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Exhibit 10.16
AGREEMENT OF SUBLEASE
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AGREEMENT OF SUBLEASE (this "Sublease"), dated as of August 5, 2004, by
and between CIBC WORLD MARKETS CORP., a Delaware corporation, having offices at
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 ("Sublandlord") and Marvel Enterprises,
Inc., a Delaware corporation, having offices at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 ("Subtenant").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the terms of that certain Agreement of Lease, dated
as of September 26, 2001 (as the same may be amended, restated or otherwise
modified from time to time, the "Underlying Lease"), between 000 Xxxxx Xxxxxx
LLC, a Delaware limited liability company (as successor in interest to EBS Fifth
Property Associates LLC) (the "Underlying Landlord"), the Underlying Landlord
leased to Sublandlord certain premises, a portion of which consist of
approximately 29,460 rentable square feet of space comprising the entire 11th
floor and approximately 18,408 rentable square feet on the 10th floor
(collectively, the "Subleased Premises"), as shown on Exhibit A attached hereto
and made a part hereof, located in the building located at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx (the "Building"); and
WHEREAS, Subtenant desires to sublease from Sublandlord and Sublandlord
is willing to sublet to Subtenant the Subleased Premises upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the rental payments to be made
hereunder by Subtenant to Sublandlord and the mutual terms, covenants and
conditions hereinafter set forth, Sublandlord does hereby sublet to Subtenant
and Subtenant does hereby take and hire from Sublandlord the Subleased Premises.
Capitalized terms used in this Sublease without other definition are used with
the meanings specified therefor in the Underlying Lease.
1. Commencement Date; Term. (a) Subject to the satisfaction of the
condition set forth in Paragraph 29 hereof, the term of this Sublease (the
"Term") shall commence on the date that Sublandlord tenders possession of the
Subleased Premises in accordance with the terms hereof (the "Commencement
Date"), which is anticipated to be on March 1, 2005 provided Underlying Landlord
issues its written consent to this subletting on its standard form of consent or
Underlying Landlord is deemed to consent to this subletting pursuant to the
terms of Section 12(G) of the Underlying Lease (the "Underlying Landlord's
Consent"), prior to such date and shall expire at 11:59 p.m. on September 29,
2011 (the "Expiration Date"), unless earlier terminated in accordance with the
provisions hereof or pursuant to law. Sublandlord shall give Subtenant notice of
the date of possession, if later than March 1, 2005, at least ten (10) days
prior thereto.
(b) Subtenant waives any right to rescind this Sublease and
further waives the right to recover any damages which may result from
Sublandlord's failure for any reason to deliver possession of the
Subleased Premises on the date set forth in Paragraph 1(a)
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hereof for the commencement of the Term. No such failure to give
possession on the date set forth in Paragraph 1(a) hereof for the
commencement of the Term shall in any way affect the validity of this
Sublease or the obligations of Subtenant hereunder or give rise to any
claim for damages by Subtenant or claim for rescission of this Sublease,
nor shall the same be construed in any way to extend the Term; provided,
however, that the Rent Commencement Date (as hereinafter defined) shall
be extended two (2) days for every day that the Commencement Date occurs
after April 1, 2005.
(c) The parties conclusively agree that the rentable square
footage of the Subleased Premises is 47,868 rentable square feet.
2. Fixed Rent. Subtenant shall pay to Sublandlord, during the Term of
this Sublease, annual fixed rental (the "Fixed Rent") as follows:
(a) for the period from the Rent Commencement Date (as
hereinafter defined) through the day preceding the third (3rd)
anniversary of the Commencement Date, [redacted pursuant to a request
for confidential treatment filed with the Securities and Exchange
Commission] per annum, in equal monthly installments of [redacted
pursuant to a request for confidential treatment filed with the
Securities and Exchange Commission]; and
(b) for the period from the third (3rd) anniversary of the
Commencement Date through the Expiration Date, [redacted pursuant to a
request for confidential treatment filed with the Securities and
Exchange Commission] per annum, in equal monthly installments of
[redacted pursuant to a request for confidential treatment filed with
the Securities and Exchange Commission].
All payments of Fixed Rent shall be made on or before the first day of
every calendar month during the period beginning on the date that is the ten
(10) month anniversary of the Commencement Date, subject to extension as
provided in Section 1(b) (the "Rent Commencement Date") and ending on the
Expiration Date, both dates inclusive, however, Subtenant, as a condition to
Sublandlord's execution and delivery hereof, shall deliver to Sublandlord a
check for the first monthly installment of Fixed Rent upon the satisfaction of
the condition set forth in Section 29 hereof, which amount Sublandlord shall
apply to the first monthly installment of Fixed Rent payable hereunder. All
Fixed Rent, and other sums and charges due to Sublandlord under this Sublease
shall be paid by Subtenant at the office of Sublandlord set forth above, or at
such other place as Sublandlord may designate in writing to Subtenant, without
any counterclaim, setoff or deduction whatsoever, and without demand therefor.
Payment of Fixed Rent and payment of any Additional Rent (as hereinafter
defined) hereunder shall be by Subtenant's unendorsed check (subject to
collection) drawn on a New York City bank which is a member of the New York
Clearing House Association or a successor thereto or a bank that clears through
the New York Clearing House Association or a successor thereto or by wire
transfer of immediately available funds to an account designated by Sublandlord.
If the Commencement Date is not the first day of a calendar month or the
Expiration Date of this Sublease is not the last day of a calendar month, rent
for the month in which the Rent Commencement Date or the Expiration Date occurs
shall be pro-rated on a per diem basis.
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Subtenant's obligation to pay Fixed Rent hereunder shall commence from
and after the Rent Commencement Date for the remainder of the Term and shall
survive the expiration or earlier termination of this Sublease.
3. Additional Rent. Commencing on the Commencement Date, Subtenant shall
pay as additional rent to Sublandlord upon demand all sums (other than Fixed
Rent) payable by Subtenant pursuant to this Sublease ("Additional Rent") and
including (i) fifty and thirty-seven hundredths percent (50.37%) ("Subtenant's
Proportionate Share") of all charges payable by Sublandlord to Underlying
Landlord pursuant to the provisions of Artic1e 28 of the Underlying Lease;
provided, however, that if the Tenant's Proportionate Share under the Underlying
Lease becomes greater than or less than 26.87%, Subtenant's Proportionate Share
shall be reduced or increased accordingly, and provided, further, the terms
"Base Labor Year" and "Base Tax Year" shall have the meanings set forth in
Section 6(a) hereof) and (ii) one hundred percent (100%) of all electricity,
heat and condenser water costs pursuant to Section 21 hereof, and all other
costs, fees and expenses in connection with Subtenant's particular use or manner
of use of the Subleased Premises or the Building (including, without limitation,
freight elevators and loading docks) or services provided by the Underlying
Landlord to Subtenant which are not included in Sublandlord's operating expenses
(such as expanded cleaning services or fees for review of plans and
specifications in connection with any alterations). If Sublandlord is required
by Underlying Landlord under the Underlying Lease to make advance payment or
deposits of such charges, Subtenant shall make advance payments or deposits to
Sublandlord in the proper amounts consistent with the above provisions.
Subtenant's obligations under the provisions of this Paragraph 3 shall be
apportioned for any period at the beginning or end of the Term of this Sublease
that is less than a full calendar year. Sublandlord shall have the right to
demand payment during or after the expiration or earlier termination of this
Sublease.
All other costs and expenses that Subtenant assumes or agrees to pay
pursuant to this Sublease shall be deemed Additional Rent and, in the event of
nonpayment, Sublandlord shall have all the rights and remedies provided for
herein, in the Underlying Lease, at law or in equity in case of the nonpayment
of Rent. If Subtenant shall fail to pay any installment of Fixed Rent or any
amount of Additional Rent within seven (7) days after the date such installment
or payment becomes due, Subtenant shall also pay to Sublandlord the fees and
charges, and the interest on the amount overdue, at the rates, and as otherwise
required by Section 19 and the other provisions of the Underlying Lease.
Subtenant's obligation to pay Additional Rent hereunder shall commence
from and after the Commencement Date for the remainder of the Term and shall
survive the expiration or earlier termination of this Sublease.
4. Commercial Rent Tax. If any commercial rent or occupancy tax shall be
levied against Subtenant based upon the Fixed Rent or Additional Rent payable by
Subtenant hereunder, Subtenant shall (a) complete and file with the appropriate
taxing authority all forms required in connection with such tax, and (b) pay the
same to the taxing authority and provide evidence to Sublandlord of such
payment, or, in the event such tax is levied against or paid by Sublandlord,
Subtenant shall reimburse Sublandlord for the amount of such tax and shall
provide Subtenant with documentation evidencing payment of such tax.
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5. Use. Subtenant shall use the Subleased Premises for general,
executive and administrative offices and for uses incidental and ancillary
thereto and for no other purpose, and shall use and occupy the Subleased
Premises in full compliance with the terms of the Underlying Lease.
6. Incorporation By Reference. (a) This Sublease shall be expressly
subject and subordinate to (i) all of the terms, covenants and conditions
contained in the Underlying Lease, except such terms, covenants and conditions
as are specifically set forth in this Paragraph 6 as "Excluded Provisions," and
(ii) all other matters to which the Underlying Lease is subordinate. A true and
complete copy (except for certain redacted provisions) of the Underlying Lease
is annexed hereto as Exhibit B. Except as set forth in the immediately
succeeding sentence, the terms, covenants and conditions of the Underlying Lease
(collectively, the "Incorporated Provisions") are incorporated herein by
reference. Sections l(A)(i), 1(A)(ii), 1(A)(iii), 1(A)(v), 1(A)(vi), l(A)(ix),
l(A)(x), l(A)(xii), l(A)(xiii), 1(A)(xiv), 1(C), 1(D), 1(E), 2(A), 2(B)(i)(d),
(e) and (g), Sections 7(C), 10(B)(ii), the final sentence of 12(C), 12J, the
final two sentences of 15, 21(B), 39(E), Articles 13, 23, 27, 36, 41, 42 and 43
and Exhibits 1-A through 1-F and Exhibit 2 of the Underlying Lease
(collectively, the "Excluded Provisions"), are specifically excluded from the
Incorporated Provisions and shall not be binding upon Subtenant and shall not be
incorporated into the terms of this Sublease. Except to the extent that the
Incorporated Provisions are inapplicable or are modified by the provisions of
this Sublease, the Incorporated Provisions binding or inuring to the benefit of
the landlord thereunder shall, in respect of this Sublease, bind or inure to the
benefit of Sublandlord, and the Incorporated Provisions, binding or inuring to
the benefit of the tenant thereunder shall, in respect of this Sublease, bind or
inure to the benefit of Subtenant, with the same force and effect as if such
Incorporated Provisions were completely set forth in this Sublease, and as if
the word "Landlord" or words of similar import, wherever the same appear in the
Incorporated Provisions (other than with respect to Articles 4, 10 and 11 and
Section (9D) of the Underlying Lease and any representations and warranties made
by Underlying Landlord pursuant to the Underlying Lease), were construed to mean
Sublandlord, and as if the word "Tenant" or words of similar import, wherever
the same appear in the Incorporated Provisions, were construed to mean
Subtenant, and as if the word "Premises," or words of similar import, wherever
the same appear in the Incorporated Provisions, were construed to mean the
Subleased Premises, and as if the word "Lease," or words of similar import,
wherever the same appear in the Incorporated Provisions, were construed to mean
this Sublease, and as if the words "Tenant's Proportionate Share" or words of
similar import were construed to mean Subtenant's Proportionate Share, and as if
the word "Rent" or words of similar import, wherever the same appear in the
Incorporated Provisions, were construed to mean Fixed Rent in this Sublease, and
as if the word "additional rent" or words of similar import, wherever the same
appear in the Incorporated Provisions, were construed to mean "Additional Rent"
in this Sublease. For the purposes of this Sublease, the definition of "Base
Labor Year" in the Underlying Lease shall be defined as "the calendar year 2005"
and the term "Base Tax Year" shall be defined as "the Tax Year (as defined in
Article 28 of the Underlying Lease) 2005/2006."
(b) Whenever, pursuant to a provision of the Underlying Lease
incorporated herein by reference, Sublandlord is required to take some
action by a date certain or within a certain time period, other than the
making of a payment of Fixed Rent or Additional Rent hereunder,
Subtenant shall take such action at least three (3) business
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days prior to the date or time for Sublandlord's performance under the
Underlying Lease. If, because of the time period specified for
performance in the Underlying Lease, Subtenant cannot perform hereunder
within the time period mentioned in the previous sentence, Subtenant
shall not be in default hereunder so long as Subtenant performs at least
two (2) business days prior to the date or time required for
Sublandlord's performance under the Underlying Lease.
(c) If any of the express provisions of this Sublease shall
conflict with any of the Incorporated Provisions, such conflict shall be
resolved in every instance in favor of the express provisions of this
Sublease. If Subtenant receives any notice or demand from Underlying
Landlord under the Underlying Lease, Subtenant shall deliver a copy
thereof to Sublandlord by facsimile or reputable overnight courier the
next business day or as soon thereafter as is reasonably possible.
(d) This Sublease is expressly subject and subordinate to the
provisions of, Section 12(I) of the Underlying Lease as set forth
therein as well as being expressly incorporated herein by reference.
7. Performance By Sublandlord. So long as Subtenant is not in default of
any of its monetary or material obligations hereunder beyond the expiration of
any applicable grace period, Sublandlord shall not do, suffer or permit anything
to be done on Sublandlord's behalf (including, without limitation, to fail to
make any rental payments due under the Underlying Lease) which will result in a
default under, or cause the termination of, the Underlying Lease with respect to
the Subleased Premises. So long as Subtenant is not in default of any of its
monetary or material obligations hereunder beyond the expiration of any
applicable grace period, Sublandlord shall comply with the provisions of the
Underlying Lease, but Sublandlord shall not be required to furnish, supply or
install anything required under the Underlying Lease and Subtenant shall look
solely to Underlying Landlord for such furnishing, supplying and installation
including, without limitation, any repair, restoration or services to be
provided under the Underlying Lease. Sublandlord agrees to promptly send to
Subtenant copies of all bills, statements or notices, including any notices of
default or termination, pertaining to the Underlying Lease which Sublandlord
receives during the Term of this Sublease with respect to the Subleased
Premises. Sublandlord shall have no liability or responsibility whatsoever for
Underlying Landlord's failure or refusal to perform under the Incorporated
Provisions, unless such failure or refusal to perform is due solely to the
default of Sublandlord under the Underlying Lease. Upon Sublandlord's receipt of
a written notice from Subtenant that Sublandlord has failed to perform an
obligation under the Incorporated Provisions or that the Underlying Landlord has
failed to perform an obligation under the Underlying Lease, Sublandlord may, at
its sole and exclusive option (which election shall be promptly made by
Sublandlord and notice thereof given to Subtenant promptly thereafter) either:
(a) use diligent efforts to cause Underlying Landlord to observe and perform the
same, but at the sole reasonable cost and expense of Subtenant (including,
without limitation, reasonable attorneys' fees and expenses), provided, however,
that Sublandlord does not guarantee Underlying Landlord's compliance with the
Incorporated Provisions, or (b) direct Subtenant to pursue its claim directly
against Underlying Landlord (which may be done in Subtenant's name, or, if
required as a matter of law or otherwise, in the name of Sublandlord, in either
event at Subtenant's sole cost and expense), in which event, Sublandlord shall
use reasonable efforts to cooperate with Subtenant,
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at Subtenant's sole cost and expense. If Sublandlord institutes suit, it or its
attorney shall keep Subtenant fully apprised at all times of the status of such
action or proceeding and shall not settle the same without the prior consent of
Subtenant, which consent shall not be unreasonably withheld. Subtenant shall
indemnify and hold harmless Sublandlord from and against any and all claims
arising from, or in connection with, any claim made in Sublandlord's name
including, without limitation, all fines, suits, demands, reasonable attorneys'
fees and other reasonable costs and disbursements incurred in connection with
any such claim. Subtenant shall not in any event have any rights in respect of
the Subleased Premises greater than Sublandlord's rights under the Underlying
Lease with respect to the Subleased Premises. Notwithstanding any provision to
the contrary contained herein, as to the Incorporated Provisions, Sublandlord
shall not be required to make any payment or perform any obligation, and
Sublandlord shall have no liability to Subtenant for any matter whatsoever,
except for (so long as Subtenant is not in default of its monetary or material
obligations hereunder beyond the expiration of any applicable grace periods) (i)
Sublandlord's obligation to pay Rent or Additional Rent due under the Underlying
Lease, and (ii) Sublandlord's obligation to use diligent efforts, upon the
written request of Subtenant, but at the sole reasonable cost and expense of
Subtenant (including, without limitation, reasonable attorneys' fees and
expenses), to cause Underlying Landlord to observe and/or perform its
obligations under the Underlying Lease (or, in the alternative, to direct
Subtenant to pursue its claims against Underlying Landlord) in accordance with
this Paragraph 7. Notwithstanding anything herein or in the Underlying Lease to
the contrary, Sublandlord shall not be responsible for any failure or refusal to
perform (or the interruption of services), for any reason whatsoever (unless
such failure or refusal to perform (or the interruption of services) is due
solely to the default of Sublandlord under the Underlying Lease) of the services
or facilities that may be appurtenant to or supplied at the Building, by the
Underlying Landlord or otherwise, including, without limitation, heat, air
conditioning, water, elevator service, security and cleaning service, if any;
and no failure to furnish, or interruption of, any such services or facilities
shall give rise to any: (i) abatement, diminution or reduction of Subtenant's
obligations under this Sublease (unless Sublandlord receives a corresponding
abatement, diminution or reduction under the Underlying Lease) or (ii) liability
on the part of Sublandlord, unless such failure or refusal to perform (or the
interruption of services) is due solely to the default of Sublandlord under the
Underlying Lease.
8. Underlying Lease. (a) Subtenant shall not do, suffer or permit any
act or thing to be done in the Subleased Premises or in the Building which may
constitute a breach or violation of, or a default under, the Underlying Lease.
Subtenant shall indemnify and hold Sublandlord harmless from and against any and
all losses, damages, liabilities, claims, penalties, interest, fees, costs and
expenses, including without limitation reasonable attorneys' fees and
disbursements, which may be sustained or incurred by, or alleged against,
Sublandlord by reason of Subtenant's breach of the covenant set forth in the
immediately preceding sentence.
(b) Except with Subtenant's prior written consent, Sublandlord
covenants and agrees that it will not modify or amend the Underlying
Lease so as to reduce Subtenant's rights, or increase its obligations
hereunder, except to a de minimis extent. Sublandlord shall promptly
furnish Subtenant with a copy of any amendment to the Underlying Lease.
9. Maintenance and Repair. Subtenant shall take good care of the
Subleased Premises and shall assume the responsibility for repairs which may be
necessary during the Term
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of this Sublease in accordance with Article 4 and the other provisions of the
Underlying Lease, excepting only those services and repairs, if any, which
Underlying Landlord may be obligated to provide and to make under the terms and
provisions of the Underlying Lease.
10. Condition of the Subleased Premises; Alterations, etc. (a) Subtenant
shall accept the Subleased Premises on the Commencement Date in their "as is"
condition as of the date of this Sublease, broom clean and vacant of
Sublandlord's personnel and personalty (other than the FF&E (as hereinafter
defined)), subject to normal wear and tear, damage by fire and other casualty
and any condemnation event. Sublandlord hereby covenants and agrees to maintain
the insurance required by Article 9 of the Underlying Lease through the
Commencement Date and to the extent there is damage to the Subleased Premises or
the FF&E that is not repaired or replaced prior to the Commencement Date,
Sublandlord shall pay the net proceeds of any such insurance insuring such
damage to Subtenant.
(b) Sublandlord shall not otherwise be under any obligation to
make or pay for any alterations, additions, installations,
substitutions, improvements, decorations or costs of restoration,
removal or repair of any kind or nature whatsoever relating to the
Subleased Premises. Notwithstanding anything to the contrary in the
Underlying Lease or the Incorporated Provisions, except as specifically
set forth herein, Sublandlord makes no representations or warranties
whatsoever with respect to the condition of the Subleased Premises or
the Building. In making and executing this Sublease, Subtenant has
relied solely on such investigations, examinations and inspections as
Subtenant has chosen to make. Subtenant acknowledges that Sublandlord
has afforded Subtenant the opportunity for full and complete
investigations, examinations, and inspections of the Subleased Premises.
(c) Sublandlord shall have no obligations whatsoever to alter,
improve, decorate or otherwise prepare the Subleased Premises for
Subtenant's occupancy, except that Sublandlord shall:
(i) deliver to Subtenant a form ACP-5, duly executed by an
appropriate party and covering the Subleased Premises indicating that
Subtenant's work may be performed as a non-asbestos project;
(ii) deliver the bathrooms inside the Subleased Premises in
compliance with the applicable building codes;
(iii) remove all building code violations against the Subleased
Premises, if any, that would delay Subtenant from obtaining a building permit
for its Initial Alterations (as hereinafter defined) or a final approval for
such Initial Alterations; and
(iv) repair any damage to the Subleased Premises caused during
Sublandlord's move-out.
(d) Subtenant shall submit to Sublandlord and Underlying
Landlord simultaneously, the plans and specifications depicting any
proposed Alterations (which shall be in form reasonably acceptable to
Sublandlord and Underlying Landlord (provided, Underlying Landlord shall
accept the same from Subtenant) and, in any event,
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in the form required by the Underlying Lease) and which shall be
reviewed by Sublandlord and Underlying Landlord for review, in each
case, at the sole, cost and expense of Subtenant. Subtenant agrees that
upon receiving Underlying Landlord's and Sublandlord's consent to such
plans and specifications pursuant to Article 3 of the Underlying Lease
(as consented to, the "Approved Plans and Specifications"), Subtenant
shall cause such Alterations to be constructed pursuant to the Approved
Plans and Specifications.
11. Assignment and Subletting. (a) Subtenant shall not, by operation of
law or otherwise, assign, sell, mortgage, pledge or in any manner transfer this
Sublease or any interest therein, or sublet the Subleased Premises or any part
or parts thereof, or grant any concession or license or otherwise permit
occupancy of all or any part of the Subleased Premises by any person except in
accordance with the provisions of Article 12 of the Underlying Lease.
Notwithstanding the foregoing, if this Sublease shall be assigned or if the
Subleased Premises or any part thereof shall be sublet or occupied by any person
or persons other than the original Subtenant named herein, Sublandlord may
collect rent from any such assignee and/or any subtenants or occupants, and
apply the net amounts collected to the Fixed Rent and Additional Rent, but no
such assignment, subletting, occupancy or collection shall be deemed a waiver of
any of the provisions of this Sublease, including without limitation this
Paragraph, or the acceptance of the assignee, subtenant or occupant as a
subtenant, or a release of any person from the further performance by such
person of the obligations of Subtenant under this Sublease.
(b) Sublandlord's consent to any assignment or subletting shall
neither release Subtenant from its liability for the performance of
Subtenant's obligations hereunder during the balance of the Term nor
constitute Sublandlord's consent to any further assignment or
subletting.
(c) If Sublandlord shall give its consent to any assignment of
this Sublease or to any subletting or if Subtenant shall enter into any
other assignment or subsublease permitted hereunder, Subtenant shall in
consideration therefor, pay to Sublandlord as Additional Rent an amount
equal to fifty (50%) percent of Subtenant's profit in respect of any
such assignment or subsubletting that is not otherwise payable to
Underlying Landlord pursuant to the terms of, and as defined in, Section
12(J) of the Underlying Lease or otherwise less:
(i) in the case of an assignment, all expenses actually incurred
by Subtenant on account of brokerage commissions, legal expenses, tenant
improvement allowances, rent credits and advertising costs in connection with
such assignment, provided that Subtenant shall submit to Sublandlord a receipt
evidencing the payment of such expenses (or other proof of payment as
Sublandlord shall reasonably require); and
(ii) in the case of subletting, all expenses actually incurred by
Subtenant on account of brokerage commissions, legal expenses, tenant
improvement allowances, rent credits, advertising costs and the cost of demising
the premises so sublet in connection with such subsublease, provided that
Subtenant shall submit to Sublandlord a receipt evidencing the payment of such
expenses (or other proof of payment as Sublandlord shall reasonably require),
provided, however, in each case of the foregoing clauses (i) and (ii), such
expenses shall only be
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deducted to the extent not previously deducted by Underlying Landlord in the
calculation of the profit payable to Underlying Landlord pursuant to the terms
of, and as defined in, Section 12(J) of the Underlying Lease or otherwise. The
sums paid under this subparagraph (c) of this Paragraph 11 shall be paid to
Sublandlord as and when payable by the subsubtenant to Subtenant.
12. Remedies. In the event Subtenant defaults in the performance of any
of the terms, covenants or conditions of this Sublease or of the Underlying
Lease, Sublandlord shall be entitled to exercise any and all of the rights and
remedies to which it is entitled by law or in equity, and also any and all of
the rights and remedies specifically provided for in the Underlying Lease, which
are hereby incorporated herein and made part hereof with the same force and
effect as if herein specifically set forth in full, and wherever in the
Underlying Lease rights and remedies are given to Underlying Landlord, the same
shall be deemed to refer to Sublandlord.
13. End of Term; Holdover. (a) On the date upon which the Term shall
expire and come to an end, whether on expiration, surrender, by lapse of time,
termination or otherwise, Subtenant, at Subtenant's sole cost and expense, shall
quit and surrender the Subleased Premises to Sublandlord in the same good order
and condition as Sublandlord delivers them to Subtenant and otherwise as
required by the Underlying Lease on the Expiration Date, as defined in the
Underlying Lease except that Subtenant shall have no obligation to remove any
existing Alterations in the Subleased Premises. However, Subtenant shall remove
the Alterations made by it and all of its personal property and business
fixtures to the extent required by Paragraph 31 hereof or Article 3 of the
Underlying Lease as incorporated herein by reference.
(b) The parties recognize and agree that the damage to
Sublandlord resulting from any failure by Subtenant to timely surrender
possession of the Sublease Premises as aforesaid will be substantial,
will exceed the amount of the monthly installments of Fixed Rent
theretofore payable hereunder, and will be impossible to accurately
measure. Subtenant therefore agrees that if possession of the Subleased
Premises is not surrendered to Sublandlord within twenty-four (24) hours
of the Expiration Date or sooner termination of the Term, in addition to
any other rights or remedy Sublandlord may have hereunder, at law or in
equity, and in addition to all Additional Rent due or accruing during
any holdover period, Subtenant shall pay to Sublandlord for each month
and for each portion of any month hereunder during which Subtenant holds
over in the Subleased Premises after the Expiration Date or sooner
termination of the this Sublease, a sum equal to (i) one and one half (1
1/2) times the aggregate of the Rent (as defined in the Underlying
Lease) that is payable by Sublandlord under the Underlying Lease during
the last month of the term thereof ("Sublandlord's Last Month's Rent")
for the entire Premises (as defined in the Underlying Lease) for the
first (1st) month or portion thereof that Subtenant holds over, (ii) two
hundred percent (200%) of Sublandlord's Last Month's Rent for the entire
Premises for the second (2nd) month or portion thereof during which
Subtenant continues to hold over and (iii) three hundred percent (300%)
of Sublandlord's Last Month's Rent for the entire Premises for the third
(3rd) and each succeeding month or portion thereof during which
Subtenant continues to hold over, in each case, following the Expiration
Date or sooner termination of this Sublease. Nothing herein contained
shall be deemed to permit Subtenant to retain possession of the
Subleased Premises after the Expiration Date or sooner termination of
this Sublease and no acceptance by
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Sublandlord of payments from Subtenant after the Expiration Date or
sooner termination of the Term shall be deemed to be other than on
account of the amount to be paid by Subtenant in accordance with the
provisions of this Paragraph 13, which provisions shall survive the
Expiration Date or sooner termination of this Sublease. If Subtenant
shall hold-over or remain in possession of any portion of the Subleased
Premises more than ninety (90) days beyond the Expiration Date or
earlier termination of this Sublease, notwithstanding the acceptance of
any rent and Additional Rent paid by Subtenant pursuant to the preceding
provisions, Subtenant shall be subject not only to summary proceeding
and all damages related thereto, but also to any damages arising out of
lost opportunities (and/or new leases) by Underlying Landlord to re-let
the Premises (or any part thereof). All damages to Sublandlord and
Underlying Landlord by reason of such holding over by Tenant may be the
subject of a separate action and need not be asserted by Sublandlord and
Underlying Landlord in any summary proceedings against Subtenant.
(c) Notwithstanding the foregoing, to the extent Sublandlord,
its successors, assigns and/or other subtenants are occupying any of the
Premises (as defined in the Underlying Lease) after September 30, 2011,
the amounts payable by Subtenant for holding over in the Subleased
Premises shall be the product of (a) the applicable multiplier as set
forth in clauses (i), (ii) and (iii) of subparagraph (b) times (b) the
Fixed Rent and any Additional Rent payable during the last month of the
Term, and from and after the date Sublandlord, its successors, assigns
and/or other subtenants are no longer occupying any of the Premises and
Subtenant continues to hold-over in the Subleased Premises the amount
payable by Subtenant shall be calculated in accordance with subparagraph
(b) hereof.
14. Subordination; Attornment. This Sublease is subject and subordinate
to the Underlying Lease. In the event of termination of the Underlying Lease,
and re-entry and dispossession of the Sublandlord by Underlying Landlord,
Underlying Landlord, may, at its option, take over all right, title and interest
of Sublandlord under this Sublease and Subtenant shall, at Underlying Landlord's
option, attorn to Underlying Landlord, as the case may be, pursuant to the terms
of this Sublease, except that Underlying Landlord shall not be bound, liable or
obligated (as appropriate) for or with respect to the matters set forth in
Section 12(P) of the Underlying Lease.
15. Damage, Destruction and Other Casualty. (a) Notwithstanding anything
to the contrary set forth in this Sublease or in the Incorporated Provisions, if
the Subleased Premises or any portion thereof shall be damaged by fire or other
casualty or be condemned or taken in any manner for a public or quasi-public
use, Subtenant agrees that it shall be the obligation of the Underlying Landlord
and not of Sublandlord to repair, restore or rebuild the Subleased Premises.
Subject to subparagraph (b) below, in the event of such casualty or
condemnation, this Sublease shall continue in full force and effect, unless in
connection therewith Underlying Landlord or Sublandlord terminates the
Underlying Lease pursuant to the provisions thereof. Pending restoration of any
damage caused by such casualty or taking, to the extent Sublandlord, as tenant
under the Underlying Lease, actually receives an abatement of rent payable
pursuant to the Underlying Lease, Fixed Rent and other rent payable pursuant to
this Sublease shall be apportioned (in proportion to the portion of the
Subleased Premises as is useable) during the period of any such abatement in the
same proportion as the abatement provided to Sublandlord
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as tenant under the Underlying Lease. In the event of a condemnation or taking,
Subtenant shall be entitled to the portion of any award that relates to the
Subleased Premises (or the portion thereof so affected) received by Sublandlord
with respect to the Underlying Lease, this Sublease or the Subleased Premises;
provided, however, that with respect to a temporary taking of the Subleased
Premises, Subtenant shall be entitled to the portion of the award received by
Sublandlord that relates to the Subleased Premises (or the portion thereof so
affected) during the Term of this Sublease.
(b) If (i) fifty percent (50%) or more of the rentable area of
the Subleased Premises is damaged or rendered untenantable by fire or
other casualty and (ii) Sublandlord shall have notified Subtenant that
the Restoration Date (as defined in the Underlying Lease) exceeds twelve
(12) months following the sixty (60) day estimate period provided in
Section 10(b)(ii) of the Underlying Lease, then Subtenant shall have the
right to terminate this Sublease, but only by giving written notice
("Subtenant's Termination Notice") thereof to Sublandlord within seven
(7) days after receipt of notice from Sublandlord pursuant to clause
(ii) of this Section 15(b). If Subtenant shall exercise such right to
terminate this Sublease, then: (x) this Sublease and the term and estate
hereby granted shall terminate on the later of (A) the date specified in
Subtenant's Termination Notice (which date shall not be more than thirty
(30) days after the date of the giving of Subtenant's Termination
Notice) or (B) the date Subtenant vacates the Subleased Premises and
removes all of its property and the FF&E therefrom, but in no event
later than ninety (90) days after the giving of Subtenant's Termination
Notice (or such earlier date as Underlying Landlord may require pursuant
to the terms of the Underlying Lease), provided that Subtenant shall
continue to pay all Fixed Rent and Additional Rent and perform all of
its obligations with respect to the Subleased Premises through such
termination date (less any abatement), in each ease, with the same force
and effect as if that were the date hereinbefore set for the expiration
of the Term, and (y) the Fixed Rent and Additional Rent shall be
apportioned as of such dates.
(c) The parties agree that this Article constitutes "an express
agreement to the contrary" governing any case of damage or destruction
of the Subleased Premises or the Building by fire or other casualty
under Section 227 of the New York Real Property Law, and such law or any
other law of like import providing to the contrary now or hereafter in
force shall have no application.
16. Authority. The person signing this Sublease on behalf of Sublandlord
and the person signing this Sublease on half of Subtenant, each represents that
he or she has full right and authority to execute this Sublease on behalf of
such party, and that this Sublease constitutes a valid and binding obligation of
Sublandlord or Subtenant, as the case may be, enforceable against such party in
accordance with its terms.
