a court of competent
jurisdiction, or in connection with any legal action or proceeding. Tenant
agrees that the persons making such examination shall not be compensated on a
percentage or contingent basis.
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3.10. If a Tax Year or Escalation Year begins prior to the Commencement
Date or ends after the Expiration Date or sooner termination of this Lease
(other than pursuant to Article 14), Tenant's Tax Payment, Tenant's A/C Payment
and Tenant's Operating Payment with respect thereto shall be prorated in
accordance with the number of days any such Tax Year or Escalation Year
occurring during the term hereof.
ARTICLE 4
ELECTRICITY
4.01. A. Tenant shall make all arrangements with the public utility company
(the "Utility") for obtaining electricity directly from the Utility. Landlord
will permit its electric feeders, risers and wiring serving the demised premises
to be used by Tenant to the extent available and safely capable of being used
for such purpose. Tenant shall be responsible to the Utility for the payment of
all charges for electricity consumed by Tenant in the demised premises and all
electric current used in the operation of the heating, ventilation and
air-conditioning servicing the demised premises (including the Floor Unit, any
supplemental air conditioning, fans and motors) shall be the obligation of
Tenant.
B. In the event the connected load in the demised premises shall at
any time or from time to time during the term hereof exceed, or if Tenant shall
desire connected load in excess of the connected load then allocated to the
demised premises, then Tenant shall pay to Landlord, as additional rent, the
then Building standard excess capacity charge (the "Excess Capacity Charge") for
each occurrence of such excess capacity (over and above the wattage of any
previous excess capacity for which Tenant has paid an Excess Capacity Charge).
C. Landlord shall be obligated to pay no part of any costs required
for Tenant's direct electric service. Interruption or curtailment of such direct
service shall not constitute a constructive or partial eviction nor entitle
Tenant to any compensation or abatement of rent. Landlord shall not in anywise
be liable or responsible to Tenant for any loss, damage or expense which Tenant
may sustain or incur for such interruption or curtailment or if either the
quantity or character of electric service is changed or is no longer available
or suitable for Tenant's requirements.
4.02. Tenant covenants and agrees that at all times its use of electric
current shall never exceed the capacity of the then existing feeders to the
Building or the risers or wiring in the Building. Landlord, at Landlord's
option, shall furnish, install and replace, as required, all Building Standard
lighting tubes, lamps, bulbs and ballasts required in the demised premises at
Tenant's sole cost and expense. All lighting tubes, lamps, bulbs and ballasts so
installed shall become Landlord's property upon the expiration or sooner
termination of this Lease.
4.03. In no event shall Tenant use or install any fixtures, equipment or
machines, the connected load use of which would exceed the electricity service
allocated to the demised premises. All meters, panel boards, wiring and other
equipment which may be required to obtain electricity from the Utility shall be
maintained by Tenant at its expense. Subject to the
15
provisions of Article 6 hereof, Tenant shall make no alterations to the
electrical equipment without the prior written consent of Landlord.
4.04. Subject to the provisions of this Article 4, Landlord shall make
available to the electrical closets serving the demised premises six (6) ▇▇▇▇▇
per usable square foot of electrical capacity for Tenant's lighting and
connected load within the demised premises, excluding electricity required for
the operation of the Floor Unit.
ARTICLE 5
USE
5.01. The demised premises shall be used solely as and for executive and
general offices and, as a use incidental thereto, a financial instruments
trading floor (but not retail sales) and for no other purpose.
5.02. Tenant shall not use or permit the use of the demised premises or any
part thereof in any way which would violate any of the covenants, agreements,
terms, provisions and conditions of this Lease or for any unlawful purposes or
in any unlawful manner or in violation of the Certificate of Occupancy for the
demised premises or the Building, and Tenant shall not suffer or permit the
demised premises or any part thereof to be used in any manner or anything to be
done therein or anything to be brought into or kept therein which, in the
judgment of Landlord, shall in any way impair or tend to impair the character,
reputation or appearance of the Building as a high quality office building,
impair or interfere with or tend to impair or interfere with any of the Building
services or the proper and economic heating, cleaning, air-conditioning or other
servicing of the Building or the demised premises, or impair or interfere with
or tend to impair or interfere with the use of any of the other areas of the
Building by, or occasion discomfort, inconvenience or annoyance to, any of the
other tenants or occupants of the Building. Tenant shall not install any
electrical or other equipment of any kind which, in the judgment of Landlord,
might cause any such impairment, interference, discomfort, inconvenience or
annoyance.
5.03. Tenant shall not cause or permit any Hazardous Materials (hereinafter
defined) to be used, stored, transported, released, handled, produced or
installed in, on or from the demised premises or the Building. "Hazardous
Materials", as used herein, shall mean any flammables, explosives, radioactive
materials, hazardous wastes, hazardous and toxic substances or related
materials, asbestos or any material containing asbestos, or any other substance
or material included in the definition of "hazardous substances", "hazardous
wastes", "hazardous materials", "toxic substances", "contaminants" or any other
pollutant, or otherwise regulated by any Federal, state or local environmental
law, ordinance, rule or regulation including, without limitation, the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended, the Hazardous Materials Transportation Act, as amended, the Resource
Conservation and Recovery Act, as amended, and in the regulations adopted and
publications promulgated pursuant to each of the foregoing. In the event of a
violation of any of the foregoing provisions of this Section, Landlord may,
without notice and without regard to any
16
grace period contained herein, take all remedial action reasonably deemed
necessary by Landlord to correct such condition and Tenant shall reimburse
Landlord for the cost thereof, within ten (10) days after demand therefor, as
additional rent. The provisions of this Section shall not prohibit Tenant from
maintaining customary and normal office equipment and supplies used in its
business to the extent the same are of a nature and in amounts which are
incidental and customarily present at first class office buildings in Manhattan
and provided such items are permitted and safeguarded as required by law and
insurance bodies. Landlord represents that to its knowledge there are no
Hazardous Materials within the demised premises.
5.04. It is expressly understood that no portion of the demised premises
shall be used as, or for (i) a bank, trust company, savings bank, industrial
bank, savings and loan association or personal loan bank (or any branch office
or public accommodation office of any of the foregoing) dealing with the general
public on an off-the-street basis, or (ii) a public stenographer or typist,
▇▇▇▇▇▇ shop, beauty shop, beauty parlor or shop, telephone or telegraph agency,
telephone or secretarial service, messenger service, travel or tourist agency,
clinic, hospital or other medical facility, employment agency, public restaurant
or bar, commercial document reproduction or offset printing service, public
vending machines, retail, wholesale or discount shop for sale of merchandise,
retail service shop, labor union, school or classroom, governmental or
quasi-governmental bureau, department or agency, including an autonomous
governmental corporation, an advertising agency, a firm whose principal business
is either (x) real estate brokerage, or (y) renting office or desk space or (z)
the design, manufacture or sale of jewelry or precious or semi-precious stones
or other jewelry related materials.
ARTICLE 6
ALTERATIONS AND INSTALLATIONS
6.01. Tenant shall make no alterations, installations, additions or
improvements in or to the demised premises without Landlord's prior written
consent. All such work, alterations, installations, additions and improvements
shall be done at Tenant's sole expense and at such times and in such manner as
Landlord may from time to time reasonably designate. Tenant shall also provide
at Landlord's request, with respect to proposed alterations costing in the
aggregate in excess of $100,000 (other than Tenant's Work), such financial
security as Landlord shall require to guarantee completion of Tenant's work and
payment of all contractors and suppliers utilized in connection therewith.
Landlord's consent shall not be unreasonably withheld or delayed with respect to
any alterations or improvements which (i) are non-structural, (ii) do not
adversely affect the mechanical, electrical, heating, plumbing or other systems
of the Building and (iii) do not affect any part of the Building outside the
demised premises or the exterior of the Building or Perimeter Offices, as
hereinafter defined. Notwithstanding the foregoing but subject to Section 6.08
hereof, prior Landlord approval shall not be required, but all of the other
provisions of this Article 6 shall apply to the performance of purely cosmetic
or decorative work such as painting or carpeting.
Any Tenant's work in the demised premises shall be prosecuted to
completion and effected solely in accordance with plans and specifications first
approved in writing by
17
Landlord. Tenant shall reimburse Landlord promptly upon demand for any
reasonable out-of-pocket costs and expenses incurred by Landlord in connection
with Landlord's review of such Tenant's plans and specifications. Provided
Tenant makes specific reference to the following requirement in its request for
approval of Tenant's plans and specifications, Landlord shall grant or deny its
approval to such plans or specifications within ten (10) business days of the
delivery to Landlord of such plans, specifications and such other materials
Landlord shall reasonably request in order to evaluate said plans and
specifications. The foregoing ten (10) business day period, however, shall be
extended to twenty (20) business days if, in Landlord's reasonable judgment, it
is necessary to have third party architects, engineers or consultants review
such plans. Landlord shall not be deemed unreasonable in withholding its consent
to the extent such plans and specifications involve the performance of work or
the installation in the demised premises of materials or equipment which do not
equal or exceed Building Standard.
Any such approved alterations and improvements shall be performed in
accordance with the foregoing and the following provisions of this Article 6:
1. All work shall be done in a good and workmanlike manner.
2. (a) In the event Tenant shall employ any contractor to do
in the demised premises any work permitted by this Lease, such contractor and
any subcontractor shall agree to employ only such labor as will not result in
jurisdictional disputes or strikes or result in causing disharmony with other
workers employed at the Building. Tenant will inform Landlord in writing of the
names of any contractor or subcontractor Tenant proposes to use in the demised
premises at least ten (10) days prior to the beginning of work by such
contractor or subcontractor and all such contractors and subcontractors shall be
subject to Landlord's prior approval.
(b) Tenant covenants and agrees to pay to contractor,
as the work progresses, the entire cost of supplying the materials and
performing the work shown on Tenant's approved plans and specifications.
3. All such alterations shall be effected in compliance with
all applicable laws, ordinances, rules and regulations of governmental bodies
having or asserting jurisdiction in the demised premises and in accordance with
Landlord's Rules and Regulations with respect to alterations.
4. All work to be performed by Tenant shall be done in a
manner which will not unreasonably interfere with or disturb other tenants or
occupants of the Building.
5. During the progress of the work to be done by Tenant,
said work shall be subject to inspection by representatives of Landlord which
shall be permitted access and the opportunity to inspect, at all reasonable
times, but this provision shall not in any way whatsoever create any obligation
on Landlord to conduct such an inspection.
18
6. With respect to alteration or improvement work (excluding
Tenant's Work) costing more than $50,000, Tenant agrees to pay to Landlord or
its managing agent, as additional rent, promptly upon being billed therefor, a
sum equal to seven (7%) percent of the cost of such work or alteration, for
Landlord's indirect costs, field supervision and coordination in connection with
such work. The foregoing charge shall not be applied to the cost of Tenant's
Work.
7. Prior to commencement of any work, Tenant shall furnish
to Landlord certificates evidencing the existence of insurance against such
risks and with such limits as Landlord may reasonably require.
Notice is hereby given that Landlord shall not be liable for any labor or
materials furnished or to be furnished to Tenant upon credit, and that no
mechanic's or other lien for any such labor or materials shall attach to or
affect the reversion or other estate or interest of Landlord in and to the
demised premises.
6.02. Any mechanic's lien, filed against the demised premises or the
Building for work claimed to have been done for or materials claimed to have
been furnished to Tenant shall be discharged by Tenant at its expense within
thirty (30) days after such filing, by payment, filing of the bond required by
law or otherwise.
6.03. All alterations, installations, additions and improvements made and
installed by Landlord, if any, shall be the property of Landlord and shall
remain upon and be surrendered with the demised premises as a part thereof at
the end of the term of this Lease.
6.04. At or before the Expiration Date or the date of any earlier
termination of this Lease, or as promptly as practicable after such earlier
termination date, Tenant at its expense, shall remove from the demised premises
and/or the Building (a) all of the property which it is required to remove
pursuant to Section 6.05 hereof (except such items thereof as Tenant shall have
expressly agreed in writing with Landlord were to remain and to become the
property of Landlord), (b) any changes in or to the demised premises which are
of a non-Building Standard nature such as stairways, vaults, raised floors,
private bathrooms and other installations which are unusually difficult or
costly to remove (as compared to Building Standard installations) unless, as to
the changes described in this clause (b), Landlord by notice to Tenant given no
later than sixty (60) days prior to the Expiration Date or within ten (10) days
after the date of termination with respect to any earlier termination of this
Lease, waives such requirement or instructs Tenant to the contrary. Landlord
shall at Tenant's request advise Tenant whether any proposed alterations are of
a type which, in accordance with the foregoing, Landlord could require Tenant to
remove, including such non-building standard type work but no such advice shall
constitute Landlord's election to require the same to be removed or a waiver of
Landlord's right thereafter to require removal. Notwithstanding anything to the
contrary contained herein, any and all air handling equipment in or serving the
demised premises shall not be removed by Tenant but shall remain and be
surrendered with the demised premises in good working order. Tenant's
obligations herein shall survive the termination of this Lease.
19
6.05. Where furnished by or at the expense of Tenant all furniture,
furnishings and trade fixtures, including without limitation, murals, business
machines and equipment, drinking fountains, refrigeration and air-handling
equipment, and any other movable property shall remain the property of Tenant
which may at its option remove all or any part thereof at any time prior to the
expiration of the term of this Lease. In case Tenant shall decide not to remove
any part of such property, Tenant shall notify Landlord in writing not less than
three (3) months prior to the expiration of the term of this Lease, specifying
the items of property which it has decided not to remove. Unless Landlord,
within thirty (30) days after the service of such notice, gives a notice to
Tenant permitting Tenant to leave such property in the demised premises, Tenant
shall at its expense remove the same. As to such property which Landlord permits
Tenant to leave, the same shall be, if left by Tenant, deemed abandoned by
Tenant and thereupon the same shall become the property of Landlord.
6.06. If any alterations, installations, additions, improvements or other
property which Tenant shall have the right to remove or be requested by Landlord
to remove as provided in Sections 6.04 and 6.05 hereof (herein in this Section
6.06 called the "property") are not removed on or prior to the expiration of the
term of this Lease, Landlord shall have the right to remove the property and to
dispose of the same without accountability to Tenant and at the sole cost and
expense of Tenant. In case of any damage to the demised premises or the Building
resulting from the removal of the property Tenant shall repair such damage or,
in default thereof, shall reimburse Landlord for Landlord's cost in repairing
such damage. This obligation shall survive any termination of this Lease.
6.07. Tenant shall keep records of Tenant's alterations, installations,
additions and improvements costing in excess of $100,000 and of the cost
thereof. Tenant shall, within forty-five (45) days after demand by Landlord,
furnish to Landlord copies of such records and cost if Landlord shall require
same in connection with any proceeding to reduce the assessed valuation of the
Building, or in connection with any proceeding instituted pursuant to Article 14
hereof or for any other reason or purpose.
6.08. For purposes of this Lease, the term "Perimeter Offices" shall mean
those offices, rooms and other areas of the demised premises which are both
within ten (10) feet of a Building window and are readily visible from the
exterior of the Building. Notwithstanding anything contained herein to the
contrary, Tenant shall make no changes of any kind or nature involving
installation or modification of window treatments, ceilings or lighting, in or
to any Perimeter Offices, without Landlord's prior written consent in each
instance, which consent may be arbitrarily withheld.
ARTICLE 7
REPAIRS
7.01. Tenant shall take good care of the demised premises and the fixtures
and appurtenances therein and at its sole cost and expense make all repairs
thereto as and when needed to preserve the same in good working order and
condition. With respect to the Building
20
systems serving the demised premises Tenant shall be responsible for (i) repair
and maintenance of Tenant's internal air-distribution system to the point at
which the same connects to the Floor Unit (if the demised premises comprise all
the space on a floor) or to the main distribution duct for the demised premises
(if the demised premises comprise a portion of a floor), (ii) repair and
maintenance of the internal electrical system to the panel box serving the
demised premises, and (iii) repair and maintenance of all plumbing fixtures and
lines in and serving the demised premises to the point at which the same join
the main vertical risers of the Building. All such repairs and maintenance with
respect to such Building system shall be performed in a Building Standard manner
by Landlord or by a contractor selected and approved by Landlord, whose costs
shall be consistent with the cost for the performance or such work in
first-class buildings in Midtown Manhattan, and the cost shall be payable by
Tenant as additional rent within ten (10) days after rendition by Landlord of
any ▇▇▇▇(s) pertaining thereto. Except as otherwise provided in Section 9.05
hereof, all damage or injury to the demised premises and to its fixtures,
appurtenances and equipment or to the Building or to its fixtures, appurtenances
and equipment caused by Tenant moving property in or out of the Building or by
installation or removal of furniture, fixtures or other property, shall be
repaired, restored or replaced promptly by Tenant at its sole cost and expense,
which repairs, restorations and replacements shall be in quality and class equal
to the original work or installations. If Tenant fails to make such repairs,
restoration or replacements, same may be made by Landlord at the expense of
Tenant and such expense shall be collectible as additional rent and shall be
paid by Tenant within 15 days after rendition of a ▇▇▇▇ therefor.
The exterior walls of the Building, the portions of any window ▇▇▇▇▇
outside the windows, and the windows are not part of the premises demised by
this Lease and Landlord reserves all rights to such parts of the Building.