17. Confidentiality. Subtenant shall treat the terms of the Underlying
Lease with confidentiality and agrees not to disclose the terms thereof to any
person or entity, except as may be otherwise required by law. Each of Subtenant
and Sublandlord shall treat the terms of this Sublease with confidentiality and
agrees not to disclose the terms thereof to any person or entity without the
consent of the other, which consent shall not be unreasonably withheld or
delayed.
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18. Consents and Approvals. Except as otherwise provided specifically
herein, whenever it is provided in the Underlying Lease that the prior written
consent or approval or other act of the Underlying Landlord is required for or
as a condition to any act on the part of Sublandlord, then for the purpose of
this Sublease the prior written consent or approval or other act of Sublandlord
and Underlying Landlord shall be required for or as a condition to any
corresponding act on the part of Subtenant. Sublandlord shall cooperate with
Subtenant in obtaining the consent or approval of Underlying Landlord, and shall
upon request of Subtenant, promptly make any such request and submit any
necessary information (after Sublandlord's receipt of such information from
Subtenant) for the consent or approval of Underlying Landlord. Whenever the
consent or approval of Underlying Landlord is required under the Underlying
Lease, if Underlying Landlord shall withhold its consent or approval for any
reason, or delay the giving of such consent or approval, Sublandlord shall be
deemed to be acting reasonably if it shall also withhold or delay its consent or
approval.
19. Notices. All notices, consents, approvals, demands and requests
which are required or desired to be given by either party to the other hereunder
shall be in writing and shall be personally delivered, sent by reputable
overnight courier delivery service or sent by United States registered or
certified mail and deposited in a United States post office, return receipt
requested and postage prepaid. Notices, consents, approvals, demands and
requests which are served upon Sublandlord or Subtenant in the manner provided
herein shall be deemed to have been given or served for all purposes hereunder
on the day personally delivered or refused, the next business day after sending
by overnight courier as aforesaid or on the third (3rd) business day after
mailing as aforesaid. All notices, consents, approvals, demands, and requests
given to Sublandlord or Subtenant shall be addressed to the address set forth at
the beginning of this Sublease (except that any notice to be delivered to
Subtenant hereunder after the Commencement Date shall be delivered to Subtenant
at the Subleased Premises) with a copy at the same time and in the same manner,
in the case of notices to Sublandlord, to Xxxxxx X. Xxxxxxxx, Esq., Mayer,
Brown, Xxxx & Maw LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and in the case
of notices to Subtenant, to Executive Vice President and General Counsel, Marvel
Enterprises Inc., at the Subleased Premises. Either party may from time to time
change the names and/or addresses to which notices, consents, approvals, demands
and requests shall be addressed by a notice given in accordance with the
provisions of this Paragraph. Notices hereunder from either party may be given
by such party's attorney.
20. Termination of Underlying Lease. If for any reason the Term of the
Underlying Lease with respect to the Subleased Premises shall terminate prior to
the Expiration Date, this Sublease shall thereupon be terminated and Sublandlord
shall not be liable to Subtenant by reason thereof unless both: (a) Subtenant
shall not then be in default of any of its monetary or material obligations
under this Sublease, and (b) said termination shall have been effected because
of the breach or default of Sublandlord under the Underlying Lease.
Notwithstanding the foregoing, Sublandlord shall be liable to Subtenant if the
provisions of clause (a) above are satisfied and the Term of the Underlying
Lease shall terminate prior to the Expiration Date, other than as permitted by
the terms of the Underlying Lease, including but not limited to, early voluntary
termination or surrender of the Underlying Lease unless Underlying Landlord
agrees not to disturb the occupancy of Subtenant in the Subleased Premises, and
recognizes Subtenant as a direct tenant of Underlying Landlord under the then
executory terms of this Sublease.
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21. Electricity; HVAC. (a) Subtenant acknowledges that electricity is
furnished to the Subleased Premises by Underlying Landlord under the Underlying
Lease on a submetered basis and that Subtenant shall pay as Additional Rent all
charges payable for electricity with respect to the Subleased Premises during
the Term in accordance with the provisions of Section 29(H) of the Underlying
Lease at the cost (including, without limitation, Underlying Landlord's
supervision and overhead charge, submeter installation, if required, and
maintenance costs and taxes) that Underlying Landlord charges Sublandlord
pursuant to the terms of the Underlying Leases. Subject to the terms of the
Underlying Lease, the Subleased Premises shall be provided with six (6) xxxxx
connected electrical load per rentable square foot by Underlying Landlord.
(b) Subtenant shall be allowed the use of the existing air
conditioning units serving the Subleased Premises, which shall be in
good working order on the Commencement Date. Subtenant acknowledges that
condenser water is furnished to the air conditioning units located on
the 10th" floor and one unit on the 11th floor of the Subleased Premises
by Underlying Landlord under the Underlying Lease on a submetered basis
and that Subtenant shall pay as Additional Rent all charges payable for
such condenser water consumption during the Term in accordance with the
applicable provisions of Section 29(C) (other than the tap-in fee) and
Section 29(D) of the Underlying Lease. Subtenant shall be responsible
for all electricity costs associated with its use of the air
conditioning units on both the 10th and 11th floors of the Subleased
Premises. Subtenant shall be solely responsible, at its sole cost and
expense, for the service and maintenance of all such air conditioning
units pursuant to the terms and conditions of Article 29 of the
Underlying Lease, and Subtenant shall enter into and maintain service
and maintenance contracts with respect thereto throughout the Term of
this Sublease; provided, however, that Sublandlord shall, if requested
by Subtenant and if permitted, assign any service and maintenance
contracts covering the equipment to Subtenant upon the Commencement
Date.
22. Insurance. Subtenant shall comply with the insurance requirements
imposed upon Sublandlord as "Tenant" under Article 9 of the Underlying Lease as
incorporated herein. Such insurance shall name Sublandlord and Underlying
Landlord as additional insured parties as their respective interests may appear.
Subtenant shall furnish Sublandlord with certificates evidencing such insurance
prior to the Commencement Date.
23. Right to Cure Defaults and Damages. If Subtenant shall at any time
fail to make any payment or perform any other obligation of Subtenant hereunder
within the applicable cure and grace period, if any, then Sublandlord shall have
the right, but not the obligation, after five (5) days' notice to Subtenant, or
without notice to Subtenant in the case of any emergency, and without waiving or
releasing Subtenant from any obligations of Subtenant hereunder, to make such
payment or perform such other obligation of Subtenant in such manner and to such
extent as Sublandlord shall deem reasonably necessary, and in exercising any
such right, to pay any incidental costs and expenses, employ attorneys, and
incur and pay reasonable attorneys' fees and disbursements. Subtenant shall pay
to Sublandlord upon demand all sums so paid by Sublandlord and all incidental
costs and expenses of Sublandlord in connection therewith, together with the
charges and interest thereon in the amounts and at the rates set forth in
Section 19(B) of the Underlying Lease.
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24. Brokerage. Each party represents and warrants to the other that it
has not dealt with any broker or person in connection with this Sublease other
than, on the part of Sublandlord, CB Xxxxxxx Xxxxx, Inc., and, on the part of
Subtenant, Xxxxxxx & Wakefield, Inc. (the "Brokers"). The execution and delivery
of this Sublease by each party shall be conclusive evidence that such party has
relied upon the foregoing representation and warranty. Subtenant shall indemnify
and hold Sublandlord harmless from and against any and all claims for
commission, fee or other compensation by any person other than the Brokers who
shall claim to have dealt with Subtenant in connection with this Sublease and
for any and all costs incurred by Sublandlord in connection with such claims,
including, without limitation, reasonable attorneys' fees and disbursements.
Sublandlord shall indemnify and hold Subtenant harmless from and against any and
all claims for commission, fee or other compensation by any person including the
Brokers who shall claim to have dealt with Sublandlord in connection with this
Sublease and for any and all costs incurred by Subtenant in connection with such
claims, including, without limitation, reasonable attorneys' fees and
disbursements. Sublandlord shall pay the Brokers' commission pursuant to a
separate brokerage agreement. This provision shall survive the expiration or
earlier termination of this Sublease.
25. No Waiver. The failure of either party to insist in any one or more
cases upon the strict performance or observance of any obligation hereunder or
to exercise any right or option contained herein shall not be construed as a
waiver or relinquishment for the future of any such obligation, right or option.
Sublandlord's receipt and acceptance of Fixed Rent or Additional Rent, or either
party's acceptance of performance of any other obligation by the other party,
with or without knowledge of such other party's breach of any provision of this
Sublease, shall not be deemed a waiver of such breach. No waiver by either party
of any term, covenant or condition of this Sublease shall be deemed to have been
made unless expressed in writing and signed by that party.
26. Complete Sublease. There are no representations or prior or
contemporaneous oral or prior written agreements, arrangements or
understandings, between the parties relating to the subject matter of this
Sublease which are not fully expressed in this Sublease. This Sublease cannot be
changed or terminated other than by a written agreement executed by both
parties.
27. Successors and Assigns. The provisions of this Sublease, except as
herein otherwise specifically provided, shall extend to, bind and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. In the event of any assignment or transfer of Sublandlord's interest in
the Underlying Lease, the transferor or assignor, as the case may be, shall be
and hereby is entirely relieved and freed of all obligations under this Sublease
arising from and after the date of any such assignment or transfer.
28. Interpretation. Irrespective of the place of execution or
performance, this Sublease shall be governed by and construed in accordance with
the laws of the State of New York. If any provision of this Sublease or the
application thereof to any person or circumstance shall, for any reason and to
any extent, be invalid or unenforceable, the remainder of this Sublease and the
application of that provision to other persons or circumstances shall not be
affected but rather shall be enforced to the extent permitted by law. The
captions, headings and titles, if any, in this Sublease are solely for
convenience of reference and shall not affect its interpretation. This Sublease
shall be construed without regard to any presumption or other rule
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requiring construction against the party causing this Sublease to be drafted.
Each covenant, agreement, obligation or other provision of this Sublease shall
be deemed and construed as a separate and independent covenant of the party
bound by, undertaking or making same, not dependent on any other provision of
this Sublease unless otherwise expressly provided. All pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine or
neuter, singular or plural, as the identity of the parties may require. The word
"person" as used in this Sublease shall mean a natural person or persons, a
partnership, a corporation, a limited liability company or any other form of
business or legal association or entity. This Sublease may be executed in
counterparts or with counterpart signature pages, which together shall be deemed
one and the same instrument.
29. Consent of Underlying Landlord. The effectiveness of this Sublease
is conditioned upon the parties obtaining the Underlying Landlord's Consent to
the subletting provided for herein and the satisfaction or waiving of any
conditions precedent with respect to such consent. Sublandlord shall use good
faith efforts to obtain the Underlying Landlord's Consent and Subtenant shall
cooperate with Sublandlord in this regard and use good faith efforts to obtain
such consent. Sublandlord shall have no obligation to satisfy any such
conditions precedent with respect to Underlying Landlord's Consent (other than
the payment of any reasonable attorneys' fees or other processing fees required
by the Underlying Lease). Notwithstanding anything to the contrary set forth
herein, in the event that the Underlying Landlord's Consent is not executed and
delivered by Underlying Landlord on or before October 31, 2004, each of
Sublandlord and Subtenant shall have the right to terminate this Sublease by
giving notice to the other party within five (5) days of such date.
30. Liability. Notwithstanding any other provision contained in this
Sublease to the contrary, each party shall look only to the assets of the other
party for the satisfaction of any liability of the other party under this
Sublease, it being expressly understood and agreed that any partner, member,
officer, director, employee or agent of Sublandlord or Subtenant as an
individual shall not be held personally liable for such obligations and neither
party shall pursue satisfaction of any judgment against the other against assets
of any individual partner, member, officer, director, employee or agent of such
other party.
31. Subtenant Improvement Allowance. (a) Sublandlord will provide
Subtenant an alteration allowance in the amount of [redacted pursuant to a
request for confidential treatment filed with the Securities and Exchange
Commission] as a reimbursement of amounts actually paid by Subtenant to its
contractors and subcontractors for work and materials incorporated into the
Subleased Premises ("Sublandlord's Contribution") in connection with Subtenant's
construction costs of preparing the Subleased Premises for Subtenant's initial
occupancy (the "Initial Alterations"). Upon completion of the portion of the
Initial Alterations in which Subtenant has paid at least the amount of
Sublandlord's Contribution, upon submission of a requisition from Sublandlord
detailing the work performed and the cost thereof, accompanied by (x) paid
invoices from Subtenant's general contractor for work constituting Initial
Alterations, (y) a certificate from Subtenant's general contractor or architect
indicating that the work performed as reflected in the requisition was performed
in accordance with the Approved Plans and Specifications and otherwise in
accordance with the requirements of the Underlying Lease and this Sublease and
(z) lien waivers from all contractors, subcontractors, vendors, suppliers and
materialmen who shall have furnished materials or supplies or performed work in
respect of the Initial Alterations,
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Sublandlord shall pay Sublandlord's Contribution to Subtenant within fifteen
(15) days of its receipt of such requisition and supportive documentation. In
the event any mechanic's lien shall have been filed relating to any of the
Initial Alterations, the amount thereof may be withheld from payment until such
lien has been removed by bond or otherwise. If after the completion of the
Initial Alterations the total cost of the Initial Alterations is less than
Sublandlord's Contribution, the difference of such amount shall be credited
against the installments of Fixed Rent next due and payable under this Sublease;
provided, no Event of Default shall exist on the date of any such credit.
(b) Sublandlord shall make available to Subtenant the items set
forth on Exhibit C annexed hereto and incorporated herein by reference
and any network and phone cabling existing in the Subleased Premises on
the Commencement Date (collectively, the "FF&E"), in each case, in its
"as is" condition as of the date hereof, reasonable wear and tear and
damage by fire or other insurable casualty excepted, at no additional
cost to Subtenant throughout the Term. Subtenant shall insure and bear
the risk of loss of the FF&E, take good care of the FF&E and shall
repair and maintain the FF&E in good condition, reasonable wear and tear
excepted. At the expiration of the Term hereof or if this Sublease and
the Underlying Lease are sooner terminated due to fire or other casualty
or condemnation, title to the FF&E shall pass to Subtenant and
Subtenant, at its sole cost and expense, shall remove such FF&E from the
Subleased Premises in accordance with the terms and conditions of
Article 21 of the Underlying Lease. If this Sublease is terminated prior
to the Expiration Date due to an Event of Default by Subtenant, title to
the FF&E shall remain with Sublandlord and possession thereto shall be
returned to Sublandlord concurrently with possession of the Subleased
Premises, in the same condition as delivered to Subtenant, ordinary wear
and tear excepted.
32. Security Deposit.
(a) Subtenant shall deliver to Sublandlord, within seven (7)
business days after Sublandlord's receipt of Underlying Landlord's
Consent, the sum of [redacted pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission] (the
"Security Deposit"), as security for the timely and faithful performance
and observance by Subtenant of each of the terms, covenants and
conditions of this Sublease, including, without limitation, the
surrender of possession of the Subleased Premises to Sublandlord as
herein provided, in the form of an unconditional, irrevocable letter of
credit for the benefit of Sublandlord (the "L/C") issued by a commercial
bank with an office in New York City where such L/C may be presented for
payment, which L/C shall be in form and substance reasonably
satisfactory to Sublandlord, and which letter of credit shall have a
term (including renewals) of not less than thirty (30) days after the
Expiration Date.
(b) In the event Subtenant defaults in respect of any of the
terms, provisions and of this Sublease, including, but not limited to,
the payment of Fixed Rent or any item of Additional Rent, Sublandlord
may draw upon the L/C either in whole or any part thereof to the extent
required for the payment of any Fixed Rent or any item of Additional
Rent as to which Subtenant is in default or for any sum which
Sublandlord
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may expend or be required to expend by reason of Subtenant's default in
respect to any of the terms, covenants and conditions of this Sublease,
including, but not limited to any damages or deficiency in the reletting
of the Subleased Premises, whether such damages or deficiency accrue or
accrues before or after summary proceedings or other re-entry by
Sublandlord. The L/C shall provide that it may be drawn upon by
presentation to the issuing bank of a statement by Sublandlord that (i)
an event of default by Subtenant has occurred under the Sublease and
that notice, if required under the Sublease has been given to Subtenant
thereof and any cure period has passed and (ii) specifying the amount of
the draft presented which shall be equal to the amount which Sublandlord
is entitled to be paid under the Sublease.
(c) Sublandlord shall give Subtenant notice of any drawing upon
the L/C. Anytime after the L/C is drawn upon, within ten (10) days after
Sublandlord's notice and demand therefor, Subtenant shall reinstate the
full amount of the L/C.
(d) In the event of an assignment of Sublandlord's interest in
the Underlying Lease by Sublandlord, Sublandlord shall have the right to
transfer the L/C to the assignee and Sublandlord shall thereupon be
released by Subtenant from all liability for the return of such Security
Deposit. Subtenant shall look solely to the new sublandlord for the
return of the Security Deposit. The provisions hereof shall apply to
every transfer or assignment of the Security Deposit made to a new
sublandlord.
(e) In the event Subtenant fully and faithfully performs its
obligations hereunder, the original L/C, to the extent not applied,
shall be returned to Subtenant promptly after the date that is thirty
(30) days after the later of (i) the Expiration Date and (ii) delivery
of possession of the entire Subleased Premises to Sublandlord. This
Paragraph 32 shall survive the Expiration Date.
33. Indemnity. (a) Subtenant hereby agrees to indemnify, defend and hold
harmless Sublandlord, its partners, members, officers, directors, employees and
agents from and against any and all claims, losses, damages, liabilities, costs
and expenses arising out of, relating to or resulting from, (a) any breach by
Subtenant of any of the representations, warranties, covenants or agreements of
Subtenant under this Sublease and any breach or default by Subtenant or any
sublessees or assignees of Subtenant in the performance of those terms,
covenants and conditions of the Underlying Lease which have been assumed by
Subtenant or incorporated herein by reference, (b) the conduct of business in or
management of the Subleased Premises during the Term or while Subtenant is in
possession of, or otherwise occupies all or any part of, the Subleased Premises,
(c) any work or thing whatsoever done or any condition created in or about the
Subleased Premises during the Term or while Subtenant is in possession of or
otherwise occupies all or any part of the Subleased Premises or (d) any act or
omission of Subtenant or of any licensee, invitee or other occupant of, or
person present at, the Subleased Premises (including those of any assignee or
sublessee of Subtenant) or of any employee, agent or contractor of any of the
foregoing during the Term or while Subtenant is in possession of, or otherwise
occupies, all or any part of the Subleased Premises, in each case, only to the
extent not due to the gross negligence or willful misconduct of Sublandlord or
other sublessees or assignees of Sublandlord (other than Subtenant). Sublandlord
shall promptly notify Subtenant of any claim for indemnification.
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(b) Sublandlord hereby agrees to indemnify, defend and hold
harmless Subtenant, its partners, members, officers, directors,
employees and agents from and against any and all claims, losses,
damages, liabilities, costs and expenses arising out of, relating to or
resulting from, (a) any breach by Sublandlord of any of the
representations, warranties, covenants or agreements of Sublandlord
under this Sublease and (b) any breach or default by Sublandlord or
assignees of Sublandlord (other than Subtenant or its permitted
sublessees or permitted assignees) in the performance of those terms,
covenants and conditions of Paragraph 7 hereof. Subtenant shall promptly
notify Sublandlord of any claim for indemnification.
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IN WITNESS WHEREOF, the parties hereto have executed this Sublease as of
the day and year first above written.
CIBC WORLD MARKETS CORP.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Operating Officer
MARVEL ENTERPRISES INC.
a Delaware corporation
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: President
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EXHIBIT A
---------
Floor Plan
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[Graphic Material Omitted]
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EXHIBIT B
Underlying Lease
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-----------------------------------
AGREEMENT OF LEASE
Between
EBS FIFTH PROPERTY ASSOCIATES LLC
Landlord,
and
CIBC WORLD MARKETS CORP.
Tenant.
Premises:
The entire second (2nd) floor, the entire mezzanine level,
the entire eleventh (11th) floor and
a portion of the tenth (10th) floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
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1. BASIC LEASE TERMS......................................................1
A. Definitions.....................................................1
B. Demise..........................................................3
C. Term............................................................3
D. Rent............................................................3
E. Tenth Floor Space Rent Credit...................................4
2. USE AND OCCUPANCY......................................................4
A. Permitted Uses..................................................4
B. Ancilliary Uses.................................................4
C. Use Prohibitions................................................5
D. Noise; Vibration................................................6
3. ALTERATIONS............................................................6
A. Alterations Within Premises.....................................6
B. Restoration of Premises.........................................7
C. Chlorofluorocarbons.............................................8
D. Submission of Plans.............................................8
E. Mechanics' Liens; Labor Conflicts...............................9
4. REPAIRS................................................................9
5. WINDOW CLEANING.......................................................10
6. REQUIREMENTS OF LAW; FLOOR LOAD.......................................10
A. Requirements of Law............................................10
B. Floor Load.....................................................11
7. SUBORDINATION.........................................................11
A. Subordination..................................................11
B. Attornment.....................................................12
C. Non-Disturbance................................................13
8. RULES AND REGULATIONS.................................................13
9. INSURANCE.............................................................13
A. Liability Insurance............................................13
B. "All Risk" Insurance...........................................14
C. Waiver of Subrogation..........................................14
D. Landlord's Insurance...........................................15
10. DESTRUCTION OF THE PREMISES: PROPERTY LOSS OR DAMAGE..................15
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A. Repair of Damage...............................................15
B. Termination Options............................................16
C. Repair Delays..................................................16
D. Provision Controlling..........................................16
E. Property Loss or Damage........................................17
F. Landlord's Failure to Make Repairs.............................17
11. CONDEMNATION..........................................................18
A. Condemnation...................................................18
B. Award..........................................................18
12. ASSIGNMENT AND SUBLETTING.............................................18
A. Prohibition Without Consent....................................19
B. Notice of Proposed Transfer....................................19
C. Landlord's Options.............................................19
D. Termination by Landlord........................................20
E. Intentionally Deleted..........................................20
F. Effect of Termination..........................................20
G. Conditions for Landlord's Approval.............................20
H. Future Requests................................................22
I. Sublease Provisions............................................23
J. Profits from Assignment or Subletting..........................24
K. Other Transfers................................................24
L. Related Corporation............................................25
M. Assumption by Assignee.........................................26
N. Liability of Tenant............................................26
O. Listings.......................................................26
P. Re-entry by Landlord...........................................26
13. CONDITION OF THE PREMISES.............................................27
A. Acceptance by Tenant...........................................27
B. Tenant's Initial Alteration....................................27
14. ACCESS TO PREMISES....................................................27
A. Access by Landlord.............................................27
B. Other Landlord Privileges......................................29
15. CERTIFICATE OF OCCUPANCY..............................................29
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16. LANDLORD'S LIABILITY..................................................30
17. DEFAULT...............................................................30
A. Events of Default..............................................30
B. Bankruptcy.....................................................31
C. Conditional Limitation.........................................33
18. REMEDIES AND DAMAGES..................................................33
A. Landlord's Remedies............................................33
B. Damages........................................................34
C. Legal Fees.....................................................35
D. Additional Landlord Remedies...................................36
19. FEES AND EXPENSES.....................................................36
A. Curing Tenant's Defaults.......................................36
B. Late Charges...................................................36
20. NO REPRESENTATIONS BY LANDLORD........................................36
21. END OF TERM...........................................................37
A. Surrender of Premises..........................................37
B. Holdover by Tenant.............................................37
22. QUIET ENJOYMENT.......................................................37
23. FAILURE TO GIVE POSSESSION............................................38
24. NO WAIVER.............................................................38
A. No Extension of Term...........................................38
B. No Surrender...................................................39
C. No Waiver......................................................39
D. Application of Payment.........................................39
E. Entire Agreement...............................................40
25. WAIVER OF TRIAL BY JURY...............................................40
26. INABILITY TO PERFORM..................................................40
27. BILLS AND NOTICES.....................................................40
28. ESCALATION............................................................41
A. Defined Terms..................................................41
B. Escalation.....................................................43
C. Payment of Escalations.........................................43
D. Adjustments....................................................45
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E. Capital Improvements...........................................46
29. SERVICES..............................................................46
A. Elevator.......................................................46
B. Heating........................................................46
C. Cooling........................................................46
D. After Hours and Additional Services............................47
E. Cleaning.......................................................48
F. Sprinkler System...............................................48
G. Water..........................................................49
H. Electricity Service............................................49
I. Interruption of Services.......................................51
J. Desk Attendants................................................52
30. PARTNERSHIP TENANT....................................................52
A. Partnership Tenants............................................52
B. Limited Liability Entity.......................................52
31. VAULT SPACE...........................................................53
32. INTENTIONALLY DELETED.................................................53
33. CAPTIONS..............................................................54
34. ADDITIONAL DEFINITIONS................................................54
A. Office.........................................................54
B. Re-entry.......................................................54
C. Rent...........................................................54
D. Business Days..................................................54
35. PARTIES BOUND.........................................................54
36. BROKER................................................................54
37. INDEMNITY.............................................................54
38. ADJACENT EXCAVATION SHORING...........................................55
39. MISCELLANEOUS.........................................................55
A. No Offer.......................................................55
B. Certificates...................................................55
C. Directory Listings.............................................56
D. Authority......................................................56
E. Signage........................................................56
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F. Consents and Approvals.........................................57
G. Governing Law..................................................57
H. Financial Statements...........................................57
40. HAZARDOUS SUBSTANCES..................................................57
41. TENANT'S EXPANSION OPTION.............................................58
A. Expansion Space................................................58
B. Terms..........................................................59
C. Failure to Deliver Expansion Space.............................60
D. As Is..........................................................60
E. Rights Personal................................................60
F. Lease Amendment................................................60
42. SATELLITE DISH........................................................60
43. PURCHASE OF PERSONALTY................................................62
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Exhibit 1 - A Floor Plan of the Second Floor
Exhibit 1 - B Floor Plan of Mezzanine
Exhibit 1 - C Floor Plan of the Xxxxxxxx Xxxxx
Xxxxxxx 0 - X Xxxxx Plan of the Tenth Floor Space
Exhibit 1 - E Floor Plan of Penthouse Expansion Space
Exhibit 1 - F Floor Plan of Tenth Floor Expansion Space
Exhibit 2 Form of Subordination, Non-Disturbance and
Attornment Agreement
Exhibit 3 Cleaning Specifications
Schedule A Rules and Regulations
Schedule B Tenant's Initial Alteration to Tenth Floor Space
Schedule C Requirements for Certifications of Final Approval
Schedule D Tenant Alteration Work and New Construction
Conditions and Requirements
Schedule E Landlord's Window Installation
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INDEX OF DEFINED TERMS
TERM PAGE
Air-Conditioning Systems......................................................46
Alterations....................................................................6
Assessed Valuation............................................................42
Bankruptcy Code...............................................................31
Base Labor Rates..............................................................43
Base Labor Year................................................................1
Base Tax Year..................................................................1
Base Taxes....................................................................42
Broker.........................................................................1
Building.......................................................................1
business days.................................................................54
CERCLA........................................................................58
CFC............................................................................8
Class A Office Buildings......................................................42
Commencement Date..............................................................1
Comparison Year...............................................................42
control.......................................................................25
Deficiency....................................................................34
Eleventh Floor.................................................................1
Environmental Laws............................................................57
Events of Default.............................................................30
Expansion Space...............................................................58
Expansion Space Commencement Date.............................................59
Expiration Date................................................................1
Final Plans................................................................B - 2
food facilities................................................................4
Form.......................................................................B - 1
Furniture.....................................................................62
Governmental Entity...........................................................25
Hazardous Substances..........................................................55
Hazardous Substances Claims...................................................57
Labor Rate Factor..............................................................1
Labor Rate Multiple........................................................1, 59
Labor Rates...................................................................42
Landlord.......................................................................1
Landlord's Consultant..........................................................8
Landlord's Contribution....................................................B - 2
Landlord's Statement..........................................................43
Limited Liability Successor Entity............................................53
material portion..........................................................17, 51
Mezzanine......................................................................1
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Mortgages.....................................................................12
net worth.....................................................................25
office(s).....................................................................54
Others........................................................................43
Overtime Periods..............................................................47
Parties.......................................................................30
Partnership Tenant............................................................52
Penthouse Expansion Space.....................................................58
Permitted Uses.................................................................1
Premises...................................................................1, 59
R.A.B.........................................................................42
Real Property..................................................................1
reasonable efforts............................................................60
reenter/reentry...............................................................54
related corporation...........................................................25
Remedial Work.................................................................57
Rent.......................................................................2, 59
Restoration Date..............................................................16
Rules and Regulations.........................................................13
Satellite Antenna.............................................................61
Sublet Space..................................................................23
Substantial Services Failure..................................................51
Superior Lease................................................................12
Tax Year......................................................................42
Taxes.........................................................................41
Tenant.........................................................................1
Tenant's Initial Alteration.............................................3, B - 1
Tenant's Personalty............................................................7
Tenant's Proportionate Share...............................................3, 59
Tenth Floor Expansion Space...................................................58
Tenth Floor Space..............................................................1
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THIS AGREEMENT OF LEASE (this "Lease"), made as of this 26th day of
September, 2001 by and between EBS FIFTH PROPERTY ASSOCIATES LLC, having an
office c/o Emmes Realty Services LLC, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Landlord") and CIBC WORLD MARKETS CORP., a Delaware corporation, having
an office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Tenant").
1. BASIC LEASE TERMS.
A. Definitions. The following definitions contained in this subsection A
of this Article 1 shall have the meanings hereinafter set forth used throughout
this Lease and the Exhibits and Schedules (if any) annexed hereto and made a
part hereof.
(i) "Base Labor Year" shall mean the calendar year 2002.
(ii) "Base Tax Year" shall mean collectively the second (2nd) half
of the Tax Year (as defined in Article 28 hereof) 2001/2002
and the first (1st) half of the Tax Year 2002/2003.
(iii) "Broker" shall mean collectively, Emmes Realty Services LLC
and Xxxxxxx & Xxxxxxxxx., Inc.
(iv) "Building" the building known as 000 Xxxxx Xxxxxx, Xxxxxx,
Xxxx and State of New York.
(v) "Commencement Date" shall mean the date of this Lease.
(vi) "Expiration Date" shall mean the September 30, 2011.
(vii) "Labor Rate Factor" shall mean 95,061.
(viii) "Labor Rate Multiple" shall mean one (1).
(ix) "Permitted Uses" shall mean general, executive and
administrative offices and other lawful uses customarily associated with an
institutional financial services company (including a trading floor and data
processing facilities) and such other incidental and ancillary uses which are
consistent therewith, and for no other purposes, except as expressly provided in
Article 2 hereof.
(x) "Premises" shall mean collectively, the entire second (2nd)
floor (the "Second Floor"), the entire mezzanine (the "Mezzanine"), the entire
eleventh (11th) floor (the "Eleventh Floor") and that portion of the tenth
(10th) floor (the "Tenth Floor Space") in the Building, as more particularly
shown hatched on Exhibits 1-A, 1B, 1-C and 1-D, respectively, annexed hereto and
made a part hereof.
(xi) "Real Property" shall mean the Building together with the plot
of land upon which such building stands.
(xii) "Rent" shall mean:
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(a) With respect to the Second Floor:
(1) for the period commencing on the Commencement Date
through and including the day immediately preceding the
date on which the fifth (5th) anniversary of the
Commencement Date shall occur, per annum, payable in
equal monthly installments of ___ each; and
(2) for the period commencing on the date on which the fifth
(5th) anniversary of the Commencement Date shall occur
through and including the Expiration Date, ___ per
annum, payable in equal monthly installments of ___
each.
(b) With respect to the Mezzanine:
(1) for the period commencing on the Commencement Date
through and including the day immediately preceding the
date on which the fifth (5th) anniversary of the
Commencement Date shall occur, Dollars per annum,
payable in equal monthly installments of each; and
(2) for the period commencing on the date on which the fifth
(5th) anniversary of the Commencement Date shall occur
through and including the Expiration Date, ___ per
annum, payable in equal monthly installments of ___
each.
(c) With respect to the Eleventh Floor:
(1) for the period commencing on the Commencement Date
through and including the day immediately preceding the
date on which the fifth (5th) anniversary of the
Commencement Date shall occur, per annum, payable in
equal monthly installments of ___ each: and
(2) for the period commencing on the date on which the fifth
(5th) anniversary of the Commencement date shall occur
through and including the Expiration Date, ___ per
annum, payable in equal monthly installments of ___
each.
(d) Subject to the provisions of subsection E hereof, with respect
to the Tenth Floor Space:
(1) for the period commencing on the Commencement Date
through and including the day immediately preceding the
data on which the fifth (5th) anniversary of the
Commencement Date shall occur, per annum, payable in
equal monthly installments of ___ each; and
(2) for the period commencing on the date on which the fifth
(5th) anniversary of the Commencement Date shall occur
through and
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including the Expiration Date, ___ per annum, payable in
equal monthly installments of ___ each.
(xiii) "Tenant's Initial Alteration" shall mean the work and
installations to the Tenth Floor Space as set forth in Schedule B annexed hereto
and made a part hereof.
(xiv) "Tenant's Proportionate Share" shall mean twenty-six and
eighty-seven hundredths (26.87%) percent.
Notwithstanding anything to the contrary contained in this subsection A
of this Article 1, Articles 1 through 43 of this Lease shall control the rights
and obligations of the parties hereto.
B. Demise. Subject to and upon the terms and conditions of this Lease,
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the
Premises.