7.02. Tenant shall not place a load upon any floor of the demised premises
exceeding the floor load per square foot area which such floor was designed to
carry and which is allowed by law. If Tenant shall desire a floor load in excess
of that which the affected floors are designed to carry Landlord agrees
(provided Landlord's engineers, in their sole discretion, find that the work
necessary to increase such floor load does not adversely affect the structure of
the Building, and further provided that such work will not interfere with the
amount or availability of any space adjoining alongside, above or below the
demised premises, or interfere with the occupancy of other tenants in the
Building), to strengthen and reinforce the same so as to give the live load
desired, provided Tenant shall submit to Landlord the plans showing the
locations of and the desired floor live load for the areas in question, and
provided further, that Tenant shall agree to pay for or reimburse Landlord on
demand for the cost of such strengthening and reinforcement as well as any other
costs to and expenses of Landlord occasioned by or resulting from such
strengthening or reinforcement. Installations as to which any floor has been
strengthened or reinforced shall not be relocated without Landlord's prior
approval.
7.03. Business machines and mechanical equipment used by Tenant which cause
vibration, noise, cold or heat that may be transmitted to the Building structure
or to any leased space to such a degree as to be objectionable to Landlord or to
any other tenant in the Building shall be placed and maintained by Tenant at its
expense in settings of cork, rubber or spring type vibration eliminators
sufficient to absorb and prevent such vibration or noise, or
21
prevent transmission of such cold or heat. The parties hereto recognize that the
operation of elevators, air-conditioning and heating equipment will cause some
vibration, noise, heat or cold which may be transmitted to other parts of the
Building and demised premises. Landlord shall be under no obligation to endeavor
to reduce such vibration, noise, heat or cold.
7.04. Except as otherwise specifically provided in this Lease, there shall
be no allowance to Tenant for a diminution of rental value and no liability on
the part of Landlord by reason of inconvenience, annoyance or injury to business
arising from the making of any repairs, alterations, additions or improvements
in or to any portion of the Building or the demised premises or in or to
fixtures, appurtenances or equipment thereof.
7.05. Landlord shall, throughout the term, be responsible at Landlord's
cost and expense (provided that such costs may, to the extent permitted under
Article 3 hereof, be included as Operating Expenses or Air-Conditioning Costs)
for repairs to the structural elements of the Building, the common areas of the
Building to the extent required or utilized by Tenant in connection with its
occupancy of the demised premises or to gain access thereto, and those portions
of the Building systems for which Tenant is not responsible pursuant to Section
7.01 hereof, so as to keep the same in good working condition, except for such
repairs the need for which is attributable to the acts or omissions of Tenant,
its agents, employees, contractors or invitees.
7.06. Landlord shall use its reasonable efforts to minimize interference
with Tenant's use and occupancy of the demised premises in making any repairs
pursuant to this Article 7, or in the performance of any alterations, additions
or improvements to the Building or the demised premises which Landlord may
perform pursuant to this Lease; provided, however, that Landlord shall have no
obligation to employ contractors or labor at so-called overtime or other premium
pay rates or to incur any other overtime costs whatsoever.
ARTICLE 8
REQUIREMENTS OF LAW
8.01. Tenant at Tenant's expense shall comply with all Legal Requirements
(as defined in Article 20 hereof), which shall impose any violation, order or
duty upon Landlord or Tenant with respect to the demised premises, or the use or
occupation thereof. Nothing provided in the preceding sentence 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 Legal
Requirement.
8.02. Notwithstanding the provisions of Section 8.01 hereof, Tenant, at its
own cost and expense, may contest, in any manner permitted by law (including
appeals to a court, or governmental department or authority having jurisdiction
in the matter), the validity or the enforcement of any governmental act,
regulation or directive with which Tenant is required to comply pursuant to this
Lease, and may defer compliance therewith provided that:
22
(a) such noncompliance shall not subject Landlord to
criminal prosecution or subject the Land and/or Building to lien or sale;
(b) such noncompliance shall not be in violation of any
fee mortgage, or of any ground or underlying lease or any mortgage thereon;
(c) Tenant shall first deliver to Landlord a surety
bond issued by a surety company of recognized responsibility, or other security
satisfactory to Landlord, indemnifying and protecting Landlord against any loss
or injury by reason of such noncompliance; and
(d) Tenant shall promptly and diligently prosecute such
contest.
Landlord, without expense or liability to it, shall cooperate with
Tenant and execute any documents or pleadings required for such purpose,
provided that Landlord shall reasonably be satisfied that the facts set forth in
any such documents or pleadings are accurate.
ARTICLE 9
INSURANCE, LOSS, REIMBURSEMENT, LIABILITY
9.01. Tenant shall not do or permit to be done any actor thing upon the
demised premises, which will invalidate or be in conflict with New York standard
fire insurance policies covering the Building, and fixtures and property
therein, or which would increase the rate of fire insurance applicable to the
Building to an amount higher than it otherwise would be; and Tenant shall
neither do nor permit to be done any act or thing upon the demised premises
which shall or might subject Landlord to any liability or responsibility for
injury to any person or persons or to property by reason of any business or
operation being carried on within the demised premises; but nothing in this
Section 9.01 shall prevent Tenant's use of the demised premises for the purposes
stated in Article 5 hereof.
9.02. If, as a result of any act or omission by Tenant or violation of this
Lease, the rate of fire insurance applicable to the Building shall be increased
to an amount higher than it otherwise would be, then in addition to any other
remedies which Landlord has hereunder for any such violations of the terms of
this Lease, Tenant shall reimburse Landlord for all increases of Landlord's fire
insurance premiums so caused; such reimbursement to be additional rent payable
upon the first day of the month following any outlay by Landlord for such
increased fire insurance premiums. In any action or proceeding wherein Landlord
and Tenant are parties, a schedule or "makeup" of rates for the Building or
demised premises issued by the body making fire insurance rates for the demised
premises, shall be presumptive evidence of the facts therein stated and of the
several items and charges in the fire insurance rate then applicable to the
demised premises.
9.03. Landlord or its agents shall not be liable for any injury or damage
to persons or property resulting from fire, explosion, falling plaster, steam,
gas, electricity, water,
23
rain or snow or leaks from any part of the Building, or from the pipes,
appliances or plumbing works or from the roof, street or subsurface or from any
other place or by dampness or by any other cause of whatsoever nature, unless
any of the foregoing shall be caused by or due to the negligence of Landlord,
its agents, servants or employees.
9.04. Landlord or its agents shall not be liable for any damage which
Tenant may sustain, if at any time any window of the demised premises is broken
or temporarily or permanently (restricted to windows on a lot line, if
permanently) closed, darkened or bricked up for any reason whatsoever, except
only Landlord's arbitrary acts if the result is permanent, and Tenant shall not
be entitled to any compensation therefor or abatement of rent or to any release
from any of Tenant's obligations under this Lease, nor shall the same constitute
an eviction. Tenant agrees that Landlord shall be permitted at any time to
install film on the inside of the windows of the Building to reduce the usage of
energy in the Building. Tenant consents to such installation and agrees that
Landlord shall have no liability with respect to any closing or darkening of the
windows of the demised premises in connection therewith.
9.05. Tenant shall reimburse Landlord for all expenses, damages or fines
incurred or suffered by Landlord, by reason of any breach, violation or
nonperformance by Tenant, or its agents, servants or employees, of any covenant
or provision of this Lease, or by reason of damage to persons or property caused
by moving property of or for Tenant in or out of the Building, or by the
installation or removal of furniture or other property of or for Tenant or by
reason of or arising out of the carelessness, negligence or improper conduct of
Tenant, or its agents, servants or employees, in the use or occupancy of the
demised premises. Subject to the provisions of Section 8.02 hereof, where
applicable, Tenant shall have the right, at Tenant's own cost and expense, to
participate in the defense of any action or proceeding brought against Landlord,
and in negotiations for settlement thereof if, pursuant to this Section 9.05,
Tenant would be obligated to reimburse Landlord for expenses, damages or fines
incurred or suffered by Landlord.
9.06. Tenant shall give Landlord notice in case of fire or accidents in the
demised premises promptly after Tenant is aware of such event.
9.07. Tenant agrees to look solely to Landlord's estate and interest in the
Land and Building, or the lease of the Building, or of the Land and Building,
and the demised premises, for the satisfaction of any right or remedy of Tenant
for the collection of a judgment (or other judicial process) requiring the
payment of money by Landlord, in the event of any liability by Landlord, and no
other property or assets of Landlord and no property of any partner, shareholder
or principal of Landlord shall be subject to levy, execution, attachment, or
other enforcement procedure for the satisfaction of Tenant's remedies under or
with respect to this Lease, the relationship of Landlord and Tenant hereunder,
or Tenant's use and occupancy of the demised premises, or any other liability of
Landlord to Tenant.
9.08. (a) Landlord agrees that, if obtainable, it will include in its fire
insurance policies appropriate clauses pursuant to which the insurance companies
(i) waive all right of subrogation against Tenant with respect to losses payable
under such policies and (ii) agree that such policies shall not be invalidated
should the insured waive in writing prior to a
24
loss any or all right of recovery against any party for losses covered by such
policies. But should any additional premiums be exacted for any such clause or
clauses, Landlord shall be released from the obligation hereby imposed unless
Tenant shall agree to pay such additional premium. Landlord represents that its
current fire insurance policy insuring the Building contains a waiver of
subrogation provision or will not be invalidated by the waiver contained herein.
(b) Tenant agrees to include, if obtainable, in its
fire insurance policy or policies on its furniture, furnishings, fixtures and
other property removable by Tenant under the provisions of this Lease
appropriate clauses pursuant to which the insurance company or companies (i)
waive the right of subrogation against Landlord and any tenant of space in the
Building with respect to losses payable under such policy or policies and/or
(ii) agree that such policy or policies shall not be invalidated should the
insured waive in writing prior to a loss any or all right of recovery against
any party for losses covered by such policy or policies. But should any
additional premium be exacted for any such clause or clauses, Tenant shall be
released from the obligation hereby imposed unless Landlord or the other tenants
shall agree to pay such additional premium.
(c) Provided that Landlord's right of full recovery
under its policy or policies aforesaid is not adversely affected or prejudiced
thereby, Landlord hereby waives any and all right of recovery which it might
otherwise have against Tenant, its servants, agents and employees, for loss or
damage occurring to the Building and the fixtures, appurtenances and equipment
therein, to the extent the same is covered by Landlord's insurance,
notwithstanding that such loss or damage may result from the negligence or fault
of Tenant, its servants, agents or employees. Provided that Tenant's right of
full recovery under its aforesaid policy or policies is not adversely affected
or prejudiced thereby, Tenant hereby waives any and all right of full recovery
which it might otherwise have against Landlord, its servants, agents and
employees, and against every other tenant in the Building who shall have
executed a similar waiver as set forth in this Section 9.08(c) for loss or
damage to, Tenant's furniture, furnishings, fixtures and other property
removable by Tenant under the provisions hereof to the extent that the same is
covered by Tenant's insurance, notwithstanding that such loss or damage may
result from the negligence or fault of Landlord, its servants, agents or
employees, or such other tenant and the servants, agents or employees thereof.
(d) Landlord and Tenant hereby agree to advise the
other promptly if the clauses to be included in their respective insurance
policies pursuant to subdivisions 9.08(a) and (b) hereof cannot be obtained.
Landlord and Tenant hereby also agree to notify the other promptly of any
cancellation or change of the terms of any such policy which would affect such
clauses.
9.09. Tenant covenants and agrees to provide on or before the Commencement
Date and to keep in force during the term hereof for the benefit of Landlord and
Tenant a comprehensive general liability insurance policy protecting Landlord
and Tenant against any liability whatsoever, occasioned by any occurrence on or
about the demised premises or any appurtenances thereto. Such policy is to be
written by good and solvent insurance companies reasonably satisfactory to
Landlord, and shall be in such limits as Landlord may reasonably require and as
of the date of this Lease Landlord reasonably requires limits of liability
thereunder
25
of not less than the amount of Five Million ($5,000,000) Dollars single limit
for bodily or personal injury (including death) and in the amount of One Million
($1,000,000) Dollars in respect of property damage. Such insurance may be
carried under a blanket policy covering the demised premises and other locations
of Tenant, if any. Prior to the time such insurance is first required to be
carried by Tenant and thereafter, at least fifteen (15) days prior to the
effective date of any such policy, Tenant agrees to deliver to Landlord either a
duplicate original of the aforesaid policy or a certificate evidencing such
insurance. Said policy or certificate, as the case may be, shall contain an
endorsement that such insurance may not be cancelled except upon ten (10) days'
notice to Landlord. Tenant's failure to provide and keep in force the
aforementioned insurance shall be regarded as a material default hereunder
entitling Landlord to exercise any or all of the remedies provided in this Lease
in the event of Tenant's default.
ARTICLE 10
DAMAGE BY FIRE OR OTHER CAUSE
10.01. If the Building or the demised premises shall be partially or
totally damaged or destroyed or if access thereto is denied by fire or other
cause, then whether or not the damage or destruction shall have resulted from
the fault or neglect of Tenant, or its employees, agents, or visitors (and if
this Lease shall not have been terminated as in this Article 10 hereinafter
provided), Landlord shall repair the damage and restore and rebuild the Building
and/or the demised premises, at its expense (without limiting the rights of
Landlord under any other provisions of this Lease), with reasonable dispatch
after notice to it of the damage or destruction; provided, however, that
Landlord shall not be required to repair or replace any of Tenant's property.
10.02. If the Building or the demised premises shall be partially damaged
or partially destroyed by fire or other cause or if access is denied for any
reason, then the rents payable hereunder shall be abated to the extent that the
demised premises shall have been rendered untenantable or inaccessible for the
period from the date of such damage or destruction or inaccessibility to the
date the damage shall be repaired or restored or access restored.
If the demised premises or a major part thereof shall be totally
(which shall be deemed to include substantially totally) damaged or destroyed or
rendered completely (which shall be deemed to include substantially completely)
untenantable on account of fire or other cause, or inaccessibility for any
reason, the rents shall ▇▇▇▇▇ as of the date of the damage or destruction and
until Landlord shall repair, restore and rebuild the Building and the demised
premises, provided, however, that should Tenant reoccupy a portion of the
demised premises during the period the restoration work is taking place and
prior to the date that the same are made completely tenantable, rents allocable
to such portion shall be payable by Tenant from the date of such occupancy.
10.03. If the Building or the demised premises shall be totally damaged or
destroyed by fire or other cause, or if the Building shall be so damaged or
destroyed by fire or other cause (whether or not the demised premises are
damaged or destroyed) as to require a
26
reasonably estimated expenditure of more than forty (40%) per cent of the full
insurable value of the Building immediately prior to the casualty, then in
either such case Landlord may terminate this Lease by giving Tenant notice to
such effect within one hundred twenty (120) days after the date of the casualty.
If Landlord is required to or elects to repair and restore the demised premises
pursuant to any provision of this Article 10 and (i) the damage involved a
substantial part of the demised premises or (ii) there is damage to the Building
which materially impairs Tenant's access or ability to conduct its business in
the demised premises, Landlord shall, within one hundred twenty (120) days after
the event giving rise thereto, provide Tenant with a written notice of the
estimated date on which the restoration of the demised premises or the access
thereto or the Building shall be substantially completed based upon the
information available to Landlord at the time in question. If such estimated
date is more than nine (9) months after the date of such damage or destruction
then Tenant may terminate this Lease by notice to Landlord, which notice shall
be given within thirty (30) days after the date Landlord provides the notice
required by the preceding sentence, and such termination shall be effective upon
the giving of Tenant's notice. Failure by Tenant to provide such notice within
such thirty (30) day period shall be deemed an election by Tenant not to
terminate this Lease. If Tenant elects not to terminate this Lease or is deemed
to have so elected, and if Landlord has not substantially completed the making
of the required repairs, restored and rebuilt the Building and the demised
premises, or the means of access thereto and redelivered the demised premises to
Tenant within the later of: (i) nine (9) months from the date of such damage or
destruction or (ii) the period originally estimated by Landlord or within such
period after either such date (not exceeding three (3) months) as shall equal
the aggregate period Landlord may have been delayed in doing so by adjustment of
insurance, labor trouble, governmental controls, act of God, or any other cause
beyond Landlord's reasonable control, then Tenant shall have the further right
to elect to terminate this Lease upon written notice to Landlord and such
election shall be effective upon the expiration of thirty (30) days after the
date of such notice, unless Landlord substantially completes such restoration
within such thirty (30) day period.
10.04. No damages, compensation or claim shall be payable by Landlord for
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the demised premises or of the Building pursuant
to this Article 10.
10.05. Notwithstanding any of the foregoing provisions of this Article 10,
if Landlord or the lessor of any superior lease or the holder of any superior
mortgage shall be unable to collect all of the insurance proceeds (including
rent insurance proceeds) applicable to damage or destruction of the demised
premises or the Building by fire or other cause, by reason of some action or
inaction on the part of Tenant or any of its employees, agents or contractors,
then, without prejudice to any other remedies which may be available against
Tenant, there shall be no abatement of Tenant's rents, but the total amount of
such rents not abated (which would otherwise have been abated) shall not exceed
the amount of uncollected insurance proceeds.
10.06. Landlord will not carry separate insurance of any kind on Tenant's
property, and, except as provided by law or by reason of its breach of any of
its obligations hereunder, shall not be obligated to repair any damage thereto
or replace the same. Tenant shall maintain insurance on Tenant's property, and
Landlord shall not be obligated to repair any damage thereto or replace the
same.
27
10.07. The provisions of this Article 10 shall be considered an express
agreement governing any cause of damage or destruction of the demised premises
by fire or other casualty, and Section 227 of the Real Property Law of the State
of New York, providing for such a contingency in the absence of an express
agreement, and any other law of like import, now or hereafter in force, shall
have no application in such case.
10.08. Landlord agrees to maintain throughout the term of this Lease
insurance against usual perils with respect to the Building and Landlord's
property therein in amounts or with limits sufficient so as to prevent Landlord
from being considered a "co-insurer."
ARTICLE 11
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.
11.01. Tenant shall not (a) assign or otherwise transfer this Lease or the
term and estate hereby granted, (b) sublet the demised premises or any part
thereof or allow the same to be used or occupied by others or in violation of
Article 5, (c) mortgage, pledge or encumber this Lease or the demised premises
or any part thereof in any manner by reason of any act or omission on the part
of Tenant, or (d) advertise, or authorize a broker to advertise, for a subtenant
or an assignee, without, in each instance, obtaining the prior consent of
Landlord, which consent, with respect to clause (d) only, shall not be
unreasonably withheld, conditioned, or delayed, except as otherwise expressly
provided in this Article 11. For purposes of this Article 11, (i) the transfer
of a majority of the issued and outstanding capital stock of any corporate
tenant, or of a corporate subtenant, or the transfer of a majority of the total
interest in any partnership tenant or subtenant, however accomplished, whether
in a single transaction or in a series of related or unrelated transactions,
shall be deemed an assignment of this Lease, or of such sublease, as the case
may be, except that the transfer of the outstanding capital stock of any
corporate tenant, or subtenant, or other interests in any other entity shall be
deemed not to include the sale of such stock or other interests by persons or
parties, through the "over-the-counter market" or through any recognized stock
exchange or to employees, existing shareholders (i.e., shareholders as of the
date hereof), their families, trusts for their benefit or entities controlled by
any of them, (ii) a takeover agreement shall be deemed a transfer of this Lease,
(iii) any person or legal representative of Tenant, to whom Tenant's interest
under this Lease passes by operation of law, or otherwise, shall be bound by the
provisions of this Article 11, and (iv) a material modification, amendment or
extension of a sublease shall be deemed a sublease. Tenant shall pay to Landlord
on demand, as additional rent any costs incurred by Landlord to review a
proposed assignment or subletting including attorneys fees incurred by Landlord
and in addition shall pay to Landlord with each request for its consent, a
processing fee of $1,000.
11.02. (a) The provisions of Section 11.01 hereof shall not apply to
transactions with an entity into or with which Tenant is merged or consolidated
or with an entity to which substantially all of Tenant's assets or capital stock
are transferred (provided such merger or transfer is for a good business purpose
and not principally for the purpose of transferring the leasehold estate created
hereby, and provided further, that the assignee (which
28
shall not be deemed for this purpose to exclude a transfer of Tenant's capital
stock) has a net worth at least equal to or in excess of the greater of
seventy-five percent (75%) of (x) the net worth of Tenant immediately prior to
such merger or transfer) or (y) the net worth of Tenant as of the date of this
Lease or, if Tenant is a partnership, with a successor partnership.
(b) Notwithstanding anything to the contrary contained
in Section 11.06, Landlord shall not have the rights described therein, Section
11.06(f) shall not apply and the Tenant shall not be required to obtain
Landlord's consent if Tenant desires to assign this Lease or sublease all or a
portion of the demised premises to an affiliate of Tenant, provided the use of
the demised premises shall not be affected thereby and in any event that the use
of the demised premises shall be consistent with a first class office building,
will not require a level of services than that required by Tenant and shall
comply with the provisions of this Lease. As used in this paragraph, the term
"affiliate" shall mean an individual, partnership, corporation, unincorporated
association or other entity controlling, controlled by or under common control
with Tenant and for the purposes of the foregoing, "control" shall mean
ownership of a majority of the legal and beneficial interest in such corporation
or other entity, together with the ability to direct the management, affairs and
operations thereof. Except as hereinafter provided in this Paragraph (b), any
transfer or cessation of control over any affiliate or subsidiary to which this
Lease is assigned or to which space is sublet (including by means of a
transaction contemplated by paragraph (a) hereof) shall constitute an assignment
of this Lease to which all of the provisions of this Article 11 shall apply
other than Tenant's rights contained in this Section 11.02. In the event that
Tenant assigns this Lease in accordance with this paragraph, the assignee of
this Lease shall execute an agreement of the type required to be executed by an
assignee pursuant to Section 11.03 hereof.
11.03. Any assignment or transfer, whether made with Landlord's consent as
required by Section 11.01 or without Landlord's consent pursuant to Section
11.02, shall be made only if, and shall not be effective until, the assignee
shall execute, acknowledge and deliver to Landlord an agreement, in form and
substance reasonably satisfactory to Landlord, whereby the assignee shall assume
the obligations arising on and from the date of such assignment and performance
of this Lease and agree to be personally bound by and upon all of the covenants,
agreements, terms, provisions and conditions hereof on the part of Tenant to be
performed or observed and whereby the assignee shall agree that the provisions
of Section 11.01 hereof shall, notwithstanding such an assignment or transfer,
continue to be binding upon it in the future. Tenant covenants that,
notwithstanding any assignment or transfer, whether or not in violation of the
provisions of this Lease, and notwithstanding the acceptance of fixed annual
rent by Landlord from an assignee or transferee or any other party, Tenant shall
remain fully and primarily liable for the payment of the fixed annual rent due
and to become due under this Lease and for the performance of all of the
covenants, agreements, terms, provisions and conditions of this Lease on the
part of Tenant to be performed or observed.
11.04. The liability of Tenant for the due performance by Tenant of the
obligations on its part to be performed under this Lease, shall not be
discharged, released or impaired in any respect by an agreement or stipulation
made by Landlord with any immediate or remote successor by assignment or
otherwise of Tenant, extending the time of or modifying any of the obligations
contained in this Lease, or by any waiver or failure of Landlord to enforce
29
against such successor any of the obligations on Tenant's part to be performed
under this Lease, and Tenant shall continue liable hereunder. If any such
agreement or modification entered into between Landlord and any such successor
operates to increase the obligations of Tenant under this Lease, the liability
under this Section 11.04 of the tenant named in the Lease or any of its
successors in interest, (unless such party shall have expressly consented in
writing to such agreement or modification) shall continue to be no greater than
if such agreement or modification had not been made. To charge Tenant named in
this Lease and its successors in interest, no demand or notice of any default
shall be required; Tenant and each of its successors in interest hereby
expressly waives any such demand or notice.
11.05. Landlord shall not unreasonably withhold or delay its consent to an
assignment of this Lease or a subletting of the whole or a part of the demised
premises for substantially the remainder of the term of this Lease, provided:
(a) Tenant shall furnish Landlord with the name and
business address of the proposed subtenant or assignee, information with respect
to the nature and character of the proposed subtenant's or assignee's business,
or activities, such references and current (audited if available) financial
information with respect to net worth, credit and financial responsibility as
are reasonably satisfactory to Landlord, and an executed counterpart of a letter
of intent reflecting the essential terms of the proposed sublease or assignment
agreement;
(b) The proposed subtenant or assignee is a reputable
party whose financial net worth, credit and financial responsibility is,
considering the responsibilities involved, reasonably satisfactory to Landlord;
(c) The nature and character of the proposed subtenant
or assignee, its business or activities and intended use of the demised premises
is, in Landlord's reasonable judgment, in keeping with the standards of the
Building and the floor or floors on which the demised premises are located;
(d) The proposed subtenant or assignee is not then an
occupant of any part of the Building or a party who dealt with Landlord or
Landlord's agent (directly or through a broker) with respect to space in the
Building during the 6 months immediately preceding Tenant's request for
Landlord's consent;
(e) Each sublease shall specifically state that (i) it
is subject to all the terms, covenants, agreements, provisions, and conditions
of this Lease, (ii) the subtenant (except as described in the following
sentence), will not have the right to a further assignment thereof or sublease
or assignment thereunder, or to allow the demised premises to be used by others,
without the consent of Landlord in each instance. Notwithstanding the foregoing,
Landlord agrees that with respect to the first sub-subletting only (i.e., a
subletting by a subtenant of Tenant), but not any further underletting by any
sub-subtenant, its consent shall not be unreasonably withheld or delayed subject
to compliance with all of the provisions of Article 11, including Section 11.06
hereof which shall apply, except with respect to the calculation of
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amounts payable pursuant to Paragraph (f) thereof and as to which Landlord shall
be entitled to 100% as though such underletting were a direct transaction with
or by Tenant;
(f) Tenant shall have complied with the provisions in
Section 11.06 and Landlord shall not have made any of the elections provided for
in Section 11.06 and if Tenant delivered a letter of intent thereunder, the
assignment or sublease to which consent is sought conforms thereto in all
material respects;
(g) In the case of a subletting of a portion of the
demised premises, the portion so sublet shall be regular in shape and suitable
for normal renting purposes;
(h) Intentionally Deleted;
(i) The proposed assignment shall be for a
consideration which in the case of an assignment shall reflect an amount equal
to at least ninety percent (90%) of the then fair market value of the leasehold
created hereby, or the proposed subletting shall be at a rental rate not less
than an amount equal to ninety percent (90%) of the fair market rental for the
demised premises (taking into account that the transaction is a subletting, the
term thereof, the condition of the space involved and any rental concessions or
abatements provided). In no event shall Tenant advertise or list with brokers at
any rental rate whether equal to or higher or lower than that then being charged
by Landlord; and
(j) With respect to assignments only, Tenant deposits
with Landlord such additional security hereunder as Landlord may reasonably
determine is justified by the circumstances.
11.06. (a) Should Tenant propose to assign this Lease, other than by an
assignment contemplated by Section 11.02, Tenant shall as soon as such
assignment is consummated or a letter of intent with respect thereto is
executed, deliver to Landlord an executed counterpart of such assignment or
letter of intent, and any ancillary agreements with the proposed assignee, and
Landlord shall than have the right to elect, by notifying Tenant within 30 days
of the delivery of such assignment or letter of intent, to terminate this Lease,
as of the proposed effective date set forth in the letter of intent or
assignment, as if it were the Expiration Date set forth in this Lease.
(b) Any letter of intent delivered pursuant to
paragraphs (a) or (c) hereof shall contain all of the material business terms of
the proposed assignment or sublease, as the case may be, and if Landlord does
not exercise its options thereunder and a sublease or assignment, as the case
may be, is not executed within six (6) months after the expiration of Landlord's
options or such earlier date as Landlord gives Tenant notice that it will not
exercise the same, and, if Tenant continues to wish to assign or sublease
pursuant thereto, Landlord shall again have its options thereunder.
(c) Should Tenant agree to sublet the demised premises
or any portion thereof, other than by a sublease contemplated by Sections 11.02
or 11.08, Tenant shall, as soon as such sublease is consummated or a letter of
intent is executed,
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deliver to Landlord an executed counterpart of the proposed sublease or letter
of intent and all ancillary agreements with the proposed sublessee, and Landlord
shall then have the right to elect, by notifying Tenant within thirty (30) days
of the delivery of such sublease or letter of intent, to (i) terminate this
Lease as to the portion of the demised premises affected by such subletting or
as to the entire demised premises in the case of a subletting thereof, as of
such effective date, (ii) accept a sublease from Tenant of the portion of the
demised premises affected by such proposed subletting or the entire demised
premises in the case of a proposed subletting thereof, and Tenant shall then
promptly execute and deliver a sublease to Landlord, or Landlord's designee if
so elected by Landlord, for the remainder of the demised term less one day,
commencing with such effective date, at (x) the rental terms reflected in the
proposed sublease or letter of intent or (y) the rental terms contained in this
Lease on a per rentable square foot basis, as elected by Landlord in such
notice.
(d) If Landlord should elect to have Tenant execute and
deliver a sublease pursuant to any of the provisions of this Section 11.06, said
sublease shall be in a form reasonably satisfactory to Landlord's counsel and on
all the terms contained in this Lease, except that:
(i) The rental terms, if elected by Landlord, may
be either as provided in item (x) or item (y) of subsection 11.06(c) hereof.
(ii) The sublease shall not provide for any work
to be done for the subtenant or for any initial rent concessions or contain
provisions inapplicable to a sublease, except that in the case of a subletting
of a portion of the demised premises Tenant shall reimburse subtenant for the
cost of erecting such demising walls as are necessary to separate the subleased
premises from the remainder of the demised premises and to provide access
thereto and to core bathrooms,
(iii) The subtenant thereunder shall have the
right to underlet the subleased premises, in whole or in part, without Tenant's
consent,
(iv) The subtenant thereunder shall have the right
to make, or cause to be made, any changes, alterations, decorations, additions
and improvements that subtenant may desire or authorize,
(v) Such sublease shall expressly negate any
intention that any estate created by or under such sublease be merged with any
other estate held by either of the parties thereto,
(vi) Any consent required of Tenant, as lessor
under that sublease, shall be deemed granted if consent with respect thereto is
granted by Landlord,
(vii) There shall be no limitation as to the use
of the sublet premises by the subtenant thereunder,
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(viii) Any failure of the subtenant thereunder to
comply with the provisions of said sublease shall not constitute a default
hereunder or give rise to any obligation or liability on the part of Tenant, and
(ix) Such sublease shall provide that Tenant's
obligations with respect to vacating the demised premises and removing any
changes, alterations, decorations, additions or improvements made in the
subleased premises shall be limited to those which accrued and related to such
as were made prior to the effective date of the sublease.
(e) If pursuant to the exercise of any of Landlord's
options pursuant to Section 11.06 hereof this Lease is terminated as to only a
portion of the demised premises, then the fixed annual rent payable hereunder
and the additional rent payable pursuant to Article 3 hereof shall be adjusted
in proportion to the portion of the demised premises affected by such
termination.
(f) If Landlord shall give its consent to any
assignment of this Lease or to any sublease, Tenant shall in consideration
therefor, pay to Landlord, as additional rent:
(i) in the case of an assignment an amount equal to 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, less, in the case of a
sale of any of the foregoing other than leasehold improvements, the then
net unamortized or undepreciated cost thereof determined on the basis of
Tenant's federal income tax returns); and
(ii) in the case of a sublease, fifty (50%) percent of any rents,
additional charge or other consideration payable under the sublease to
Tenant by the subtenant which is in excess of the fixed annual rent and
additional rent accruing during the term of the sublease in respect of the
subleased space (at the rate per square foot payable by Tenant hereunder)
pursuant to the terms hereof (including, but not limited to, sums paid for
the sale or rental of Tenant's fixtures, leasehold improvements, equipment,
furniture or other personal property, less, in the case of the sale of any
of foregoing other than leasehold improvements, the then net unamortized or
undepreciated cost thereof determined on the basis of Tenant's federal
income tax returns).
There shall first be deducted in the calculation of the amounts paid to Tenant
pursuant to clause (i) hereof, or the excess pursuant to clause (ii) hereof, the
following costs incurred by Tenant in connection with the proposed subletting or
assignment, as the case may be (w) reasonable or usual brokerage fees paid to
unaffiliated brokers; (x) reasonable legal and advertising expenses, (y) the
reasonable costs (not including Tenant's Work) Tenant incurred in specifically
altering the demised premises for such assignment; and (z) in the event of a
sublease of a portion of the demised premises, costs incurred by Tenant to
separate the subleased space for such subtenant's occupancy from the balance of
the demised premises and provide access thereto and to the core
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bathrooms. The sums payable under this Section 11.06(f) shall be paid to
Landlord as and when paid by the subtenant or assignee to Tenant.
11.07. Landlord's consent to any sublease or assignment shall not be deemed
or construed to modify, amend or affect the terms and provisions of this Lease,
or Tenant's obligations hereunder, which shall continue to apply to the
occupants thereof, as if the sublease or assignment had not been made.
Notwithstanding any assignment or sublease, Tenant shall remain fully liable for
the payment of fixed annual rent and additional rents and for the other
obligations of this Lease on the part of Tenant to be performed or observed. In
the event that Tenant defaults in the payment of any rent, Landlord is
authorized to collect any rents due or accruing from any assignee, subtenant or
other occupant of the demised premises and to apply the net amounts collected to
the fixed annual rent and additional rent reserved herein, and the receipt of
any such amounts by Landlord from an assignee or subtenant, or other occupant of
any part of the demised premises, shall not be deemed or construed as releasing
Tenant from Tenant's obligations hereunder or the acceptance of that party as a
direct tenant. In the event that this Lease shall be assigned to Landlord or
Landlord's designee or if the demised premises shall be sublet to Landlord or
Landlord's designee pursuant to Section 11.06 hereof, then Tenant shall not be
liable for any default caused by such assignee or subtenant.