C. Term. This Lease shall be for a term (the "Term") which commences on
the Commencement Date and ends on the Expiration Date, unless sooner terminated
pursuant to any of the terms, covenants or conditions of this Lease or pursuant
to law. Within ten (10) days of Landlord's request, Tenant and Landlord shall
join in the execution of an agreement stipulating the Commencement Date and the
Expiration Date of this Lease and the date(s) possession of the Premises (or
each portion thereof) were delivered to Tenant in accordance herewith.
D. Rent. Commencing as of the Commencement Date (subject to the terms of
Subsection E below), and continuing throughout the Term, Tenant shall pay
Landlord the annual Rent set forth in Subsection A of this Article 1, payable
without demand, on or in advance of the first (1st) day of each month in equal
monthly installments, in lawful money (legal tender for public or private debts)
of the United States of America, at the office of Landlord or such other place
as Landlord may designate from time to time without any set-off, offset,
abatement or deduction, except as may be expressly set forth herein, except that
Tenant shall pay the first (1st) monthly installment upon Tenant's execution of
this Lease. If the Commencement Date occurs on a date other than the first (1st)
day of a calendar month, Tenant shall pay to Landlord on or before the first
(1st) day of the next month the monthly installment of Rent for such partial
month on a pro rata basis (based on the actual number of days in the
commencement month), and the first (1st) month's rent paid by Tenant as
described above shall be applied to the first (1st) full calendar month of the
Term for which Rent shall be due and payable. Such payment, together with the
sum paid by Tenant as the first (1st) month's Rent upon the execution of this
Lease, shall constitute payment of the Rent for the period from the Commencement
Date to and including the last day of the calendar month next succeeding the
calendar month in which the Commencement Date shall occur. All other sums of
money that may become due from Tenant and payable to Landlord under this Lease
shall be additional rent hereunder, payable at the time and in the manner
expressly provided herein, in the event that, at any time during the Term
hereof, Tenant shall be in default in the payment of Rent to Landlord pursuant
to the terms of another lease of space in the Building with Landlord, Landlord
may, at Landlord's option and without notice to Tenant, add the amount of such
arrearages to any monthly installment of the Rent and the same shall be payable
to Landlord as additional rent hereunder.
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E. Tenth Floor Space Rent Credit. Notwithstanding anything to the
contrary hereinabove set forth, provided this Lease is in full force and effect
and Tenant is not in default hereunder beyond any applicable notice and grace
period, Tenant shall be entitled to a credit against the Rent payable with
respect to the Tenth Floor Space only for the period commencing on the
Commencement Date and ending on the day occurring three (3) months thereafter in
the aggregate amount of which credit be applied against the Rent payable with
respect to the Tenth Floor Space . The foregoing rent credit shall be null and
void "ab initio" if Landlord at any time terminates this Lease or re-enters or
repossesses the Premises on account of any default of Tenant under this Lease,
and Landlord shall be entitled to recover from Tenant, in addition to all other
amounts Landlord is entitled to recover, the unamortized portion of the
aggregate amount of the rent credit herein provided for, as if such amount were
amortized in equal monthly installments over the Term hereof.
2. USE AND OCCUPANCY.
A. Permitted Uses. The Premises shall be used and occupied for the
Permitted Uses, and for no other purpose.
B. Ancilliary Uses. (i) Notwithstanding anything to the contrary
contained herein, subject to Tenant's compliance with the terms of this Lease
with respect to the following, portions of the Premises may also be used for the
following incidental and ancillary uses: (a) classrooms for training, (b) areas
for refrigeration, storage or warming of food for on-site consumption by
Tenant's employees and invitees (collectively, "food facilities"), (c) meeting
rooms, (d) photographic reproduction and/or offset printing facilities in
connection with Tenant's business, including, without limitation, reproduction
facilities for Tenant's clients and Tenant's business activities, (e) trading
floors, (f) the operation of computers, data processing, word processing and
other business machines, including telephone, fax, telegraph machines and other
telecommunications equipment and machines in connection with the computer
services and information and distribution and telecommunications services
required for the conduct of business at the Premises, and (g) non-retail sale of
foreign exchange; each of the foregoing being exclusively for the use of
Tenant's employees, related corporations (as hereinafter defined), permitted
subtenants, licensees, occupants or business guests and, subject to Tenant's
compliance with the terms of this Lease, Tenant may install in connection with a
food facility, Xxxxx units, microwave ovens, dishwashers, coffeemakers and
refrigerators so as to serve Tenant's employees, related corporations, permitted
subtenants, licensees, occupants and business guests.
(ii) Any food facility which may be operated under this subsection
B shall be operated in such a manner that (a) odors will not escape from the
Premises into other portions of the Building, (b) all wet garbage shall be
bagged and placed in containers that prevent the escape of odors, stored in a
refrigerated area to the extent, in Landlord's reasonable judgment, that such
refrigeration is appropriate and Tenant shall pay any reasonable out-of-pocket
charges actually incurred by Landlord in connection with the removal of such
garbage, and (c) such food facility shall comply with all insurance company
recommendations and requirements.
(iii) If any governmental license or permit shall be required for
the proper and lawful conduct of Tenant's business in the Premises or any part
thereof other than any required
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for use of the Premises for mere office use, Tenant, at its expense, shall duly
procure and thereafter maintain such license or permit. At Tenant's request,
Landlord shall cooperate with Tenant in the procuring of any licenses or
permits, provided the same shall be without cost, expense or liability to
Landlord. Tenant shall at all times comply with the terms and conditions of each
such license or permit.
C. Use Prohibitions. Anything contained herein to the contrary
notwithstanding, Tenant shall not use the Premises or any part thereof, or
permit the Premises or any part thereof to be used, (i) for the business of
photographic, multilith or multigraph reproductions or offset printing other
than as a permitted ancillary use, (ii) as an employment agency, labor union
office, physician's or dentist's office or for the rendition of any other
diagnostic or therapeutic services, dance or music studio, school (except for
the training of employees of Tenant and permitted subtenants), (iii) for a
public stenographer or typist, (iv) for a telephone or telegraph agency (other
than the use of telephones and fax telegraph machines and other comparable
telecommunication equipment in connection with the computer services required
for the conduct of Tenant's business at the Premises), telephone or secretarial
service for the public at large, (v) for a messenger service for the public at
large (other than internal messengers or messengers employed by Tenant, its
related corporations or permitted subtenants and occupants, for pick up and
delivery of its local correspondence), (vi) gambling or gaming activities,
obscene or pornographic purposes or any sort of commercial sex establishment,
(vii) for the possession, storage, manufacture or sale of alcohol, drugs or
narcotics, (viii) for the offices or business of any federal, state or municipal
agency or any agency of any foreign government, (ix) for a security or guard
service, (x) public restaurant or bar, (xi) commercial document reproduction or
offset printing service to the general public, and (xii) public vending machines
(other than vending machines for employee use). If any provision of this Lease
permits, in whole or in part, use involving fabrication of any product or
assembly of components of any product or the sale of any product or service,
such use is only permitted to the extent lawful under the present certificate of
occupancy for the Building and under laws, ordinances, regulations, rules and
orders of any governmental body having jurisdiction over the Premises, from time
to time in effect. The provisions of this Article shall be binding upon Tenant's
successors, assigns, subtenants and licensees and shall not be waived by any
consent to an assignment or subletting or otherwise except by written instrument
expressly referring to this Article. Nothing in this subsection B shall preclude
the Premises being used for photographic, multilith or multigraph reproductions
in connection with, either directly or indirectly, Tenant's and Tenant's
permitted subtenant's businesses and/or activities. In addition, Tenant shall
not at any time use or occupy the Premises or the Building, or suffer or permit
anyone to use or occupy the Premises or the Building, or do anything in the
Premises or the Building, or suffer or permit anything to be done in, brought
into or kept in the Premises or the Building, as applicable, which in any manner
(a) causes injury to the Premises or the Building or any equipment, facilities
or systems therein, other than ordinary wear and tear; (b) impairs the character
or appearance of the Building; (c) impairs the proper and economic maintenance,
operation and repair of the Building and/or its equipment, facilities or
systems; (d) interferes with the quiet use and enjoyment of other portions of
the Building by the tenants or other occupants therein, or constitutes a
nuisance, public or private; (e) makes unobtainable from reputable insurance
companies authorized to do business in New York State all-risk property or any
other insurance which Landlord is required to maintain at standard rates; or (f)
discharges objectionable fumes, vapors or odors into the Building's flues or
vents or otherwise.
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D. Noise; Vibration. Any business machines and mechanical equipment used
or installed by Tenant which cause excessive vibration, noise, cold, heat or
other interference as reasonably determined by Landlord that may be transmitted
to the Building structure or the common areas of the Building or to any other
leased space in the Building shall be placed and maintained by Tenant at its
sole expense in settings of cork, rubber or spring type to eliminate or reduce
such noise or vibration to a level that shall be reasonably satisfactory to
Landlord,
3. ALTERATIONS.
A. Alterations Within Premises. Except as expressly provided herein,
Tenant shall not make or perform or permit the making or performance of, any
alterations, installations, improvements, additions or other physical changes in
or about the Premises ("Alterations") without Landlord's prior consent. Subject
to the prior written consent of Landlord, which consent shall not be
unreasonably withheld, delayed or conditioned, and to the provisions of this
Article, Tenant, at Tenant's expense, may make Alterations in or to the interior
of the Premises which are nonstructural, do not adversely affect the Building's
mechanical, electrical, plumbing, Class E or other Building systems or the
structural integrity of the Building, do not adversely affect any other part of
the Building do not affect any service required to be furnished by Landlord to
any tenant or occupant of the Building, do not adversely affect the value or
utility of the Building and which are performed only by contractors and
mechanics first approved by Landlord (which approval shall not be unreasonably
withheld) and in compliance with all applicable laws. Notwithstanding the
foregoing, Tenant may, without Landlord's consent, perform non-structural
Alterations to the Premises which do not affect the Building's mechanical,
electrical, plumbing, Class E or other Building systems or the structural
integrity of the Building, do not affect any part of the Building other than the
Premises and do not affect any service required to be furnished by Landlord to
any other tenant or occupant of the Building provided that (i) the estimated
cost of the labor and materials for such Alterations in any one instance (or in
a series of instances effectuating a single alteration plan) does not exceed
$100,000.00, (ii) such Alterations are performed by contractors reasonably
acceptable to Landlord, (iii) Landlord shall have received, at least ten (10)
days prior to the commencement of such Alterations, notice of the Alterations to
be performed, the identity of the contractors performing such Alterations
(together with certificates of insurance required to be maintained by such
contractors) and copies of drawings, plans and specifications prepared with
respect to such Alterations, if any, and copies of all permits relating to the
same and (d) the terms and provisions of this Lease regarding Alterations are
otherwise fully complied with. Except as otherwise approved by Landlord in
accordance with the terms hereof, Tenant shall not perform work which would (i)
require changes to the structural components of the Building or the exterior
design of the Building, (ii) require any material modification to the Building's
mechanical, electrical, plumbing installations or other Building installations
outside the Premises, or (iii) not be in compliance with all applicable laws,
rules, regulations and requirements of any governmental department having
jurisdiction over the Building and/or the construction of the Premises,
including but not limited to, the Americans with Disabilities Act of 1990. Any
changes required by any governmental department affecting the construction of
the Premises shall be performed at Tenant's sole cost. All Alterations shall be
done at Tenant's expense and at such times and in such manner as Landlord may
from time to time reasonably designate pursuant to the conditions for
Alterations prescribed by Landlord for the Premises. A copy of the current
construction
6
CONFORMED COPY
conditions and requirements for tenant alteration work and new construction is
annexed hereto as Schedule C and made a part hereof.
B. Restoration of Premises. All furniture, furnishings, fixtures,
equipment, movable fixtures, removable partitions and all other personal
property (collectively, "Tenant's Personalty") installed or brought onto the
Premises by Tenant must be removed from the Premises by Tenant, at Tenant's
expense, prior to the Expiration Date or earlier termination of the Term. All
Alterations in and to the Premises which may be made by Landlord or Tenant prior
to and during the Term, or any renewal thereof, shall become the property of
Landlord upon the Expiration Date or earlier and of the Term or any renewal
thereof, and shall not be removed from the Premises by Tenant unless Landlord,
at Landlord's option by notice to Tenant prior to the Expiration Date, in
accordance with the terms and provisions of this Subsection B set forth below,
elects to have them removed from the Premises by Tenant, in which event the same
shall be removed from the Premises by Tenant, at Tenant's expense, prior to the
Expiration Date or earlier termination of the Term. In the event Landlord elects
to have Tenant remove such Alterations, Tenant shall repair and restore in a
good and workmanlike manner to good condition (reasonable wear and tear
excepted) any damage to the Premises or the Building caused by the removal of
any other Alterations or any of Tenant's Personalty. Any Alterations or Tenant's
Personalty remaining on the Premises after the Expiration Date or earlier
termination of the Term shall be deemed conclusively abandoned and may, at the
election of Landlord, either be retained as Landlord's property or be removed by
Landlord, and Tenant shall reimburse Landlord for the cost of removing the same
(other than Alterations that Tenant is not obligated to remove in accordance
with the terms hereof), for the repair of damage caused by such removal and for
restoring the Premises as required hereunder, but nothing herein shall be deemed
to relieve Tenant of its responsibility to remove any such Alterations or any of
Tenant's Personalty which Tenant is obligated to remove at Landlord's election
hereunder. Notwithstanding the foregoing, Tenant may, at the time of its initial
submission of plans and specifications showing proposed Alterations to Landlord
for Landlord's review and approval, request in writing that Landlord waive its
right to compel Tenant to remove the Alterations identified on such plans and
specifications. If Landlord waives such right to compel Tenant to remove such
Alterations, in whole or in part, Landlord shall, either at the time of the
approval of such plans and specifications or, whether or not Tenant shall have
requested Landlord's waiver at the time of plan submission, within ninety (90)
days prior to the Expiration Date, notify Tenant of those Alterations which
Tenant may be required to remove in accordance with the terms of this Article
prior to the expiration of the Term or upon the occurrence of a termination of
this Lease and Tenant shall, upon the expiration of the Term or upon such
termination, be required to remove only such Alterations specified in Landlord's
notice. Notwithstanding anything to the contrary contained herein, Landlord
hereby waives Tenant's removal and restoration obligation with respect to any
Alterations that are customary in nature for office installations and which
shall not cause Landlord to incur extraordinary demolition expenses at the and
of the Term hereof (by means of illustration only, customary office
installations shall mean built-in bookcases, internal doors, ceilings and walls
(excluding demising walls) and kitchen pantry, but not an internal staircase,
demising walls, raised flooring, supplemental air-conditioning systems, vaults
or other similar specialty Alterations). In no event shall Tenant be required to
remove any improvements or installations installed in the Premises by the prior
tenants thereof, including, without limitation, the raised flooring existing as
of the date hereof in the Second Floor installed by the prior tenant thereof.
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C. Chlorofluorocarbons. Anything contained herein to the contrary
notwithstanding, in the event Tenant shall be required or shall otherwise repair
or remove any mechanical or other equipment installed within the Premises by
Tenant containing chlorofluorocarbons ("CFC's"), the repair or removal of such
equipment, as the case may be, shall conform with all requirements of law and
industry practices. Additionally, any such repair or removal shall be done by
contractors reasonably approved by Landlord, and subject to the procedures to
which Landlord's consent shall have previously been obtained. Tenant shall
Indemnify and hold Landlord harmless from any liability or damages resulting
from any contamination within the Building, as a result of the repair or removal
of any of the aforesaid equipment containing CFC's by Tenant.
D. Submission of Plans. Except as permitted in Subsection A hereof,
prior to making any Alterations, Tenant (i) shall submit to Landlord or to a
consultant appointed by Landlord ("Landlord's Consultant") detailed plans and
specifications (including layout, architectural, mechanical, electrical,
plumbing, Class E sprinkler and structural drawings stamped by a professional
engineer or architect licensed in the State of New York) for each proposed
Alteration and shall not commence any such Alteration without first obtaining
Landlord's acceptance of such plans and specifications, which approval shall be
granted or withheld in accordance with the terms of Subsection A hereof, (ii)
shall pay to Landlord all reasonable third party costs and expenses incurred by
Landlord (including the cost of Landlord's Consultant) in connection with
Landlord's review of Tenant's plans and specifications, (iii) shall, at its
expense, obtain all permits, approvals and certificates required by any
governmental or quasi-governmental bodies, and (iv) shall furnish to Landlord
evidence that Tenant, and Tenant's contractors and subcontractors engaged in
connection with such Alterations, are carrying such insurance as Landlord
requires, as more particularly set forth in Schedule C annexed hereto and made a
part hereof. Landlord shall respond to Tenant's request for acceptance of any
plans and specifications within ten (10) business days following the submission
of such plans and specifications prepared in accordance with the terms hereof.
In the event Landlord shall fail to accept all or a portion of any of Tenant's
plans and specifications, such failure to accept same shall be set forth in
writing and shall include the reasons therefor in reasonable detail, in which
event Tenant shall revise such plans and specifications and resubmit same to
Landlord. Landlord shall respond to Tenant's request for acceptance of any such
revised plans within five (5) business days following resubmission. In the event
Landlord fails to respond to Tenant's request for Landlord's acceptance of the
proposed plans and specifications within such ten (10) or five (5) business day
period (as applicable), Tenant may send a second (2nd) written request stating
in bold type that "LANDLORD'S FAILURE TO RESPOND TO TENANT'S REQUEST FOR
LANDLORD'S ACCEPTANCE OF THE PLANS AND SPECIFICATIONS WITHIN TEN (10) BUSINESS
DAYS OF THIS SECOND (2ND) REQUEST SHALL BE DEEMED LANDLORD'S ACCEPTANCE OF SUCH
PROPOSED PLANS AND SPECIFICATIONS." A copy of such second (2nd) notice must be
simultaneously sent to Landlord's counsel (or such other parties as Landlord may
from time to time designate) in accordance with the notice provisions of Article
27 of this Lease in order for the same to be deemed effective. The failure of
Landlord to respond to Tenant's second (2nd) request within such ten (10)
business days shall be deemed to be Landlord's acceptance of such plans and
specifications. Upon completion of such Alteration, Tenant, at Tenant's expense,
shall obtain certificates of final approval of such Alteration, including the
"as-built" or marked drawings showing such Alterations, required by any
governmental or quasi-governmental bodies and shall furnish Landlord with copies
thereof. All Alterations shall be made and performed in accordance with the
Rules and Regulations
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(hereinafter defined) and in accordance with the Americans with Disabilities Act
of 1990, including but not limited to the accessibility provisions thereof; all
materials and equipment to be incorporated in the Premises as a result of all
Alterations shall be new and first quality; no such materials or equipment shall
be subject to any lien, encumbrance, chattel mortgage or title retention or
security agreement. Landlord's acceptance of Tenant's plans, specifications and
working drawings for Alterations shall create no responsibility or liability on
the part of Landlord with respect to their completeness, design, sufficiency or
compliance with all applicable laws, rules or regulations of governmental
agencies or authorities.
E. Mechanics' Liens; Labor Conflicts. Any mechanic's lien filed against
the Premises, or the Real Property, for work claimed to have been done for, or
materials claimed to have been furnished to, Tenant (excluding work or materials
furnished by Landlord or its agents) shall be discharged by Tenant within twenty
(20) days after notice thereof, at Tenant's expense, by payment or filing the
bond required by law. Within ten (10) business days following Landlord's
request, Tenant agrees to provide Landlord with any evidence as may be required
by Landlord's title insurance company as a condition to insuring over any
mechanics lien. Tenant shall not, at any time prior to or during the Term,
directly or indirectly employ, or permit the employment of, any contractor,
service provider, mechanic or laborer in the Premises, whether in connection
with any Alterations, cleaning services or otherwise such employment will
interfere or cause any jurisdictional conflict with other union contractors,
service providers, mechanics, or laborers engaged in the construction, cleaning,
maintenance or operation of the Building by Landlord, Tenant or others, as
reasonably determined by Landlord. In the event of any such interference or
conflict, Tenant, upon demand of Landlord, shall cause all contractors, service
providers, mechanics or laborers causing such interference or conflict to leave
the Building immediately.
4. REPAIRS. Landlord shall maintain and repair the structure of the
Building, both exterior and interior, the Building systems (up to the part of
connection to the Premises or any other tenanted areas) and the common areas of
the Building in a manner consistent with Landlord's current practice as of the
date hereof. Tenant shall, throughout the Term, take good care of the Premises
and the fixtures and appurtenances therein and at Tenant's sole cost and
expense, make all nonstructural repairs thereto as and when needed to preserve
them in good working order and condition, reasonable wear and tear and damage
for which Tenant is not responsible under the terms of this Lease excepted.
Tenant shall pay Landlord for all replacements made at Tenant's request to the
lamps, tubes, ballasts and starters in the lighting fixtures installed in the
Premises, but Tenant shall be entitled to install its own replacement lamps,
tubes and starters. Notwithstanding the foregoing, all damage or injury to the
Premises or to any other part of the Building, or to its fixtures, equipment and
appurtenances, whether requiring structural or nonstructural repairs, caused by
or resulting from the neglect or willful misconduct of, or Alterations made by,
or any work, labor, service or equipment done for Tenant (other than by
Landlord) or supplied to Tenant or any subtenant of Tenant, or the installation,
use or operation of any property or equipment by Tenant or any of Tenant's
subtenants, agents, employees, invitees or licensees, shall be repaired promptly
by Tenant, at its sole cost and expense, to the reasonable satisfaction of
Landlord. Tenant also shall repair all damage to the Building and the Premises
caused by the moving of Tenant's fixtures, furniture or equipment. All the
aforesaid repairs shall be of good quality and class and shall be made in
accordance with the provisions of Article 3 hereof. If Tenant fails after ten
(10) business days notice to proceed with due diligence
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to make repairs required to be made by Tenant hereunder, or if Landlord elects
to make any repairs in or to the Building or the facilities and systems thereof
for which Tenant is responsible, the same may be made by Landlord, at the
expense of Tenant, and the reasonable expenses thereof incurred by Landlord
shall be collectible by Landlord as additional rent promptly after rendition of
a xxxx or statement therefor. Tenant shall give Landlord prompt notice of any
defective condition in the Premises for which Landlord may be responsible
hereunder of which Tenant is aware. Except as expressly provided in Article 10
hereof, 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 Landlord, Tenant or others making, or failing
to make, any repairs, alterations, additions or improvements in or to any
portion of the Building, or the Premises, or in or to fixtures, appurtenances,
or equipment thereof. If the Premises be or become infested with vermin, Tenant,
at Tenant's expense, shall cause the same to be exterminated from time to time
to the reasonable satisfaction of Landlord and shall employ such exterminators
and such exterminating company or companies as shall be approved by Landlord,
which consent shall not be unreasonably withheld or delayed. The water and wash
closets and other plumbing fixtures shall not be used for any purposes other
than those for which they were designed or constructed, and no sweepings,
rubbish, rags, acids or other flammable substances shall be deposited therein.
If at any time any windows of the Premises are temporarily closed, darkened or
bricked-up for any reason whatsoever including, but not limited to, Landlord's
own acts, or any of such windows are permanently closed, darkened or bricked-up
if required by law or related to any construction upon property adjacent to the
Real Property others, Landlord shall not be liable for any damage Tenant may
sustain thereby and Tenant shall not be entitled to any compensation therefor
nor abatement of Rent nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction. If at any time the windows of the Premises
are temporarily closed, darkened or bricked-up, as aforesaid, then, unless
Tenant is required pursuant to this Lease to perform the repairs, maintenance,
alterations or improvements, or to comply with any law which resulted in such
windows being closed, darkened or bricked-up, Landlord shall perform such
repairs, maintenance, alterations or improvements with reasonable diligence and
otherwise take such action as may be reasonably necessary to minimize the period
during which such windows are temporarily closed, darkened or bricked-up, but
the foregoing shall not require Landlord to engage overtime or premium-pay
labor.
5. WINDOW CLEANING. Tenant shall not clean, nor require, permit, suffer or
allow any window in the Premises to be cleaned, from the outside in violation of
Section 202 of the Labor Law, or any other applicable law, or of the rules of
the Board of Standards and Appeals, or of any other board or body having or
asserting jurisdiction.
6. REQUIREMENTS OF LAW; FLOOR LOAD.
A. Requirements of Law. Tenant, at Tenant's sole expense, shall promptly
comply with all present and future laws, statutes, orders, directives and
regulations of federal, state, county, city and municipal authorities,
departments, bureaus, boards, agencies, commissions and other sub-divisions
thereof, and of any official thereof and any other governmental and quasi-public
authority and all rules, orders, regulations or requirements of the New York
Board of Fire Underwriters, or any other similar body which shall now or
hereafter impose any violation, order or duty upon Landlord or Tenant with
respect to the Premises or the Building as a result of the manner of use or
occupation thereof by Tenant or any Alterations made thereto by Tenant.
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Tenant shall not do or permit to be done any act or thing upon the Premises
which is contrary to and will invalidate or be in conflict with any public
liability, fire or other policies of insurance at any time carried by or for the
benefit of Landlord with respect to the Building and fixtures and property
therein, or which shall or might subject Landlord to any liability or
responsibility to any person, or for property damage. Tenant shall not do, or
permit anything to be done in or upon the Premises, or bring or keep anything
therein, except as now or hereafter permitted by the Xxx Xxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx Board of Fire Underwriters, New York Fire Insurance Rating
Organization or other authority having jurisdiction and then only in such
quantity and manner as not to increase the insurance rate applicable to the
Building, or use the Premises in a manner which shall increase the rate of fire
insurance on the Building or on property located therein, over that in similar
type buildings or in effect prior to this Lease. Any work or installations made
or performed by or on behalf of Tenant or any person claiming through or under
Tenant pursuant to this Article shall be made in conformity with, and subject to
the provisions of, Article 3 hereof. If by reason of Tenant's failure to comply
with the provisions of this Article, the fire insurance rate shall at any time
be higher than it otherwise would be, then Tenant shall reimburse Landlord, as
additional rent hereunder, for that part of all fire insurance premiums
thereafter paid by Landlord which shall have been charged because of such
failure of use by Tenant, and shall make such reimbursement upon the first (1st)
day of the month following such outlay by Landlord and notice to Tenant. In any
action or proceeding wherein Landlord and Tenant are parties, a schedule or
"make up" of rates for the Building or the Premises issued by the New York Fire
Insurance Rating Organization, or other body fixing such fire insurance rates,
shall be presumed evidence of the facts therein stated and of the several items
and charges in the fire insurance rates then applicable to the Premises. Any
work or Installations made or performed by or on behalf of Tenant or any person
claiming through or under Tenant pursuant to this Article shall be made in
conformity with, and subject to the provisions of, Article 3 hereof.
B. Floor Load. Tenant shall not place a load upon any floor of the
Premises exceeding the floor load per square foot area which such floor was
designed to carry (which Landlord hereby represents is not less than one hundred
(100) pounds per square foot) and which is allowed by law, Landlord reserves the
right to prescribe the weight and position of all safes, business machines and
heavy equipment and installations such that the same are placed and maintained
by Tenant, at Tenant's expense, in settings sufficient in Landlord's reasonable
judgment to absorb and prevent vibration, noise and annoyance. Tenant shall not
move any safe, heavy machinery, heavy equipment, freight or fixtures into or out
of the Building without Landlord's prior consent, which consent shall not be
unreasonably withheld, conditioned or delayed, and payment to Landlord of
Landlord's actual out-of-pocket costs in connection therewith. If such safe,
machinery, equipment, freight or fixtures requires special handling that would
require a rigger, Tenant agrees to employ only persons holding a Master Rigger's
License to do said work, and that all work in connection therewith shall comply
with the Administrative Code of the City of New York and all other laws and
regulations applicable thereto, and shall be done during such hours as Landlord
may designate.
7. SUBORDINATION.
A. Subordination. This Lease is subject and subordinate to each and
every ground or underlying lease of the Real Property or the Building (each a
"Superior Lease") hereafter made
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by Landlord and to the lien of each and every trust indenture and mortgage
(collectively the "Mortgages") which may now or hereafter affect the Real
Property or the Building or any such Superior Lease and the leasehold interest
created thereby, and to all renewals, extensions, supplements, amendments,
modifications, consolidations, and replacements thereof or thereto,
substitutions therefor and advances made thereunder. This clause shall be
self-operative and no further instrument of subordination shall be required to
make the interest of any lessor under a Superior Lease, trustee or mortgagee of
a Mortgage superior to the interest of Tenant hereunder. In confirmation of such
subordination, however, Tenant shall execute and deliver any certificate that
Landlord may reasonably request and, in the event that Tenant shall fail to
execute and deliver any such certificate within ten (10) business days after
request therefor, Tenant shall irrevocably constitute and appoint Landlord as
Tenant's attorney-in-fact, coupled with an interest, to execute and deliver any
such certificate for and on behalf of Tenant. If the date of expiration of any
Superior Lease shall be the same day as the Expiration Date, the Term shall end
and expire twelve (12) hours prior to the expiration of the Superior Lease.
Tenant covenants and agrees that, except as expressly provided herein, Tenant
shall not knowingly do anything that would constitute a default under any
Mortgage, or omit to do anything that Tenant is obligated to do under the terms
of this Lease so as to cause Landlord to be in default under any of the
foregoing. If, at any time Landlord's obligations as lessee under any Superior
Lease require Landlord to modify any of its obligations under, or any of the
terms of, this Lease or if, in connection with the financing of the Real
Property, the Building or the interest of the lessee under any Superior Lease,
any lending institution shall request reasonable modifications of this Lease,
provided such modifications do not increase (other than to a de minimus extent)
the obligations of, or adversely affect or diminish (other than to a de minimus
extent) the rights of, Tenant under this Lease, Tenant covenants to make such
modifications.
B. Attornment. If at any time prior to the expiration of the Term, any
Mortgage shall be foreclosed or any Superior Lease shall terminate or be
terminated for any reason, Tenant agrees, at the election and upon demand of any
owner of the Real Property or the Building, or the lessor under any such
Superior Lease, or of any mortgagee in possession of the Real Property or the
Building, to attorn, from time to time, to any such owner, lessor or mortgagee,
upon the then executory terms and conditions of this Lease, for the remainder of
the term originally demised in this Lease, provided that such owner, lessor or
mortgagee, as the case may be, or receiver caused to be appointed by any of the
foregoing, shall not then be entitled to possession of the Premises. The
provisions of this subsection B shall inure to the benefit of any such owner,
lessor or mortgagee, shall apply notwithstanding that, as a matter of law, this
Lease may terminate upon the termination of any such Superior Lease, and shall
be self-operative upon any such demand, and no further instrument shall be
required to give effect to said provisions. Tenant, however, upon demand of any
such owner, lessor or mortgagee, agrees to execute, from time to time,
instruments in confirmation of the foregoing provisions of this subsection B,
reasonably satisfactory to any such owner, lessor or mortgagee, acknowledging
such attainment and setting forth the terms and conditions of its tenancy and,
in the event that Tenant shall fail to execute and deliver any such instruments
within ten (10) business days after request therefor, Tenant shall irrevocably
constitute and appoint Landlord as Tenant's attorney-in-fact, coupled with an
interest, to execute and deliver any such instruments for and on behalf of
Tenant. Nothing contained in this subsection B shall be construed to impair any
right Otherwise exercisable by any such owner, lessor or mortgagee.
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C. Non-Disturbance. Notwithstanding the provisions of Section A of this
Article 7 to the contrary, Landlord agrees that it shall obtain from the holder
of the Mortgage currently encumbering the Real Property, a subordination,
non-disturbance and attornment agreement in favor of Tenant in the form
generally used by the holder of such Mortgage within thirty (30) days following
Tenant's execution and delivery of the same. In addition, provided this Lease
shall be in full force and effect and Tenant shall not be in default hereunder
beyond applicable notice and grace periods, Landlord shall secure from the
holder of any future Mortgage any the lessor of any future Superior Lease
intended to be superior to the interest of Tenant hereunder an agreement either
(i) substantially in the form annexed hereto as Exhibit 2 (with such changes
thereto as may be reasonably required by the future lender or lessor in
accordance with customary lending or real estate practices) or, (ii) if a
substantially different form, then in a form which is reasonably acceptable to
Tenant. Tenant covenants and agrees to execute and deliver any such agreement
from a future lender or lessor within ten (10) business days following Tenant's
receipt of the same, failing which this Lease shall be deemed subordinate to any
such future Mortgage or future Superior Lease pursuant to the terms of
subsection A of this Article 7. In the event the fees incurred by Landlord in
connection with obtaining any subordination, non-disturbance and attornment
agreement exceeds the amount of $10,000.00, Tenant agrees to equally share the
balance of such fees with Landlord, payable as additional rent hereunder within
ten (10) business days following Tenant's receipt of an invoice therefor.
8. RULES AND REGULATIONS. Tenant and Tenant's employees, agents, visitors
and licensees shall observe faithfully, and comply strictly with, the Rules and
Regulations annexed hereto and made a part hereof as Schedule A and such other
and further reasonable Rules and Regulations as Landlord or Landlord's agents
may from time to time adopt after reasonable advance notice to be given as
Landlord may elect (collectively, the "Rules and Regulations"). Nothing in this
Lease contained shall be construed to impose upon Landlord any duty or
obligation to enforce the Rules and Regulations or terms, covenants or
conditions in any other lease, against any other tenant and Landlord shall not
be liable to Tenant for violation of the same by any other tenant, its
employees, agents, visitors or licensees, but Landlord shall not enforce the
Rules and Regulations against Tenant in a discriminatory manner.
9. INSURANCE.
A. Liability Insurance. Tenant shall obtain at its own expense and keep
in full force and effect during the Term, a policy of commercial general
liability insurance (including, without limitation, insurance covering Tenant's
contractual liability under this Lease), under which Tenant is named as the
insured, and Landlord, Landlord's managing agent, the present and any future
mortgagee of the Real Property or the Building and/or such other designees
specified by Landlord from time to time, are named as additional insureds. Such
policy shall contain a provision that no act or omission of Tenant shall affect
or limit the obligation of the insurance company to pay the amount of any loss
sustained. Such policy shall also contain a provision which provides the
insurance company will not cancel or refuse to renew the policy, or change in
any material way the nature or extent of the coverage provided by such policy,
without first giving Landlord at least thirty (30) days written notice by
certified mail, return receipt requested, which notice shall contain the policy
number and the names of the insured and policy holder. The minimum limits of
liability shall be a combined single limit with respect to each occurrence in an
amount of not less than $5,000,000 for injury (or death) and damage to property
or such
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greater amount as Landlord may; from time to time, reasonably require, provided
such increases are commercially reasonable for comparable leased space in
midtown Manhattan. Tenant shall also maintain at its own expense during the Term
a policy of workers' compensation insurance providing statutory benefits for
Tenant's employees and employer's liability. Tenant shall provide to Landlord
upon execution of this Lease and at least thirty (30) days prior to the
termination of any existing policy, a certificate evidencing the effectiveness
of the insurance policies required to be maintained hereunder which shall
include the named insured, additional insured, carrier, policy number, limits of
liability, effective date, the name of the insurance agent and its telephone
number. Following the occurrence of any event that may give rise to an insurance
claim or dispute, Tenant shall provide Landlord with a complete copy, or all
relevant portions of any such policy upon written request of Landlord. Tenant
shall have no right to obtain any of the insurance required hereunder pursuant
to a blanket policy covering other properties unless the blanket policy contains
an endorsement that names Landlord, Landlord's managing agent and/or designees
specified by Landlord from time to time, as additional insureds, references the
Premises, and guarantees a minimum limit available for the Premises equal to the
amount of insurance required to be maintained hereunder. Each policy required
hereunder shall contain a clause that the policy and the coverage evidenced
thereby shall be primary with respect to any policies carried by Landlord, and
that any coverage carried by Landlord shall be excess insurance. The limits of
the insurance required under this subsection shall not limit the liability of
Tenant under this Lease. All insurance required to be carried by Tenant pursuant
to the terms of this Lease shall be effected under valid and enforceable
policies issued by reputable and independent insurers permitted to do business
in the State of New York, and rated in Best's Insurance Guide, or any successor
thereto (or if there be none, an organization having a national reputation) as
having a general policyholder rating of "A-" and a financial rating of at least
"10". In the event that Tenant fails to continuously maintain insurance as
required by this subsection, Landlord may, at its option and without relieving
Tenant of any obligation hereunder, order such insurance and pay for the same at
the expense of Tenant. In such event, Tenant shall repay the amount expended by
Landlord, with interest thereon, immediately upon Landlord's written demand
therefor.
B. "All Risk" Insurance. Tenant shall also maintain at its own expense
during the Term a policy against fire and other casualty on an "all risk" form
covering all Alterations, construction and other improvements installed within
the Premises, whether existing in the Premises on the date hereof or hereinafter
installed by or on behalf of Landlord or Tenant, and on all furniture, fixtures,
equipment, personal property and inventory of Tenant located in the Premises and
any property in the care, custody and control of Tenant (fixed or otherwise
sufficient to provide 100% full replacement value of such Items, which policy
shall otherwise comply with the provisions of subsections A and C of this
Article 9.
C. Waiver of Subrogation. The parties hereto shall procure an
appropriate clause in, or endorsement on, any "all-risk" property insurance
covering the Premises and the Building, including its respective Alterations,
construction and other improvements as well as personal property, fixtures,
furniture, inventory and equipment located thereon or therein, pursuant to which
the insurance companies waive subrogation or consent to a waiver of right of
recovery, and each party hereby agrees that it will not make any claim against
or seek to recover from the other or the partners, directors, officers,
shareholders or employees of such party for any loss or damage to its property
or the property of others resulting from fire or other hazards covered by
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such "all-risk" property insurance policies to the extent that such loss or
damage is actually recoverable under such policies exclusive of any deductibles.
Such waiver will not apply should any loss or damage result from one of the
parties' gross negligence or willful misconduct. If the payment of an additional
premium is required for the inclusion of such waiver of subrogation provision,
each party shall advise the other of the amount of any such additional premiums
and the other party shall pay the same. It is expressly understood and agreed
that Landlord will not carry insurance on the Alterations, construction and
other improvements presently existing or hereafter installed within the Premises
or on Tenant's fixtures, furnishings, equipment, personal property or inventory
located in the Premises or insurance against interruption of Tenant's business.
D. Landlord's Insurance. Landlord agrees to maintain and keep in full
force and effect throughout the Term hereof, standard fire and extended
coverage, policy, insuring the Building against fire and other causes included
on an "all risk" form sufficient to provide 100% full replacement value of the
Building (exclusive of foundations) or such lesser amount as will avoid
co-insurance provided, however, if (i) such insurance coverage ceases to be
available or (ii) the cost of such insurance increases so that owners of similar
properties in New York County, New York generally cease to carry such insurance,
Landlord shall maintain such insurance coverage as is customarily maintained by
owners of similar properties in New York County, New York.
10. DESTRUCTION OF THE PREMISES: PROPERTY LOSS OR DAMAGE.
A. Repair of Damage. If the Premises or any part thereof shall be
damaged by fire or other casualty, Tenant shall give prompt notice thereof to
Landlord and this Lease shall continue in full force and effect except as
hereinafter set forth. If the Premises shall be damaged by fire or other
casualty, then the Premises shall be repaired and restored to its condition
preceding the damage in accordance with the provisions of this Article 10.
Whenever in this Article 10 reference is made to restoration of the Premises,
(i) Tenant's obligation shall be as to all property within the Premises
including Tenant's furniture, fixtures, equipment and other personal property,
any and all Alterations, construction or other improvements made to the Premises
by or on behalf of Tenant and any other leasehold improvements existing in the
Premises on the date hereof, all of which shall be restored and/or replaced at
Tenant's sole cost and expense, except in the event this Lease is terminated in
accordance with this Article 10 and (ii) Landlord's obligation, if any, shall be
as to the core and shell, which constitutes the structure of the Building and
the mechanical, electrical, plumbing and other Building systems up to the point
of connection into the Premises. Landlord shall have no liability to Tenant, and
Tenant shall not be entitled to terminate this Lease, if such repairs and
restoration are not in fact completed within Landlord's estimated time period
for restoration (if any), so long as Landlord shall have proceeded continuously
with reasonable due diligence during the course of the restoration. Until the
date occurring three (3) months following substantial completion of the repairs
that are Landlord's responsibility hereunder, the Rent and additional rent shall
be reduced in the proportion which the area of the part of the Premises which is
damaged bears to the total area of the Premises; provided, however, should
Tenant retake possession of a portion of the Premises for the conduct of
business prior to such date, the Rent and additional rent shall be reinstated
with respect to such reoccupied portion of the Premises and shall be payable by
Tenant from the date of such possession.
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B. Termination Options. (i) Anything in subsection A of this Article 10
to the contrary notwithstanding, if the Premises are totally damaged or are
rendered wholly untenantable, or if the Building shall be so damaged by fire or
other casualty that, in Landlord's reasonable opinion, either substantial
alteration, demolition or reconstruction of the Building shall be required
(whether or not the Premises shall have been damaged or rendered untenantable,
or if the Building, after its proposed repair, alteration or restoration, shall
not be economically viable for its current use, then in any of such events.
Landlord, at Landlord's option, may, not later than sixty (60) days following
the damage, give Tenant a notice in writing terminating this Lease. In addition,
(i) if any material damage shall occur to the Premises or the Building during
the last eighteen (18) months of the Term, Landlord and Tenant shall each have
the option to terminate this Lease by thirty (30) days prior written notice to
Tenant or Landlord, as applicable and (ii) Landlord shall not be obligated to
repair or restore the Premises or the Building if a holder of a mortgage or
underlying leasehold applies proceeds of insurance to the loan or lease payment
balance, and the remaining proceeds, if any, available to Landlord are
insufficient to pay for such repair or restoration. If Landlord or Tenant elects
to terminate this Lease, the Term shall expire upon the date set forth in the
notice of termination rendered to the other party, and Tenant shall vacate the
Premises and surrender the same to Landlord without prejudice however, to
Landlord's rights and remedies against Tenant under this Lease in effect prior
to such termination and any Rent owing shall be paid up to such date and any
payments of Rent made by Tenant which were on account of any period subsequent
to such date shall be returned to Tenant. Upon the termination of this Lease
under the conditions provided for in the next preceding sentence, Tenant's
liability for Rent and additional rent thereafter accruing shall cease as of the
day following such damage.
(ii) If twenty-five (25%) percent or more of the rentable area of
the Premises is damaged by fire or other casualty or are rendered wholly
untenantable thereby, and If Landlord shall elect to restore the Premises,
Landlord shall, within the aforesaid sixty (60) day period following the damage,
cause an Independent contractor or architect selected by Landlord to give notice
to Tenant of the date by which such contractor or architect believes the
restoration of the Premises shall be substantially completed (the "Restoration
Date"). If such notice shall indicate that the Restoration Date shall not occur
within twelve (12) months following such initial sixty (60) day estimate period,
then Tenant shall have the right to terminate this Lease by giving notice to
Landlord not later than fifteen (15) days after receiving such notice and in
such event this Lease shall terminate on the later of the date specified in
Tenant's notice for the termination of this Lease (which date shall not be more
than thirty (30) days after the giving of such notice by Tenant) or the date
Tenant vacates the Premises and removes all its property therefrom.
C. Repair Delays. Subject to the provisions of subsection A of this
Article 10, Landlord shall not be liable for reasonable delays which may arise
by reason of the claim adjustment with any insurance company on the part of
Landlord and/or Tenant, and for reasonable delays on account of "labor troubles"
or any other cause beyond Landlord's control.
D. Provision Controlling. The parties agree that this Article 10
constitutes an express agreement governing any case of damage or destruction of
the Premises or the Building by fire or other casualty, and that Section 227 of
the Real Property Law of the State of New
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York, which provides for such 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 any such case.
E. Property Loss or Damage. Any Building employee to whom any property
shall be entrusted by or on behalf of Tenant shall be deemed to be acting as
Tenant's agent with respect to such property and neither Landlord nor its agents
shall be liable for any damage to property of Tenant or of others entrusted to
employees of the Building, nor for the loss of or damage to any property of
Tenant by theft or otherwise. Except for Landlord's repair and restoration
obligations set forth in subsection A hereof, neither Landlord nor its agents
shall be liable for any injury or damage to property or interruption of Tenant's
business resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, 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; nor shall Landlord or its agents be liable for any such damage caused by
other tenants or persons in the Building or caused by construction of any
private, public or quasi-public work: nor shall Landlord be liable for any
latent defect in the Premises or in the Building (except as otherwise expressly
provided herein).
F. Landlord's Failure to Make Repairs. Notwithstanding anything to the
contrary contained in this Lease, if (i) Landlord fails to take such measures as
may be reasonable under the circumstances to make any repairs or perform any
maintenance required to be made or performed by Landlord pursuant to the terms
of this Lease within ten (10) consecutive business days after Tenant has
notified Landlord of the needed repair or maintenance (or such longer period of
time as is necessary given the nature of the needed repair or maintenance, so
long as Landlord is diligently pursuing the cure thereof to substantial
completion), which failure renders the Premises or any "material portion"
thereof not usable (as reasonably determined by Landlord) and as a result
thereof Tenant ceases to conduct its business therein, or (ii) if the Premises
or any material portion thereof is rendered not usable as reasonably determined
by Landlord) and Tenant ceases to conduct its business therein by reason of any
repair or maintenance made by Landlord, which condition continues for ten (10)
consecutive business days after Tenant has notified Landlord thereof (or such
longer period of time as is necessary given the nature of the needed repair or
maintenance, so long as Landlord is diligently pursuing the cure thereof to
substantial completion), then provided and upon the condition that this Lease is
in full force and effect and Tenant is not in default hereunder beyond
applicable notice and grace periods, the Rent and additional rent shall be
abated in the proportion by which the portion of the Premises which is not
reasonably usable and is not used by Tenant bears to the total area of the
Premises, commencing on the expiration of such ten (10) business day period
until the date such repair is made or maintenance completed. For the purposes of
this subsection I, the term "material portion" shall mean not less than
twenty-five (25%) percent of the area on any floor of the Premises. In the event
Landlord is unable to make any repairs or perform any maintenance obligations
because of a force majeure event or any other reason beyond the reasonable
control of Landlord including, without limitation, the acts or omissions of
Tenant or any of Tenant's agents, employees or contractors, then the ten (10)
business day period shall be extended one (1) day for each day such event of
force majeure or other impossibility exists. Notwithstanding the foregoing
remedy, Landlord agrees to diligently pursue any such repair or maintenance. A
copy of any notice from Tenant to Landlord given pursuant to this subsection F
shall not be deemed effective unless and until a copy of said notice is sent
simultaneously to the
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holder of any Mortgage encumbering the Building whose address has been provided
to Tenant or with whom Tenant has entered in a subordination agreement in
accordance with Article 7 hereof.
11. CONDEMNATION.
A. Condemnation. If the whole of the Real Property, the Building or the
Premises shall be acquired or condemned for any public or quasi-public use or
purpose, this Lease and the Term shall end as of the date of the vesting of
title with the same effect as if said date were the Expiration Date. If only a
part of the Real Property shall be so acquired or condemned then, (i) except as
hereinafter provided in this subsection A, this Lease and the Term shall
continue in force and effect but, if a part of the Premises is included in the
part of the Real Property so acquired or condemned, from and after the date of
the vesting of title, the Rent and additional rent shall be reduced in the
proportion which the area of the part of the Premises so acquired or condemned
bears to the total area of the Premises immediately prior to such acquisition or
condemnation; (ii) whether or not the Premises shall be affected thereby,
Landlord, at Landlord's option, may give to Tenant, within sixty (60) days next
following the date upon which Landlord shall have received notice of vesting of
title, a five (5) days notice of termination of this Lease; and (iii) if the
part of the Real Property so acquired or condemned shall contain more than
thirty (30%) percent of the total area of the Premises immediately prior to such
acquisition or condemnation, or if, by reason of such acquisition or
condemnation, Tenant no longer has reasonable means of access to the Premises,
Tenant, at Tenant's option, may give .to Landlord, within sixty (60) days next
following the date upon which Tenant shall have received notice of vesting of
title, a five (5) days notice of termination of this Lease. If any such five (5)
days notice of termination is given by Landlord or Tenant, this Lease and the
Term shall come to an end and expire upon the expiration of said five (5) days
with the same effect as if the date of expiration of said five (5) days were the
Expiration Date. If a part of the Premises shall be so acquired or condemned and
this Lease and the Term shall not be terminated pursuant to the foregoing
provisions of this subsection A, Landlord, at Landlord's expense, shall restore
that part of the Premises not so acquired or condemned to a self-contained
rental unit. In the event of any termination of this Lease and the Term pursuant
to the provisions of this subsection A, the Rent and additional rent shall be
apportioned as of the date of sooner termination and any prepaid portion of Rent
and additional rent for any period after such date shall be refunded by Landlord
to Tenant.
B. Award. In the event of any such acquisition or condemnation of all or
any part of the Real Property, Landlord shall be entitled to receive the entire
award for any such acquisition or condemnation, Tenant shall have no claim
against Landlord or the condemning authority for the value of any unexpired
portion of the Term and Tenant hereby expressly assigns to Landlord all of its
right in and to any such award. Nothing contained in this subsection B shall be
deemed to prevent Tenant from making a claim in any condemnation proceedings for
Tenant's relocation expenses or the then value of any furniture, furnishings,
fixtures and Alterations installed by and at the sole expense of Tenant and
included in such taking, provided that such award shall not reduce the amount of
the award otherwise payable to Landlord.
12. ASSIGNMENT AND SUBLETTING.
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A. Prohibition Without Consent. Except as expressly provided herein,
Tenant expressly covenants that it shall not (i) assign or otherwise transfer
this Lease or the term and estate hereby granted, (ii) mortgage, pledge or
encumber this Lease or the Premises or any part thereof in any manner by reason
of any act or omission on the part of Tenant, or (iii) sublet the Premises or
any part thereof or permit the Premises or any part thereof to be used or
occupied by others (whether for desk space, mailing privileges or otherwise)
without obtaining the prior written consent of Landlord in each instance, which
consent shall be granted or withheld in accordance with the terms of this
Article 12. If this Lease be assigned, or if the Premises or any part thereof be
sublet or occupied by anybody other than Tenant, Landlord may, after default by
Tenant (which Tenant shall have been notified of), collect rent from the
assignee, subtenant or occupant, and apply the net amount collected to the Rent
herein reserved, but no assignment, underletting, occupancy or collection shall
be deemed a waiver of the provisions hereof, the acceptance of the assignee,
undertenant or occupant as tenant, or a release of Tenant from the further
performance by Tenant of covenants on the part of Tenant herein contained. The
consent by Landlord to an assignment or underletting shall not in any way be
construed to relieve Tenant from obtaining the express consent in writing of
Landlord to any further assignment or underletting. In no event shall any
permitted subtenant assign or encumber its sublease or further sublet all or any
portion of its sublet space, or otherwise suffer or permit the sublet space or
any part thereof to be used or occupied by others, without Landlord's prior
written consent in each instance which consent shall be granted or withheld in
accordance with the terms of this Article 12. Any assignment, sublease,
mortgage, pledge, encumbrance or transfer in contravention of the provisions of
this Article 12 shall be void.
B. Notice of Proposed Transfer. If Tenant shall at any time or times
during the Term desire to assign this Lease or sublet all or part of the
Premises (excluding any assignment or subletting to a related corporation
pursuant to subsection L of this Article 12 or a permitted transfer of the
nature described in subsection K of this Article 12), Tenant shall give notice
thereof to Landlord, which notice shall be accompanied by (i) a conformed or
photostatic copy of the proposed assignment or sublease, the effective or
commencement date of which shall be not less than ten (10) nor more than one
hundred and eighty (180) business days after the giving of such notice, (ii) a
statement setting forth in reasonable detail the identity of the proposed
assignee or subtenant, the nature of its business and its proposed use of the
Premises, (iii) current financial information with respect to the proposed
assignee or subtenant, including, without limitation, its most recent financial
report or other financial information reasonably requested by Landlord, (iv) an
agreement by Tenant to indemnify Landlord against liability resulting from any
claims that may be made against Landlord by the proposed assignee or subtenant
or by any brokers or other persons claiming that they have dealt with Tenant and
claiming a commission or similar compensation in connection with the proposed
assignment or sublease and (v) in the case of a sublease, such additional
information related to the proposed subtenant as Landlord shall reasonably
request, if any.
C. Landlord's Options. Except for a permitted transfer of the nature
described in subsections K and L of this Article 12, the notice containing all
of the information set forth in Subsection B of this Article 12 above shall be
deemed an offer from Tenant to Landlord whereby Landlord (or Landlord's
designee) may, at its option, (a) terminate this Lease (if the proposed
transaction is an assignment or a sublease of all or substantially all of the
Premises for all or substantially all of the balance of the Term), or (b)
terminate this Lease with respect to the
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portion of the Premises that Tenant desires to sublease. Said options may be
exercised by Landlord by notice to Tenant at any time within ten (10) business
days after the aforesaid notice has been given by Tenant to Landlord; and during
such ten (10) business day period Tenant shall not assign this Lease nor sublet
such space to any person or entity. Notwithstanding the foregoing to the
contrary, Landlord agrees to a one time waiver of its recapture options set
forth above in connection with a proposed sublease covering up to seventy-five
(75%) percent of the rentable square footage on one (1) floor of the Premises
for a term of three (3) years or less which commences prior to the date on which
the fifth (5th) anniversary of the Commencement Date shall occur.
D. Termination by Landlord. If Landlord exercises its option to
terminate this Lease in the case where Tenant desires either to assign this
Lease or sublet all or substantially all of the Premises (excluding any
assignment or subletting to a related corporation pursuant to subsection L of
this Article 12 or a permitted transfer of the nature described in subsection K
of this Article 12), then this Lease shall end and expire on the date that such
assignment or sublet was to be effective or commence, as the case may be, and
the Rent and additional rent due hereunder shall be paid and apportioned to such
date. Furthermore, if Landlord exercises its option to terminate this Lease in
part in any case where Tenant desires to sublet part of the Premises, then (i)
this Lease shall end and expire with respect to such part of the Premises on the
date that the proposed sublease was to commence; (ii) from and after such date
the Rent, Tenant's Proportionate Share, Labor Rate Factor and additional rent
due hereunder shall be adjusted, based upon the proportion that the rentable
area of the Premises remaining bears to the total rentable area of the Premises;
(iii) from and after such date Tenant shall afford Landlord and its agents,
tenants, undertenants, or licensees reasonable appropriate means of ingress and
egress to and from such surrendered space; and (iv) Tenant shall pay to
Landlord, upon demand, the costs incurred by Landlord in physically separating
such part of the Premises from the balance of the Premises and in complying with
any legal or insurance requirements relating to such separation, and the
repairing and restoration to tenantable condition of any part of the remainder
of the Premises which is physically affected by such separation, if Landlord
exercises its option to terminate this Lease in whole or in part pursuant to
subsection C of this Article 12. Landlord shall be free to and shall have no
liability to Tenant if Landlord should lease the Premises (or any part thereof)
to Tenant's prospective assignee or subtenant; provided, however, that if
Landlord should lease the Premises or any part thereof) to the Tenant's
prospective assignee or subtenant, then Landlord shall pay any brokerage fee
incurred in connection therewith.
E. Intentionally Deleted.
F. Effect of Termination. Tenant shall complete, swear to and file any
questionnaires, tax returns, affidavits or other documentation which may be
required to be filed with the appropriate governmental agency in connection with
any other tax which may now or hereafter be in effect. Tenant further agrees to
pay any amounts which may be assessed in connection with any of such taxes and
to indemnify Landlord against and to hold Landlord harmless from any claims for
payment of such taxes as a result of such transactions.
G. Conditions for Landlord's Approval. In the event Landlord does not
exercise either of the options provided to it pursuant to subsection C of this
Article 12 and provided that Tenant is not in default of any of Tenant's
monetary or other material non-monetary obligations
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under this Lease as of the time of Landlord's consent, and as of the effective
date of the proposed assignment or commencement date of the proposed sublease,
Landlord's consent (which must be in writing and form reasonably satisfactory to
Landlord) to the proposed assignment or sublease shall not be unreasonably
withheld, conditioned or delayed, provided and upon condition that:
(i) Tenant shall have complied with the provisions of subsection B of
this Article 12 and Landlord shall not have exercised any of its options under
subsection C of this Article 12 within the time permitted therefor;
(ii) In Landlord's reasonable judgment the proposed assignee or
subtenant is engaged in a business or activity, and the Premises, or the
relevant part thereof, will be used in a manner, which (a) is in keeping with
the then standards of the Building, (b) is limited to the use of the Premises
for the Permitted Uses, and (c) will not violate any negative covenant as to use
contained in any other lease of office space in the Building of which Landlord
shall notify Tenant;
(iii) The proposed assignee or subtenant is a reputable party of good
business character and with sufficient financial worth considering the
responsibility involved, and Landlord has been furnished with reasonable proof
thereof;
(iv) Neither (a) the proposed assignee or subtenant nor (b) any
person which, directly or indirectly, controls, is controlled by or is under
common control with, the proposed assignee or subtenant, is then an occupant of
any part of the Building, if Landlord has any comparably sized space available
or becoming available for lease in the Building within six (6) months following
Landlord's receipt of notice of the proposed assignment or sublease;
(v) The proposed assignee or subtenant is not a person with whom
Landlord is or has been, within the preceding six (6) month period, negotiating
to lease comparably sized space in the Building if Landlord has any space
available or becoming available for lease in the Building;
(vi) The form of the proposed sublease or instrument of assignment
(a) shall be in form reasonably satisfactory to Landlord, and (b) shall comply
with the applicable provisions of this Article 12;
(vii) Any proposed subletting shall not result in there being more
than two (2) occupants (including Tenant) on the floor that is subject to such
sublease;
(viii) The rental and other terms and conditions of the sublease are
the same as those contained in the proposed sublease furnished to Landlord
pursuant to subsection B of this Article 12;
(ix) Within ten (10) business days of a xxxx thereof or, Tenant shall
reimburse Landlord for the reasonable out-of-pocket costs that are actually
incurred by Landlord in connection with said assignment or sublease (excluding
any permitted sublease or assignment to a related corporation), including
without limitation, the costs of making investigations as to the acceptability
of the proposed assignee or subtenant, and reasonable legal costs incurred by
Landlord in connection with the granting of any requested consent;
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(x) No flyer or other advertisement pertaining to the availability of
the Premises for subletting or assignment shall contain the proposed rental
thereof;
(xi) The proposed occupancy shall not, in Landlord's reasonable
opinion, materially increase the Building's operating or other expenses or
impose an extra burden upon services to be supplied by Landlord to Tenant;
(xii) The proposed assignee or subtenant or its business shall not be
subject to compliance with additional requirements of law (including related
regulations) beyond those requirements which are applicable to the named Tenant
herein which would impose an additional burden or monetary obligation on
Landlord;
(xiii) The proposed subtenant or assignee shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity and shall be subject
to the service of process in, and the jurisdiction of the courts of New York
State; and
(xiv) Any sublease shall not be for a sublet space of less than
10,000 rentable square feet.
If Landlord shall decline to give its consent to any proposed assignment
or sublease, or if Landlord shall exercise either of its options under
subsection C of this Article 12, Tenant shall indemnify, defend and hold
harmless Landlord against and from any and all loss, liability, damages, costs,
and expenses (including reasonable counsel fees) resulting from any claims that
may be made against Landlord by the proposed assignee or subtenant or by any
brokers or other persons claiming a commission or similar compensation in
connection with the proposed assignment or sublease. Landlord will respond to
Tenant's request for Landlord's consent to a proposed assignment or subletting
within ten (10) business days of Tenant's written request therefor accompanied
by all supporting documentation required hereunder. In the event Landlord fails
to respond to Tenant's request for consent of the proposed transfer within such
ten (10) business day period, Tenant may send a second (2nd) written request
stating in bold type that "LANDLORD'S FAILURE TO RESPOND TO TENANT'S REQUEST FOR
LANDLORD'S CONSENT TO THE PROPOSED TRANSFER WITHIN FIVE (5) BUSINESS DAYS OF
THIS SECOND (2nd) REQUEST SHALL BE DEEMED LANDLORD'S CONSENT TO SUCH PROPOSED
TRANSFER." A copy of such second (2nd) notice must be simultaneously sent to
Landlord's counsel (or such other parties as Landlord may from time to time
designate) in accordance with the notice provisions of Article 27 of this Lease
in order for the same to be deemed effective. The failure of Landlord to respond
to Tenant's second (2nd), request within such five (5) business days shall be
deemed to be Landlord's consent to such assignment or subletting.
H. Future Requests. In the event that (i) Landlord fails to exercise
either of its options under subsection C of this Article 12 and consents to a
proposed assignment or sublease, and (ii) Tenant fails to execute and deliver
the assignment or sublease to which Landlord consented within ninety (90) days
after the giving of such consent, then, Tenant shall again comply with all of
the provisions and conditions of subsection B of this Article 12 before
assigning this Lease or subletting all or part of the Premises.
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I. Sublease Provisions. With respect to each and every sublease or
subletting authorized by Landlord under the provisions of this Lease, it is
further agreed that:
(i) No subletting shall be for a term ending later than one (1) day
prior to the -Expiration Date of this Lease;
(ii) No sublease shall be delivered, and no subtenant shall take
possession of the Premises or any part thereof, until an executed counterpart of
such sublease has been delivered to Landlord;
(iii) Each sublease shall provide that it is subject and subordinate
to this Lease and to the matters to which this Lease is or shall be subordinate,
and that in the event of termination, re-entry or dispossession by Landlord
under this Lease Landlord may, at its option, take over all of the right, title
and interest of Tenant, as sublessor, under such sublease, and such subtenant
shall, at Landlord's option, attorn to Landlord pursuant to the then executory
provisions of such sublease, except that Landlord shall not (a) be liable for
any previous act or omission of Tenant under such sublease, (b) be subject to
any counterclaim, offset or defense, not expressly provided in such sublease,
which theretofore accrued to such subtenant against Tenant, or (c) be bound by
any previous modification of such sublease or by any previous prepayment of more
than one (1) month's Rent. The provisions of this Article 12 shall be
self-operative and no further instrument shall be required to give effect to
this provision;
(iv) If any laws, orders, rules or regulations of any applicable
governmental authority require that any Hazardous Substances, including, without
limitation, asbestos, contained in or about the Premises to be sublet (the
"Sublet Space") be dealt with in any particular manner in connection with any
alteration of the Sublet Space, then it shall be the subtenant's obligation, at
the subtenant's expense, to deal with such Hazardous Substances in accordance
with all such laws, orders, rules and regulations (unless Landlord elects to
deal with such Hazardous Substances itself, in which event, the subtenant shall
reimburse Landlord for all of Landlord's costs and expenses in connection
therewith within ten (10) days next following the rendition of a statement
therefor); and
(v) Except for any subletting by Tenant to Landlord or its designee
pursuant to the provisions of this Article 12, each subletting pursuant to this
Article 12 shall be subject to all of the covenants, agreements, terms,
provisions and conditions contained in this Lease. Notwithstanding any such
subletting to Landlord or any such subletting to any other subtenant and/or
acceptance of Rent or additional rent by Landlord from any subtenant. Tenant
shall and will remain fully liable for the payment of the Rent and additional
rent due and to become due hereunder and for the performance of all the
covenants, agreements, terms, provisions and conditions contained in this Lease
on the part of Tenant to be performed and all acts and omissions of any licensee
or subtenant or anyone claiming under or through any subtenant which shall be in
violation of any of the obligations of this Lease shall be deemed to be a
violation by Tenant. Tenant further agrees that notwithstanding any such
subletting, no other and further subletting of the Premises by Tenant or any
person claiming through or under Tenant shall or will be made except upon
compliance with and subject to the provisions of this Article 12.
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J. Profits from Assignment or Subletting. If Landlord shall give its
consent to any assignment of this Lease or to any sublease or if Tenant shall
enter into any other assignment or sublease permitted hereunder, Tenant shall in
consideration therefor, pay to Landlord, as additional rent:
(i) In the case of an assignment, an amount equal to seventy-five
(75%) 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
thereof, the then fair market value thereof, as reasonably determined by
Landlord) less all customary expenses reasonably and actually incurred by Tenant
on account of brokerage commissions, legal expenses, tenant improvement
allowances, rent credits and advertising costs in connection with such
assignment, provided that Tenant shall submit to Landlord a receipt evidencing
the payment of such expenses (or other proof of payment as Landlord shall
reasonably require); and
(ii) In the case of a sublease seventy-five (75%) percent of any
rents, additional charges or other consideration payable under the sublease on a
per square foot basis to Tenant by the subtenant which is in excess of the 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 thereof, the
then fair market value thereof, as reasonably determined by Landlord), less all
customary expenses reasonably and actually incurred by Tenant on account of
brokerage commissions, legal expenses, tenant improvement allowances, rent
credits, advertising costs and the cost of demising the premises so sublet in
connection with such sublease, provided that Tenant shall submit to Landlord a
receipt evidencing the payment of such expenses or other proof of payment as
Landlord shall reasonably require). The sums paid under this subsection J (ii)
of this Article 12 shall be paid to Landlord as and when payable by the
subtenant to Tenant.
K. Other Transfers. (i) If Tenant is a corporation other than a
corporation whose stock is listed and traded on a nationally or internationally
recognized stock exchange (hereinafter referred to as a "public corporation"),
the provisions of subsection A of this Article 12 shall apply to a transfer (by
one or more transfers) of a majority of the stock of Tenant as if such transfer
of a majority of the stock of Tenant were an assignment of this Lease; but said
provisions shall not apply to transactions with a corporation into or with which
Tenant is merged or consolidated or to which substantially all of Tenant's
assets are transferred or to which stock of Tenant is transferred, provided that
such merger, consolidation or transfer of assets or stock is for a valid
business purpose and not principally for the purpose of transferring the
leasehold estate created hereby, and provided further, that in any of such
events (a) the successor to Tenant has a net worth computed in accordance with
generally accepted accounting principles at least equal to the tangible net
worth of Tenant immediately prior to such merger, consolidation or transfer, (b)
proof satisfactory to Landlord of such tangible net worth shall have been
delivered to Landlord at least ten (10) days prior to the effective date of any
such transaction and (c) the use of the Premises for the Permitted Use shall
remain unchanged following any such merger, consolidation or transfer of assets.
For the purposes of this Lease, the term "tangible net worth"
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shall be deemed to mean an entity's equity, as reported in such entity's annual
financial statements (prepared in accordance with generally accepted accounting
principles and audited by a "Big Five" accounting firm or other independent
accounting firm reasonably acceptable to Landlord), less the intangible assets
of such entity, including but not limited to, copyrights, trademarks, trade
names, licenses, patents, franchises, goodwill, operating rights and deferred
financing costs.