11.08. Notwithstanding anything to the contrary contained herein, the
provisions of Section 11.06 shall not apply, and Tenant shall not be required to
obtain Landlord's consent to the following:
(a) the use of desk office space in the demised premises by one or
more entities which are clients of Tenant or with which Tenant has a
material ongoing business relationship other than pursuant to this Section
11.08; provided, however, that Tenant, subject to the further limitations
described in subsection (b) of this Section 11.08, shall not permit the use
of desk space involving more than 1,100 rentable square feet in the
aggregate including an allocable share of corridor, reception, secretarial
and other shared space or facilities (the "Desk Office Space"). Permission
to such entities to use the demised premises shall not create a tenancy or
any other interest in the demised premises except a license revocable by
Tenant at will which shall cease and expire in any event automatically
without notice upon the expiration or termination of the letting under the
lease and all acts, omissions and operations of such entities shall be
deemed acts, omissions and operations of the Tenant. Any such desk space
shall remain at all times a part of and shall not be separately demised or
separated from the balance of the demised premises, and the occupants
thereof shall at all times gain access to their space through reception and
corridor areas shared with Tenant; and,
(b) Notwithstanding anything to the contrary contained herein, Tenant
shall not be required to make the offer described in this Subsection
11.06(c), and provided the requirements and conditions of Section 11.05
hereof are otherwise satisfied Landlord shall not unreasonably withhold,
condition or delay its consent to the subletting by Tenant of up to 2,750
rentable square feet (subject to the limitations provided in the last
sentence of this Section) in the demised premises provided that the term of
the proposed
34
sublease does not expire during the last four and one-half (4 1/2) years of
the term of this Lease.
Notwithstanding the foregoing, at no time shall the Desk Office Space and the
space being sublet by Tenant pursuant to Section 11.08(b) involve more than
twenty-five percent (25%) of the rentable area of the demised premises, in the
aggregate.
ARTICLE 12
CONDEMNATION
12.01. In the event that the whole of the demised premises shall be
lawfully condemned or taken in any manner for any public or quasi-public use,
this Lease and the term and estate hereby granted shall forthwith cease and
terminate as of the date of vesting of title. In the event that only a part of
the demised premises shall be so condemned or taken, then, effective as of the
date of vesting of title, the fixed annual rent under Article 1 hereunder and
additional rents under Article 3 hereunder shall be abated in an amount thereof
apportioned according to the area of the demised premises so condemned or taken.
In the event that only a part of the Building shall be so condemned or taken,
then (a) Landlord (whether or not the demised premises be affected) may, at
Landlord's option, terminate this Lease and the term and estate hereby granted
as of the date of such vesting of title by notifying Tenant in writing of such
termination within 60 days following the date on which Landlord shall have
received notice of vesting of title, or (b) if such condemnation or taking shall
be of a substantial part of the demised premises or of a substantial part of the
means of access thereto, or if a temporary taking of a substantial portion of
the demised premises or access thereto shall occur for a period in excess of
twelve (12) months, Tenant may, at Tenant's option, by delivery of notice in
writing to Landlord within thirty (30) days following the date on which Tenant
shall have received notice of vesting of title, terminate this Lease and the
term and estate hereby granted as of the date of vesting of title, or (c) if
neither Landlord nor Tenant elects to terminate this Lease, as aforesaid, this
Lease shall be and remain unaffected by such condemnation or taking, except that
the fixed annual rent payable under Article 1 and additional rents payable under
Article 3 shall be abated to the extent hereinbefore provided in this Article
12. In the event that only a part of the demised premises shall be so condemned
or taken and this Lease and the term and estate hereby granted with respect to
the remaining portion of the demised premises are not terminated as hereinbefore
provided, Landlord will, with reasonable diligence and at its expense, restore
the remaining portion of the demised premises as nearly as practicable to the
same condition as it was in prior to such condemnation or taking.
12.02. In the event of its termination in any of the cases hereinbefore
provided, this Lease and the term and estate hereby granted shall expire as of
the date of such termination with the same effect as if that were the Expiration
Date, and the fixed annual rent and additional rents payable hereunder shall be
apportioned as of such date.
12.03. In the event of any condemnation or taking hereinbefore mentioned of
all or a part of the Building, Landlord shall be entitled to receive the entire
award in the
35
condemnation proceeding, including any award made for the value of the estate
vested by this Lease in Tenant, and Tenant hereby expressly assigns to Landlord
any and all right, title and interest of Tenant now or hereafter arising in or
to any such award or any part thereof, and Tenant shall be entitled to receive
no part of such award. Tenant shall be permitted to make a separate claim in any
condemnation proceeding for the unamortized cost of its property and moving
expenses, provided that any such claim does not adversely affect or reduce
Landlord's claim.
12.04. In the event of any taking of less than the whole of the Building
which does not result in a termination of this Lease, Landlord, at its expense,
and whether or not any award or awards shall be sufficient for the purpose,
shall proceed with reasonable diligence to repair, alter and restore the
remaining parts of the Building and the demised premises to substantially their
former condition to the extent that the same may be feasible and so as to
constitute a complete and tenantable Building and demised premises.
12.05. If the whole or any part of the demised premises shall be taken in
condemnation proceedings or by any right of eminent domain for temporary use or
occupancy the foregoing provisions of this Article shall not apply and Tenant
shall continue to pay, in the manner and at the times herein specified, the full
amounts of fixed annual rent and all additional rent and other charges payable
by Tenant hereunder, and, except only to the extent that Tenant may be prevented
from so doing pursuant to the terms of the order of the condemning authority,
Tenant shall perform and observe all of the other terms, covenants, conditions
and obligations hereof upon the part of Tenant to be performed and observed, as
though such taking had not occurred. Tenant shall be entitled to receive the
entire amount of the condemnation proceeds (after deducting Landlord's
reasonable costs and expenses, if any, in obtaining same) (the "net proceeds")
made for such temporary taking, whether paid by way of damages, rent or
otherwise, unless such period of temporary use or occupancy shall extend beyond
the termination of this Lease, in which case this Lease and the tern and estate
hereby granted shall expire as of the date of such taking with the same effect
as if that were the Expiration Date, and the fixed annual rent and additional
rents payable hereunder shall be apportioned as of such date, and Tenant shall
not be entitled to any of the award therefor. Tenant shall, upon expiration of
any such period of temporary use or occupancy during the term of this Lease,
restore the demised premises, as nearly as may be reasonably practicable, to the
condition in which the same were immediately prior to such taking.
ARTICLE 13
ACCESS TO DEMISED PREMISES; CHANGES
13.01. Tenant shall permit Landlord to erect, use and maintain pipes, ducts
and conduits in and through the demised premises, provided the same are
installed behind existing walls and ceilings of the demised premises. Landlord
shall to the extent reasonably practicable install such pipes, ducts and
conduits by such methods and at such locations as will not materially interfere
with or impair Tenant's layout or use of the demised premises. Landlord or its
agents or designees shall have the right, upon notice (except in the case of
emergency) to
36
Tenant or any authorized employee of Tenant at the demised premises, to enter
the demised premises, at reasonable times during business hours, for the making
of such repairs or alterations as Landlord may deem necessary for the Building
or which Landlord shall be required to or shall have the right to make by the
provisions of this Lease or any other lease in the Building and, subject to the
foregoing, shall also have the right to enter the demised premises for the
purpose of inspecting them or exhibiting them to prospective purchasers or
lessees of the entire Building or to prospective mortgagees of the fee or of the
Landlord's interest in the property of which the demised premises are a part or
to prospective assignees of any such mortgages or to the holder of any mortgage
on the Landlord's interest in the property, its agents or designees. Landlord
shall be allowed to take all material into and upon the demised premises that
may be required for the repairs or alterations above mentioned as the same is
required for such purpose, without the same constituting an eviction of Tenant
in whole or in part, and the rent reserved shall in no wise ▇▇▇▇▇ while said
repairs or alterations are being made by reason of loss or interruption of the
business of Tenant because of the prosecution of any such work. Landlord shall
exercise reasonable diligence so as to minimize the disturbance but nothing
contained herein shall be deemed to require Landlord to perform the same on an
overtime or premium pay basis. Nothing contained herein shall be construed,
however, as requiring Landlord to perform any work during overtime hours or
premium pay basis.
13.02. Landlord reserves the right, 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, stairways, toilets or other public parts of the Building;
provided, however, that access to the Building shall not be cut off and that
there shall be no unreasonable obstruction of access to the demised premises or
unreasonable interference with the use or enjoyment thereof.
13.03. Landlord may, during the nine (9) months prior to expiration of the
term o(pound) this Lease, exhibit the demised premises to prospective tenants.
Landlord shall give Tenant advance notice (which may be given orally or by
telephone) of any such visit.
13.04. If Tenant shall not be personally present to open and permit an
entry into the demised premises at any time when for any reason an entry therein
shall be urgently necessary by reason of fire or other emergency, Landlord or
Landlord's agents may forcibly enter the same without rendering Landlord or such
agents liable therefor (if during such entry Landlord or Landlord's agents shall
accord reasonable care to Tenant's property) and without in any manner affecting
the obligations and covenants of this Lease.
13.05. Subject to the provisions of Article 31 hereof, Tenant shall be
permitted access to the demised premises twenty-four (24) hours a day, seven (7)
days a week throughout the term.
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ARTICLE 14
CONDITIONS OF LIMITATION
14.01. This Lease and the term and estate hereby granted are subject to the
limitation that whenever Tenant shall make an assignment of the property of
Tenant for the benefit of creditors, or shall file a voluntary petition under
any bankruptcy or insolvency law or any involuntary petition alleging an act of
bankruptcy or insolvency shall be filed against Tenant under any bankruptcy or
insolvency law, or whenever a petition shall be filed by or against Tenant under
the reorganization provisions of the United States Bankruptcy Act or under the
provisions of any law of like import, or whenever a petition shall be filed by
Tenant under the arrangement provisions of the United States Bankruptcy Act or
under the provisions of any law of like import, or whenever a permanent receiver
of Tenant or of or for the property of Tenant shall be appointed, then, Landlord
may, (a) at any time after receipt of such notice of the occurrence of any such
event, or (b) if such event occurs without the acquiescence of Tenant, at any
time after the event continues for thirty (30) days, give Tenant a notice of
intention to end the term of this Lease at the expiration of five (5) days from
the date of service of such notice of intention, and upon the expiration of said
five (5) day period, this Lease and the term and estate hereby granted, whether
or not the term shall theretofore have commenced, shall terminate with the same
effect as if that day were the Expiration Date, but Tenant shall remain liable
for damages as provided in Article 16.
14.02. This Lease and the term and estate hereby granted are subject to
further limitation as follows:
(a) whenever Tenant shall default in the payment of any
installment of fixed annual rent, or in the payment of any additional rent or
any other charge payable by Tenant to Landlord, on any day upon which same ought
to be paid, and such default shall continue for five (5) days after Landlord
shall have given Tenant a notice specifying such default, or
(b) whenever Tenant shall do or permit anything to be
done, whether by action or inaction, contrary to any of Tenant's obligations
hereunder, and if such situation shall continue and shall not be remedied by
Tenant within fifteen (15) days after Landlord shall have given to Tenant a
notice specifying the same, or, in the case of a happening or default which
cannot with due diligence be cured within a period of fifteen (15) days and the
continuation of which for the period required for cure will not subject Landlord
to the risk of criminal liability (as more particularly described in Article 8
hereof) or termination of any superior lease or foreclosure of any superior
mortgage, if Tenant shall not, (i) within said fifteen (15) day period advise
Landlord of Tenant's intention to duly institute all steps necessary to remedy
such situation, (ii) duly institute within said fifteen (15) day period, and
thereafter diligently and continuously prosecute to completion all steps
necessary to remedy the same and (iii) complete such remedy within such time
after the date of the giving of said notice of Landlord as shall reasonably be
necessary, or
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(c) whenever Tenant shall default in the due keeping,
observing or performance of any covenant, agreement, provision or condition of
Article 5 hereof on the part of Tenant to be kept, observed or performed and if
such default shall continue and shall not be remedied by Tenant within 24 hours
after Landlord shall have given to Tenant a notice specifying the same, or
(d) whenever any event shall occur or any contingency
shall arise whereby this Lease or the estate hereby granted or the unexpired
balance of the term hereof would, by operation of law or otherwise, devolve upon
or pass to any person, firm or corporation other than Tenant, except as
expressly permitted by Article 11, or
(e) whenever Tenant shall abandon the demised premises
(unless as a result of a casualty), or
(f) whenever in case any other lease held by Tenant
from Landlord shall expire and terminate (whether or not the term thereof shall
then have commenced) as a result of the default of Tenant thereunder or of the
occurrence of an event as therein provided (other than by expiration of the
fixed term thereof or pursuant to a cancellation or termination option therein
contained),
then in any of said cases set forth in the foregoing Subsections (a), (b), (c),
(d), (e) and (f) Landlord may give to Tenant a notice of intention to end the
term of this Lease at the expiration of three (3) days from the date of the
service of such notice of intention and upon the expiration of said three (3)
days this Lease and the term and estate hereby granted, whether or not the term
shall theretofore have commenced, shall terminate with the same effect as if
that day were the Expiration Date, but Tenant shall remain liable for damages as
provided in Article 16.
ARTICLE 15
RE-ENTRY BY LANDLORD; INJUNCTION
15.01. If Tenant shall default in the payment of any installment of fixed
annual rent, or of any additional rent, on any date upon which the same ought to
be paid, and if such default shall continue for five (5) days after Landlord
shall have given to Tenant a notice specifying such default, or if this Lease
shall expire as in Article 14 provided, Landlord or Landlord's agents and
employees may immediately or at any time thereafter re-enter the demised
premises, or any part thereof, either by summary dispossess proceedings or by
any suitable action or proceeding at law, or by force or otherwise, without
being liable to indictment, prosecution or damages therefrom, to the end that
Landlord may have, hold and enjoy the demised premises again as and of its first
estate and interest therein. The word re-enter, as herein used, is not
restricted to its technical legal meaning. In the event of any termination of
this Lease under the provisions of Article 14 or if Landlord shall re-enter the
demised premises under the provisions of this Article 15 or in the event of the
termination of this Lease, or of re-entry, by or under any summary dispossess or
other proceedings or action or any provision of law by reason of default
hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord the
fixed annual rent and additional rent payable by Tenant to Landlord up to the
time of such termination
39
of this Lease, or of such recovery of possession of the demised premises by
Landlord, as the case may be, and shall also pay to Landlord damages as provided
in Article 16.
15.02. In the event of a breach or threatened breach of Tenant of any of
its obligations under this Lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies or means
of redress to which Landlord may lawfully be entitled at any time and Landlord
may invoke any remedy allowed at law or in equity as if specific remedies were
not provided for herein.
15.03. If this Lease shall terminate under the provisions of Article 14, or
if Landlord shall re-enter the demised premises under the provisions of this
Article 15, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Landlord shall be
entitled to retain all moneys, if any, paid by Tenant to Landlord, whether as
advance rent, security or otherwise, but such moneys shall be credited by
Landlord against any fixed annual rent or additional rent due from Tenant at the
time of such termination or re-entry or, at Landlord's option against any
damages payable by Tenant under Articles 14 and 16 or pursuant to law.
15.04. 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 Landlord obtaining
possession of the demised premises, by reason of the violation by Tenant of any
of the covenants and conditions of this Lease or otherwise.
ARTICLE 16
DAMAGES
16.01. If this Lease is terminated under the provisions of Article 14, or
if Landlord shall re-enter the demised premises under the provisions of Article
15, or in the event of the termination of this Lease, or of re-entry, by or
under any summary dispossess or other proceeding or action or any provision of
law by reason of default hereunder on the part of Tenant, Tenant shall pay to
Landlord as damages, at the election of Landlord, either:
(a) a sum which at the time of such termination of this
Lease or at the time of any such re-entry by Landlord, as the case may be,
represents the then value of the excess, if any, of
(1) the aggregate of the fixed annual rent
and the additional rent payable hereunder which would have been payable by
Tenant (conclusively presuming that additional rent on account of increases in
Taxes, the Operating Expenses and Air-Conditioning Costs shall increase at the
average of the rates of increase thereof previously experienced by Landlord
during the period (not to exceed three (3) years) prior to such termination) for
the period commencing with such earlier termination of this Lease or the date of
any such re-entry,
40
as the case may be, and ending with the Expiration Date, had this Lease not so
terminated or had Landlord not so re-entered the demised premises, over
(2) the aggregate fair rental value of the
demised premises for the same period, or
(b) sums equal to the fixed annual rent and the
additional rent payable hereunder which would have been payable by Tenant had
this Lease not so terminated, or had Landlord not so re-entered the demised
premises, payable upon the due dates therefor specified herein following such
termination or such re-entry and until the Expiration Date; provided, however,
that if Landlord shall re-let the demised premises during said period, Landlord
shall credit Tenant with the net rents received by Landlord from such
re-letting, such net rents to be determined by first deducting from the gross
rents as and when received by Landlord from such re-letting expenses incurred or
paid by Landlord in terminating this Lease or in re-entering the demised
premises and in securing possession thereof, as well as the expenses of
re-letting, including altering and preparing the demised premises for new
tenants, brokers' commissions, and all other expenses properly chargeable
against the demised premises and the rental thereof; it being understood that
any such re-letting may be for a period shorter or longer than the remaining
term of this Lease; but in no event shall Tenant be entitled to receive any
excess of such net rents over the sums payable by Tenant to Landlord hereunder,
or shall Tenant be entitled in any suit for the collection of damages pursuant
to this subsection to a credit in respect of any net rents from a re-letting,
except to the extent that such net rents are actually received by Landlord. If
the demised premises or any part thereof should be re-let in combination with
other space, then proper apportionment on a square foot basis shall be made of
the rent received from such re-letting and of the expenses of re-letting.
If the demised premises or any part thereof be re-let by Landlord for
the unexpired portion of the term of this Lease, or any part thereof, before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such re-letting shall, prima facie, be the fair and
reasonable rental value for the demised premises, or part thereof, so re-let
during the tern of the re-letting.
16.02. Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the term of this Lease would have expired if it had not been
so terminated under the provisions of Article 14, or under any provision of law,
or had Landlord not re-entered the demised premises. Nothing herein contained
shall be construed to limit or preclude recovery by Landlord against Tenant of
any sums or damages to which, in addition to the damages particularly provided
above, Landlord may lawfully be entitled by reason of any default hereunder on
the part of Tenant. Nothing herein contained shall be construed to limit or
prejudice the right of Landlord to prove for and obtain as liquidated damages by
reason of the termination of this Lease or re-entry of the demised premises for
the default of Tenant under this Lease, 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 any of the sums referred to in Section 16.01.
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16.03. In addition to all of Landlord's other remedies pursuant to this
Lease or by operation of law, and notwithstanding any other provision of this
Lease, Landlord shall also be entitled to recover the unrealized value of
broker's and other fees paid by Landlord relating to this Lease and the value of
"rent concessions", "tenant improvement concessions" and other concessions (as
such quoted terms are hereinafter defined) incurred by Landlord in connection
with leasing the demised premises to Tenant. For the purposes of this Section,
the term "unrealized value of broker's and other fees paid by Landlord relating
to this Lease" shall mean (a) the amount of all broker's and other fees paid by
Landlord relating to this Lease, including, but not limited to, attorneys',
architects', engineers' and similar fees and expenses incurred by Landlord in
the negotiation and preparation of this Lease, (b) divided by the total number
of years in the term of this Lease, and (c) such quotient shall then be
multiplied by the number of years (including any partial year) which remained in
the term when the Lease was terminated. The term "rent concessions" shall mean
any free fixed annual rent allowance, if any, granted to Tenant, together with
the amount, if any, by which the market rental for the demised premises for the
period prior to the termination of the Lease exceeds the fixed annual rent
actually paid by Tenant during the period prior to the termination of the Lease
(unless otherwise specified in Article 1 hereof, such market rental for the
demised premises will be deemed to be the pro forma rental used by Landlord as
of the date of this Lease in making Landlord's financial projections). The term
"tenant improvement concessions" shall mean the amount, if any, of the total
cost of changes and tenant improvements made to the demised premises and paid
for by Landlord.
ARTICLE 17
LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS
17.01. 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, (a) Landlord may
remedy such default for the account of Tenant, immediately and without notice in
case of emergency, or in any other case only provided that Tenant shall fail to
remedy such default with all reasonable dispatch after Landlord shall have
notified Tenant in writing of such default and the applicable grace period for
curing such default shall have expired; and (b) if Landlord makes any
expenditures or incurs any obligations for the payment of money in connection
with such default including, but not limited to, reasonable attorneys' fees in
instituting, prosecuting or defending any action or proceeding, such sums or
obligations incurred, with interest at the Interest Rate, shall be deemed to be
additional rent hereunder and shall be paid by Tenant to Landlord upon rendition
of a ▇▇▇▇ to Tenant therefor.
ARTICLE 18
QUIET ENJOYMENT
18.01. Landlord covenants and agrees that subject to the terns and
provisions of this Lease, if, and so long as, Tenant keeps and performs each and
every covenant, agreement,
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term, provision and condition herein contained on the part or on behalf of
Tenant to be kept or performed, then Tenant's right under this Lease shall not
be cut, off or ended before the expiration of the term of this Lease, subject
however, to: (i) the obligations of this Lease, and (ii) as provided in Article
23 hereof with respect to ground and underlying leases and mortgages which
affect this Lease.
ARTICLE 19
SERVICES AND EQUIPMENT
19.01. So long as Tenant is not in default under any of the covenants of
this Lease, Landlord shall, at its cost and expense:
(a) (i) Provide necessary elevator facilities during
business hours on business days and shall have at least one elevator subject to
call at all other times. At landlord's option, the elevators shall be operated
by automatic control or manual control, or by a combination of both of such
methods.
(ii) Provide without additional charge
non-exclusive freight elevator facilities on business days during usual hours of
operation thereof. At all other times, Tenant shall be permitted by
prearrangement on a first come first serve basis to schedule reserved freight
elevator service. All such arrangements and use shall be subject to Landlord's
Building rules therefor and union requirements and Tenant shall pay for the use
of the freight elevator at Landlord's standard rates then in effect.
(b) Landlord, at Landlord's expense, shall furnish heat
to the peripheral heat units in the demised premises and ventilation and
air-conditioning services from the Floor Unit during business hours on business
days. The Floor Unit shall be comprised of one thirty-five (35) ton water cooled
unit. If Tenant shall install supplemental air conditioning equipment in the
demised premises, solely to the extent the Building risers and tower have
available capacity, Landlord shall furnish condenser water therefor and Tenant
shall pay Landlord's then established reasonable charges in connection therewith
as additional rent within five (5) business days after demand. The term
"business hours", as used in this Lease, shall mean the hours from 8:00 a.m. to
6:00 p.m. The term "business days", as used in this Lease, shall mean all days
except Saturdays, Sundays and the days observed by the Federal or the New York
State or City governments as legal holidays and such other days as shall be
designated as holidays by the applicable operating engineers union contract or
building service employees union contract. Landlord shall, during business hours
of business days, at its expense (subject to recoupment under Section 3.04.
hereof), operate the Base Building System servicing the public areas of the
Building. Landlord shall operate the Base Building System in accordance with its
design criteria; provided, however, that Landlord may reduce such level of
operation in accordance with a recognized energy or water conservation programs,
guidelines, regulations or recommendations promulgated by any Federal, State,
City or other governmental or quasi-governmental bureau, board, department,
agency, office, commission or other subdivision thereof or the American Society
of Heating,
43
Refrigeration and Air-Conditioning Engineers, Inc. or any successor thereto or
other organization serving a similar function.
(c) The Floor Unit shall be operated by Landlord in
accordance with its design criteria and shall be operated, maintained, repaired
and replaced by Landlord at Tenant's sole cost and expense, which shall be paid
to Landlord in accordance with the provisions of Section 3.06. of this Lease,
except that if any supplemental air-conditioning shall be installed in the
demised premises, Tenant shall operate, maintain, repair and replace same at
Tenant's sole expense. If Tenant is the occupant of an entire floor, the
electricity used to operate the Floor Unit shall be connected at Tenant's
expense to an electric meter and the cost of such electricity shall be paid by
Tenant as provided in Article 4 hereof. To the extent that the Floor Unit
provides service to any other tenants in addition to Tenant or any portion of a
floor other than that portion demised to Tenant, the cost of electricity
required for the operation of the Floor Unit together with electricity utilized
for lighting of common areas and facilities on the floor shall be divided among
the tenants served by the Floor Unit on such floor and Tenant shall pay therefor
in the same proportion that the rentable area occupied by Tenant bears to the
rentable area of the floor. If, in Landlord's reasonable judgment, Tenant's use
of the demised premises requires operation of the Floor Unit to an extent
disproportionately greater than that of other occupants of the floor or
unoccupied portions of the floor being served by the Floor Unit, Landlord may
adjust the charges under the preceding sentence to equitably reflect such usage.
Landlord may, from time to time, recompute the proportion of such electric costs
allocable to Tenant based upon changes in levels of usage or occupancy by Tenant
or other occupants of the floor.
(d) If Tenant shall require heating or air-conditioning
service at any time other than during business hours on business days ("after
hours"), Landlord shall furnish the same upon advance notice from Tenant, given
prior to 2:00 p.m. on any business day on which Tenant requires such after hours
service or if Tenant shall desire heat or air-conditioning on a day other than a
business day, Landlord shall famish the same upon advance notice from Tenant
given prior to 2:00 p.m. on the last business day prior to such non-business
day, and, with respect to such heat service (but not with respect to ventilation
and air-conditioning service as to which there is no charge for overtime use),
Tenant shall pay Landlord's charge therefor as additional rent within five (5)
days after demand. If any other tenant shall request and receive heat after
hours at the same time as Tenant, only an equitably prorated portion of the
charge therefor shall be allocated to Tenant.
(e) If any permit or license shall be required for the
operation of any supplemental air-conditioning unit in or serving the demised
premises installed by Tenant, Landlord shall have the option of obtaining the
same on Tenant's behalf and at Tenant's expense, or by written notice to Tenant
requiring Tenant, at Tenant's expense, to obtain and maintain any such permit or
license.
(f) 1. Provide cleaning and janitorial services on
Business Days in accordance with the specification annexed hereto as Schedule D.
Tenant shall pay to Landlord on demand the costs incurred by Landlord for (a)
extra cleaning work in the demised premises required because of (i) misuse or
neglect on the part of Tenant or
44
its employees or visitors, (ii) use of portions of the demised premises for
preparation, serving or consumption of food or beverages, data processing, or
reproducing operations, private lavatories or toilets or other special purposes
requiring greater or more difficult cleaning work than office areas, (iii)
unusual quantity of interior glass surfaces, (iv) non-building standard
materials or finishes installed by Tenant or at its request and (b) removal from
the demised premises and the Building of so much of any refuse and rubbish of
Tenant as shall exceed that ordinarily accumulated daily in the routine of
business office occupancy. Landlord, its cleaning contractor and their employees
shall have After Hours access to the demised premises and the free use of light,
power and water in the demised premises as reasonably required for the purpose
of cleaning the demised premises in accordance with Landlord's obligations
hereunder.
2. Tenant shall have the option throughout the
term upon not less than ninety (90) days prior notice to Landlord to elect to
perform its own cleaning within the demised premises. In the event that Tenant
makes such election, then effective as of the expiration of Landlord's then
existing cleaning contract, Landlord shall have no further responsibility to
provide cleaning services, and Tenant shall be solely responsible therefor. In
any such event Tenant shall contract directly with Landlord's cleaning
contractor or such other reputable contractor as Landlord shall approve (which
approval shall not be unreasonably withheld) for the performance of regular
cleaning services, and effective as of the date Landlord discontinues furnishing
such service, the Base Operating Factor shall be reduced by the amount that the
cost of cleaning service to the Building is reduced by reason of elimination of
the demised premises from the cleaning contract, and the provisions of paragraph
3.03F shall not be applied to adjust the cost of cleaning for each Escalation
Year thereafter (or then in progress on a pro rata basis) to include the cost
that Landlord would have incurred had it continued to be responsible for the
cleaning of the demised premises. Cleaning service for which Tenant assumes
responsibility shall include removal of refuse and rubbish from the demised
premises to Landlord's designated disposal area. Landlord shall continue to be
responsible for carting services. Cleaning contractors and cleaning services
engaged by Tenant shall be subject to all of the provisions of this Lease,
including without limitation those contained in paragraph 6.01.2(a), and such
rules and regulations regarding Building security as Landlord may from time to
time adopt. In the event that Tenant's retention of a contractor shall result in
a strike or work stoppage by any of Landlord's contractors and the same is not
resolved within 24 hours, Tenant shall immediately discontinue the use of such
contractor with or without notice from Landlord.
(g) Furnish water for lavatory, drinking, pantry
(including, without limitation, a dishwasher and icemaker) and office cleaning
purposes. If Tenant requires, uses or consumes water for any other purposes,
Tenant agrees to Landlord installing a meter or meters or other means to measure
Tenant's water consumption, and Tenant further agrees to reimburse Landlord for
the cost of the meter or meters and the installation thereof, and to pay for the
maintenance of said meter equipment and/or to pay Landlord's cost of other means
of measuring such water consumption by Tenant. Tenant shall reimburse Landlord
for the cost of all water consumed, as measured by said meter or meters or as
otherwise measured, including sewer rents.
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19.02. Landlord reserves the right without any liability whatsoever, or
abatement of fixed annual rent, or additional rent and upon reasonable notice to
the extent possible (except in the case of an emergency), to stop the heating,
air-conditioning, elevator, plumbing, electric and other systems when necessary
by reason of accident or emergency or for repairs, alterations, replacements or
improvements. If such systems are stopped, Landlord agrees to use its reasonable
diligence to restore such systems to working order. Notwithstanding the
foregoing, in the event there is a stoppage in the provision of elevator, heat
or air-conditioning service to the demised premises or the toilets in the core
bathrooms serving the demised premises become inoperable and reasonable
alternative facilities are not made available and as a consequence of any of the
foregoing the demised premises is rendered untenantable for a period in excess
of twelve (12) days, and Tenant actually discontinues the use thereof for the
conduct of its business, then commencing on the thirteenth (13th) day of such
untenantability and continuing thereafter until the earlier of (i) the date such
untenantability ends of (ii) the date on which Tenant resumes the use of the
demised premises for the conduct of its business, the fixed annual rent payable
hereunder and the additional rent payable pursuant to Article 3 hereof shall be
abated.
19.03. It is expressly agreed that only Landlord or any one or more
persons, firms or corporations authorized in writing by Landlord will be
permitted to furnish laundry, linen towels, drinking water, ice, food or
beverages or other similar supplies and services to tenants and licensees in the
Building. Landlord may fix, in its own absolute discretion, at any time and from
time to time, the hours during which and the regulations under which such
supplies and services are to be furnished. Landlord furthermore expressly
reserves the right to exclude from the Building any person, firm or corporation
attempting to furnish any of said supplies or services but not so authorized by
Landlord. It is understood, however, that Tenant or regular office employees of
Tenant who are not employed by any supplier of such food or beverages or by any
person, firm or corporation engaged in the business of purveying such food or
beverages, may personally bring food or beverages into the Building for
consumption within the demised premises by employees of Tenant, but not for
resale to or for consumption by any other tenant. Landlord may fix in its
absolute discretion, at any time and from time to time, the hours during which,
and the regulations under which, foods and beverages may be brought into the
Building by persons other than the regular employees of Tenant.
19.04. Tenant agrees to employ such office maintenance contractors as
Landlord may from time to time designate, for all waxing, polishing, lamp
replacement, cleaning and maintenance work in the demised premises, provided
that the quality thereof and the charges therefor are reasonably comparable to
that of other contractors. Tenant shall not employ any other contractor without
Landlord's prior written consent.
19.05. Landlord will not be required to furnish any other services, except
as otherwise provided in this Lease.
19.06. Tenant shall be entitled to its proportionate share of listings for
its officers and authorized subtenants in the computerized Building directory
located in the lobby of the Building. Tenant shall be entitled to not less than
twenty (20) free listings on the Building directory. The listing of any name
other than that of Tenant on such directory shall not operate to vest any right
or interest in this Lease or in the demised premises nor shall it be deemed the
46
consent of Landlord to any assignment or transfer of this Lease, to a sublease
of the demised premises or to the use or occupancy thereof by others.
ARTICLE 20
DEFINITIONS
20.01. The term "Landlord" 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), so that in the
event of any transfer of title to said Land and Building or said lease, or in
the event of a lease of the Building, or of the Land and Building, upon
notification to Tenant of such transfer or lease the said transferor Landlord
shall be and hereby is entirely freed and relieved of all future covenants,
obligations and liabilities of Landlord hereunder, and it shall be deemed and
construed as a covenant running with the land without further agreement between
the parties or their successors in interest, or between the parties and the
transferee of title to said Land and Building or said lease, or the said lessee
of the Building, or of the Land and Building, that the transferee or the lessee
has assumed and agreed to carry out any and all such covenants, obligations and
liabilities of Landlord hereunder.
20.02. "Interest Rate" shall mean a rate per annum equal to the lesser of
(a) 2% above the commercial lending rate announced from time to time by The
Chase Manhattan Bank as its prime rate for ninety (90) day unsecured loans, of
(b) the maximum applicable legal rate, if any.
20.03. "Legal Requirements" shall mean laws, statutes and ordinances
(including building codes and zoning regulations, and ordinances) and the
orders, rules, and regulations, directives and requirements of all federal,
state, county, city and borough departments, bureaus, boards, agencies, offices,
commissions and other subdivisions thereof, or of any official thereof, or of
any other governmental public or quasi-public authority, whether now or
hereafter in force, which may be applicable to the Land or Building or the
demised premises or any part thereof, or the sidewalks, curbs or areas adjacent
thereto and all requirements, obligations and conditions of all instruments of
record on the date of this Lease.
ARTICLE 21
INTENTIONALLY OMITTED
ARTICLE 22
BROKERAGE
22.01. Tenant covenants, represents and warrants that Tenant has had no
dealings or communications with any broker, or agent other than ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, Inc. (which is representing Landlord) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Inc.