(ii) If Tenant is a partnership, the provisions of subsection A of
this Article 12 shall apply to a transfer (by one or more transfers) of a
majority interest in the partnership, as if such transfer were an assignment of
this Lease.
(iii) If Tenant is a subdivision, authority, body, agency,
instrumentality or other entity created and/or controlled pursuant to the laws
of the State of New York or any city, town or village of such state or of
federal government ("Governmental Entity"), the provisions of subsection A of
this Article 12 shall apply to a transfer (by one or more transfers) of any of
Tenant's rights to use and occupy the Premises, to any other Governmental
Entity, as if such transfer of the right of use and occupancy were an assignment
of this Lease, but said provisions shall not apply to a transfer of any of
Tenant's rights in and to the Premises to any Governmental Entity which shall
replace or succeed to substantially similar public functions, responsibilities
and areas of authority as Tenant, provided that in any of such events the
successor Governmental Entity (a) shall utilize the Premises in a manner
substantially similar to Tenant, and (b) shall not utilize the Premises in any
manner which, in Landlord's judgment, would impair the reputation of the
Building as a first-class office building.
(iv) If Tenant is a sole proprietorship, the provisions of subsection
A of this Article 12 shall apply to any assignment of the business of such sole
proprietorship.
L. Related Corporation. Notwithstanding anything to the contrary
contained herein. Tenant may, without Landlord's consent, but upon not less than
ten (10) business days prior notice to Landlord and submission to Landlord of
any information reasonably requested by Landlord with respect to any related
corporation (as hereinafter defined), permit any corporations or other business
entities (but not including Governmental Entities) which control, are controlled
by, or are under common control with Tenant (herein referred to as "related
corporation") to sublet or occupy all or part of the Premises or to take an
assignment of this Lease for any of the purposes permitted to Tenant, subject
however to compliance with Tenant's obligations under this Lease. Such
subletting shall not be deemed to vest in any such related corporation any right
or interest in this Lease or the Premises nor shall it relieve, release, impair
or discharge any of Tenant's obligations hereunder. For the purposes hereof,
"control" shall be deemed to mean ownership of not less than fifty (50%) percent
of all of the voting stock or other equity interest of such corporation or not
less than fifty (50%) percent of all of the legal and equitable interest in any
other business entities (provided however, with respect to any sublettings or
occupancies of not more than 35,000 of the rentable square feet of the Premises
in the aggregate to any related corporation(s) which are principally engaged in
the business of providing financial services, for the purposes of this
subsection L only, "control" shall be deemed to mean ownership of not less than
twenty-five (25%) percent of all of the voting stock of any such entity or not
less than twenty-five (25%) percent of all of the legal and equitable interest
in any other business entities.
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M. Assumption by Assignee. Any assignment or transfer, whether made with
Landlord's consent pursuant to subsection A of this Article 12 or without
Landlord's consent pursuant to subsection K of this Article 12, 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 of this Lease from and after the effective date of such assignment
and agree to be bound by all of the terms, conditions, covenants and provisions
hereof on the part of Tenant to be performed or observed and whereby the
assignee shall agree that the provisions in subsection A of this Article 12
shall, notwithstanding such assignment or transfer, continue to be binding upon
it in respect of all future assignments and transfers. The original named Tenant
covenants that, notwithstanding any assignment or transfer, whether or not in
violation of the provisions of this Lease, and notwithstanding the acceptance of
Rent and/or additional rent by Landlord from an assignee, transferee or any
other party, the original named Tenant shall remain fully liable for the payment
of the Rent and additional rent and for the other obligations of this Lease on
the part of Tenant to be performed or observed.
N. Liability of Tenant. The joint and several liability of Tenant and
any immediate or remote successor in interest of Tenant and the due performance
of the obligations of this Lease on Tenant's part to be performed or observed
shall not be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord extending the time, or modifying any of the
obligations, of this Lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this Lease, provided Tenant's liability hereunder
shall not be increased by reason thereof.
O. Listings. The listing of any name other than that of Tenant, whether
on the doors of the Premises or the Building directory, or otherwise, shall not
operate to vest any right or interest in this Lease or in the Premises, nor
shall it be deemed to be the consent of Landlord to any assignment or transfer
of this Lease or to any sublease of the Premises or to the use or occupancy
thereof by others. Any such listing shall constitute a privilege extended by
Landlord, revocable at Landlords will by notice to Tenant.
P. Re-entry by Landlord. If Landlord shall recover or come into
possession of the Premises before the date herein fixed for the termination of
this Lease as a result of a default by Tenant under this Lease or a surrender of
the Premises by mutual agreement. Landlord shall have the right, at its option,
to take over Tenant's interest as sublessor in any and all subleases or
sublettings of the Premises or any part thereof made by Tenant and to succeed to
all the rights of said subleases and sublettings or such of them as it may elect
to take over. Tenant hereby expressly assigns and transfers to Landlord such of
Tenant's interest as sublessor in the subleases and sublettings as Landlord may
elect to take over at the time of such recovery of possession, such assignment
and transfer not to be effective until the termination of this Lease or re-entry
by Landlord hereunder or if Landlord shall otherwise succeed to Tenant's estate
in the Premises, at which time Tenant shall upon request of Landlord, execute,
acknowledge and deliver to Landlord such further instruments of assignment and
transfer as may be necessary to vest in Landlord the then existing subleases and
subletting. Every subletting hereunder is subject to the condition and by its
acceptance of and entry into a sublease, each subtenant thereunder shall be
deemed conclusively to have thereby agreed from and after the termination of
this Lease or re-entry by Landlord hereunder of or if Landlord shall otherwise
succeed to Tenant's estate in the
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Premises, that such subtenant shall waive any right to surrender possession or
to terminate the sublease and, at Landlord's election, such subtenant shall be
bound to Landlord for the balance of the term of such sublease and shall attorn
to and recognize Landlord, as its landlord, under all of the then executory
terms of such sublease, except that Landlord shall not (i) be liable for any
previous act, omission or negligence of Tenant under such sublease, (ii) be
subject to any counterclaim, defense or offset not expressly provided for in
such sublease, which theretofore accrued to such subtenant against Tenant, (iii)
be bound by any previous modification or amendment of such sublease or by any
previous prepayment of more than one (1) month's rent and additional rent which
shall be payable as provided in the sublease, (iv) be obligated to repair the
subleased space or the Building or any part thereof, in the event of total or
substantial total damage beyond such repair as can reasonably be accomplished
from the net proceeds of insurance actually made available to Landlord, (v) be
obligated to repair the subleased space or the Building or any part thereof, in
the event of partial condemnation beyond such repair as can reasonably be
accomplished from the net proceeds of any award actually made available to
Landlord as consequential damages allocable to the part of the subleased space
or the Building not taken or (vi) be obligated to perform any work in the
subleased space of the Building or to prepare them for occupancy beyond
Landlord's obligations under this Lease, and the subtenant shall execute and
deliver to Landlord any instruments Landlord may reasonably request to evidence
and confirm such attornment. Each subtenant or licensee of Tenant shall be
deemed automatically upon and as a condition of occupying or using the Premises
or any part thereof, to have given a waiver of the type described in and to the
extent and upon the conditions set forth in this Article 12.
13. CONDITION OF THE PREMISES.
A. Acceptance by Tenant. Tenant has examined the Premises and agrees to
accept possession of the Premises in the condition and state of repair which
shall exist on the date hereof "as is", and further agrees that Landlord shall
have no obligation to perform any work or make any installations in order to
prepare the Premises for Tenant's occupancy (provided that Landlord agrees to
deliver possession of the Eleventh Floor vacant, except for the "FF&E" (as
hereinafter defined) being purchased by Tenant from the existing tenant
therein). The taking of possession of the Premises by Tenant shall be conclusive
evidence as against Tenant that, at the time such possession was so taken, the
Premises and the Building were in good and satisfactory condition.
B. Tenant's Initial Alteration. Tenant agrees, at its sole cost and
expense, to perform, or to cause contractors approved by Landlord to perform,
Alterations to the Tenth Floor Space as more particularly described in Schedule
B annexed hereto, in accordance with the terms, conditions and provisions
thereof, and in accordance with all other terms, conditions and provisions
contained in this Lease, including, without limitation. Schedules C and D
annexed hereto. All of the terms, covenants and conditions of Schedules C and D
are incorporated in this Lease as if fully set forth at length herein.
14. ACCESS TO PREMISES.
A. Access by Landlord. Tenant shall permit Landlord, Landlord's agents
and public utilities servicing the Building to erect, use, maintain and replace,
concealed ducts, pipes and
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conduits in and through the Premises. To the extent reasonably practicable, any
pipes, ducts or conduits installed in or through the Premises pursuant to this
Article 14 shall be concealed behind, beneath or within partitioning, columns,
ceilings or floors located or to be located in the Premises. Landlord,
Landlord's agents and/or affiliates, and the holder of any Mortgage shall each
have the right to enter the Premises at all reasonable times upon reasonable
prior notice (other than in event of an emergency), which notice may be oral or
by telephone and accompanied by a representative of Tenant at Tenant's request,
to (i) examine the same, (ii) to show them to prospective purchasers, mortgagees
or lessees of the Building or space therein, (iii) to make such repairs,
replacements, alterations, improvements or additions as Landlord may deem
necessary to the Premises or to make such decorations, repairs, replacements,
alterations, improvements or additions as Landlord may deem necessary or
desirable to any other portion of the Building or which Landlord may elect to
perform following Tenant's failure to make repairs or perform any work which
Tenant is obligated to perform under this Lease, (iv) for the purpose of
complying with laws, regulations or other requirements of government authorities
and (vi) to perform "Remedial Work" (as defined in Article 40 hereof) after the
failure of Tenant to perform the same in accordance with the terms of this
Lease. Landlord shall be allowed, during the progress of any work in and about
the Premises, to take all necessary material and equipment into and upon the
Premises and to temporarily store them within the Premises without the same
constituting an eviction or constructive eviction of Tenant in whole or in part
and the Rent shall in no wise xxxxx while any decorations, repairs,
replacements, alterations, improvements or additions are being made, by reason
of loss or interruption of business of Tenant, or otherwise. Except in the event
of an emergency or where such entry is required by law, Landlord's right of
entry shall be exercised following reasonable advance notice to Tenant, which
notice may be telephonic. Landlord agrees that while exercising such right of
entry or making such repairs, replacements or improvements, other than repairs,
replacements or improvements performed by Landlord as a result of a default by
Tenant in the observance or performance of its obligations hereunder, Landlord
shall use reasonable efforts to avoid interfering with Tenant's business or
disrupting the same, provided that Landlord shall in no event be obligated to
employ labor at overtime or premium rates. During the one (1) year prior to the
Expiration Date or the expiration of any renewal or extended term, Landlord may
exhibit the Premises to prospective tenants thereof at all reasonable times on
business days (or at other times with Tenant's prior consent, which consent
shall not be unreasonably withheld, delayed or conditioned), which entry shall
be done in a manner intended to avoid unreasonable interference with Tenant's
business operations. If, during the last month of the Term, Tenant shall have
removed all or substantially all of Tenant's property therefrom, Landlord may
immediately enter and alter, renovate and redecorate the Premises, without
elimination or abatement of Rent, or incurring liability to Tenant for any
compensation, and such acts shall not be deemed an actual or constructive
eviction and shall have no effect upon this Lease. If Tenant shall not be
personally present to open and permit an entry into the Premises, at any time,
when for any reason an entry therein shall be permissible, Landlord or
Landlord's agents may enter the same by a master key, or in an emergency only
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. Nothing herein contained, however,
shall be deemed or construed to impose upon Landlord any obligation,
responsibility or liability whatsoever, for the care, supervision or repair of
the Building or any part thereof, other than as herein provided. Any entry upon
the Premises by Landlord or its
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agents pursuant to this Article 14 shall be effected in a manner intended to
minimize interference with the conduct of Tenant's business in the Premises
(without any requirement that Landlord utilize overtime or premium-pay labor
unless Tenant pays for such overtime or premium-pay costs in advance).
B. Other Landlord Privileges. Landlord shall have the right at any time,
without the same constituting an actual or constructive eviction and without
incurring any liability to Tenant therefor, to change the arrangement and/or
location of entrances or passageways, doors and doorways, corridors, elevators,
stairs, toilets or other public parts of the Building and to change the name,
number or designation by which the Building is commonly known. Except as
otherwise set forth herein, including, without limitation, the provisions of
Article 4 and Schedule E hereof, Tenant acknowledges that Landlord may (but
shall have no obligation to) perform repairs, maintenance, improvements,
alterations and/or substantial renovation work in and to the public parts of the
Building and the mechanical and other systems serving the Building (which work
may include repairs, maintenance, improvements and/or alterations to the lobby
and facade of the Building, which may require that scaffolding and/or a sidewalk
bridge be placed in front of the Building, and the replacement of the building
exterior facade and window glass, requiring access to the same from within the
Premises). Except as otherwise expressly set forth herein, including, without
limitation, the provisions of Article 10 and 29(i) hereof, Landlord shall incur
no liability to Tenant, nor shall Tenant be entitled to any abatement of Rent on
account of any noise, vibration or other disturbance to Tenant's business at the
Premises (provided that Tenant is not denied access thereto) which shall arise
out of the performance by Landlord or other tenants of the aforesaid repairs,
maintenance, alterations, additions, improvements, alterations and renovations
of the Building or any part thereof and Tenant hereby agrees to release Landlord
of and from any claims (including without limitation, claims arising by reason
of loss or interruption of business) of every kind and nature whatsoever arising
under or in connection therewith. Tenant understands and agrees that all parts
(except surfaces facing the interior of the Premises) of all walls, windows and
doors bounding the Premises (including exterior Building walls, core corridor
walls, doors and entrances), all balconies, terraces and roofs adjacent to the
Premises, all space in or adjacent to the Premises used for shafts, stacks,
stairways, chutes, pipes, conduits, ducts, fan rooms, heating, air-conditioning,
plumbing and other mechanical facilities, service closets and other Building
facilities are not part of the Premises, and Landlord shall have the use
thereof, as well as access thereto through the Premises for the purposes of
operation, maintenance, alteration and repair. Landlord, throughout the Term,
shall have free access to any and all mechanical installations of Landlord,
including but not limited to air-conditioning, fan, ventilating, machine rooms
and electrical closets.
15. CERTIFICATE OF OCCUPANCY. Tenant shall not at any time use or occupy the
Premises in violation of the certificate of occupancy (if any) issued for the
Premises or for the Building and in the event that any department of the City or
State of New York shall hereafter at any time contend and/or declare by notice,
violation, order or in any other manner whatsoever that the Premises are used
for a purpose which is a violation of such certificate of occupancy whether or
not such use shall be a Permitted Use, Tenant shall, upon five (5) days written
notice from Landlord, immediately discontinue such use of the Premises. Failure
by Tenant to discontinue such use after such notice shall be considered a
default in the fulfillment of a covenant of this Lease and Landlord shall have
the right to terminate this Lease immediately, and in addition thereto shall
have the right to exercise any and all rights and privileges and remedies
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given to Landlord by and pursuant to the provisions of Articles 17 and 18
hereof. Landlord hereby represents to Tenant that as of the date hereof, there
is no certificate of occupancy issued for the Premises or for the Building by
The City or State of New York. Landlord hereby represents to Tenant that, as of
the date hereof, Tenant may lawfully use and occupy the Premises for office use;
provided however, in the event the foregoing representation is inaccurate and
any governmental agency having jurisdiction over the Premises or the Building
requires Tenant to cease using the Premises for office use, Tenant may, as its
sole and exclusive remedy, vacate the Premises in the condition required
hereunder and, upon five (5) business days notice to Landlord, terminate this
Lease and the term and the estate hereby granted, whereupon this Lease shall be
deemed null and void and of no further force or effect and the parties hereto
shall have no further rights or obligations hereunder, except those which
expressly survive the Term hereof.
16. LANDLORD'S LIABILITY. The obligations of Landlord under this Lease shall
not be binding upon Landlord named herein after the sale, conveyance, assignment
or transfer by such Landlord (or upon any subsequent landlord after the sale,
conveyance, assignment or transfer by such subsequent landlord) of its interest
in the Building or the Real Property, as the case may be, in respect of the
period thereafter occurring and in the event of any such sale, conveyance,
assignment or transfer, Landlord shall be and hereby is entirely freed and
relieved of all covenants and obligations of Landlord hereunder thereafter to be
performed, and it shall be deemed and construed without further agreement
between the parties or their successors in interest, or between the parties and
the purchaser, grantee, assignee or other transferee that such purchaser,
grantee, assignee or other transferee has assumed and agreed to carry out any
and all covenants and obligations of Landlord hereunder. Neither the
shareholders, members, directors or officers of Landlord, if Landlord is a
corporation, nor the partners comprising Landlord (nor any of the shareholders,
members, directors or officers of such partners), if Landlord is a partnership
(collectively, the "Parties"), shall be liable for the performance of Landlord's
obligations under this Lease. Tenant shall look solely to Landlord to enforce
Landlord's obligations hereunder and shall not seek any damages against any of
the Parties. The liability of Landlord for Landlord's obligations under this
Lease shall not exceed and shall be limited to Landlord's interest in the
Building and the Real Property and Tenant shall not look to or attach any other
property or assets of Landlord or the property or assets of any of the Parties
in seeking either to enforce Landlord's obligations under this Lease or to
satisfy a judgment for Landlords failure to perform such obligations. In no
event shall Landlord (or any of the officers, trustees, directors, partners,
beneficiaries, joint ventures, members, stockholders or other principals or
representatives and the like, disclosed or undisclosed, thereof) ever be liable
for incidental or consequential damages.
17. DEFAULT.
A. Events of Default. Upon the occurrence of any one or more of the
following events (referred to as "Events of Default") at anytime prior to or
during the Term:
(i) if Tenant shall default in the payment when due of any
installment of Rent or in the payment when due of any additional rent, and such
default shall continue for a period of seven (7) business days after notice by
Landlord to Tenant of such default; or
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(ii) if Tenant shall default in the observance or performance of any
term, covenant or condition of this Lease on Tenant's part to be observed or
performed (other than the covenants for the payment of Rent and additional rent)
and Tenant shall fail to remedy such default within thirty (30) days after
notice by Landlord to Tenant of such default, or if such default is of such a
nature that it cannot be completely remedied within said period of thirty (30)
days and Tenant shall not commence within said period of thirty (30) days, or
shall not thereafter diligently prosecute to completion all steps necessary to
remedy such default; or
(iii) if Tenant shall default in the observance or performance of any
term, covenant or condition on Tenant's part to be observed or performed under
any other lease with Landlord of space in the Building and such default shall
continue beyond any grace period set forth in such other lease for the remedying
of such default; or
(iv) if the Premises shall become abandoned or if Tenant shall fail
to take possession of the Premises within one hundred eighty (180) days after
the Commencement Date; or
(v) if Tenant's interest in this Lease shall devolve upon or pass to
any person, whether by operation of law or otherwise, except as may be expressly
permitted under Article 12 hereof; or
(vi) if Tenant shall commence any action in any court for a
liquidation, dissolution or similar relief under the present or any future
statute or law other than the Bankruptcy Code (as hereinafter defined) or a
successor bankruptcy statute of like import; or
(vii) if Tenant makes an assignment for the benefit of creditors;
than Landlord, at any time thereafter, at Landlord's option, may give to Tenant
a five (5) days notice of termination of this Lease and, in the event such
notice is given, this Lease and the Term shall come to an end and expire
(whether or not the Term shall have commenced) upon the expiration of said five
(5) days with the same effect as if the date of expiration of said five (5) days
were the Expiration Date, but Tenant shall remain liable for damages as provided
in Article 18 hereof.
B. Bankruptcy.
(i) For purposes of this Article 17; (a) "trustee" means Tenant, or
Tenant as debtor-in-possession, or the trustee for Tenant, as the case may be;
and (b) "adequate assurance" means sufficient unencumbered assets after the
payment of all secured obligations and administrative expenses to assure
Landlord that, for the balance of the Term of this Lease, Tenant's obligations
under this Lease shall be observed, performed and fulfilled.
(ii) In the event Tenant shall become a debtor under Chapter 7 of the
federal Bankruptcy Code, as the same may be amended or under any successor
statute thereto (the "Bankruptcy Code"), and the trustee shall elect to assume
this Lease for the balance of the Term hereof or for the purpose of assignment,
such election and assignment may only be made if all of the terms and conditions
of clause (iv) of this subsection B of this Article 17 are satisfied. If the
Chapter 7 trustee fails to elect to assume this Lease within sixty (60) days
after the filing of the petition, this Lease shall be deemed to have been
rejected and canceled, and Landlord shall
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thereupon be immediately entitled to possession of the Premises without further
obligation to the trustee.
(iii) If a petition for reorganization or adjustment of debts is
filed by or concerning Tenant under Chapter 11 or 13 of the Bankruptcy Code, or
a proceeding is filed under Chapter 7 of the Bankruptcy Code and is converted to
Chapter 11 or 13, the trustee shall be required to elect to assume this Lease
within seventy-five (75) days from the date of the filing of the petition under
Chapter 11 or 1 3, or the trustee shall be deemed to have rejected this Lease,
the Lease shall be deemed canceled, and Landlord shall thereupon be immediately
entitled to possession of the Premises without further obligation to the
trustee.
(iv) Whether under Chapter 7, 11 or 13 of the Bankruptcy Code, no
election to assume this Lease by the trustee shall be effective unless each of
the following conditions have been satisfied:
(a) The trustee, if it is assuming this Lease for the balance of the
Term hereof, or the assignee of this Lease after assumption, as the case may be,
has submitted a current financial statement audited by an independent certified
public accountant demonstrating a net worth and working capital in amounts
reasonably sufficient to provide adequate assurance;
(b) The trustee, if it is assuming this Lease for the balance of the
Term hereof, or the assignee of this Lease after assumption, as the case may be,
has delivered to Landlord guarantees of payment in form and substance reasonably
satisfactory to Landlord from one or more persons who satisfy Landlord's
standards of creditworthiness;
(c) All pre-petition Rent, additional rent and other charges which
are then due and payable have been paid;
(d) All administrative rent has been paid;
(e) The trustee, if it assuming this Lease for the balance of the
Term hereof, or the assignee of this Lease after assumption, as the case may be,
covenants in writing to cure all non-monetary Events of Default within thirty
(30) days after assumption (or if any such Event Default is not susceptible to
cure within such thirty (30) day period, the trustee or the assignee covenants
in writing to commence such cure within such thirty (30) day period and to
thereafter prosecute to completion all steps necessary to remedy the default);
and
(f) An amount equal to the sum of three (3) months Rent then payable
hereunder has been deposited with Landlord as an additional security deposit, to
be held pursuant to Article 32 hereof.
(v) During the pendency of a bankruptcy case, in no event shall the
amount required to be paid for administrative rent or use and occupancy be an
amount less than the sum required to be paid pursuant to the provisions of this
Lease for Rent, additional rent and all other charges.
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(vi) Nothing set forth in this Article 17 shall either be considered or
construed to limit the amount of damages recoverable by Landlord from the
trustee under the Bankruptcy Code.
(vii) If, at any time, (a) Tenant shall be comprised of two (2) or more
persons, or (b) Tenant's obligations under this Lease shall have been guaranteed
by any person other then Tenant, or (c) Tenant's interest in this Lease shall
have been assigned, the word "Tenant", as used in this subsection B, shall be
deemed to mean any one or more of the persons primarily or secondarily liable
for Tenant's obligations under this Lease.
C. Conditional Limitation. Nothing contained in this Article 17 shall be
deemed to require Landlord to give the notices herein provided for prior to the
commencement of a summary proceeding for non-payment of rent or a plenary action
for recovery of rent on account of any default in the payment of the same, it
being intended that such notices are for the sole purpose of creating a
conditional limitation hereunder pursuant to which this Lease shall terminate
and if Tenant thereafter remains in possession after such termination, Tenant
shall do so as a tenant holding over without the consent of Landlord.
18. REMEDIES AND DAMAGES.
A. Landlord's Remedies.
(i) Upon the termination of this Lease in the manner provided for in
Section A of Article 17 hereof, or upon the termination of this Lease for any
other reason whatsoever, then, in any of such events, in addition to all other
remedies provided for herein or available as a matter of law:
(a) Landlord and its agents and Servants may immediately, or at any
time after such default or after the date upon which this Lease and the Term
shall expire and come to an end, re-enter the Premises or any part thereof,
either (i) dispossess Tenant and any other persons from the Premises and remove
any and all of their property and effects from the Premises (without being
liable to indictment, prosecution or damages therefor) or (ii) by summary
proceedings or by any other applicable action or proceeding and dispossess
Tenant and any other persons from the Premises and remove any and all of their
property and effects from the Premises, and in all instances, take and retain
possession of the Premises as if this Lease had not been made. To the extent
permitted by law, Tenant hereby waives the service of any notice of intention to
re-enter or to institute legal proceedings for any reason whatsoever; and
(b) Landlord, At Landlord's option, may relet the whole or any part
or parts of the Premises from time to time, either in the name of Landlord or
otherwise, to such tenant or tenants, for such term or terms ending before, on
or after the Expiration Date, at such rental or rentals and upon such other
conditions, which may include concessions and free rent periods, as Landlord, in
its sole discretion, may determine. Landlord shall have no obligation to relet
the Premises or any part thereof and shall in no event be liable for refusal or
failure to relet the Premises or any part thereof, or, in the event of any such
reletting, for refusal or failure to collect any rent due upon any such
reletting, and no such refusal or failure shall operate to relieve Tenant of any
liability under this Lease or otherwise to affect any such liability; Landlord,
at
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Landlord's option, may make such repairs, replacements, alterations, additions,
improvements, decorations and other physical changes in and to the Premises as
Landlord, in its sole discretion, considers advisable or necessary in connection
with any such reletting or proposed reletting, without relieving Tenant of any
liability under this Lease or otherwise affecting any such liability.
(ii) Tenant, on its own behalf and on behalf of all persons claiming
through or under Tenant, including all creditors, does further hereby waive any
and all rights which Tenant and all such persons might otherwise have under any
present or future law to redeem the Premises, or to re-enter or repossess the
Premises, or to reinstate this Lease, after (a) Tenant shall have been
dispossessed by a judgment of possession or by warrant of eviction issued by any
court, or (b) any re-entry by Landlord, or (c) any expiration or termination of
this Lease and the Term, whether such dispossess, re-entry, expiration or
termination shall be by operation of law or pursuant to the provisions of this
Lease. The words "re-enter", "re-entry" and "re-entered" as used in this Lease
shall not be deemed to be restricted to their technical legal meanings. In the
event of a breach or threatened breach by Tenant, or any persons claiming
through or under Tenant, of any term, covenant or condition of this Lease on
Tenant's part to be observed or performed, Landlord shall have the right to
enjoin such breach and the right to invoke any other remedy allowed by law or in
equity as if re-entry, summary proceedings and other remedies were not provided
in this Lease for such breach. The right to invoke the remedies hereinbefore set
forth are cumulative and shall not preclude Landlord from invoking any other
remedy allowed at law or in equity.
B. Damages.
(i) If this Lease and the Term shall expire and come to an end for
any reason whatsoever, or if Landlord shall re-enter the Premises, then, in any
of said events:
(a) Tenant shall pay to Landlord all Rent, additional rent and other
charges payable under this Lease by Tenant to Landlord to the date upon which
this Lease and the Term shall have expired and come to an end or to the date of
re-entry upon the Premises by Landlord, as the case may be;
(b) Tenant also shall be liable for and shall pay to Landlord, as
damages, any deficiency (referred to as "Deficiency") between the Rent reserved
in this Lease for the period which otherwise would have constituted the
unexpired portion of the Term and the net amount, if any, of rents collected
under any reletting effected pursuant to the provisions of subsection A(i) of
this Article 18 for any part of such period (first deducting from the rents
collected under any such reletting all of Landlord's expenses in connection with
the termination of this Lease, or Landlord's re-entry upon the Premises and with
such reletting including, but not limited to, all repossession costs, brokerage
commissions, advertising, legal expenses, attorneys' fees and disbursements,
alteration costs and other expenses of preparing the Premises for such
reletting); any such Deficiency shall be paid in monthly installments by Tenant
on the days specified in this Lease for payment of installments of Rent,
Landlord shall be entitled to recover from Tenant each monthly Deficiency as the
same shall arise, and no suit to collect the amount of the Deficiency for any
month shall prejudice Landlord's right to collect the Deficiency for any
subsequent month by a similar proceeding; and
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(c) whether or not Landlord shall have collected any monthly
Deficiencies as aforesaid, Landlord shall be entitled to recover from Tenant,
and Tenant shall pay to Landlord, on demand, in lieu of any further Deficiencies
as and for liquidated and agreed final damages, a sum equal to the present value
discounted a rate of six (6%) percent per annum of the amount by which the Rent
reserved in this Lease for the period which otherwise would have constituted the
unexpired portion of the Term exceeds the then fair and reasonable rental value
of the Premises for the same period, less the aggregate amount of Deficiencies
theretofore collected by Landlord pursuant to the provisions of subsection
B(1)(b) of this Article 18 for the same period; if, before presentation of proof
of such liquidated damages to any court, commission or tribunal, the Premises,
or any part thereof, shall have been relet by Landlord for the period which
otherwise would have constituted the unexpired portion of the Term, or any part
thereof, the amount of rent reserved upon such reletting shall be deemed, prima
facie, to be the fair and reasonable rental value for the part or the whole of
the Premises so relet during the term of the reletting.
(ii) If the Premises, or any part thereof, shall be relet together
with other space in the Building, the rents collected or reserved under any such
reletting and the expenses of any such reletting shall be equitably apportioned
for the purposes of this subsection B. Tenant shall in no event be entitled to
any rents collected or payable under any reletting, whether or not such rents
shall exceed the Rent reserved in this Lease. Solely for the purposes of this
Article, the term "Rent" as used in subsection B(i) of this Article 18 shall
mean the Rent in effect immediately prior to the date upon which this Lease and
the Term shall have expired and come to an end, or the date of re-entry upon the
Premises by Landlord, as the case may be, adjusted to reflect any increase or
decrease pursuant to the provisions of Article 28 hereof for the Comparison Year
(as defined in said Article 28) immediately preceding such event. Nothing
contained in Article 17 or this Article 18 shall be deemed to limit or preclude
the recovery by Landlord from Tenant of the maximum amount allowed to be
obtained as damages by any statute or rule of law, or of any sums or damages to
which Landlord may be entitled in addition to the damages set forth in
subsection B(i) of this Article 18.
C. Legal Fees.
(i) Tenant hereby agrees to pay, as additional rent, all reasonable
attorneys' fees and disbursements land all other court Costs or expenses of
legal proceedings) which Landlord may incur or pay out by reason of, or in
connection with:
(a) any action or proceeding by Landlord to terminate this Lease;
(b) any default by Tenant in the observance or performance of any
obligation under this Lease (including, but not limited to, matters involving
payment of rent and additional rent, computation of escalations, alterations or
other Tenant's work and subletting or assignment), whether or not Landlord
commences any action or proceeding against Tenant (including, but not limited
to, any arbitration proceeding); and
(c) any action or proceeding brought by Tenant against Landlord for
any officer, partner or employee of Landlord) in which Tenant fails to secure a
final unappealable judgment against Landlord.
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(ii) Tenant's obligations under this subsection C of Article 18 shall
survive the expiration of the Term hereof or any earlier termination of this
Lease. This provision is intended to supplement (and not to limit) other
provisions of this Lease pertaining to indemnities and/or attorneys' fees.
D. Additional Landlord Remedies. Tenant hereby acknowledges and agrees
that in the event this Lease and the Term hereof shall expire and come to an end
for any reason, Tenant shall be liable for an amount equal to the sum of the
unamortized portion of any brokerage commissions or fees paid by Landlord in
connection with this Lease (amortized on a straight-line basis over the Term of
this Lease), which sum shall be immediately due and payable by Tenant on demand
by Landlord and deemed to be additional rent hereunder, unless such amount is
recovered by Landlord by operation of the other provisions of this Article 18.
19. FEES AND EXPENSES.
A. Curing Tenant's Defaults. If Tenant shall default in the observance
or performance of any term or covenant on Tenant's part to be observed or
performed under or by virtue of any of the terms or provisions in any Article of
this Lease, after the giving of notice (if required) and upon the expiration of
any applicable grace period (except in an emergency), Landlord may immediately
or at any time thereafter and without further notice perform the same for the
account of Tenant. If Landlord makes any expenditures or incurs any obligations
for the payment of money in connection with any such default by Tenant or the
cure thereof including, but not limited to, any damages or fines or any
reasonable attorneys' fees and disbursements in instituting, prosecuting or
defending any action or proceeding, such sums paid or obligations incurred with
interest and costs shall be deemed to be additional rent hereunder and shall be
paid by Tenant to Landlord within ten (10) days of rendition of any xxxx or
statement to Tenant therefor. If the Term hereof shall have expired at the time
Landlord sustains or incurs such expenditures, such sums shall be recoverable by
Landlord, as damages.