(collectively, the "Brokers") in connection
47
with the consummation of this Lease, and Tenant covenants and agrees to pay,
hold harmless and indemnify Landlord from and against any and all cost, expense
(including reasonable attorneys' fees) or liability for any compensation,
commissions or charges claimed by any broker or agent, other than the broker set
forth in this Section 22.01, with respect to this Lease or the negotiation
thereof. Landlord agrees to pay any commission due to the Brokers in connection
with this Lease pursuant to a separate brokerage agreement.
ARTICLE 23
SUBORDINATION
23.01. This Lease is and shall be subject and subordinate to all ground or
underlying leases which may now or hereafter affect the real property of which
the demised premises forms a part and to all mortgages which may now or
hereafter affect such leases or such real property, and to all renewals,
modifications, replacements and extensions thereof. The provisions of this
Section 23.01 shall be self-operative and no further instrument of subordination
shall be required. In confirmation of such subordination, Tenant shall promptly
execute and deliver at its own cost and expense any instrument, in recordable
form if required, that Landlord, the lessor of the ground or underlying lease or
the holder of any such mortgage or any of their respective successors in
interest may request to evidence such subordination, and Tenant hereby
constitutes and appoints Landlord or its successors in interest to be Tenant's
attorney-in-fact, irrevocably and coupled with an interest, to execute and
deliver any such instrument for and on behalf of Tenant.
23.02. In the event of a termination of any ground or underlying lease, or
if the interests of Landlord under this Lease are transferred by reason of, or
assigned in lieu of, foreclosure or other proceedings for enforcement of any
mortgage, or if the holder of any mortgage acquires a lease in substitution
therefor, then Tenant under this Lease will, at the option to be exercised in
writing by the lessor under such ground or underlying lease or such mortgagee or
purchaser, assignee or lessee, as the case may be, either (i) attorn to it and
will perform for its benefit all the terms, covenants and conditions of this
Lease on Tenant's part to be performed with the same force and effect as if said
lessor, such mortgagee or purchaser, assignee or lessee, were the landlord
originally named in this Lease, or (ii) enter into a new lease with said lessor
or such mortgagee or purchaser, assignee or lessee, as landlord, for the
remaining term of this Lease and otherwise on the same terms and conditions and
with the same options, if any, then remaining. The foregoing provisions of
clause (i) of this Section 23.02 shall enure to the benefit of such lessor,
mortgagee, purchaser, assignee or lessee, shall be self-operative upon the
exercise of such option, and no further instrument shall be required to give
effect to said provisions. Tenant, however, upon demand of any such lessor,
mortgagee, purchaser, assignee or lessee agrees to execute, from time to time,
instruments in confirmation of the foregoing provisions of this Section 23.02,
satisfactory to any such lessor, mortgagee, purchaser, assignee or lessee,
acknowledging such attornment and setting forth the terms and conditions of its
tenancy. Tenant hereby constitutes and appoints Landlord or its successors in
interest to be the Tenant's attorney in fact, irrevocably and coupled with an
interest, to execute
48
and deliver such instrument of attornment, or such new lease, if the Tenant
refuses or fails to do so promptly upon request.
23.03. Anything herein contained to the contrary notwithstanding, under no
circumstances shall the aforedescribed lessor under the ground lease or
mortgagee or purchaser, assignee or lessee, as the case may be, whether or not
it shall have succeeded to the interests of the landlord under this Lease, be
(a) liable for any act, omission or default of any prior landlord; or
(b) subject to any offsets, claims or defenses which Tenant might have
against any prior landlord; or
(c) bound by any rent or additional rent which Tenant might have paid
to any prior landlord for more than one month in advance or for more than three
months in advance where such rent payments are payable at intervals of more than
one month; or
(d) bound by any modification, amendment or abridgment of the Lease,
or any cancellation or surrender of the same, made without its prior written
approval.
23.04. If, in connection with the financing of the Building, the holder of
any mortgage shall request reasonable modifications in this Lease as a condition
of approval thereof, Tenant shall not unreasonably withhold, delay or defer
making such modifications provided such modifications do not increase Tenant's
obligations or decrease Landlord's obligations, other than to a de minimus
extent under this Lease.
23.05. Landlord shall make a reasonable effort to obtain a so-called
non-disturbance agreement with respect to this Lease from the holder of the
existing mortgage affecting the Building on the usual form of such mortgagee.
With respect to any future superior mortgage or lease, Landlord agrees to use
reasonable efforts to obtain from any such superior mortgagee or lessee a
non-disturbance agreement on such superior mortgagee's or lessee's standard
form, which Tenant agrees to execute and deliver to Landlord within ten (10)
days after receipt thereof, provided, however, Landlord shall have no liability
to Tenant and this lease, including without limitation the provisions of this
Section 23.05, shall not be affected if Landlord is unable, despite such
reasonable efforts, or otherwise fails for any reason, including inadvertent
oversight, to obtain such a non-disturbance agreement. Tenant agrees to pay as
additional rent any reasonable attorneys' fees of the holders of such future
superior mortgage or lease actually charged in connection with obtaining such
non-disturbance agreement. Nothing contained herein shall be deemed to require
Landlord to offer any payment or other consideration to a superior lessor or to
reject financing from a proposed lender because said lessor or lender refuses to
supply Tenant with a non-disturbance agreement. Landlord represents that there
is no ground lease or other superior lease affecting the Property and the only
mortgage encumbering the Building is a mortgage held by SEB AG.
49
ARTICLE 24
CERTIFICATE OF TENANT
24.01. Each party agrees, at any time and from time to time, as requested
by the other party, upon not less than ten (10) days' prior notice, to execute
and deliver to the other 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),
certifying the dates to which the fixed annual rent and additional rent have
been paid, and stating whether or not, to the best knowledge of the signer, the
other party is in default in performance of any of its obligations under this
Lease, and, if so, specifying each such default of which the signer may have
knowledge, it being intended that any such statement delivered pursuant hereto
may be relied upon by others with whom the party requesting such certificate may
be dealing. Additionally, Tenant's or Landlord's statement shall contain
confirmation to Tenant's or Landlord's knowledge of such other factual
information under this Lease as shall be reasonably required by Landlord, Tenant
or the holder or proposed holder of any superior mortgage or the lessor or
proposed lessor under any superior lease.
24.02. Tenant agrees (and will execute certificates pursuant to Section
24.01 to such effect) that, except for the first month's rent hereunder, it will
pay no rent under this Lease more than thirty (30) days in advance of its due
date, if so restricted by any existing or future ground lease or mortgage to
which this Lease is subordinated or by an assignment of this Lease to the ground
lessor or the holder of such mortgage, and, in the event of any act or omission
by Landlord, and except with respect to Tenant's termination rights pursuant to
Article 10 of this Lease, or condemnation, Tenant will not exercise any right to
terminate this Lease or to remedy the default and deduct the cost thereof from
rent due hereunder until Tenant shall have given written notice of such act or
omission to the ground lessor and to the holder of any mortgage on the fee or
the ground lease who shall have furnished such lessor's or holder's last address
to Tenant, and until a reasonable period for remedying such act or omission
shall have elapsed following the giving of such notices, and following the time
when such lessor holder shall have the right pursuant to such superior
instrument to cure the same, during which time such lessor or holder shall have
the right, but shall not be obligated, to remedy or cause to be remedied such
act or omission. Tenant shall not exercise any right pursuant to this Section
24.02 if the holder of any mortgage or such aforesaid lessor commences to cure
such aforesaid act or omission within a reasonable time and diligently
prosecutes such cure thereafter.
ARTICLE 25
LEGAL PROCEEDINGS; WAIVER OF JURY TRIAL
25.01. Landlord and Tenant do hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other on any matters whatsoever arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the
demised premises, and/or any other claims (except claims for bodily injury or
damage to physical property), and any emergency
50
statutory or any other statutory remedy. It is further mutually agreed that in
the event Landlord commences any summary proceeding for nonpayment of rent,
Tenant will not interpose and does hereby waive the right to interpose any
counterclaim of whatever nature or description in any such proceeding.
ARTICLE 26
SURRENDER OF PREMISES
26.01. Upon the expiration or other termination of the term of this Lease,
Tenant shall quit and surrender to Landlord the demised premises, broom clean,
in good order and condition, ordinary wear and tear and damage by fire, the
elements or other casualty excepted, and Tenant shall remove all of its property
as herein provided. Tenant's obligation to observe or perform this covenant
shall survive the expiration or other termination of the term of this Lease.
ARTICLE 27
RULES AND REGULATIONS
27.01. Tenant and Tenant's servants, employees and agents shall observe
faithfully and comply strictly with the Rules and Regulations set forth in
Schedule B attached hereto and made part hereof entitled "Rules and Regulations"
and such other and further reasonable Rules and Regulations as Landlord or
Landlord's agents may from time to time adopt; provided, however, that in case
of any conflict or inconsistency between the provisions of this Lease and of any
of the Rules and Regulations as originally or as hereafter adopted, the
provisions of this Lease shall control. Reasonable written notice of any
additional Rules and Regulations shall be given to Tenant.
Nothing in this Lease contained shall be construed to impose upon
Landlord any duty or obligation to enforce the Rules and Regulations or the
terms, covenants or conditions in any other lease, against any other tenant of
the Building, and Landlord shall not be liable to Tenant for violation of the
same by any other tenant, its servants, employees, agents, visitors or
licensees.
ARTICLE 28
CONSENTS AND APPROVALS
28.01. Wherever in this Lease Landlord's consent or approval is required,
if Landlord shall delay or refuse such consent or approval, Tenant in no event
shall be entitled to make, nor shall Tenant make, any claim, and Tenant hereby
waives any claim, for money damages (nor shall Tenant claim any money damages by
way of setoff, counterclaim or defense) based upon any claim or assertion by
Tenant that Landlord unreasonably withheld or unreasonably delayed its consent
or approval. Tenant's sole remedy shall be an action or
51
proceeding to enforce any such provision, for specific performance, injunction
or declaratory judgment.
28.02. If Landlord or Tenant desires to determine any dispute between
Landlord and Tenant as to the reasonableness of the other's decision to refuse
to consent or approve any item as to which Landlord or Tenant has specifically
agreed that its consent or approval shall not be unreasonably withheld or in any
other circumstance under this Lease in which Landlord or Tenant has agreed to
act reasonably, such dispute shall, at either party's option, be settled and
finally determined by arbitration in The City of New York in accordance with the
following provisions of this Section. Within ten (10) business days next
following the receipt of any notice by Landlord or Tenant stating that it wishes
such dispute to be so determined, Landlord and Tenant shall each give notice to
the other setting forth the name and address of an arbitrator designated by the
party giving such notice. If either party shall fail to give notice of such
designation within said ten (10) business days, then the arbitrator chosen by
the other side shall make the determination alone. If the two arbitrators shall
fail to agree upon the designation of a third arbitrator within ten (10)
business days after the designation of the second arbitrator then either party
may apply to the Chairman of the Management Division of the Real Estate Board of
New York, Inc. for the designation of such arbitrator and if he is unable or
refuses to act within ten (10) business days then either party may apply to the
American Arbitration Association in New York County or to any other court having
jurisdiction for the designation of such arbitrator. The three arbitrators shall
conduct such hearings as they deem appropriate, making their determination in
writing and giving notice to Landlord and Tenant of their determination as soon
as practicable, and if possible, within ten (10) business days after the
designation of the third arbitrator; the concurrence of or, in the event no two
of the arbitrators shall render a concurrent determination, then the
determination of the third arbitrator designated shall be binding upon Landlord
and Tenant. Judgment upon any decision rendered in any arbitration held pursuant
to this Section shall be final and binding upon Landlord and Tenant, whether or
not a judgment shall be entered in any court. Each of the arbitrators shall have
at least ten (10) years of experience in the leasing or management of
first-class office space in Manhattan on behalf of owners thereof. The
arbitrators shall be bound by the provisions of this Lease, and shall not add
to, subtract from or otherwise modify such provisions. The sole function of the
arbitrators shall be to determine whether Landlord or Tenant, as the case may
be, has acted reasonably and to require Landlord or Tenant, as the case may be,
to grant such consent or approval or to take action, and they may not award
damages or grant any other monetary award or relief in the proceeding.
ARTICLE 29
NOTICES
29.01. Any notice or demand, consent, approval or disapproval, or statement
required to be given by the terms and provisions of this Lease, or by any law or
governmental regulation, either by Landlord to Tenant or by Tenant to Landlord,
shall be in writing. Unless otherwise required by such law or regulation, such
notice or demand shall be given, and shall be deemed to have been served and
given when such notice or demand is received or refused by
52
registered or certified mail deposited enclosed in a securely closed postpaid
wrapper, in a United States Government general or branch post office, or
official depository within the exclusive care and custody thereof, addressed to
either party, at its address set forth on page 1 of this Lease, Attn: ▇▇▇▇▇▇▇
▇▇▇▇, Esq. With a copy to ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. After Tenant shall occupy
the demised premises, the address of Tenant for notices, demands, consents,
approvals or disapprovals shall be the Building. Either party may, by notice as
aforesaid, designate a different address or addresses for notices, demands,
consents, approvals or disapprovals.
29.02. In addition to the foregoing, either Landlord or Tenant may, from
time to time, request in writing that the other party serve a copy of any notice
or demand, consent, approval or disapproval, or statement, on one other person
or entity designated in such request, such service to be effected as provided in
Section 29.01 hereof.
ARTICLE 30
NO WAIVER
30.01. No agreement to accept a surrender of this Lease shall be valid
unless in writing signed by Landlord. No employee of Landlord or of Landlord's
agents shall have any power to accept the keys of the demised premises prior to
the termination of this Lease. The delivery of keys to any employee of Landlord
or of Landlord's agent shall not operate as a termination of this Lease or a
surrender of the demised premises. In the event of Tenant at any time desiring
to have Landlord sublet the demised premises for Tenant's account, Landlord or
Landlord's agents are authorized to receive said keys for such purpose without
releasing Tenant from any of the obligations under this Lease. The failure of
Landlord to seek redress for violation of, or to insist upon the strict
performance of, any covenant or condition of this Lease or any of the Rules and
Regulations set forth herein, or hereafter adopted by Landlord, 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
Landlord of rent with knowledge of the breach of any covenant of this Lease
shall not be deemed a waiver of such breach. The failure of Landlord to enforce
any of the Rules and Regulations set forth herein, or hereafter adopted, against
Tenant and/or any other tenant in the Building shall not be deemed a waiver of
any such Rules and Regulations. No provision of this Lease shall be deemed to
have been waived by Landlord, unless such waiver be in writing signed by
Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than
the monthly rent herein stipulated shall be deemed to be other than on the
account of the earliest stipulated rent, nor shall any endorsement or payment of
rent be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy in this Lease provided.
53
ARTICLE 31
INABILITY TO PERFORM
31.01. If, by reason of (1) strike, (2) labor troubles, (3) governmental
preemption in connection with a national emergency, (4) any rule, order or
regulation of any governmental agency, (5) conditions of supply or demand which
are affected by war or other national, state or municipal emergency, or any
other cause or (6) any cause beyond Landlord's reasonable control, Landlord
shall be unable to fulfill its obligations under this Lease or shall be unable
to supply any service which Landlord is obligated to supply, Landlord shall have
no liability in connection therewith and this Lease and Tenant's obligation to
pay rent hereunder, except as otherwise expressly provided in this Lease, shall
in no wise be affected, impaired or excused.
ARTICLE 32
INDEMNITY
32.01. Tenant shall indemnify, defend and save Landlord its agents, and
employees and any mortgagee of Landlord's interest in the Land and/or the
Building and any lessor under any superior lease harmless from and against any
liability or expense arising from the use or occupation of the demised premises
by Tenant or anyone in the demised premises with Tenant's permission, or from
any breach of this Lease by Tenant.
ARTICLE 33
SECURITY
33.01. Tenant has deposited with Landlord the sum of $756,222.00 as
security for the faithful performance and observance by Tenant of the terms,
provisions, covenants and conditions of this Lease; it is agreed that in the
event Tenant defaults in respect of any of the terms, provisions, covenants and
conditions of this Lease, including, but not limited to, the payment of fixed
annual rent and additional rent, Landlord may use, apply or retain the whole or
any part of the security so deposited to the extent required for the payment of
any fixed annual rent and additional rent or any other sum as to which Tenant is
in default or for any sum which Landlord may expend or may be required to expend
by reason of Tenant's default in respect of any of the terms, provisions,
covenants and conditions of this Lease, including but not limited to, any
damages or deficiency accrued before or after summary proceedings or other
re-entry by Landlord. In the event that 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
Landlord. In the event of a sale of the Land and Building or leasing of the
Building, of which the demised premises form a part, Landlord shall have the
right to transfer the security to the vendee or lessee and Landlord shall
thereupon be released by Tenant from all liability for the return of such
security; and Tenant agrees to look solely to the new landlord for the return of
said security; and it is agreed that the provisions hereof shall apply to every
transfer or
54
assignment made of the security to a new landlord. 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 Landlord nor its successors or
assigns shall be bound by any such assignment, encumbrance, attempted assignment
or attempted encumbrance. In the event Landlord applies or retains any portion
or all of the security deposited, Tenant shall forthwith restore the amount so
applied or retained.
33.02. (a) In lieu of the cash security deposit provided for in Section
33.01 hereof, Tenant may at any time during the term hereof deliver to Landlord
and shall thereafter, except as otherwise provided herein, maintain in effect at
all times during the term hereof, an irrevocable letter of credit in the amount
of $756,222.00, in form and substance reasonably satisfactory to Landlord in the
amount of the security required pursuant to this lease issued by ▇▇▇▇▇▇ Bank,
provided that such letter of credit can be presented at an office in New York
City or another banking corporation satisfactory to Landlord and having its
principal place of business or its duly licensed branch or agency in the State
of New York. Such letter of credit shall have an expiration date no earlier than
the first anniversary of the date of issuance thereof and shall be automatically
renewable from year to year unless terminated by the issuer thereof by notice to
Landlord given not less than forty-five (45) days prior to the expiration
thereof. Except as otherwise provided herein, Tenant shall, throughout the term
of this lease deliver to Landlord, in the event of the termination of any such
letter of credit, replacement letters of credit in lieu thereof (each such
letter of credit and such extensions or replacements thereof, as the case may
be, is hereinafter referred to as a "Security Letter") no later than forty-five
(45) days prior to the expiration date of the preceding Security Letter. The
term of each such Security Letter shall be not less than one year and shall be
automatically renewable from year to year as aforesaid. If Tenant shall fail to
obtain any replacement of a Security Letter within the time limits set forth in
this Section 33.01, Landlord may draw down the full amount of the existing
Security Letter and retain the same as cash security hereunder.
(b) In the event Tenant defaults in respect to any of
the terms, provisions, covenants and conditions of this Lease, including, but
not limited to, the payment of rent and additional rent, Landlord may use, apply
or retain the whole or any part of the 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 Landlord may expend or may be
required to expend by reason of Tenant's default in respect of any of the terms,
provisions, covenants, and conditions of this Lease, including but not limited
to, any damages or deficiency accrued before or after summary proceedings or
other re-entry by Landlord. To insure that Landlord may utilize the security
represented by the Security Letter in the manner, for the purpose, and to the
extent provided in this Section 33.01, each Security Letter shall provide that
the full amount thereof may be drawn down by Landlord upon the presentation to
the issuing bank of Landlord's draft drawn on the issuing bank without
accompanying memoranda or statement of beneficiary.
(c) In the event that Tenant defaults in respect of any
of the terms, provisions, covenants and conditions of this Lease and Landlord
utilizes all or any part of the security represented by the Security Letter but
does not terminate this Lease, Landlord may, in addition to exercising its
rights as provided in Section 33.02(b) hereof, retain
55
the unapplied and unused balance of the principal amount of the Security Letter
as security for the faithful performance and observance by Tenant thereafter of
the terms, provisions, and conditions of this Lease, and may use, apply, or
retain the whole or any part of said balance to the extent required for payment
of rent, additional rent, or any other sum as to which Tenant is in default or
for any sum which Landlord may expend or be required to expend by reason of
Tenant's default in respect of any of the terms, covenants, and conditions of
this lease. In the event Landlord applies or retains any portion or all of the
security delivered hereunder, Tenant shall forthwith restore the amount so
applied or retained so that at all times the amount deposited shall be not less
than the security required by Section 33.02.
(d) Provided that (i) Tenant shall not then be either
in monetary default or as to non-monetary obligations hereunder, in default
beyond any applicable notice and grace periods and (ii) Landlord shall not have
applied or utilized any of the security deposited hereunder, the amount of the
security held pursuant to this Article 33 shall be reduced as follows: (i) to
$693,204 on the first day of the month following the month in which occurs the
first (1st) anniversary of the Rent Commencement Date (or on such later date on
which all such defaults are cured); (ii) to $630,186 on the first day of the
month following the month in which occurs the second (2nd) anniversary of the
Rent Commencement Date (or on such later date on which all such defaults are
cured); (iii) to $567,168 on the first day of the month following the month in
which occurs the third (3rd) anniversary of the Rent Commencement Date (or on
such later date on which all such defaults are cured); (iv) to $504,150 on the
first day of the month following the month in which occurs the fourth (4th)
anniversary of the Rent Commencement Date (or on such later date on which all
such defaults are cured); (v) to $441,132 on the first day of the month
following the month in which occurs the fifth (5th) anniversary of the Rent
Commencement Date (or on such later date on which all such defaults are cured);
and (vi) to $378,114 on the first day of the month following the month in which
occurs the sixth (6th) anniversary of the Rent Commencement Date (or on such
later date on which all such defaults are cured).
(e) 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 this Lease and after delivery of entire possession of the demised premises to
Landlord. In the event of a sale of the Building or leasing of the Building,
Landlord shall have the right to transfer any interest it may have in the
Security Letter to the vendee or lessee and Landlord shall thereupon be released
by Tenant from all liability for the return of such Security Letter and as
provided in Section 20.01 hereof such new landlord shall be deemed Landlord
under this Lease and to have assumed the obligations of Landlord for the return
thereof or any unapplied portion thereof as provided herein, and Tenant agrees
to look solely to the new landlord for the return of said Security Letter; and
it is agreed that the provisions hereof shall apply to every transfer or
assignment made of the Security Letter to a new landlord. 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 Landlord nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance. In the event of a sale of the
Building Landlord shall have the right to require Tenant to deliver a
replacement Security Letter naming the new landlord as beneficiary and, if
Tenant shall fail to timely deliver the same, to draw down the existing
56
Security Letter and retain the proceeds as security hereunder until a
replacement Security Letter is delivered.
ARTICLE 34
MISCELLANEOUS
34.01. Irrespective of the place of execution or performance, this Lease
shall be governed by and construed in accordance with the laws of the State of
New York.
34.02. This Lease shall be construed without regard to any presumption or
other rule requiring construction against the party causing this Lease to be
drafted.
34.03. Except as otherwise expressly provided in this Lease, each covenant,
agreement, obligation or other provision of this Lease on Tenant's part to be
performed shall be deemed and construed as a separate and independent covenant
of Tenant, not dependent on any other provision of this Lease.
34.04. All terms and words used in this Lease, regardless of the number or
gender in which they are used, shall be deemed to include any other number and
any other gender as the context may require.
34.05. Time shall be of the essence with respect to the exercise of any
option granted under this Lease.
34.06. Except as otherwise provided herein, whenever payment of interest is
required by the terms hereof it shall be at the Interest Rate.
34.07. Landlord represents that the demised premises is currently vacant.
If the demised premises or any additional space to be included within the
demised premises shall not be available for occupancy by Tenant on the specific
date hereinbefore designated for the commencement of the term of this Lease or
for the inclusion of such space for any reason whatsoever, then this Lease shall
not be affected thereby but, in such case, said specific date shall be deemed to
be postponed until the date when the demised premises or such additional space
shall be available for occupancy by Tenant, and Tenant shall not be entitled to
possession of the demised premises or such additional space until the same are
available for occupancy by Tenant; provided, however, that Tenant shall have no
claim against Landlord, and Landlord shall have no liability to Tenant by reason
of any such postponement of said specific date, and the parties hereto further
agree that any failure to have the demised premises or such additional space
available for occupancy by Tenant on said specific date or on the Commencement
Date shall in no wise affect the obligations of Tenant hereunder nor shall the
same be construed in any wise to extend the term of this Lease and furthermore,
this Section 34.07 shall be deemed to be an express provision to the contrary of
Section 223a of the Real Property Law of the State of New York and any other law
of like import now or hereafter in force.
57
34.08. In the event that Tenant is in arrears in payment of fixed annual
rent or additional rent hereunder, Tenant waives Tenant's right, if any, to
designate the items against which any payments made by Tenant are to be
credited, and Tenant agrees that Landlord may apply any payments made by Tenant
to any items it sees fit, irrespective of and notwithstanding any designation or
request by Tenant as to the items against which any such payments shall be
credited.
34.09. This Lease shall not be binding upon Landlord unless and until it is
signed by Landlord and a signed copy thereof is delivered by Landlord to Tenant.
34.10. Tenant shall not occupy any space in the Building (by assignment,
sublease or otherwise) other than the demised premises, except with the prior
written consent of Landlord in each instance.
34.11. If an excavation or other substructure work 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 purposes of doing such work
as shall be necessary to preserve the wall of or the Building of which the
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 Landlord,
or diminution or abatement of rent.
34.12. 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 provision thereof.
34.13. Landlord or Landlord's agents have made no representations or
promises with respect to the Building or demised premises except as herein
expressly set forth.
34.14. Landlord shall have the full right at any time to name and change
the name of the Building and to change the designated address of the Building.
The Building may be named after any person, firm, or otherwise, whether or not
such name is, or resembles, the name of a tenant of the Building.
34.15. Tenant shall, at the request of Landlord execute and deliver a
statutory form of memorandum of this Lease for the purpose of recording, but
said memorandum of this Lease shall not in any circumstances be deemed to modify
or to change any of the provisions of this Lease. In no event shall Tenant
record this Lease.
34.16. Landlord reserves the right to exclude from all portions of the
building at any time or times during the term hereof, all messengers, couriers
and delivery people other than those who are employees of Tenant or uniformed
employees of the United States Postal Service or national delivery services
(e.g., Federal Express). In the event Landlord exercises such right, Landlord
shall provide a messenger center in the building where Landlord shall accept on
behalf of Tenant and permit outside messengers and couriers to pick up all
deliveries of mail and packages to and from the building other than those
deliveries specified above. Landlord's employees shall deliver to the demised
premises mail and packages which were addressed to
58
Tenant and delivered to the messenger center. Landlord shall have the right to
charge Tenant a reasonable annual charge for the above service, which sum shall
be payable by Tenant to Landlord, as additional rent, within ten (10) days
following demand therefor. Tenant shall comply with Landlord's rules relating to
such center and service. Landlord and Landlord's agents shall not be liable to
Tenant or Tenant's agents, employees, contractors, customers, clients, invitees
or licensees or to any other person for, and Tenant hereby indemnifies Landlord
and Landlord's agents from and against, any and all liability in connection with
or arising out of (i) damage to mail or packages, or (ii) the performance or
non-performance by Landlord or any person acting by, through or under the
direction of Landlord of the services set forth in this Paragraph (including any
liability in respect of the property of such persons), unless due to the willful
misconduct of Landlord or Landlord's agents.
34.17. This Lease contains the entire agreement between the parties, and
any executory agreement hereafter made shall be ineffective to change, modify,
discharge or effect an abandonment of it in whole or in part unless such
executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
34.18. If any term, covenant, condition or provision of this Lease or the
application thereof to any circumstance or to any person, firm or corporation
shall be invalid or unenforceable to any extent, the remaining terms, covenants,
conditions and provisions of this Lease or the application thereof to any
circumstances or to any person, firm or corporation other than those as to which
any term, covenant, condition or provision is held invalid or unenforceable,
shall not be affected thereby and each remaining term, covenant, condition and
provision of this Lease shall be valid and shall be enforceable to the fullest
extent permitted by law.
34.19. Tenant shall, upon demand by Landlord, reimburse Landlord for the
cost of any shades heretofore or hereafter installed by Landlord at the request
of Tenant on the windows surrounding the demised premises.
ARTICLE 35
ICIP
35.01. (a) For purposes of this Article 35, the term "Project" shall mean,
collectively, (x) the performance by Landlord of certain improvements in and to
the Building, as determined by Landlord in its sole discretion, and (y) the
performance by Tenant of any alterations, including Tenant's Work. All other
terms used herein, unless otherwise defined in this Lease, shall have the
meanings ascribed to them in Sections 11-256 through 11-267 of the
Administrative Code of the City of New York, authorized by Title 2-D of Article
4 of the New York Real Property Tax Law and all rules and regulations
promulgated thereunder [including without limitation the rules and regulations
of the New York City Department of Finance ("DOF"), the New York City Department
of Business Services ("DBS") and the New York City
59
Department of Business Services, Division of Labor Services ("DOBS/DLS")]
(herein collectively called the "Industrial and Commercial Incentive Program" or
the "ICIP Program").
(b) Tenant acknowledges that Landlord has advised
Tenant that Landlord may (but shall not be obligated to) apply for the benefits
and entitlements provided by Section 489-bbbb, Subdivision 5 of the ICIP
Program. Tenant will cooperate in all reasonable respects with Landlord in
applying for, and in obtaining from the appropriate governmental authorities,
certificates of eligibility determining that Landlord is eligible for a partial
exemption from real estate tax payments pursuant to the ICIP Program. Tenant
shall comply (and, with respect to any contractors and subcontractors performing
work on the Project, shall include or require, as the case may be, provisions in
their contracts and subcontracts requiring such contractors and subcontractors
to comply, and promptly following receipt of notice of any failure of such
contractors or subcontractors to comply, shall use reasonable efforts to enforce
such contractual obligations to comply, including, without limitation, by way of
the termination of such contracts and/or subcontracts) with all applicable
provisions, regulations and requirements of the ICIP Program so that the
Building will receive the benefits and entitlements provided by the ICIP Program
(the "ICIP Benefits"), which compliance shall include without limitation, the
filing and obtaining of all required applications, permits, licenses and
certificates and, if required by the DOBS/DLS, the hiring of apprentice
laborers. Landlord makes no representation or warranty to Tenant that the ICIP
Benefits or the shall be received in whole or in part. For the purposes of
Article 3 hereof, "Taxes" and Tenant's Tax Payment shall be calculated without
giving to Tenant the benefit of any reduction or abatement obtained by Landlord
pursuant to the ICIP or other similar program.
(c) Tenant shall, prior to the performance of any
alterations of changes in or to the demised premises or the Building (herein
"Changes"), or the issuance of any building permits or award of any construction
contracts in connection therewith, notify Landlord of its intent to perform such
Changes and the estimated cost thereof in order to enable Landlord to include
such Changes in the Building's applications for ICIP Benefits.
(d) (i) In order to ensure that no actions taken by any
construction managers, contractors or subcontractors engaged by Tenant in
connection with the Project ("Tenant's Contractors") will cause the Building to
fail to qualify for or to lose the ICIP Benefits, Tenant shall use only such
Tenant's Contractors that qualify under and otherwise satisfy the requirements
of the ICIP Program for performance of work comprising part of the Project.
(ii) All of Tenant's Contractors employed in
connection with the Project shall be contractually required by Tenant to comply
with the provisions of the ICIP Program. If Landlord is notified of any
violation of the ICIP Program by Tenant's Contractors, Landlord shall promptly
advise Tenant thereof and send a copy of such notice to Tenant, and Tenant will
take all appropriate diligent steps to cause Tenant's Contractors to cure such
violations.
(e) At Landlord's request, to the extent required to
enable Landlord to file annual certificates of continuing use as required by the
ICIP Program
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and/or to continue to receive the ICIP Benefits, Tenant shall (i) report to
Landlord the use of the demised premises, the number of workers permanently
engaged in employment in the demised premises, the nature of each worker's
employment, the number of such workers who reside in New York City and the New
York City residency of each worker, (ii) provide access to the demised premises
by employees and agents of any governmental agency enforcing the ICIP Program
(including, without limitation, DOF) at all reasonable times, upon reasonable
notice when requested by Landlord and (iii) enforce the contractual obligations
of Tenant's Contractors to comply with the DOBS/DLS requirements.
(f) Without limiting Tenant's rights under this Article
35, Tenant shall not be required to pay any real estate taxes or charges which
may become due because of the willful neglect or fraud by Landlord in connection
with the ICIP Program, or otherwise relieve or indemnify Landlord from any
personal liability which may arise under Section 11-265 of the Administrative
Code of the City of New York, unless the imposition of such real estate taxes or
charges, or liability, resulted from any actions of Tenant in violation of this
Lease or Tenant's failure to comply with the ICIP Regulations.
(g) Tenant represents to Landlord that, within seven
(7) years immediately preceding the date of this Lease, Tenant has not been
adjudged by a court of competent jurisdiction to have been guilty of (x) an act,
with respect to a building, which is made a crime under the provisions of
Article 150 of the Penal Law of the State of New York or any similar law of
another state, or (y) any act made a crime or violations by the provisions of
Section 235 of the Real Property Law of the State of New York, nor is any charge
for violation of such laws presently pending against Tenant. Upon request of
Landlord, from time to time, Tenant agrees to update said representation when
required because of the ICIP Program. Tenant further agrees to cooperate with
Landlord in compliance with the ICIP Program to aid Landlord in obtaining and
maintaining the ICIP Benefits and, if requested by Landlord, to post a notice in
a conspicuous place in the demised premises and to publish a notice in a
newspaper of general circulation in the City of New York, in such form as shall
be prescribed by DOF, stating that persons having information concerning any
violation by Tenant of Section 235 of the Real Property Law or any Section of
Article 150 of the Penal Law or any similar law of another jurisdiction may
submit such information to DOF to be considered in determining Landlord's
eligibility for tax exemption benefits.
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IN WITNESS WHEREOF, Landlord and Tenant have respectively executed
this Lease as of the day and year first above written.
ATTEST: MADISON 45 LLC, Landlord
By: S/
--------------------------------------- ----------------------------------
ATTEST: PRIMUS FINANCIAL PRODUCTS, LLC, Tenant
S/ By: S/
--------------------------------------- ----------------------------------
Tenant's Federal Tax Identification Number is ▇▇-▇▇▇▇▇▇▇.