B. Late Charges. If Tenant shall fail to make payment of (i) any
installment of Rent or any additional rent or (ii) any other sum of money which
shall become due and payable by Tenant to Landlord pursuant to the terms of this
Lease within ten (10) days after the date when such payment or Installment Is
due, Tenant shall pay to Landlord, in addition to such installment of Rent or
additional rent or other sum, as the case may be, (x) a late payment charge of
Five Hundred and 00/100 ($500.00) Dollars and (y) interest on the amount overdue
at a rate of fifteen (15%) percent per annum (or, if less, the maximum rate
permitted by applicable law), of the amount unpaid computed from the date on
which such installment or payment is due to the date of payment thereof (but in
no event shall such interest be calculated and payable for less than a full
calendar month), and such late payment charge and interest shall be deemed to be
additional rent. Tenant acknowledges and agrees that, except as otherwise
expressly provided herein, if Tenant fails to dispute any item of additional
rent within ninety (90) days of receipt of a xxxx or notice therefor, Tenant
shall be deemed to have waived its right to dispute the same.
20. NO REPRESENTATIONS BY LANDLORD. Landlord or Landlord's agents have made
no representations or promises with respect to the Building, the Real Property,
the Premises, Taxes (as defined in Article 28 hereof) or any other matter or
thing affecting or related to the
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Premises, except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth herein.
21. END OF TERM.
A. Surrender of Premises. Upon the expiration or other termination of
the Term, Tenant shall quit and surrender to Landlord the Premises, broom clean,
in good order and condition, ordinary wear and tear and damage for which Tenant
is not responsible under the terms of this Lease excepted, and Tenant shall
remove all Alterations and property to the extent required pursuant to Article 3
hereof. Tenant's obligation to observe or perform this covenant shall survive
the expiration or sooner termination of the Term, if the last day of the Term or
any renewal thereof falls on Saturday or Sunday this Lease shall expire on the
business day immediately preceding.
B. Holdover by Tenant. The parties recognize and agree that the damage
to Landlord resulting from any failure by Tenant to timely surrender possession
of the Premises as aforesaid will be substantial, will exceed the amount of the
monthly installments of the Rent theretofore payable hereunder, and will be
impossible to accurately measure. Tenant therefore agrees that if possession of
the Premises is not surrendered to Landlord within twenty-four (24) hours after
the Expiration Date or sooner termination of the Term, in addition to any other
rights or remedy Landlord may have hereunder or at law, Tenant shall pay to
Landlord for each month and for each portion of any month during which Tenant
holds over in the Premises after the Expiration Date or sooner termination of
this Lease, a sum equal to one and one half (l 1/2) times the aggregate of that
portion of the Rent and the additional rent which was payable under this Lease
during the last month of the Term (the Last Month's Rent") for the first (1st)
month or portion, thereof that Tenant holds over, (ii) two hundred (200%)
percent of the Last Month's Rent for the second (2nd) month or portion thereof
during which Tenant continues to hold-over and (iii)) three hundred (300%)
percent of the Last Month's Rent for the third (3rd) and each succeeding month,
or portions thereof, during which Tenant continues to hold-over following the
Expiration Date or earlier termination of this Lease. Nothing herein contained
shall be deemed to permit Tenant to retain possession of the Premises after the
Expiration Date or sooner termination of this Lease and no acceptance by
Landlord of payments from Tenant after the Expiration Date or sooner termination
of the Term shall be deemed to be other than on account of the amount to be paid
by Tenant in accordance with the provisions of this Article 21, which provisions
shall survive the Expiration Date or sooner termination of this Lease, if Tenant
shall hold-over or remain in possession of any portion of the Premises more than
ninety (90) .days beyond the Expiration Date or earlier termination of this
Lease, notwithstanding the acceptance of any Rent and additional rent paid by
Tenant pursuant to the preceding provisions. Tenant shall be subject not only to
summary proceeding and all damages related thereto, but also to any damages
arising out of lost opportunities (and/or new leases) by Landlord to re-let the
Premises (or any part thereof). All damages to Landlord by reason of such
holding over by Tenant may be the subject of a separate action and need not be
asserted by Landlord in any summary proceedings against Tenant.
22. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that so as
long as this Lease is in full force and effect and Tenant is not in default
hereunder, Tenant may
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peaceably and quietly enjoy the Premises, subject, nevertheless, to the terms
and conditions of this Lease including, but not limited to, Article 16 hereof
and to all Mortgages.
23. FAILURE TO GIVE POSSESSION. Tenant hereby acknowledges that (i) the
Second Floor and the Mezzanine are currently subject to a lease with iVillage,
Inc. the present tenant thereof and (ii) the Eleventh Floor and Tenth Floor
Space are currently subject to a lease with Predictive Systems Inc.
("Predictive"), the present tenant thereof. Tenant further acknowledges and
agrees that Landlord's obligation to lease and deliver possession of the
Premises, and each portion thereof, to Tenant is subject to and conditioned upon
Landlord entering into a written surrender agreements with iVillage, Inc. and
with Predictive pursuant to each of which agreement, among other things, each
portion of the Premises is to be surrendered to Landlord. Tenant waives any
right to rescind this Lease under Section 223-a of the New York Real Property
Law or any successor statute of similar import then in force and further waives
the right to recover any damages which may result from Landlord's failure to
deliver possession of the Premises or any portion thereof for any reason
whatsoever, including, but not limited to, the failure of the present tenants of
the Premises to vacate and surrender the Premises to Landlord. Notwithstanding
the foregoing to the contrary, Landlord hereby agrees to deliver possession of
the Second Floor and Mezzanine to Tenant on the Commencement Date. It Landlord
shall be unable to give possession of all or any portion of the Premises, and
provided Tenant is not responsible for such inability to give possession, the
Rent reserved and covenanted to be paid herein for (and all of Tenant's other
obligations and liabilities hereunder with respect to) any portion of the
Premises that Landlord fails to deliver possession of shall not commence until
the possession of such portion of the Premises is given to Tenant, and no such
failure to give possession shall in any way affect the validity of this Lease or
the obligations of Tenant hereunder or give rise to any claim for damages by
Tenant or claim for rescission of this Lease. If permission is given to Tenant
to enter into the possession of the Premises or to occupy premises other than
the Premises prior to the Commencement Date, tenant covenants and agrees that
such occupancy shall be deemed to be under all the terms, covenants, conditions
and provisions of this Lease including the covenant to pay Rent. Notwithstanding
anything contained in this Lease to the contrary, in the event the surrender
agreement between Landlord and Predictive is not mutually delivered and
unconditionally delivered by the parties thereto on or before 5:00 P.M. on
Thursday, September 27, 2001 (which surrender agreement provides for the
delivery of possession of the Eleventh Floor and Tenth Floor Space to Landlord
free of any other tenancies or other occupancies or occupants), Tenant may, at
any time prior to Landlord notifying Tenant that such surrender agreement has
been mutually executed and delivered, elect to terminate this Lease by notice to
Landlord delivered by facsimile and by certified mail whereupon Tenant shall
immediately vacate the Premises and deliver possession thereof to Landlord in
accordance with the terms hereof, in which event this Lease shall be deemed null
and void and of no further force or effect, and the parties hereto shall have no
further rights or obligations hereunder, except those which expressly survive
the Term hereof.
24. NO WAIVER.
A. No Extension of Term. If there be any agreement between Landlord and
Tenant providing for the cancellation of this Lease upon certain provisions or
contingencies and/or an agreement for the renewal hereof at the expiration of
the Term, the right to such renewal or the execution of a renewal agreement
between Landlord and Tenant prior to the expiration of the
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Term shall not be considered an extension thereof or a vested right in Tenant to
such further term, so as to prevent Landlord from canceling this Lease in
accordance with the terms hereof or applicable law and any such extension
thereof during the remainder of the original Term; such right to cancel this
Lease in accordance with the terms hereof, if and when so exercised by Landlord,
shall cancel and terminate this Lease and any such renewal or extension
previously entered into between Landlord and Tenant or the right of Tenant to
any such renewal or extension; any right herein contained on the part of
Landlord to cancel this Lease shall continue during any extension or renewal
hereof; any option on the part of Tenant herein contained for an extension or
renewal hereof shall not be deemed to give Tenant any option for a further
extension beyond the first renewal or extended term.
B. No Surrender. No act or thing done by Landlord or Landlord's agents
during the Term shall be deemed an acceptance of a surrender of the Premises,
and no agreement to accept such surrender except on the Expiration Date 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 Premises prior
to the expiration or termination of this Lease. The delivery of keys to any
employee of Landlord or of Landlord's agents shall not operate as a termination
of this Lease or a surrender of the Premises. In the event Tenant at any time
desires to have Landlord sublet the 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, and Tenant hereby
relieves Landlord of any liability for loss of or damage to any of Tenant's
effects in connection with such subletting.
C. No Waiver. 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 or hereafter adopted by
Landlord, shall not prevent a subsequent act which would have originally
constituted a violation from having all force and effect of an original
violation. Except as expressly set forth herein to the contrary, the failure of
Tenant to seek redress for violation of, or to insist upon the strict
performance of, any covenant or condition of this Lease on Landlord's part to be
performed or observed shall not prevent a subsequent act which would have
originally constituted a violation from having all 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, 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.
D. Application of Payment. 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 account of the earliest stipulated Rent, or as Landlord may elect
to apply same, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as 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.
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E. Entire Agreement. This Lease contains the entire agreement between
the parties and all prior negotiations and agreements are merged in this Lease.
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.
25. WAIVER OF TRIAL BY JURY. It is mutually agreed by and between Landlord
and Tenant that the respective parties hereto shall and they hereby do waive
trial by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other 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 Premises, any claim of injury or damage, or for
the enforcement of any remedy under any statute, emergency or otherwise. It is
further mutually agreed that in the event Landlord commences any summary
proceeding (whether for nonpayment of rent or because Tenant continues in
possession of the Premises after the expiration or termination of the Term),
Tenant will not interpose any counterclaim (except for mandatory or compulsory
counterclaims) of whatever nature or description in any such proceeding.
26. INABILITY TO PERFORM. This Lease and the obligation of Tenant to pay
Rent and additional rent hereunder and perform all of the other covenants and
agreements hereunder on the part of Tenant to be performed shall in nowise be
affected, impaired or excused because Landlord is unable to fulfill any of its
obligations under this Lease expressly or impliedly to be performed by Landlord
or because Landlord is unable to make, or is delayed in making any repairs,
additions, alterations, improvements or decorations or is unable to supply or is
delayed in supplying any equipment or fixtures if Landlord is prevented or
delayed from so doing by reason of strikes or labor troubles or by accident or
by any cause whatsoever reasonably beyond Landlord's control, including but not
limited to, laws, governmental preemption in connection with a National
Emergency or by reason of any rule, order or regulation of any federal, state,
county or municipal authority or any department or subdivision thereof or any
government agency or by reason of the conditions of supply and demand which have
been or are affected by war or other emergency.
27. BILLS AND NOTICES. Except as otherwise expressly provided in this Lease,
any bills, statements, notices, demands, requests or other communications given
or required to be given under this Lease shall be deemed sufficiently given or
rendered if in writing, sent by registered or certified mail (return receipt
requested) addressed as follows or to such other address as either Landlord or
Tenant may designate as its new address for such purpose by notice given to the
others in accordance with the provisions of this Article 27:
If to Landlord: EBS Fifth Property Associates LLC
c/o Emmes Realty Services LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Legal Department
with a copy to: Xxxxxxxx & Schecter LLP
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
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Xxx Xxxx, Xxx Xxxx 00000
If to Tenant: CIBC World Markets Corp.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxxx Xxxxxxxx,
Chief Administrative Officer
with a copy of
notices of default only to: CIBC World Markets Corp.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
and
Xxxxx Xxxxx & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
or at any place where Tenant or any agent or employee of Tenant may be found if
mailed subsequent to Tenant's vacating, deserting, abandoning or surrendering
the Premises. Tenant hereby acknowledges and agrees that any such xxxx,
statement, demand, notice, request or other communication may be given by
Landlord's agent on behalf of Landlord. Any such xxxx, statement, demand,
notice, request or other communication shall be deemed to have been rendered or
given on the date when it shall have been received or receipt refused.
Notwithstanding anything contained in this Article 27 to the contrary, bills and
statements issued by Landlord may be sent by the method(s) set forth
hereinabove, without copies to any other party. This notice provision has been
specifically negotiated between the parties hereto.
28. ESCALATION.
A. Defined Terms. In a determination of any additional rent payable
under the provisions of this Article 28, Landlord and Tenant agree as follows:
(i) "Taxes" shall mean the aggregate amount of real estate taxes and
any special or other assessments (exclusive of penalties and interest thereon)
imposed upon the Real Property and real estate taxes or assessments imposed in
connection with the receipt of income or rents from the Building to the extent
that same shall be in lieu of all or a portion of the aforesaid taxes or
assessments, or additions or increases thereof (including, without limitation,
(i) assessments made upon or with respect to any "air rights", (ii) assessments
made in connection with any applicable business improvement district and (iii)
any assessments levied after the date of this Lease for public benefits to the
Real Property or the Building (excluding an amount equal to the assessments
payable in whole or in part during or for the Base Tax Year (as defined in
Article 1 of this Lease)) which assessments, if payable in installments, shall
be deemed payable in the maximum number of permissible installments and there
shall be included in real estate taxes for each Comparison Year in which such
installments may be paid, the installments of such
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assessment so becoming payable during such Comparison Year (in the manner in
which such taxes and assessments are imposed as of the date hereof); provided,
that if because of any change in the taxation of real estate, any other tax or
assessment (including, without limitation, any occupancy, gross receipts,
rental, income, franchise, transit or other tax) is imposed upon Landlord or the
owner of the Real Property or the Building, or the occupancy, rents or income
therefrom, in substitution for or in addition to, any of the foregoing Taxes,
such other tax or assessment shall be deemed part of the Taxes. With respect to
any Comparison Year (hereinafter defined) all commercially reasonable expenses,
including attorneys' fees and disbursements, experts' and other witnesses' fees,
incurred in contesting the validity or amount of any Taxes or in obtaining a
refund of Taxes shall be considered as part of the Taxes for such year.
(ii) "Assessed Valuation" shall mean the amount for which the Real
Property is assessed pursuant to applicable provisions of the New York City
Charter and of the Administrative Code of the City of New York for the purpose
of imposition of Taxes.
(iii) "Tax Year" shall mean the period July 1 through June 30 (or
such other period as hereinafter may be duly adopted by the City of New York as
its fiscal year for real estate tax purposes).
(iv) "Base Taxes" shall mean the Taxes payable for the Base Tax Year.
(v) "Comparison Year" shall mean (a) with respect to Taxes, any Tax
Year subsequent to the Base Tax Year and (b) with respect to Labor Rates
(hereinafter defined) any calendar year subsequent to the Base Labor Year
(hereinafter defined) for any part or all of which there is additional rent
payable pursuant to subsection B of this Article 28.
(vi) "R.A.B." shall mean the Realty Advisory Board On Labor
Relations, Incorporated, or its successor.
(vii) "Local 32B-32J" shall mean Local 32B-32J of the Building
Service Employees International Union, AFL-CIO, or its successor.
(viii) "Class A Office Buildings" shall mean office buildings in the
same class or category as the Building under any agreement between R.A.B. and
Local 32B-32J, regardless of the designation given to such office buildings in
any such agreement.
(ix) "Labor Rates" shall mean a sum equal to the regular hourly wage
rate required to be paid to Others (hereinafter defined) employed in Class A
Office Buildings pursuant to any agreement between R.A.B. and Local 32B-32J;
provided, however, that if, as of October 1st of any Comparison Year, any such
agreement shall require Others in Class A Office Buildings to be regularly
employed on days or during hours when overtime or other premium pay rates are in
effect pursuant to such agreement, then the term "regular hourly wage rate", as
used in this subsection A(ix) shall mean the average hourly wage rate for the
hours in a calendar week during which Others are required to be regularly
employed; and provided, further, that if no such agreement is in effect as of
October 1st of any Comparison Year with respect to Others, then the term
"regular hourly wage rate", as used in this subsection A(ix) shall mean the
regular hourly wage rate actually paid to Others employed in the Building by
Landlord or by an independent contractor engaged by Landlord; and provided,
further, the term "regular hourly
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wage rate" in all events shall include the monetary value or cost of all
payments of any kind, both mandatory and optional (including, but not limited
to, those payable directly to taxing authorities or others on account of the
employment), but shall specifically exclude any fringe employee benefits.
(x) "Others" shall mean that classification of employee engaged in
the general maintenance and operation of Class A Office Buildings most nearly
comparable to the classification now applicable to "others" in the current
agreement between R.A.B. and Local 32B-32J.
(xi) "Base Labor Rates" shall mean the Labor Rates in effect for the
Base Labor Year.
(xii) "Landlord's Statement" shall mean an instrument or instruments
setting forth additional rent payable pursuant to the provisions of this Article
28.
B. Escalation. (i) If the Taxes payable for any Comparison Year (any
part or all of which falls within the Term) shall represent an increase above
the Base Taxes, then for such Comparison Year and continuing thereafter until a
new Landlord's Statement is rendered to Tenant, Tenant shall pay Tenant's
Proportionate Share of such increase as additional rent hereunder. The Taxes
shall be initially computed on the basis of the Assessed Valuation in effect at
the time Landlord's Statement is rendered (as the Taxes may have been settled or
finally adjudicated prior to such time) regardless of any then pending
application, proceeding or appeal respecting the reduction of any such Assessed
Valuation, but shall be subject to subsequent adjustment as provided in
subsection D(i)(a) of this Article 28.
(ii) If the Labor Rates in effect for any Comparison Year (any part
or all of which falls within the Term) shall be greeter than the Base Labor
Rates, then for such Comparison Year, and continuing thereafter until a new
Landlord's Statement is rendered to Tenant, Tenant shall pay a sum equal to the
Labor Rate Factor multiplied by the Labor Rate Multiple multiplied by the number
of cents (inclusive of any fractions of a cent) of such increase as additional
rent hereunder.
C. Payment of Escalations. (i) At any time prior to, during or after any
Comparison Year Landlord shall render to Tenant, either in accordance with the
provisions of Article 27 hereof or by personal delivery at the Premises, a
Landlord's Statement or Statements showing separately or together (a) a
comparison of the Taxes payable for the Comparison Year with the Base Taxes, (b)
a comparison of the Labor Rates for the Comparison Year with the Base Labor
Rates, and (c) the amount of the additional rent resulting from each of such
comparisons. Landlord's failure to render a Landlord's Statement and/or receive
payments with respect thereto during or with respect to any Comparison Year
shall not prejudice Landlord's right to render a Landlord's Statement and/or
receive payments with respect thereto during or with respect to any subsequent
Comparison Year, and shall not eliminate or reduce Tenant's obligation to pay
additional rent pursuant to this Article 28 for such Comparison Year; provided
however, each Landlord's Statement shall be rendered within two (2) years of the
Comparison Year to which it pertains. Landlord may also at any time and from
time to time, furnish to Tenant a revised Landlord's Statement or Statements
showing separately or together (a) a comparison of the
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Taxes payable for the Comparison Year with the Base Taxes and (b) a comparison
of the Labor Rates for the Comparison Year with the Base Labor Rates; provided
however, a Landlord's Statement shall be deemed binding on Landlord on the first
(1st) anniversary of the date any such Landlord's Statement is furnished to
Tenant, except for any items includible in Labor Rates or Taxes that Landlord
could not reasonably foresee or previously ascertain, subject to the provisions
of subsection D(i)(b) of this Article 28.
(ii) (a) Tenant's obligations with respect to increases in Labor
Rates shall be payable by Tenant on the first (1st) day of the month following
the furnishing to Tenant of a Landlord's Statement with respect to Labor Rates
in an amount equal to one-twelfth (1/12th) of such additional rent multiplied by
the number of months (and any fraction thereof) of the Term then elapsed since
the commencement of the Comparison Year for which the increase is applicable,
together with a sum equal to one-twelfth (1/12th) of such additional rent with
respect to the month following the furnishing to Tenant of a Landlord's
Statement; and thereafter, commencing with the next succeeding monthly
installment of Rent and continuing monthly thereafter until rendition of the
next succeeding Landlord's Statement, Tenant shall pay as additional rent,
together with the monthly installments of Rent, an amount equal to one-twelfth
(1/12th) of such increase. Any additional rent attributable to such increase
shall be collectible by Landlord in the same manner as Rent.
(b) With respect to additional rent payable as a result of an
increase in the Taxes for any Comparison Year above the Base Taxes, Tenant shall
pay to Landlord a sum equal to one-twelfth (1/12th) of the additional rent
attributable to such increase on the first (1st) day of the month following the
date when such increase shall occur and a sum equal to one-twelfth (1/12th) of
such increase on the first (1st) day of each calendar month during the Term
hereof thereafter occurring, payable together with the monthly installments of
the Rent coming due and payable hereunder. If Landlord's Statement shall be
furnished to Tenant after the commencement of the Comparison Year to which it
relates, then (1) until Landlord's Statement is rendered for such Comparison
Year, Tenant shall pay Tenant's Proportionate Share of Taxes for such Comparison
Year in monthly installments, as described above, based upon the last prior
Landlord's Statement rendered to Tenant with respect to Taxes, and (2) Tenant
shall, within ten (10) days after Landlord's Statement is furnished to Tenant,
pay to Landlord an amount equal to any underpayment of the installments of Taxes
theretofore paid by Tenant for such Comparison Year and, in the event of an
overpayment by Tenant, Landlord shall permit Tenant to credit against subsequent
payments of additional rent under this subsection (C)(ii)(b) of this Article 28
the amount of such overpayment. If during the Term of this Lease, Taxes are
required to be paid (either to the appropriate taxing authorities or as tax
escrow payments to a mortgagee or ground lessor) in full or in semi-annual,
quarterly, or other installments, on any other date or dates than as presently
required, then, at Landlord's option, Tenant's Proportionate Share with respect
to Taxes shall be correspondingly accelerated or revised so that Tenant's
Proportionate Share is due at least thirty (30) days prior to the date payments
are due to the taxing authorities or the superior mortgagee or ground lessor, as
the case may be. The benefit of any discount for any early payment or prepayment
of Taxes shall accrue solely to the benefit of Landlord, and such discount shall
not be subtracted from Tenant's Proportionate Share of such Taxes.
(c) Following each Landlord's Statement, a reconciliation shall be
made as follows: Tenant shall be debited with any additional rent that is
payable as shown on such
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Landlord's Statement and credited with the aggregate, if any, paid by Tenant on
account in accordance with the provisions of subsection C(ii)(a) or C(ii)(b) for
the Comparison Year in question; Tenant shall pay any net debit balance to
Landlord within fifteen (15) days next following rendition by Landlord, either
in accordance with the provisions of Article 27 hereof or by personal delivery
to the Premises, of an invoice for such net debit balance; any net credit
balance shall be applied against the next accruing installments of additional
rent.
D. Adjustments. (i) (a) In the event that, after a Landlords Statement
has been sent to Tenant, an Assessed Valuation which had been utilized in
computing the Taxes for a Comparison Year is reduced (as a result of settlement,
final determination of legal proceedings or otherwise), and as a result thereof
a refund of Taxes is actually received by or on behalf of Landlord, then,
promptly after receipt of such refund, Landlord shall send Tenant a statement
adjusting the Taxes for such Comparison Year (taking into account the expenses
mentioned in the last sentence of subsection A(i) of this Article 28) and
setting forth Tenant's Proportionate Share of such refund and Tenant shall be
entitled to receive Tenant's Proportionate Share of such refund by way of a
credit against the installments of additional rent next becoming due after the
sending of such Statement, or if the Term hereof has expired, Landlord shall
reimburse such balance to Tenant within sixty (60) days following Landlord's
determination of the amount thereof, less any sums Tenant owes Landlord for
Rent, additional rent or other charges hereunder; provided, however, that
Tenant's Proportionate Share of such refund shall be limited to the amount, if
any, which Tenant had theretofore paid to Landlord as additional rent for such
Comparison Year on the basis of the Assessed Valuation before it had been
reduced.
(b) In the event that, after a Landlord's Statement has been sent to
Tenant, the Assessed Valuation which had been utilized in computing the Base
Taxes is reduced (as a result of settlement, final determination of legal
proceedings or otherwise) then, and in such event: (1) the Base Taxes shall be
retroactively adjusted to reflect such reduction, (2) the monthly installment of
additional rent that is payable shall be adjusted accordingly and (3) all
retroactive additional rent resulting from such retroactive adjustment shall be
forthwith payable when billed by Landlord. Landlord promptly shall send to
Tenant a statement setting forth the basis for such retroactive adjustment and
additional rent payments.
(ii) Any Landlord's Statement sent to Tenant shall be binding upon
Tenant unless Tenant shall (a) timely pay to Landlord the amount set forth in
such statement, without prejudice to Tenant's right to dispute the same, and (b)
within ninety (90) days after such statement is sent, send a written notice to
Landlord objecting to such statement and specifying the particular respects in
which such statement is claimed to be incorrect. The parties recognize the
unavailability of Landlord's books and records because of the confidential
nature thereof.
(iii) Anything in this Article 28 to the contrary notwithstanding,
under no circumstances shall the rent payable under this Lease be less than the
then annual base Rent set forth in Article 1 hereof.
(iv) The expiration or termination of this Lease during any
Comparison Year for any part or all of which there is an adjustment of
additional rent payable by, or to be credited to, Tenant under this Article
shall not affect the rights or obligations of the parties hereto respecting such
adjustment and any Landlord's Statement relating thereto may be sent to Tenant
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subsequent to, and all such rights and obligations shall survive, any such
expiration or termination. Any payments due from Tenant under such Landlord's
Statement shall be payable within twenty (20) days after such statement is sent
to Tenant.
E. Capital Improvements. If any capital improvement is made to the
Building or any part thereof to comply with the requirements of any applicable
law during any calendar year during the Term, then Tenant shall pay to Landlord,
within thirty (30) days following demand therefor, Tenant's Proportionate Share
of the reasonable annual amortization, with interest at the then prime rate (as
announced from time to time in the Wall Street Journal) plus two percent (2%)
per annum, of the reasonable cost of such improvement (based on the useful life
thereof) in each calendar year during the Term during which such amortization
occurs. Following Tenant's request, Landlord agrees to provide Tenant with
reasonable documents evidencing the nature and legal necessity of any such
capital improvement and the cost thereof.
29. SERVICES.
A. Elevator. Landlord shall provide passenger elevator facilities on
business days from 8:00 A.M. to 6:00 P.M. and shall have one passenger elevator
in the bank of elevators servicing the Premises available at all other times.
Landlord shall provide freight elevator services on an "as available" basis for
non-exclusive use by Tenant from 8:00 AM. through 12:00 Noon and from 1:00 P.M.
through 5:00 P.M. on business days only. Any extended use of the freight
elevators may be arranged with Landlord's prior consent, and Tenant shall pay as
additional rent all customary building standard charges therefor (which charges
are currently $90.00 per hour, with a four (4) hour minimum), as the same may
increase from time to time during the Term hereof (based on increases in the
Labor Rates).
B. Heating. Landlord shall furnish heat to the Premises when and as and
at temperature levels required by law, on business days from 8:00 A.M. to 8:00
P.M. Landlord shall not be responsible for the adequacy, design or capacity of
the heating distribution system if the normal operation of the heat distribution
system serving the Building shall fail to provide heat at reasonable
temperatures or any reasonable volumes or velocities in any parts of the
Premises by reason of any rearrangement of partitioning or other Alterations
made or performed by or on behalf of Tenant or any person claiming through or
under Tenant. Tenant shall not alter, modify or replace any part of the heating
distribution system without Landlord's reasonable prior consent. Tenant at all
times agrees to cooperate fully with Landlord and to abide by the regulations
and requirements which Landlord may prescribe for the proper functioning and
protection of the heating distribution system.
C. Cooling. Tenant acknowledges that Tenant shall install
air-conditioning equipment to serve the Tenth Floor Space as part of Tenant's
Initial Alteration therein in accordance with the provisions of Schedule B
hereof. Tenant shall have the privilege of using the air-conditioning systems
presently installed in and/or servicing the Mezzanine, Second Floor and Eleventh
Floor (such existing air-conditioning systems, together with any
air-conditioning systems hereafter installed by Landlord in the Tenth Floor
Space, being hereinafter individually and collectively referred to as
"Air-Conditioning Systems"), which systems Tenant agrees to accept in their
"as-is" condition; accordingly, Landlord shall not be responsible if the normal
operation of the Air-Conditioning Systems shall fail to provide cooled air at
reasonable
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temperatures, pressures or degrees of humidity or any reasonable volumes or
velocities in any parts of the Premises for any reason whatsoever, including,
without limitation, by reason of (i) human occupancy factors and any machinery
or equipment installed by or on behalf of Tenant or any person claiming through
or under Tenant, having an electrical load in excess of the average electrical
load for the Air-Conditioning Systems as designed or (ii) any rearrangement of
partitioning or other Alterations made or performed by or on behalf of Tenant or
any person claiming through or under Tenant; accordingly Tenant shall maintain,
repair and operate any such Air-Conditioning Systems in compliance with all
present and future laws and regulations relating thereto and shall enter into
service maintenance agreements for the service and maintenance of the
Air-Conditioning Systems with a contractor approved by Landlord, which approval
shall not be unreasonably withheld (provided that Tenant shall have no
obligation to maintain or repair the condenser water tower or any components
thereof up to the point of connection into the Premises). Tenant shall cause
periodic service and maintenance to be performed on the Air-Conditioning Systems
and shall provide Landlord with copies of service and maintenance records.
Tenant shall not alter, modify or replace any such Air-Conditioning Systems, or
any part thereof, without Landlord's consent, which shall not be unreasonably
withheld. Tenant at all times agrees to cooperate fully with Landlord and to
abide by the regulations and requirements which Landlord may prescribe for the
proper functioning and protection of the Air-Conditioning Systems. Subject to
the terms of Article 14 hereof, Landlord, throughout the Term, shall have free
access to any and all mechanical installations of Landlord, including but not
limited to Air-Conditioning Systems, fan, ventilating, machine rooms and
electrical closets. Tenant shall pay for the cost of the electrical energy
consumed by the Air-Conditioning Systems in accordance with the provisions of
Article 29, subsection H, hereof. With respect to the water-cooled
Air-Conditioning Systems servicing the Second Floor and Mezzanine and any other
water cooled Air-Conditioning Systems installed in any other part of the
Premises, in consideration of the condenser water supplied by Landlord for such
systems, Tenant shall pay to Landlord, annually upon demand, a sum equal to $400
per ton of air-conditioning capacity, adjusted annually, to compensate Landlord
for the cost of supplying condenser water for such Air-Conditioning Systems on
"business days" from 8:00 A.M. to 6:00 P.M. from May 15th through October 15th
of each year during the Term hereof. In addition, Tenant agrees to pay Landlord
a tap-in fee of $1,500.00 to compensate Landlord for making the condenser water
available to any water cooled Air-Conditioning Systems installed by Tenant in
the Tenth Floor Space. Any such Air-Conditioning Systems shall be installed with
balancing valves and manufactured by Xxxx & Xxxxxxx or such other manufacturer
identified by Landlord for balancing by Landlord, at Tenant's sole cost and
expense. For and consideration of the payment of the condenser water charges set
forth above, Landlord hereby covenants and agrees to provide Tenant with
sufficient condenser water to service a minimum of one hundred twenty-five (125)
tons of air-conditioning capacity in the aggregate on the Second Floor and
Mezzanine and a minimum of forty (40) tons of air-conditioning capacity on the
Tenth Floor Space.
D. After Hours and Additional Services. The Rent does not include any
charge to Tenant for the furnishing of any additional passenger elevator
facilities, any freight elevator facilities (other than as contemplated in
Article 29 subsection A) or for the service of heat or condenser water to the
Premises during periods other than the hours and days set forth in sections A, B
and C of this Article 29 for the furnishing and distributing of such facilities
or services (referred to as "Overtime Periods"). Accordingly, if Landlord shall
furnish any (i) freight elevator facilities to Tenant during Overtime Periods,
(ii) heat to the Premises during Overtime
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Periods, or (iii) condenser water to Tenant during Overtime Periods then Tenant
shall pay Landlord additional rent for such facilities or services at the
standard rates then fixed by the Landlord for the Building or, if no such rates
are then fixed, at reasonable rates (which rates shall be based on a minimum
charge of four (4) hours for such additional facilities or services). Landlord's
current rates for condenser water service during Overtime Periods is $125.00 per
floor per hour; however, if Tenant requests overtime condenser water service on
more than one (1) floor of the Premises during the same Overtime Periods, the
overtime rates for the second floor shall be $100.00 per hour. Neither the
facilities nor the services referred to in this Article 29D shall be furnished
to Tenant or the Premises if Landlord has not received advance notice (which may
be oral) from Tenant specifying the particular facilities or services requested
by Tenant at least by 10:00 A.M. on the date on which the facilities or services
are to be furnished (or by 10:00A.M. on Fridays for services requested on
weekends); or if Tenant is in default under or in breach of any of the terms,
covenants or conditions of this Lease; or if Landlord shall determine, in its
sole and exclusive discretion, that such facilities or services are requested in
connection with, or the use thereof shall create or aid in a default under or a
breach of any term, covenant or condition of this Lease. All of the facilities
and services referred to in this Article 29D are conveniences and are not and
shall not be deemed to be appurtenances to the Premises, and the failure of
Landlord to furnish any or all of such facilities or services shall not
constitute or give rise to any claim of an actual or constructive eviction, in
whole or in part, or entitle Tenant to any abatement or diminution of Rent, or
relieve Tenant from any of its obligations under this Lease, or impose any
liability upon Landlord or its agents by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business or otherwise. Landlord
may limit the furnishing during Overtime Periods of freight elevator services
referred to in this Article 29D to a total of forty (40) hours in any one (1)
week.