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
):ss
County of New York )
On the 24th day of July in the year 2002, before me, the undersigned, a
Notary Public in and for said state, personally appeared _______________
personally known to me or proved to me on the basis or satisfactory evidence to
be the person(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
S/
--------------------------------------
Notary Public
63
SCHEDULE A
Floor Plan
[GRAPHIC]
64
SCHEDULE B
RULES AND REGULATIONS
I. Tenant shall not:
1. Obstruct, encumber or use, or allow or permit any of its employees,
agents, licensees or invitees to congregate in or on, the sidewalks, driveways,
entrances, passages, courts, arcades, esplanade areas, plazas, elevators,
vestibules, stairways, corridors or halls of the Building, outside of the
demised premises, or use any of them for any purposes other than for ingress and
egress to and from the demised premises.
2. Attach awnings or other projections to the outside walls of the
Building or place bottles, parcels or other articles, or lettering visible from
the exterior, on the windows, windowsills or peripheral air-conditioning
enclosures.
3. Attach to, hang on, or use in connection with, any exterior window
or entrance door of the demised premises, any blinds, shades or screens which
are not of a quality, type, design and color, or which are not attached in a
manner, approved by Landlord.
4. Place or leave any door mat or place, leave or install any other
floor covering or other property in any area outside of the demised premises.
5. Exhibit, inscribe, paint or affix any sign, insignia,
advertisement, object or other lettering in or on any windows, doors, walls or
part of the outside or inside of the Building (exclusive of the inside of the
demised premises), or in the demised premises if visible from the outside,
without Landlord's approval, except that the name(s) of Tenant and any permitted
sublessee may be displayed in a Building Standard manner on the entrance doors
of the premises occupied by each (and on the wall of the elevator lobby so long
as Tenant is the lessee of the entire floor on which such sign is installed),
and further subject to Landlord's reasonable approval of the size, color and
design of such display and, if Landlord elects to perform such work, Tenant
shall pay Landlord for the performance of such work.
6. Cover or obstruct the sashes, sash doors, skylights, windows and
doors that reflect or admit light and air into the halls, passageways or other
public areas of the Building.
7. Place in, attach to, put in front of, or affix to any part of the
exterior of the Building, or any of its halls, doors, corridors or vestibules,
outside of the demised premises, any lettering, signs, decorations, showcases,
displays, display windows, packages, boxes or other articles.
8. Except in the normal decoration of the interior of the demised
premises, ▇▇▇▇, paint, drill into, or in any way deface, any part of the
Building or the demised premises or cut, bore or string wires therein.
65
9. Permit or allow bicycles, vehicles, animals, fish or birds of any
kind to be brought into or kept on or about the Building or the demised
premises.
10. Make, or permit or allow to be made, any unseemly or disturbing
noises, whether by musical instruments, recordings, radio, television,
whistling, singing or in any other way, which might disturb other occupants in
the Building or those having business with them or impair or interfere with the
use or enjoyment by others of neighboring buildings or premises.
11. Bring into or keep on any part of the demised premises or the
Building any inflammable, combustible, radioactive or explosive fluid, chemical
or substance.
12. Place upon any of the doors (other than closet or vault doors) or
windows in the Building any locks or bolts which shall not be operable by the
Grand Master Key for the Building, or make any changes in locks or the
mechanisms thereof which shall make such locks inoperable by said Grand Master
Key unless such change is approved by Landlord in which event Tenant shall give
Landlord duplicate keys for such locks or bolts.
13. Remove, or carry into or out of the demised premises or the
Building, any safes, freight, furniture, packages, boxes, crates or any bulky or
heavy objects except during such hours and in such elevators as Landlord may
reasonably determine from time to time.
14. Use any lighting in perimeter areas of the Building, other than
that which is standard for the Building or approved by Landlord, so as to permit
uniformity of appearance to those viewing the Building from the outside.
15. Engage or pay any employees on the demised premises except those
actually working for Tenant in the demised premises, or advertise for laborers
giving the demised premises as an address.
16. Obtain, permit or allow in the Building the purchase, or
acceptance for use in the demised premises, by means of a service cart, vending
machine or otherwise, of any ice, drinking water, food, tobacco in any form,
beverage, towel, barbering, boot blackening, cleaning, floor polishing or other
similar items or services from any persons, except such persons, during such
hours, and at such places within the Building and under such requirements as may
be determined by Landlord with respect to the furnishing of such items and
services, provided that the charges for such items and services by such persons
are not excessive.
17. Use, permit or allow any advertising or identifying sign which
Landlord shall have notified Tenant tends, in Landlord's judgment, to impair the
reputation of the Building or its desirability as a building for offices.
18. Close and leave the demised premises at any time without closing
all operable windows and, if requested by Landlord, turning out all lights.
19. Permit entrance doors to the demised premises to be left open at
any time or unlocked when the demised premises are not in use.
66
20. Encourage canvassing, soliciting or peddling in any part of the
Building or permit or allow the same in the demised premises.
21. Use, or permit or allow any of its employees, contractors,
suppliers or invitees to use, any space or part of the Building, including the
passenger elevators or public halls thereof, in the moving, delivery or receipt
of safes, freight, furniture, packages, boxes, crates, paper, office material or
any other matter or thing, any hand trucks, wagons or similar items which are
not equipped with such rubber tires, side guards and other safeguards which
shall have been approved by Landlord or use any such hand trucks, wagons or
similar items in any of the passenger elevators.
22. Cause or permit any food odors or any other unusual or
objectionable odors to exist in or emanate from the demised premises or permit
any cooking or preparation of food except in areas approved by Landlord and in
compliance with local ordinances.
23. Create or permit a public or private nuisance.
24. Throw or allow or permit to be thrown anything out of the doors,
windows or skylights or down the passageways of the Building.
25. Lay vinyl tile or other similar floor covering so that the same
shall come in direct contact with the floor or in a manner or by means of such
pastes or other adhesives which shall not have been approved by Landlord, it
being understood that 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 which is soluble in water, the use of
cement or other similar adhesive material being expressly prohibited.
26. Use, allow or permit the passenger elevators to be used by
Tenant's working hands (persons in rough clothing handling packages, cartons and
shipments of material or mail) or persons carrying bulky packages or by persons
calling for or delivering mail or goods to or from the demised premises, and
Tenant shall cooperate with Landlord in enforcing this Rule on those making
deliveries to Tenant.
27. Request any of Landlord's agents, employees or contractors to
perform any work, or do anything, outside of their regular duties, unless
previously approved by the Building manager.
28. Invite to the demised premises or the Building, or permit the
visit of, persons in such numbers or under such conditions as to unreasonably
interfere with the use and enjoyment of any of the plazas, entrances, corridors,
arcades, escalators, elevators or other facilities of the Building by other
occupants thereof.
29. Use, permit or allow the use of any fire exits or stairways for
any purpose other than emergency use.
30. Employ any firm, person or persons to move safes, machines or
other heavy objects into or out of the Building, without prior approval of
Landlord of such persons and
67
the manner in which such items will be moved and the location thereof, which
approval shall not be unreasonably withheld.
31. Install or use any machines or machinery of any kind whatsoever
which may disturb any persons outside of the demised premises.
32. Use the water and wash closets or other plumbing fixtures or
storage or electrical or mechanical closets or storage areas for any purpose
other than those for which they were constructed, or allow or permit sweepings,
rubbish, rags, or other solid substances to be thrown therein.
33. Install any carpeting or drapes, or paneling, grounds or other
decorative wood products, in the demised premises, other than those wood
products considered furniture, which are not treated with fire retardant
materials and, in such event, shall submit, to Landlord's reasonable
satisfaction, proof or other reasonable certification of the materials
reasonably satisfactory fire retardant characteristics.
II. Tenant shall:
1. Pay Landlord for any damages, costs or expenses incurred by
Landlord with respect to the breach of any of the Rules and Regulations
contained in or provided by this Lease by Tenant, or any of its servants,
agents, employees, licensees or invitees, or the misuse by Tenant, or any of the
aforesaid, of any fixture or part of the demised premises or the Building and
shall cause its servants, agents, employees, licensees and invitees to comply
with the Rules and Regulations contained in or provided for by this Lease.
2. Upon the termination of this Lease, turn over to Landlord all keys,
either furnished to, or otherwise procured by, Tenant with respect to any locks
used by Tenant in the demised premises or the Building and, in the event of the
loss of such keys, pay to Landlord the cost of procuring same.
3. Subject to the provisions of Article 27 hereof, refrain from, and
immediately upon receipt of notice thereof, discontinue any violation or breach
of the Rules and Regulations contained in or provided for by this Lease.
4. Request Landlord to furnish passes to persons whom Tenant desires
to have access to the demised premises during times other than Business Hours
and be responsible and liable to Landlord for all persons and acts of such
persons for whom Tenant requests such passes.
5. Furnish artificial light and electrical energy (unless Landlord
shall furnish electrical energy as a service included in the rent) at Tenant's
expense for the employees of Landlord or Landlord's contractors while doing
janitorial or other cleaning services or while making repairs or alterations in
the demised premises.
68
6. Apply at the office of the Building's manager with respect to all
matters and requirements of Tenant which require the attention of Landlord, its
agents or any of its employees.
7. Pay Landlord's reasonable charges for the installation and
replacement of ceiling tiles removed for Tenant by telephone installers or
others in the demised premises and public corridors, if any.
8. Purchase from Landlord or Landlord's designee, at Landlord's
option, all replacement lighting tubes (not initial lighting tubes for which
Tenant shall be solely responsible), lamps, bulbs and ballasts used in the
demised premises and pay Landlord, or Landlord's designee, as the case may be,
its reasonable charges for the purchase and installation thereof.
9. Pay Landlord's reasonable charges for the hiring or providing of
security guards during times when Tenant, or any subtenant of Tenant, is moving
into or out of portions of the demised premises or when significant quantities
of furniture or other materials are being brought into or removed from the
demised premises.
III. Landlord shall:
1. Have the right to inspect all freight objects or bulky matter
(except printed matter) brought into the Building and to exclude from the
Building all objects and matter which violate any of the Rules and Regulations
contained in or provided by this Lease.
2. Have the right to require any person leaving the demised premises
with any package, or other object or matter, to submit a pass, listing such
package or object or matter, from Tenant.
3. In no way be liable to Tenant or any other party for damages or
loss arising from the admission, exclusion or rejection of any person or any
property to or from the demised premises or the Building under the provisions of
the Rules and Regulations contained in or provided for by this Lease.
4. Have no liability or responsibility for the protection of any of
Tenant's property as a result of damage or the unauthorized removal of any such
property resulting wholly or in part from Landlord's failure to enforce, in any
particular instance, or generally, any of Landlord's rights.
5. Have the right to require all persons entering or leaving the
Building, during hours other than Business Hours, to sign a register and may
also exclude from the Building, during such hours, all persons who do not
present a pass to the Building signed by Landlord.
6. Furnish passes to persons for whom Tenant requests same.
69
7. Have the right to control and operate the public portions of the
Building and the public facilities, as well as facilities furnished for the
common use of other occupants, of the Building.
8. Have the right to remove any violation of Paragraph I items 2, 3,
4, 5, 6 or 7 of these Rules and Regulations without any right of Tenant to claim
any liability against Landlord, and have the right to impose a reasonable charge
against Tenant for removing any such violation or repairing any damages
resulting therefrom.
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SCHEDULE C
APPROVED CONTRACTOR LIST
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
GENERAL CONTRACTORS
1. NTX Interiors Inc. (▇▇▇) ▇▇▇-▇▇▇▇
Contact: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
2. ▇▇▇▇▇▇▇▇ Construction (▇▇▇) ▇▇▇-▇▇▇▇
Contact: ▇▇▇▇ ▇▇▇▇▇▇▇▇
3. ▇▇▇▇▇▇ Construction Company (▇▇▇) ▇▇▇-▇▇▇▇
Contact: ▇▇▇▇▇ ▇▇▇▇▇▇▇
4. Tri-Star Construction (▇▇▇) ▇▇▇-▇▇▇▇
Contact: ▇▇▇▇ ▇▇▇▇▇▇
5. ▇▇▇▇ ▇▇▇▇▇▇ & Son Inc. (▇▇▇) ▇▇▇-▇▇▇▇
DRYWALL, CARPENTRY & ACOUSTICS
1. San ▇▇▇, Inc. (▇▇▇) ▇▇▇-▇▇▇▇
2. Concept Carpentry Corporation (▇▇▇) ▇▇▇-▇▇▇▇
3. Component Assembly System, Inc. (▇▇▇) ▇▇▇-▇▇▇▇
4. Superior Acoustics Drywall (▇▇▇) ▇▇▇-▇▇▇▇
CARPET & RESILIENT FLOORING
1. Flooring by Cantabria, Inc. (▇▇▇) ▇▇▇-▇▇▇▇
2. SDCF, Inc. (▇▇▇) ▇▇▇-▇▇▇▇
3. American Business Carpet (▇▇▇) ▇▇▇-▇▇▇▇
4. Sherland & ▇▇▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
5. BC/Exchange (▇▇▇) ▇▇▇-▇▇▇▇
PAINTING & WALLCOVERING
1. The MMG Group, Inc. (▇▇▇) ▇▇▇-▇▇▇▇
2. ▇▇▇▇▇▇ ▇▇▇▇▇ Painting (▇▇▇) ▇▇▇-▇▇▇▇
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3. L & L Painting (▇▇▇) ▇▇▇-▇▇▇▇
4. Bond Painting (▇▇▇) ▇▇▇-▇▇▇▇
SPRINKLERS
1. Sirina Fire Protection (▇▇▇) ▇▇▇-▇▇▇▇
2. Abco Peerless Sprinkler Corporation (▇▇▇) ▇▇▇-▇▇▇▇
3. Federated Mechanical Corp. (▇▇▇) ▇▇▇-▇▇▇▇
4. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Sons, Inc. (▇▇▇) ▇▇▇-▇▇▇▇
PLUMBING
1. ▇▇▇▇▇▇ Breshaw & Sons, Inc. (▇▇▇) ▇▇▇-▇▇▇▇
2. Par Plumbing (▇▇▇) ▇▇▇-▇▇▇▇
3. Almar (▇▇▇) ▇▇▇-▇▇▇▇
4. API Plumbing (▇▇▇) ▇▇▇-▇▇▇▇
5. General Plumbing (▇▇▇) ▇▇▇-▇▇▇▇
HVAC
1. Kaback Enterprises, Inc. (▇▇▇) ▇▇▇-▇▇▇▇
2. ▇▇▇▇▇▇ Mechanical (▇▇▇) ▇▇▇-▇▇▇▇
3. Midtown Air Conditioning & Ventilation, Ltd. (▇▇▇) ▇▇▇-▇▇▇▇
4. Heritage (▇▇▇) ▇▇▇-▇▇▇▇
ELECTRICAL
1. RNR Associates, Inc. (▇▇▇) ▇▇▇-▇▇▇▇
2. Forest Electric Corp. (▇▇▇) ▇▇▇-▇▇▇▇
3. CMS Electric (▇▇▇) ▇▇▇-▇▇▇▇
4. ▇-▇ Electric (▇▇▇) ▇▇▇-▇▇▇▇
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WOODWORKING
1. NJS (▇▇▇) ▇▇▇-▇▇▇▇
2. Craftsmen (▇▇▇) ▇▇▇-▇▇▇▇
3. Mid-▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
FILING AGENT
1. Metropolis Consulting Group (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
BUILDING LOCAL LAW 5 VENDOR
1. Fire Code Services, Inc. (▇▇▇) ▇▇▇-▇▇▇▇
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SCHEDULE D
CLEANING SPECIFICATIONS
General Offices, including conference rooms, on business days:
1. Dust-mop all non-carpeted areas and spot-mop all vinyl tile floors.
2. Carpet sweep all carpets, without moving furniture (four (4) times
per week).
3. Empty and clean all ash trays and screen all sand urns.
4. Empty and clean all waste receptacles and remove waste-paper or
replace plastic liners as required.
5. Clean all water fountains and coolers.
Building Standard Toilets, on business days:
1. Sweep and wash all floors, using proper disinfectants.
2. Wash and polish all mirrors, shelves, bright work and enameled
surfaces.
3. Wash and disinfect all basins, bowls and urinals.
4. Wash all toilet seats on both sides.
5. Hand dust and clean all partitions, tile walls, dispensers and
receptacles in lavatories and restrooms.
6. Empty and clean paper receptacles and remove waste-paper.
7. Fill toilet tissue holders, soap dispensers and paper towel
holders. Toilet tissue, soap, paper towels and other toilet supplies to be
furnished at Landlord's expense.
8. Empty and clean rubbish receptacles.
Periodic cleaning, as reasonably required:
1. Vacuum all carpets, moving only light furniture (desks, file
cabinets, etc. not to be moved) (one (1) time per week). Non-carpeted areas to
be dust mopped (one (1) time per week).
2. Dust all baseboards.
3. Hand dust and wipe clean all furniture, fixtures and window ▇▇▇▇▇.
74
4. Wash all windows, inside and out (three (3) times per year). It is
the responsibility of the tenant to remove items from window ▇▇▇▇▇.
5. Dust clean all vertical surfaces, such as walls, partitions, doors,
bucks and other surfaces not reached in nightly cleaning.
6. Depending on whether private stairways are carpeted, Landlord shall
clean the same in the same manner as Landlord cleans either carpeted or
non-carpeted parts of the demised premises.
75