E. Cleaning. Landlord, at Landlord's expense, shall cause the Premises
to be kept clean in building standard manner. Tenant shall, however, have the
option in its sole discretion to clean or independently contract for the
cleaning of the Premises at Tenant's sole expense, without any adjustment in the
Rent, provided that such cleaning is done in a manner reasonably satisfactory to
Landlord and no one other than persons reasonably approved by Landlord shall be
permitted to enter the Premises or the Building for such purpose. Tenant shall
pay to Landlord, as additional rent, the cost of removal of any of Tenant's
refuse and rubbish from the Premises and the Building to the extent that the
same exceeds the refuse and rubbish usually attendant upon the use of such
Premises as offices, which cost shall be payable within ten (10) days of
Landlord's xxxx therefor. A copy of the current cleaning specifications are
annexed hereto as Exhibit 3, which cleaning specifications are subject to change
from time to time during the Term hereof, provided such changes do not
materially diminish the cleaning services set forth on Exhibit 3.
F. Sprinkler System. If there now is or shall be installed in the
Building a "sprinkler system", and such system or any of its appliances shall be
damaged or injured or not in proper working order by reason of any act or
omission of Tenant, Tenant's agents, servants, employees, licensees or visitors,
Tenant shall forthwith restore the same to good working condition at its own
expense; and if the New York Board of Fire Underwriters or the New York Fire
Insurance Rating Organization or any bureau, department or official of the state
or city government, shall require or recommend that any changes, modifications,
alterations or additional sprinkler heads or other equipment be made or supplied
by reason of Tenant's business, or the location of the
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partitions, trade fixtures, or other contents of the Premises, Tenant shall, at
Tenant's expense, promptly make and supply such changes, modifications,
alterations, additional sprinkler heads or other equipment. Landlord covenants
and agrees to provide and maintain adequate water pressure in the vertical
risers of the Building to the point of connection to the Premises in accordance
with law. In addition, Landlord agrees to provide two (2) points of connection
to the Building-wide Class E system on each floor of the Premises at Landlord's
sole cost and expense and up to an additional two (2) points of connection on
each floor of the Premises at Tenant's request and at Tenant's sole cost and
expense.
G. Water. Landlord shall provide water for ordinary drinking, cleaning
and lavatory purposes, but if Tenant requires, uses or consumes water for any
other purposes or in unusual quantities (of which fact Landlord shall be the
sole judge), Landlord may install a water meter at Tenant's expense and thereby
measure Tenant's water consumption for all purposes. In such event (i) Tenant
shall keep said meter and installation equipment in good working order and
repair at Tenant's own cost and expense; (ii) Tenant agrees to pay for water
consumed, as shown on said meter five (5) days after bills are rendered as
additional rent; and (iii) Tenant covenants and agrees to pay the sewer rent,
charge or any other tax, rent, levy or charge which now or hereafter is
assessed, imposed or shall become a lien upon the Premises or the realty of
which they are part pursuant to law, order or regulation made or issued in
connection with any such metered use, consumption, maintenance or supply of
water, water system, or sewage or sewage connection or system.
H. Electricity Service. (i) Landlord shall distribute six (6) xxxxx of
connected electrical load per rentable square foot of space deemed to be in the
Premises for the servicing of all of Tenant's electrical needs within the
Premises, including the Air-Conditioning Systems. Tenant's consumption of
electrical energy in the Premises shall be measured by submeters installed or to
be installed in the Premises. Tenant shall pay Landlord for any and all costs
incurred in connection with the installation of any such submeters upon the
submission by Landlord of a xxxx for such costs. The cost of electricity
utilized by Tenant shall be paid for by Tenant to Landlord as additional rent
and shall be calculated at the then applicable rate prescribed by the public
utility company serving the Building for electrical energy purchased by Landlord
for the entire Building, plus (a) Landlord's charge for overhead and supervision
in the amount of eight (8%) percent of the total electric xxxx and (b) any taxes
or other charges in connection therewith. If any tax shall be imposed upon
Landlord's receipts from the sale or resale of electrical energy to Tenant, the
pro rate share applicable to the electrical energy service received by Tenant
shall be passed on to, included in the xxxx of, and paid by Tenant if and to the
extent permitted by law. Landlord shall xxxx Tenant, monthly, for the cost of
its consumption of electricity in the Premises and Tenant shall pay the amount
thereof at the time of payment of each installment of Rent.
(ii) Tenant covenants that at no time shall the use of electrical
energy servicing the Premises exceed the capacity of the existing feeders or
wiring installations then serving the Premises nor shall Tenant use any
electrical equipment which, in Landlord's opinion, reasonably exercised, will
overload such installations or interfere with the use thereof by other tenants.
Tenant shall not make or perform, or permit the making or performance of, any
Alterations to wiring installations or other electrical facilities in or serving
the Premises without the prior consent of Landlord in each instance. Any such
Alterations, additions or consent by
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Landlord shall be subject to the provisions of subsection H(iii) of this Article
29, as well as to other provisions of this Lease including, but not limited to,
the provisions of Article 3 hereof.
(iii) If Tenant requires additional electrical energy for any reason
whatsoever, including without limitation, the use of additional business
machines, office equipment or other appliances in the Premises which utilize
electrical energy, Tenant shall request such additional electrical energy from
Landlord in each instance. Landlord agrees to provide an additional one hundred
fifty (150) amperes of electrical energy to Tenant at Tenant's request, provided
such request is made within six (6) months following the Commencement Date. If
Landlord agrees or is required to provide the same, any additional feeders or
risers which are required to supply Tenant's additional electrical requirements,
and all other equipment proper and necessary in connection with such feeders or
risers, shall be installed by Landlord upon Tenant's request, at the sole cost
and expense of Tenant (including, without limitation, a connection fee of Three
Hundred Fifty and 00/100 ($350.00) Dollars per kilovolt ampere), provided that,
in Landlord's reasonable judgment, such additional feeders or risers are
necessary and are permissible under applicable laws and insurance regulations
and the installation of such feeders or risers will not cause permanent damage
or injury to the Building or the Premises or cause or create a dangerous or
hazardous condition or entail excessive or unreasonable alterations or
unreasonably interfere with or disturb other tenants or occupants of the
Building.
(iv) Landlord reserves the right to discontinue furnishing
electricity to Tenant in the Premises on not less than thirty (30) days notice
to Tenant; provided, however, Landlord shall not exercise the foregoing right
until Tenant is able to arrange to obtain electricity directly from the utility
or other company servicing the Building. If Landlord exercises such right to
discontinue, or is compelled to discontinue furnishing electricity to Tenant,
this Lease shall continue in full force and effect and shall be unaffected
thereby, except only that from and after the effective date of such
discontinuance, Landlord shall not be obligated to furnish electricity to
Tenant. If Landlord so discontinues furnishing electricity to Tenant, Tenant
shall arrange to obtain electricity directly from the utility or other company
servicing the Building. Such electricity may be furnished to Tenant by means of
the then existing electrical facilities serving the Premises to the extent that
the same are available, suitable and safe for such purposes. All meters and all
additional panel boards, feeders, risers, wiring and other conductors and
equipment which may be required to obtain electricity, of substantially the same
quantity, quality and character, shall be installed by Landlord, at (x) Tenant's
sole cost and expense, in the event Landlord is compelled or required to
discontinue furnishing electricity to Tenant by reason by law or (y) at
Landlord's sole cost and expense, in the event Landlord voluntarily discontinues
furnishing electricity to Tenant. Landlord shall not voluntarily discontinue
furnishing electricity to Tenant until Tenant is able to receive electricity
directly from the utility or other company servicing the Building.
(v) Except as provided in subsection I of this Article 29, Landlord
shall not be liable to Tenant in any way for any interruption, curtailment or
failure or defect in the supply or character of electricity furnished to the
Premises by reason of any requirement, act or omission of Landlord or of any
utility or other company servicing the Building with electricity or for any
other reason except Landlord's gross negligence or willful misconduct. If either
the quantity or character of electrical service is changed by the utility or
other company supplying electrical service to the Building or is no longer
available or suitable for Tenant's requirements, no such
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change, unavailability or unsuitability shall constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent, or relieve Tenant from any of its obligations under this
Lease, or impose any liability upon Landlord, or its agents, by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business, or otherwise, provided the foregoing shall not be deemed a waiver of
Tenant's right to claim a constructive eviction by reason thereof.
I. Interruption of Services. Landlord reserves the right to stop service
of the heating, air-conditioning, ventilation, the elevator, electrical,
plumbing, condenser water or other mechanical systems or facilities in the
Building and cleaning services when necessary, by reason of accident or
emergency, or for repairs, additions, alterations, replacements, decorations or
improvements in the reasonable judgment of Landlord desirable or necessary to be
made, until said repairs, additions, alterations, replacements, decorations or
improvements shall have been completed; provided, however, Landlord shall
endeavor to give Tenant reasonable advance notice of any planned interruption of
service. Landlord shall have no responsibility or liability for interruption,
curtailment or failure to supply heat, air-conditioning, ventilation or outside
air, elevator, plumbing, condenser water, electricity or cleaning when prevented
by exercising its right to stop service or by strikes, labor troubles or
accidents or by any cause whatsoever reasonably beyond Landlord's control, or by
failure of independent contractors to perform or by laws, orders, rules or
regulations of any federal, state, county or municipal authority (including,
without limitation, regulations may require the removal of CFC's as well as the
alteration or replacement of equipment utilizing CFC's), or failure of suitable
fuel supply, or inability by exercise of reasonable diligence to obtain suitable
fuel or by reason of governmental preemption in connection with a National
Emergency or by reason of the conditions of supply and demand which have been or
are affected by war or other emergency. The exercise of such right or such
failure by Landlord shall not constitute an actual or constructive eviction, in
whole or in part, or entitle Tenant to any compensation or to any abatement or
diminution of Rent, or relieve Tenant from any of its obligations under this
Lease, or Impose any liability upon Landlord or its agents by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business, or otherwise. Notwithstanding anything to the contrary contained in
this Lease, if Landlord fails to take such measures as may be reasonable under
the circumstances to restore an "essential" service or services (which, for the
purposes of this subsection I, shall be deemed to mean passenger elevator
service (a minimum of one (1) elevator), electricity and heat required to be
furnished by Landlord pursuant to the terms of this Lease within ten (10)
consecutive business days after Tenant has notified Landlord that such service
has ceased (or such longer period of time as is necessary given the nature of
the needed repair or maintenance, so long as Landlord is diligently pursuing the
cure thereof to substantial completion) (a "Substantial Services Failure") which
failure renders the Premises or any "material portion" thereof not reasonably
unusable (as reasonably determined by Landlord) and as a result thereof Tenant
ceases to conduct its business therein, provided and upon the condition that
this Lease is in full force and effect and Tenant is not in default hereunder
beyond applicable notice and grace periods, the Rent and additional rent shall
be abated in the proportion by which the portion of the Premises which is not
reasonably usable and is not used by Tenant bears to the total area of the
Premises, commencing on the expiration of such ten (10) business day period
until the date such repair is made or maintenance completed. For the purposes of
this subsection I, the term "material portion" shall mean not less than
twenty-five (25%) percent of the area on any floor of the Premises. In the event
Landlord is unable to cure a Substantial Services Failure because of a force
majeure event or any other
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reason beyond the reasonable control of Landlord including, without limitation,
the acts or omissions of Tenant or any of Tenant's agents, employees or
contractors, then the ten (10) business day period shall be extended one (1) day
for each day such event of force majeure or other impossibility exists.
Notwithstanding the foregoing remedy, Landlord agrees to diligently pursue the
restoration of interrupted services. A copy of any notice from Tenant to
Landlord given pursuant to this subsection I shall not be deemed effective
unless and until a copy of said notice is sent simultaneously to the holder of
any Mortgage encumbering the Building whose address has been provided to Tenant
or with whom Tenant has entered in a subordination agreement in accordance with
Article 7 hereof.
J. Desk Attendants. Landlord currently provides a desk attendant at the
Fifth Avenue entrance to the Building seven (7) days a week, twenty-four (24)
hours a day; provided, however, Landlord reserves the right to provide
electronic security and/or other means of limited access to the Building in lieu
thereof at any time (and from time to time) during the Term hereof, as is
customarily provided in comparable buildings in midtown Manhattan. Landlord
agrees that Tenant may also station a desk attendant at the Fifth Avenue
entrance to the Building and may install a reception desk (and telephone
equipment) for such attendant at Tenant's sole cost and expense pursuant to
plans first reviewed and reasonably approved by Landlord.
30. PARTNERSHIP TENANT.
A. Partnership Tenants. In the event Tenant's interest in this Lease
shall hereafter be assigned to a partnership (or to two (2) or more persons,
individually and as co-partners of a partnership) pursuant to Article 12 (any
such partnership and such persons are referred to in this Article 30 as a
"Partnership Tenant"), the following provisions of this Article 30 shall apply
to such Partnership Tenant: (i) the liability of each of the parties comprising
a Partnership Tenant shall be joint and several, and (ii) each of the parties
comprising a Partnership Tenant hereby consents in advance to, and agrees to be
bound by, any written instrument which may hereafter be executed, changing,
modifying or discharging this Lease, in whole or in part, or surrendering all or
any part of the Premises to Landlord, and by any notices, demands, requests or
other communications which may hereafter be given by a Partnership Tenant or by
any of the parties comprising a Partnership Tenant, and (iii) any bills,
statements, notices, demands, requests or other communications given or rendered
to a Partnership Tenant and to all such parties shall be binding upon a
Partnership Tenant and all such parties, and (iv) if a Partnership Tenant shall
admit new general partners, all of such new general partners shall, by their
admission to a Partnership Tenant, be deemed to have assumed performance of all
of the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed, and (v) a Partnership Tenant shall give prompt notice to
Landlord of the admission of any such new partners, and upon demand of Landlord,
shall cause each such new partner to execute and deliver to Landlord an
agreement in form reasonably satisfactory to Landlord, wherein each such new
partner shall assume performance of all the terms, covenants and conditions of
this Lease on Tenant's part to be observed and performed (but neither Landlord's
failure to request any such agreement nor the failure of any such new partner to
execute or deliver any such agreement to Landlord shall vitiate the provisions
of subdivision (iv) of subsection A of this Article 30).
B. Limited Liability Entity. Notwithstanding anything to the contrary
contained herein, if Tenant is a limited or general partnership (or is comprised
of two (2) or more persons,
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individually or as co-partners), the change or conversion of Tenant to (i) a
limited liability company, (ii) a limited liability partnership, or (iii) any
other entity which possesses the characteristics of limited liability (any such
limited liability company, limited liability partnership or entity is
collectively referred to as a "Limited Liability Successor Entity"), shall be
prohibited unless the prior written consent of Landlord is obtained, which
consent may be withheld in Landlord's sole discretion. Notwithstanding the
foregoing, Landlord agrees not to unreasonably withhold or delay such consent
provided that:
(a) The Limited Liability Successor Entity succeeds to all or
substantially all of Tenant's business and assets;
(b) The Limited Liability Successor Entity shall have a net worth,
determined in accordance with generally accepted accounting principles,
consistently applied, of not less than the greater of the net worth of Tenant on
(1) the date of execution of this Lease, or (2) the day immediately preceding
the proposed effective date of such conversion;
(c) Tenant is not in default of any of the terms, covenants or
conditions of this Lease on the proposed effective date of such conversion;
(d) Tenant shall cause each general partner of Tenant to execute and
deliver to Landlord an agreement, in form and substance satisfactory to
Landlord, wherein each such general partner agrees to remain personally liable
for all of the terms, covenants and conditions of this Lease that are to be
observed and performed by the Limited Liability Successor Entity; and
(e) Tenant shall reimburse Landlord within ten (10) business days
following demand by Landlord for any and all reasonable costs and expenses that
may be incurred by Landlord in connection with said conversion of Tenant to a
Limited Liability Successor Entity, including, without limitation, any
attorney's fees and disbursements.
31. VAULT SPACE. Any vaults, vault space or other space Outside the
boundaries of the Real Property, notwithstanding anything contained in this
Lease or indicated on any sketch, blueprint or plan are not included in the
Premises. Landlord makes no representation as to the location of the boundaries
of the Real Property. All vaults and vault space and all other space outside the
boundaries of the Real Property which Tenant may be permitted to use or occupy
is to be used or occupied under a revocable license, and if any such license
shall be revoked, or if the amount of such space shall be diminished or required
by any Federal, State or Municipal authority or by any public utility company,
such revocation, diminution or requisition shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent, or relieve Tenant from any of its obligations under this
Lease, or impose any liability upon Landlord. Any fee, tax or charge imposed by
any governmental authority for any such vaults, vault space or other space used
or occupied by Tenant shall be paid by Tenant.
32. INTENTIONALLY DELETED.
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33. CAPTIONS. 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. ADDITIONAL DEFINITIONS.
A. Office. The term "office" or "offices", wherever used in this Lease,
shall not be construed to mean premises used as a store or stores, for the sale
or display, at any time, of goods, wares or merchandise, of any kind, or as a
restaurant, shop, booth, bootblack or other stand, xxxxxx shop, or for other
similar purposes or for manufacturing.
B. Re-entry. The words "re-enter" and "re-entry" as used in this Lease
are not restricted to their technical legal meaning.
C. Rent. The term "rent" as used in this Lease shall mean and be deemed
to include Rent, any increases in Rent, all additional rent and any other sums
payable hereunder.
D. Business Days. The term "business days" as used in this Lease shall
exclude Saturdays, Sundays and all days observed by the State or Federal
Government as legal holidays and union holidays for those unions that materially
affect the delivery of services in the Building.
35. PARTIES BOUND. The covenants, conditions and agreements contained in
this Lease shall bind and inure to the benefit of Landlord and Tenant and their
respective heirs, distributees, executors, administrators, successors, and,
except as otherwise provided in this Lease, their assigns.
36. BROKER. Each party represents and warrants to the other that such party
has dealt directly with (and only with), the Broker (as defined in Article 1
herein) as broker in connection with this Lease, and that insofar as such party
knows no other broker negotiated this Lease or is entitled to any commission in
connection therewith; and each party covenants and agrees to pay, hold harmless
and indemnify the other party from and against any and all cost, expense
(including reasonable attorney's lees) or liability for any compensation,
commissions or charges claimed by any broker or agent, other than the Broker,
with respect to this Lease or the negotiations thereof, arising from such
party's acts, conduct or conversations. The execution and delivery of this Lease
by Landlord shall be conclusive evidence that Landlord has relied upon the
foregoing representation and warranty. Landlord shall pay any commission earned
by the Broker in connection with this Lease in accordance with and pursuant to
the terms of a separate agreement between Landlord and the Broker and shall
indemnify Tenant with respect thereto.
37. INDEMNITY. Tenant shall not do or permit any act or thing to be done
upon the Premises which may subject Landlord to any liability or responsibility
for injury, damages to persons or property or to any liability by reason of any
violation of law or of any legal requirement of public authority, but shall
exercise such control over the Premises as to fully protect Landlord against any
such liability. Tenant agrees to indemnify and save harmless Landlord from and
against all liabilities, obligations, damages, penalties, claims, costs and
expenses, including reasonable attorney fees, incurred or arising from (i) any
act, omission or negligence of Tenant, its contractors, licensees, agents,
employees, invitees or visitors, including any claims arising from any act,
omission or negligence of Landlord and Tenant (except to the
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extent that Landlord is determined by a court of competent jurisdiction to be
contributorily negligent), (ii) any accident, injury or damage whatsoever caused
to any person or to the property of any person and occurring during the Term in
or about the Premises, (iii) any accident, injury or damage to any person,
entity or property, occurring outside of the Premises but anywhere within or
about the Real Property, where such accident, injury or damage results or is
claimed to have resulted from an act or omission of Tenant or Tenant's agents,
employees, invitees or visitors, including any claims arising from any act,
omission or negligence of Landlord and Tenant (except to the extent that
Landlord is determined by a court of competent jurisdiction to be contributorily
negligent), (iv) any breach, violation or nonperformance of any covenant,
condition or agreement in this Lease set forth and contained on the part of
Tenant to be fulfilled, kept, observed and performed and (v) Tenant, or any of
Tenant's contractors, licensees, agents, employees, invitees or visitors causing
or permitting any Hazardous Substance (as hereinafter defined) to be brought
upon, kept or used in or about the Premises or the Real Property or any seepage,
escape or release of such Hazardous Substances. The term "Hazardous Substances"
shall mean, collectively, (a) asbestos and polychlorinated biphenyls and (b)
hazardous or toxic materials, wastes and substances which are defined,
determined and identified as such pursuant to any law. Tenant's liability under
this Lease extends to the acts and omissions of any subtenant and any
contractor, licensee, agent, employee, invite, or visitor of any subtenant. As
used herein and in all other provisions in this Lease containing indemnities
made for the benefit of Landlord, the term "Landlord" shall mean the Landlord
herein named and its managing agent and their respective parent companies and/or
corporations, their respective controlled, associated, affiliated and subsidiary
companies and/or corporations and their respective members, officers, partners,
agents, consultants, servants, employees, successors and assigns. This indemnity
and hold harmless agreement shall include indemnity from and against any and all
liability, fines, suits, demands, costs and expenses of any kind or nature
incurred in or in connection with any such claim or proceeding brought thereon,
and the defense thereof.
38. ADJACENT EXCAVATION SHORING. If an excavation shall be made upon land
adjacent to the 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 Premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the Building 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.
39. MISCELLANEOUS.
A. No Offer. This Lease is offered for signature by Tenant and it is
understood that this Lease shall not be binding upon Landlord unless and until
Landlord shall have executed and delivered a fully executed copy of this Lease
to Tenant.
B. Certificates. From time to time, within ten (10) business days next
following request by Landlord or the mortgagee of a Mortgage, Tenant shall
deliver to Landlord or such mortgagee, as the case may be, a written statement
executed and acknowledged by Tenant, in form reasonably satisfactory to Landlord
or such mortgagee, (i) stating that this Lease is then in full force and effect
and has not been modified (or if modified, setting forth all modifications),
(ii) setting forth the date to which the Rent, additional rent and other charges
hereunder have been paid, together with the amount of fixed base monthly Rent
then payable, (iii) stating
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whether or not, to the best knowledge of Tenant, Landlord is in default under
this Lease, and, if Landlord is in default, setting forth the specific nature of
all such defaults, (iv) stating the amount of the security deposit under this
Lease, (v) stating whether there are any subleases affecting the Premises, (vi)
stating the address of Tenant to which all notices and communications under the
Lease shall be sent, (vii) stating the Commencement Date and the Expiration
Date, and (viii) as to any other matters reasonably requested by Landlord or
such mortgagee. Tenant acknowledges that any statement delivered pursuant to
this subsection B may be relied upon by any purchaser or owner of the Real
Property or the Building, or Landlord's interest in the Real Property or the
Building or any Superior Lease, or by any mortgagee of a Mortgage, or by any
assignee of any mortgagee of a Mortgage, or by any lessor under any Superior
Lease.
C. Directory Listings. Landlord agrees to provide Tenant, at Landlord's
sole cost and expense, with Tenant's Proportionate Share of listings on the
directory in the lobby of the Building.
D. Authority. If Tenant is a corporation or partnership, each individual
executing this Lease on behalf of Tenant hereby represents and warrants that
Tenant is a duly formed and validly existing entity qualified to do business in
the State of New York and that Tenant has full right and authority to execute
and deliver this Lease and that each person signing on behalf of Tenant is
authorized to do so.
E. Signage. Provided the Tenant herein named and its related
corporations occupy not less than sixty percent (60%) of rentable square feet of
the Premises, and provided that this Lease is in full force and effect and
Tenant is not in default hereunder beyond applicable notice and grace periods,
subject to and condition to upon the provisions set forth herein, Tenant may
install a signage plaque on the Fifth Avenue entrance to the Building at a
location designated by Landlord and install a signage plaque on Tenant's
reception desk located at the Fifth Avenue entrance to the Building, provided
and upon the condition that (i) Tenant installs such signage at its sole
expense, (ii) Tenant complies with all applicable requirements of law relating
to such signage and obtains all permits and licenses required for the same,
(iii) Tenant makes all necessary repairs to such signage and keeps the same in
good condition and repair throughout the Term, and (iv) Tenant has obtained
Landlord prior written of such signage (including, without limitation, the
weight, dimensions, color, finish, material, general design and installation
requirements thereof), which consent shall not be unreasonably withheld, delayed
or conditioned provided such signage is compatible with the character and
general appearance of the Building. Except as expressly set forth above, Tenant
shall not exhibit, inscribe, paint or affix any sign, canopy, advertisement,
notice or other lettering on any portion of the Building or the outside of the
Premises without the prior written consent of Landlord in each instance. A plan
of all signage or other lettering proposed to be exhibited, inscribed, painted
or affixed on the entry door(s) to the Premises shall be prepared by Tenant in
conformity with building standard signage requirements (if any) and submitted to
Landlord for Landlord's consent, which consent shall not be unreasonably
withheld, conditioned or delayed. Upon the granting of Landlord's consent,
Tenant may install such signage at Tenant's sole cost and expense. Upon
installation of any such signage or other lettering, such signage or lettering
shall not be removed, changed or otherwise modified in any way without
Landlord's prior written approval, which approval shall be granted or denied in
accordance with the provisions of this subparagraph D. Any signage,
advertisement, notice or other lettering which shall be exhibited, inscribed,
painted or affixed by or on behalf of
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Tenant in violation of the provisions of this section may be removed by Landlord
and the cost of any such removal shall be paid by Tenant as additional rent.
Tenant shall not exhibit, inscribe, paint or affix on any part of the Premises
or the Building visible to the general public any signage or lettering including
the words "temporary" or "personnel".
F. Consents and Approvals. All references in this Lease to the consent
or approval of Landlord shall be deemed to mean the written consent of Landlord
or the written approval of Landlord and no consent or approval of Landlord shall
be effective for any purpose unless such consent or approval is set forth in a
written instrument executed by Landlord. 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 set-off, 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 proceeding to enforce any such provision, for specific performance,
injunction or declaratory judgment.
G. Governing Law. This Lease shall be deemed to have been made in New
York County, New York, and shall be construed in accordance with the laws of New
York. All actions or proceedings relating, directly or indirectly, to this Lease
shall be litigated only in courts located within the County of New York.
Landlord and Tenant, any guarantor of the performance of Tenant's obligations
hereunder and their respective successors and assigns, hereby subject themselves
to the jurisdiction of any state or federal court located with such county, and
shall be subject to service provided that the terms, provisions and conditions
of Article 27 are adhered to.
H. Financial Statements. Tenant shall furnish Landlord annually
throughout the Term, within ninety (90) days following the end of Tenant's
fiscal year (or within five (5) business days after Landlord's request
therefor), an updated, current financial statement of Tenant, Tenant's general
partners and any guarantors of this Lease, which statement shall be audited (if
available); provided, however, Landlord hereby acknowledges and agrees that
provided CIBC World Markets Corp. remains primarily liable hereunder, Landlord
agrees to accept the consolidated financial statements of Tenant's parent
company, Canadian Imperial Bank of Commerce, in satisfaction of the foregoing
obligation.
40. HAZARDOUS SUBSTANCES. Tenant shall not use nor permit the presence,
handling, use, storage or transportation of Hazardous Substances in or about the
Premises or the Building and Tenant shall, at its sole cost and expense, perform
any and all Remedial Work arising from, growing out of or related to any breach
of the foregoing covenant by Tenant. The term "Remedial Work" shall mean all
investigation, monitoring, restoration, abatement, detoxification, containment,
handling, treatment, removal, storage, decontamination, clean-up, transport,
disposal or other ameliorative work or response action undertaken in connection
with (a) any "Environmental Laws" (as hereinafter defined), (b) any order of any
governmental authority having jurisdiction over the Premises and/or the
Building, or (c) any final judgment, consent decree, settlement or compromise
with respect to any "Hazardous Substances Claims" (as hereinafter defined). The
term "Hazardous Substances Claims" shall mean any and all enforcement, clean-up,
removal, remedial or other governmental or regulatory actions,
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agreements or orders threatened in writing, instituted or completed pursuant to
any Environmental Laws and any and all other actions, proceedings, claims,
written demands or causes of action, whether meritorious or not (including,
without limitation, third party claims for contribution, indemnity, personal
injury or real or personal property damage), that, in each case, relate to,
arise from or are based, in whole or in part, on the occurrence or alleged
occurrence of any violation or alleged violation of or responsibility under any
applicable Environmental Law relating to the Premises and/or the Building or to
the ownership, use, occupation or operation thereof. The term "Environmental
Laws" shall mean any and all present and future federal, state and local laws
(whether under common law, statute, ordinance, rule, regulation or otherwise),
court or administrative orders or decrees, requirements of permits issued with
respect thereto, and other requirements of governmental authorities having
jurisdiction over the Premises and/or the Building relating to protection of the
environment, to public health and safety or any Hazardous Substances (including,
without limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 ("CERCLA"), 42 U.S.C. Sections 9601, et seq., as
heretofore or hereafter amended from time to time). Notwithstanding anything
contained herein to the contrary, Tenant shall not be responsible for any
Remedial Work unless the Hazardous Substances requiring such Remedial Work are
brought onto the Premises or any other part of the Building, or are required by
reason of any Alterations performed, by Tenant or Tenant's employees, agents or
contractors. Landlord shall, at its sole cost and expense, perform any and all
Remedial Work required by reason of the presence of Hazardous Substances in the
Premises on the date hereof, unless Tenant is required to perform such Remedial
Work pursuant to the terms of the preceding Sentence.
41. TENANT'S EXPANSION OPTION.
A. Expansion Space. Tenant shall have the option to lease (i) the
penthouse level of the Building (the "Penthouse Expansion Space"), as more
particularly shown on Exhibit 1-E annexed hereto and made a part hereof and/or
(ii) the balance of the tenth (10th) floor of the Building designated as Xxxx
0000, Xxxx 0000-00 and Room 1026 (individually and collectively, the "Tenth
Floor Expansion Space"), as more particularly shown hatched on Exhibit 1-F
annexed hereto and made a part hereof, exercisable by notice to Landlord given
no later than December 31, 2001 with respect to the Penthouse Expansion Space
and no later than December 31, 2002 with respect to the Tenth Floor Expansion
Space (or within ten (10) business days following notice from Landlord that the
Penthouse Expansion Space or Room 1026 are becoming available for lease prior to
the expiration dates of the respective existing leases thereof), provided and
upon the condition that this Lease shall be in full force, effect and Tenant
shall not be in default hereunder beyond applicable notice and grace periods and
this Lease shall not have been assigned. The Penthouse Expansion Space and the
Tenth Floor Expansion Space (and each portion thereof) are hereinafter
individually and collectively referred to as the "Expansion Space". Tenant's
right to lease the Tenth Floor Expansion Space shall be further conditioned upon
Tenant (and its related corporations) being in use and occupancy of, and not
subleasing, the entire Tenth Floor Space and either (i) the entire Eleventh
Floor or (ii) at least sixty (60%) percent of the rentable square footage of the
balance of the Premises. If Tenant exercises its option as aforesaid, Landlord
shall deliver possession of the Expansion Space (which is the subject of such
exercise) to Tenant as soon as reasonably practicable, on such date as Landlord
shall notify Tenant in writing, subject to delays beyond Landlord's control (the
date(s) of delivery of possession of the Expansion Space to Tenant are each
hereinafter referred
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to as the "Expansion Space Commencement Date"). In the event Tenant exercises
its option to lease Room 1015 or Room 1016-19, Tenant shall be deemed to have
irrevocably exercised its right to lease both Room 1015 and Room 1016-19 in
accordance with the provisions of this Article 41; provided, however, Tenant
shall not be deemed to have exercised its right to lease Room 1026 unless Tenant
expressly elects to do so and the definition of Tenth Floor Expansion Space
shall be deemed to mean only those portions of the tenth (10th) floor that
Tenant exercises its right to lease hereunder.
B. Terms. From and after each Expansion Space Commencement Date, this
Lease shall be deemed modified, as applicable, as follows:
(i) the term "Premises" as defined in subsection A of Article 1
hereof shall be deemed to include the applicable Expansion Space; and
(ii) with respect to the Penthouse Expansion Space only, the term
"Rent" as defined in subsection B of Article 1 hereof shall be increased by (a)
per annum during the period commencing on the Expansion Space Commencement Date
through and including the day immediately preceding the date on which the fifth
(5th) anniversary of the Commencement Date shall occur and (b) per annum during
the period commencing on the date on which the fifth (5th) anniversary of the
Commencement Data shall occur through and including the Expiration Date;
(iii) with respect to the Tenth Floor Expansion Space only, the term
"Rent" as defined in subsection B of Article 1 hereof shall be increased by the
product of the rentable square footage of the Expansion Space (as set forth
below) times (a) per annum during the period commencing on the Expansion Space
Commencement Date through and including the day immediately preceding the date
on which the fifth (5th) anniversary of the Commencement Date shall occur and
(b) per annum during the period commencing on the date on which the fifth (5th)
anniversary of the Commencement Date shall occur through and including the
Expiration Date;
(iv) the term "Tenant's Proportionate Share" as defined in subsection
B of Article 1 hereof shall be increased by the percentage amount that the
rentable square footage of the Expansion Space bears to the rentable square
footage of the Building; and
(v) the term "Labor Rate Multiple" as defined in subsection B of
Article 1 hereof shall be increased by the rentable square footage of the
Expansion Space, as set forth below.
In all other respects, the terms and conditions contained in this Lease
(including base years for determining escalations) shall remain unmodified. In
the event that Tenant fails to timely exercise its right as aforesaid, Tenant
shall be deemed to have waived its rights under this Article with respect to the
Expansion Space, Landlord shall have the absolute right to lease the Expansion
Space or any part thereof to any other person or entity and Tenant shall have no
further rights with respect to the Expansion Space. For the purposes of this
Article 41, the rentable square footage of the Expansion Space shall
conclusively be deemed to be the following: (w) Penthouse Expansion Space, 1,616
rentable square feet, (x) Room 1015, 2,499
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rentable square feet, (y) Room 1016-1019, 2,031 rentable square feet and (z) Rom
1026, 9094 rentable square feet. The Penthouse Expansion Space shall be deemed
to include the one marked "common area" on Exhibit E.
C. Failure to Deliver Expansion Space. In the event that Tenant shall
have exercised its option to lease the applicable Expansion Space and Landlord
shall thereafter fail to deliver all or any portion of such Expansion Space on
or before the date(s) upon which Landlord anticipates such Expansion Space could
be delivered to Tenant, then in such event, this Lease and the provisions of
this Article 41 shall not be effected and Landlord shall not be subject to any
liability therefor. Landlord anticipates that the Tenth Floor Expansion Space
will be available for delivery to Tenant on or about January 1, 2004 and that
the Penthouse Expansion Space will be available for delivery to Tenant on or
about April 1, 2002. Notwithstanding the foregoing however, if Landlord is
unable to deliver possession of all or any portion of the Expansion Space due to
a holdover by the existing tenant, Landlord agrees to use reasonable efforts to
obtain possession of the Expansion Space. For the purpose of this Article 41,
the term "reasonable efforts" shall mean that Landlord shall promptly commence
and diligently prosecute a holdover proceeding against the existing tenant to
the extent it is reasonable to do so under the circumstances.
D. As Is. Tenant agrees to accept the Expansion Space in its then "as
is" condition and understands and agrees that Landlord shall perform no work and
incur no cost or expense in connection with the preparation of the Expansion
Space for Tenant's occupancy, except that with respect to the Tenth Floor
Expansion Space only, Landlord shall, at it sole cost and expense, demolish the
existing tenant improvements therein prior to the Expansion Space Commencement
Date and reimburse Tenant for the cost incurred by Tenant to install an
Air-Conditioning System in the Tenth Floor Expansion Space, at a cost not to
exceed (i) the amount of with respect to Room 1026 and (ii) the aggregate amount
of with respect to Room 1015 and Room 1016-19, payable in accordance with the
provisions of Schedule B hereof.
E. Rights Personal. The expansion option described hereinabove is
personal to the Tenant named herein and shall not be available to any person or
entity other than the Tenant named herein including without limitation, any
permitted subtenant, successor or assign of the Tenant named herein, other than
a related corporation that takes an assignment of Lease in accordance with
subsection L of Article 12 hereof.
F. Lease Amendment. In the event that Tenant shall have exercised its
right as aforesaid, Landlord and Tenant shall enter into an amendment of this
Lease in form and substance reasonably satisfactory to Landlord setting forth
the terms of the inclusion of the Expansion Space in the Premises. If Landlord
and Tenant fail to mutually execute an amendment of this Lease as aforesaid, the
Expansion Space shall be deemed to be included within the Premises without such
written amendment upon the terms, conditions and provisions contained in this
Lease.
42. SATELLITE DISH. Provided this Lease shall be in full force and effect
and Tenant shall not then be in default hereunder beyond applicable notice and
grace periods, Tenant may, at its sole cost and expense, install and operate
during the Term up to one (1) satellite antenna receiving dish or terrestrial
microwave antenna (hereinafter the "Satellite Antenna") on the roof
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of the Building at a location to be designated by Landlord, and reasonably
acceptable to Tenant, in an area consisting of approximately 200 square feet,
including any guy wires (hereinafter the "Installation Area"). The Installation
of such Satellite Antenna shall be subject to the following:
A. Tenant shall not install or operate the Satellite Antenna until it
receives prior written approval from Landlord, which approval shall not be
unreasonably withheld or delayed provided, and on the condition that Tenant
submits plans and specifications for the installation of the Satellite Antenna,
which plans and specifications prepared by an architect or engineer licensed in
the State of New York and stamped and certified by such architect or engineer
are reasonably acceptable to Landlord. Prior to commencing such installation,
Tenant shall provide Landlord with (i) copies of all required governmental and
quasi-governmental permits, licenses and authorizations which Tenant will obtain
at its own expense and which Tenant will maintain at all times during the
installation of the Satellite Antenna; and (ii) a certificate of insurance
evidencing insurance coverage as required by this Lease and any other insurance
reasonably required by Landlord for the installation and operation of the
Satellite Antenna. Landlord may withhold approval if, in Landlord's sole
judgment, the installation or operation of the Satellite Antenna may damage the
structural integrity of the Building.
B. Tenant warrants and represents that (i) Tenant shall repair any
damage to the roof of the Building or otherwise caused by the installation or
operation of the Satellite Antenna, (ii) the maintenance of the Satellite
Antenna on the roof or the operation thereof shall not cause interference with
any telecommunications, mechanical or other systems either located at or
servicing the Building (whether belonging to or utilized by Landlord or any
other tenant or occupant of the Building) or located at or servicing any
building, premises or location in the vicinity of the Building limited however
to that permissible under applicable F.C.C. regulations to the extent that such
regulations apply, and (iii) the installation, existence, maintenance and
operation of the Satellite Antenna shall not constitute a violation of any
applicable laws, ordinances, rules, orders, regulations, etc. of any Federal,
State, county and municipal authorities having jurisdiction thereover.
C. The installation of the Satellite Antenna shall be made subject to
and in accordance with all of the provisions of this Lease (including without
limitation, Article 3). The contractors performing the installation of the
Satellite Antenna and/or performing any work on or to the roof of the Building
shall be reasonably approved by Landlord prior to the commencement of any work.
D. Landlord agrees that the Installation Area shall be made available to
Tenant, for use by Tenant, at Tenant's option, until October 1, 2003. The
Installation Area shall thereafter be made available to Tenant as required by
Tenant only if available and not theretofore committed to any other tenant or
for any other use.
E. Tenant shall pay to Landlord the amount, if any, by which Landlord's
insurance costs or real estate taxes increase as a result of the installation of
the Satellite Antenna and Tenant shall pay such increase each year as additional
rent upon receipt of a xxxx from Landlord.
F. Tenant covenants and agrees that the installation, operation and
removal of the Satellite Antenna will be at its sole risk. Tenant agrees to
indemnify and defend Landlord and
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Landlord's managing agent against all claims, actions, damages, liabilities and
expenses including reasonable attorney's fees in connection with the loss of
life, personal injury, damage to property or business or any other loss or
injury or as a result of any litigation arising out of the installation,
operation or removal of the Satellite Antenna.
G. Landlord, at its sole option, may require Tenant, at any time prior
to the Expiration Date, to terminate the operation of the Satellite Antenna if,
in Landlord's sole but reasonable judgment, it is causing physical damage to the
structural integrity of the Building, materially interfering with any other
service provided to other tenants in the Building or interfering with any other
tenant's business, in excess of that permissible under F.C.C. regulations, to
the extent that such regulations apply and such regulations shall not require
such tenants or those providing such services to correct such interference.
Notwithstanding the foregoing however, if Tenant can correct the damage or
disturbance caused by the Satellite Antenna to Landlord's reasonable
satisfaction, Tenant may restore its operation. If the Satellite Antenna is not
corrected and restored to operation within thirty (30) days, Landlord, at its
sole option, may require that Tenant remove the Satellite Antenna at Tenant's
expense.
H. At the expiration or sooner termination of this Lease, or upon
termination of the operation of the Satellite Antenna (pursuant to paragraph (G)
of this Article 42), or revocation of any license issued, Tenant shall remove
the Satellite Antenna from the Building at Tenant's sole cost and expense.
Tenant shall leave the Installation Area in good order and repair. If Tenant
does not remove the Satellite Antenna when so required and restore the roof, as
herein provided, Tenant hereby authorizes Landlord to remove and dispose of the
Satellite Antenna and restore the roof as herein provided and to charge Tenant
for all costs and expenses incurred in connection therewith.
43. PURCHASE OF PERSONALTY. Tenant hereby agrees that simultaneously with
the execution and delivery of this Lease by Tenant, Tenant shall deliver an
official bank check in the amount of payable to the account of Predictive in
consideration of the purchase by Tenant from Predictive of certain furniture,
furnishings and equipment located on the Eleventh Floor (collectively, the
"FF&E"), which check shall be held in escrow by Landlord's attorneys pending (a)
the execution and unconditional delivery of the surrender agreement between
Landlord and Predictive and (b) the execution by Predictive and delivery to
Tenant of a xxxx of sale transferring all of Predictive's right, title and
interest in and to the FF&E to Tenant, at which time the check shall be
delivered to Predictive.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first above written.
EBS FIFTH PROPERTY ASSOCIATES LLC, Landlord
a Delaware limited liability company
By: EBS Duo LLC, its sole member,
a Delaware limited liability company
By: Emmes EBS MM LLC, its managing member,
a Delaware limited liability company
By: /s/ Xxxx Xxxxxxxx
----------------------------------------------------
Xxxx X. Xxxxxxxx, Authorized Signatory
CIBC WORLD MARKETS CORP., Tenant
By: /s/ Xxxxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
-----------------------------
Title: Managing Director
----------------------------
------------------------------------------
Tenant's Tax I.D. Number
63
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EXHIBIT 1 - A
Floor Plan of Second Floor
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[GRAPHIC MATERIAL OMITTED]
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EXHIBIT 1 - B
Floor Plan of Mezzanine
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[GRAPHIC MATERIAL OMITTED]
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EXHIBIT 1 - C
Floor Plan of the Eleventh Floor
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[GRAPHIC MATERIAL OMITTED]
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EXHIBIT 1 - D
Floor Plan of Tenth Floor Space
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[GRAPHIC MATERIAL OMITTED]
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EXHIBIT 1 - E
Floor Plan of Penthouse Expansion Space
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[GRAPHIC MATERIAL OMITTED]
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EXHIBIT 1 - F
Floor Plan of Tenth Floor Space Expansion
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[GRAPHIC MATERIAL OMITTED]
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EXHIBIT 2
Form of Subordination, Non-Disturbance and Attornment Agreement
CONFORMED COPY
SUBORDINATION, ATTORNMENT AND
NON-DISTURBANCE AGREEMENT
between
SALOMON BROTHERS REALTY CORP.
("Mortgagee")
---------
and
-----------------------------------
("Tenant")
------
Dated as of __________, 2001
Record and Return to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxxxx, Esq.
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SUBORDINATION, ATTORNMENT AND NONDISTURBANCE AGREEMENT
THIS SUBORDINATION, ATTORNMENT AND NONDISTURBANCE AGREEMENT (this
"Agreement") made as of ___________________, 200_ (the "Effective Date"), by and
between SALOMON BROTHERS REALTY CORP., a New York corporation having an office
at 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Mortgagee"), and
[Name of Tenant], a [Status of Tenant], having an office at [Address of Tenant]
("Tenant").
WITNESSETH:
WHEREAS, Mortgagee is the owner and holder of the mortgages between
Mortgagee, as mortgagee, and [Name of Mortgagor], as mortgagor, set forth on
Exhibit "B" annexed hereto and made a part hereof (said mortgages, as the same
have been or may hereafter be amended, increased, renewed, refinanced, modified,
consolidated, replaced, combined, supplemented, substituted, spread and extended
being hereinafter collectively referred to as the "Mortgage"), encumbering the
land located in the [Town or City of _________, County of _________ and State
of________], which land is more particularly described on Exhibit "A" annexed
hereto and made a part hereof, and the buildings, improvements, and other items
of property more fully described in the Mortgage (such land, buildings,
improvements and other property being hereinafter referred to collectively as
the "Mortgaged Premises");
WHEREAS, Tenant has entered into a lease with [Landlord], as landlord
("Landlord"), dated as of________, 200_ (the "Lease"), by which Landlord demised
to Tenant's portion of the Mortgaged Premises (the "Leased Premises");
WHEREAS, a true and complete copy of the Lease has been delivered to
Mortgagee by Tenant, the receipt of which is hereby acknowledged:
WHEREAS, Mortgagee, as a condition to making the loan(s) secured by the
Mortgage, required that all leases affecting the Mortgaged Premises be and
continue to be subordinate in every respect to the Mortgage; and
WHEREAS, Mortgagee and Tenant desire to confirm the subordination of the
Lease to the Mortgage and to provide for the nondisturbance of Tenant by
Mortgagee as set forth herein.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, and intending to be legally bound, Mortgagee and Tenant agree
us follows:
1. The Lease, its terms and conditions, and the lien thereof (if any)
now are and shall at all times continue to be subject and subordinate in each
and every respect to the Mortgage (including all advances made thereunder), its
terms and the lien thereof. The provisions of this Agreement shall be
self-operative, and no further instrument shall be necessary to effectuate the
terms hereof. Nevertheless, Tenant, upon request, shall execute and deliver any
certificate or other instrument that Mortgagee may reasonably request to confirm
the subordination by Tenant referred to above.
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2. Tenant certifies that (a) the Lease is presently in full force and
effect and unmodified, and represents the entire agreement between Landlord and
Tenant with respect to the Mortgaged Premises or any portion thereof; (b) no
rental payable under the Lease has been paid more than one (1) month in advance
of its due date; (c) no event has occurred that constitutes a default under the
Lease by Landlord or Tenant or that, with the giving of notice, the passage of
time, or both, would constitute such a default; (d) as of the Effective Date,
Tenant has no charge, defense, lien, claim, counterclaim, offset or setoff under
the Lease or against any amounts payable thereunder; (e) all conditions to the
effectiveness or continuing effectiveness of the Lease required to be satisfied
as of the Effective Date have been satisfied; (f) the commencement date of the
Lease occurred on date; (g) the rent commencement date of the Lease occurred on
date; and (h) Tenant has taken possession of the Leased Premises.
3. The terms and conditions of the Lease constitute a primary inducement
to Mortgagee to enter into this Agreement. Accordingly, Tenant agrees that
Tenant shall not cancel, surrender, terminate, assign, amend or modify or enter
into any agreement to cancel, surrender, terminate, assign, amend or modify the
Lease, without the prior written approval of Mortgagee. Any cancellation,
surrender, termination, assignment, amendment or modification of the Lease made
without Mortgagee's prior written approval shall not bind Mortgagee or any
Successor (as defined below).
4. In the event of any default on the part of Landlord, arising out of
or accruing under the Lease, whereby the validity or the continued existence of
the Lease might be impaired or terminated by Tenant, or Tenant might have a
claim for partial or total eviction or abatement of rent, Tenant shall not
pursue any of its rights with respect to such default or claim, and no notice of
termination of the Lease as a result of such default shall be effective, unless
and until Tenant has given written notice of such default or claim to Mortgagee
at the address set forth herein, or Mortgagee's successor or assign whose name
and address previously shall have been furnished to Tenant in writing (but not
later than the time that Tenant notifies Landlord of such default or claim) and
granted to Mortgagee a reasonable time, which shall be not less than the greater
of (i) the period of time granted to Landlord under the Lease, or (ii) thirty
(30) days, after the giving of such notice by Tenant to Mortgagee, to cure or to
undertake the elimination of the basis for such default or claim, after the time
when Landlord shall have become entitled under the Lease to cure the cause of
such default or claim; it being expressly understood that (a) if such default or
claim cannot reasonably be cured within such cure period, Mortgagee shall have
such additional period of time to cure same as it reasonably determines is
necessary, so long as it continues to pursue such cure with reasonable
diligence, and (b) Mortgagee's right to cure any such default or claim shall not
be deemed to create any obligation for Mortgagee to cure or to undertake the
elimination of any such default or claim.
5. As long as (i) the term of the Lease shall have commenced pursuant to
the provisions thereof, (ii) Tenant shall be in possession of the Leased
Premises, (iii) the Lease shall be in full force and effect, and (iv) Tenant is
in compliance with the terms of this Agreement and no default exists under the
Lease beyond applicable cure periods, nor has any event occurred that with the
giving of notice or the passage of time or both would entitle Landlord to
terminate the Lease or would cause, without any further action by Landlord, the
termination of the Lease or would entitle Landlord to dispossess Tenant under
the Lease (conditions "i" through "iv," collectively, the "Nondisturbance
Conditions"), Mortgagee shall not name Tenant as a party
2
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defendant in any action for foreclosure of the Mortgage or other enforcement
thereof (unless required by law), nor shall the Lease be terminated by Mortgagee
in connection with or by reason of foreclosure or other proceedings for the
enforcement of the Mortgage or by reason of a transfer of Landlord's interest,
if any, in the Mortgaged Premises or under the Lease pursuant to a conveyance in
lieu of foreclosure (or similar device) (any of the foregoing, a "Foreclosure"),
nor shall Tenant's use or possession of the Leased Premises be interfered with
by Mortgagee, unless Landlord would have had such right.
6. If Landlord's interest in the Mortgaged Premises or under the Lease
is terminated by reason of a Foreclosure (the party succeeding to Landlord's
interest, if any, in the Mortgaged Premises or under the Lease, by Foreclosure
or any other method, being hereinafter referred to, together with such party's
successors and assigns, as "Successor"), then upon Successor's succeeding to
Landlord's interest, if any, in the Mortgaged Premises or under the Lease,
Tenant shall be bound to Successor, and, except as provided in this Agreement,
Successor shall be bound to Tenant, under all the terms, covenants and
conditions of the Lease for the balance of the term thereof remaining, with the
same force and effect as if Successor were Landlord, and Tenant does hereby
agree to attorn to Successor, including Mortgagee if it be the Successor, as
Tenant's landlord; affirm Tenant's obligations under the Lease; and make
payments of all sums due under the Lease to Successor. Such attornment,
affirmation and agreement shall be effective and self-operative without the
execution of any further instruments. Tenant waives the provisions of any
statute or rule of law now or hereafter in effect that may give or purport to
give Tenant any right or election to terminate or otherwise adversely affect the
Lease or the obligations of Tenant thereunder by reason of any Foreclosure.
7. As an additional material inducement to Mortgagee to enter into this
Agreement, Tenant agrees that if Landlord is the subject of any proceeding (a
"Bankruptcy Proceeding") under the provisions of the Bankruptcy Code, 11 U.S.C.
Section 101 et seq., as in effect, or as hereafter amended, or under the
provisions of any successor statute thereto (collectively, the "Code"), then
Tenant shall take all actions reasonably necessary to retain possession of the
Leased Premises (whether or not Landlord, pursuant to the Code or otherwise,
attempts to reject the Lease) so as to enable Tenant to continue to lease and
occupy the Leased Premises on all or substantially all terms of the Lease.
During any Bankruptcy Proceeding Tenant shall, unless the Lease has already been
terminated in accordance with its terms and the terms of this Agreement: (i) not
terminate the Lease except in accordance with the Lease and this Agreement; (ii)
not give up possession of the Leased Premises (if Tenant is already in such
possession); and (iii) if Tenant is not yet in possession of the Leased Premises
prior to the commencement of the Bankruptcy Proceeding, then Tenant shall take
all steps reasonably necessary to cooperate with Mortgagee in attempting to
obtain possession of the Leased Premises for Tenant provided that (a) Mortgagee
exercises its reasonable efforts (excluding the making of any payments to, or
for the benefit of, Landlord or its estate, or to any other party, which
payments Mortgagee is not otherwise required to make under this Agreement) to
obtain possession of the Leased Premises for Tenant, and (b) Mortgagee notifies
Tenant that Mortgagee reasonably believes that it will be able to obtain such
possession for Tenant on or before a date that is within one hundred twenty
(120) days after such proceeding commenced. If Tenant does not obtain possession
of the Leased Premises within one hundred twenty (120) days after commencement
of such proceeding, or Mortgagee fails to comply with clauses (a) and (b) above,
then Tenant shall have no further obligations under this
3
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paragraph to cooperate with Mortgagee in obtaining possession of the Leased
Premises and Tenant may terminate the Lease.
8. If (i) Landlord becomes the subject of a Bankruptcy Proceeding, and
Landlord, as debtor-in-possession, or any trustee, as successor-in-interest to
Landlord, obtains an order of the bankruptcy court or other court of competent
jurisdiction authorizing the rejection of the Lease in accordance with Section
365 of the Code, or the Lease is otherwise terminated in such Bankruptcy
Proceeding, and (ii) thereafter, Mortgagee or any other person shall acquire
title to the Mortgaged Premises through Foreclosure or by any other means
(including a sale of the Mortgaged Premises pursuant to the Code), then the
person so acquiring title to the Mortgaged Premises shall also be a "Successor"
for all purposes of this Agreement. If the Lease is terminated or rejected in or
as a result of a Bankruptcy Proceeding, then:
A. Upon request made by Tenant to Successor within thirty (30) days after
Tenant receives notice from Successor that Successor has obtained title to the
Mortgaged Premises, and provided that immediately prior to such Lease rejection
or termination the Nondisturbance Conditions were satisfied and at the time of
such request Tenant is in possession of the Leased Premises, Successor, if and
to the extent that it has the legal right and power to do so (without incurring
any expenses or liabilities), shall enter into a new lease with Tenant upon the
same terms and conditions as were contained in the Lease, except that (x) the
obligations and liabilities of such Successor under any such new lease shall be
subject to the terms and conditions of this Agreement, and (y) the expiration
date of such new lease shall coincide with the original expiration date of the
Lease (a "New Lease").
B. Upon Successor's written request of Tenant made within sixty (60) days
after Successor has acquired title to the Mortgaged Premises, Tenant shall
execute a New Lease with Successor, and shall attorn to Successor, so as to
establish direct privity between Successor and Tenant.
9. Notwithstanding anything to the contrary in the Lease, any New Lease, or
this Agreement, any Successor shall not (a) be subject to any credits, offsets,
defenses, claims, counterclaims or demands that Tenant might have against any
prior landlord (including, without limitation, Landlord); (b) be bound by any
previous modification or amendment of the Lease or by any rent or additional
rent that Tenant might have paid for more than the current month to any prior
landlord, unless such modification or prepayment shall have been made with
Mortgagee's prior written consent; (c) be liable for any accrued obligation, act
or omission of any prior landlord (including, without limitation, Landlord),
whether prior to or after Foreclosure; (d) be bound by any covenant to undertake
or complete any improvement to the Mortgaged Premises or the Leased Premises, or
to reimburse or pay Tenant for the cost of any such improvement, [?REFERENCE
SPECIFIC LEASE PROVISIONS REGARDING LANDLORD'S WORK]; (e) be required to perform
or provide any services not related to possession or quiet enjoyment of' the
Leased Premises; (f) be required to account for any security deposit other than
any security deposit actually delivered to Successor, (g) be required to abide
by any provisions for the diminution or abatement of rent; or [?(h) INSERT
LEASE-SPECIFIC CARVE-OUTS].
10. Notwithstanding anything to the contrary in this Agreement, the Lease,
or any New Lease, if Successor acquires Landlord's interest, if any, in the
Mortgaged Premises, then Successor's liability for its obligations under the
Lease (or any New Lease) and this Agreement
4
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shall be limited to Successor's interest in the Mortgaged Premises. Tenant shall
not look to any other property or assets of Successor or the property or assets
of any of the partners, shareholders, directors, officers and principals, direct
and indirect, of Successor in seeking either to enforce Successor's obligations
under the Lease (or any New Lease) and this Agreement or to satisfy a judgment
for Successor's failure to perform such obligations.
11. If and to the extent that the Lease or any provision of law shall
entitle Tenant to notice of any mortgage, Tenant acknowledges and agrees that
this Agreement shall constitute said notice to Tenant of the existence of the
Mortgage.
12. This Agreement may not be modified except by an agreement in writing
signed by the parties hereto or their respective successors in interest. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
(and shall benefit any Successor), and the successors and assigns of the
foregoing, provided, however, this Agreement shall not be binding upon any
assignee of Mortgagee acquiring the loan secured by the Mortgage in connection
with a refinancing thereof.
13. Nothing contained in this Agreement shall in any way impair or
affect the lien created by the Mortgage or modify the terms thereof. By
executing and delivering this Agreement, Mortgagee shall not be deemed to have
(i) waived any default under the Mortgage, (ii) modified the Mortgage in any
manner, or (iii) waived any rights or remedies it possesses under the Mortgage
or otherwise. In the event any conflict, inconsistency or ambiguity exists
between the terms, covenants and conditions of the Lease and the terms,
covenants and conditions of the Mortgage, the terms, covenants and conditions of
the Mortgage shall control, except as specifically and expressly set forth
herein.
14. Tenant agrees and confirms that this Agreement satisfies any
condition or requirement in the Lease or otherwise relating to the granting of a
nondisturbance agreement, including, without limitation, the provisions of
Article ________ of the Lease. Tenant further agrees that if there is any
inconsistency between the terms and provisions hereof and the terms and
provisions of the Lease relating to nondisturbance by Mortgagee, the terms and
provisions hereof shall be controlling.
15. Tenant acknowledges that it has notice that the Lease and the rent
and all other sums due thereunder have been assigned to Mortgagee. If Mortgagee
notifies Tenant of Mortgagee's election under the Mortgage or any other loan
document to collect rent and all other sums due under the Lease, and demands
that Tenant pays same to Mortgagee, Tenant agrees that it will honor such demand
and pay its rent and all other sums due under the Lease directly to Mortgagee or
as directed by Mortgagee, notwithstanding any contrary claims, directions, or
instructions by Landlord or parties claiming through Landlord, other than
Mortgagee.
16. Tenant agrees that notwithstanding anything to the contrary
contained in the Lease, any Successor shall have the right to consent to or
refuse any proposed assignment or subletting of the Leased Premises in its sole
discretion.
17. All notices, demands or requests made pursuant to, under, or by
virtue of this Agreement must be in writing and mailed to the party to whom the
notice, demand or request is
5
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being made by certified or registered mail, return receipt requested, at its
address set forth above. A copy of all notices to Mortgagee shall also be sent
to Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xxxxx Xxxxxxxx, Esq. A copy of all notices to Tenant
shall also be sent to: Any party may change the place that notices and demands
are to be sent by written notice delivered in accordance with this Agreement.
18. This Agreement shall be governed by the laws of the State of New
York. If any term of this Agreement or the application thereof to any person or
circumstances shall to any extent be invalid or unenforceable, the remainder of
this Agreement or the application of such term to any person or circumstances
other than those as to which it is invalid or unenforceable shall not be
affected thereby, and each term of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
19. Each party shall execute and deliver, upon the request of the other,
such documents and instruments (in recordable form, if requested) as may be
necessary or appropriate to fully implement or to further evidence the
understandings and agreements contained in this Agreement. This Agreement may be
executed in any number of counterparts.
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be duly executed as of the Effective Date.
Tenant SALOMON BROTHERS REALTY CORP.
------
By: By:
---------------------------------- -------------------------------------
Its: Name:
--------------------------------- -----------------------------------
Title: Authorized Representative
6
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EXHIBIT 3
Cleaning Specifications
GENERAL CLEANING
----------------
NIGHTLY:
--------
General Offices:
----------------
1. All hard surface flooring to be swept using approved dust-down
preparation.
2. Carpet sweep all carpets, moving only light furniture (desks, file
cabinets, etc. not to be moved).
3. Hand dust and wipe clean all furniture, fixtures and window xxxxx.
4. Empty and clean all ash trays and screen all sand urns.
5. Empty and clean all waste disposal cans and baskets.
6. Dust interiors of all waste disposal cans and baskets.
7. Wash clean all water fountains and coolers.
Lavatories:
-----------
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 (both sides).
5. Hand dust and clean all partitions, tile walls, dispensers and
receptacles in lavatories and restrooms.
6. Empty paper receptacles and remove wastepaper.
7. Fill and clean all soap, towel and toilet tissue dispensers as needed.
8. Empty and clean all sanitary disposal receptacles.
WEEKLY:
-------
1. Vacuum clean all carpeting and rugs.
2. Dust all door louvers and other ventilating louvers within a person's
reach.
3. Wipe clean all brass and other bright work.
QUARTERLY:
----------
High dust the Premises complete, including the following:
1. Dust all pictures, frames, charts, graphs, and similar wall hangings not
reached in nightly cleaning.
2. Dust all vertical surfaces, such as walls, partitions, doors, and door
bucks and other surfaces not reached in nightly cleaning.
3. Dust all pipes, ventilating and air-conditioning louvers, ducts, high
moldings and other surfaces and other high areas not reached in nightly
cleaning.
4. Dust all Venetian blinds.
CONFORMED COPY
Wash exterior and interior of windows not less than three (3) times annually,
subject to weather conditions and requirements of law.
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SCHEDULE A
RULES AND REGULATIONS
I. The rights of each tenant in the Building to the entrances, corridors
and elevators of the Building are limited to ingress to and egress from
such tenant's premises and no tenant shall use, or permit the use of the
entrances, corridors, or elevators for any other purpose. No tenant
shall invite to its premises, or permit the visit of persons in such
numbers or under such conditions as to interfere with the use and
enjoyment of any of the plazas, entrances, corridors, elevators and
other facilities of the Building by other tenants. No tenant shall
encumber or obstruct, or permit the encumbrances or obstruction of any
of the sidewalks, plazas, entrances, corridors, elevators, fire exits or
stairways of the Building. Landlord reserves the right to control and
operate the public portions of the Building, the public facilities, as
well as facilities furnished for the common use of the tenants, in such
manner as Landlord deems best for the benefit of the tenants generally.
II. Landlord may refuse admission to the Building outside of ordinary
business hours to any person not known to the watchman in charge or not
having a pass issued by Landlord or not properly identified, and may
require all persons admitted to or leaving the Building outside of
ordinary business hours to register. Tenants' employees, agents and
visitors shall be permitted to enter and leave the Building whenever
appropriate arrangements have been previously made between Landlord and
the tenant with respect thereto. Each tenant shall be responsible for
all persons for whom it requests such permission and shall be liable to
Landlord for all acts of such persons. In the event a so-called "card
access" or similar system is installed at the Building, Landlord shall
provide one (1) access card for each employee designated in writing by
the employing tenant upon Landlord's receipt and review of appropriate
photo identification for each such employee. In no event shall Landlord
issue more than one (1) access card for each employee during the term of
his or her employment. Any person whose presence in the Building at any
time shall, in the judgment of Landlord, be prejudicial to the safety,
character, reputation or interests of the Building or its tenants may be
denied access to the Building or may be ejected therefrom. In case of
invasion, riot, public excitement or other commotion Landlord may
prevent all access to the Building during the continuance of the same,
by closing the doors or otherwise, for the safety of the tenants and
protection of property in the Building. Landlord may require any person
leaving the Building with any package or other object to exhibit a pass
from the tenant from whose premises the package or object is being
removed, but the establishment and enforcement of such requirement shall
not impose any responsibility on Landlord for the protection of any
tenant against the removal of property from the premises of tenant.
Landlord shall, in no way, be liable to any tenant for damages or loss
arising from the admission, exclusion or ejection of any person to or
from a tenant's premises or the Building under the provisions of this
rule.
III. No tenant shall obtain or accept for use in its premises ice, drinking
water, towels, barbering, boot blacking, floor polishing, lighting
maintenance, cleaning or other similar services from any persons not
authorized by Landlord in writing to furnish such services. Such
services shall be furnished only at such hours, in such places within
the tenant's premises and under such regulation as may be fixed by
Landlord.
CONFORMED COPY
IV. Except as permitted by the terms of the Lease, no window or other
air-conditioning units shall be installed by any tenant, and only such
window coverings as are supplied or permitted by Landlord shall be used
in a tenant's premises.
V. There shall not be used in any space, nor in the public halls of the
Building, either by any tenant, jobber or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with
rubber tires and side guards.
VI. All entrance doors in each tenants premises shall be left locked when
the tenant's premises are not in use.
VII. No noise, including the playing of any musical instruments, radio or
television, which, in the judgment of Landlord, might disturb other
tenants in the Building, shall be made or permitted by any tenant. No
dangerous, inflammable, combustible or explosive object, material or
fluid shall be brought into the Building by any tenant or with the
permission of any tenant.
VIII. Each tenant shall furnish Landlord with keys to its respective premises
so that Landlord may have access thereto for the purposes set forth in
the Lease. No additional locks or bolts of any kind shall be placed upon
any of the entrance doors or windows in any tenant's premises without
Landlord's consent, which consent shall not be unreasonably withheld,
conditioned or delayed, and no lock on any entrance door therein shall
be changed or altered in any respect without providing Landlord with a
key. Upon the termination of a tenant's lease, all keys of the tenant's
premises and toilet rooms shall be delivered to Landlord.
IX. Each tenant, shall, at its expense, provide artificial light in the
premises for Landlord's agents, contractors and employees while
performing janitorial or other cleaning services and making repairs or
alterations in said premises.
X. No tenant shall install or permit to be installed more than three (3)
vending machines per floor in any tenant's premises and such machines
shall be solely for the purpose of dispensing food products and
beverages for consumption by the tenant's and its permitted subtenants,
occupants, employees and guests.
XI. No animals or birds may be brought into or kept in or about the
Building; Tenant acknowledges that any violation of this Rule and
Regulation will impair the first-class character and reputation of the
Building and shall be a material default under this Lease. In addition,
no bicycles, mopeds or vehicles of any kind shall be brought into or
kept in or about the Building or permitted therein.
XII. No furniture or office equipment will be received in the Building or
carried up or down in the elevator, except between such hours as shall
be designated by Landlord. Landlord shall prescribe the charge for
freight elevator use and the method and manner in which any heavy
furniture, equipment or safes shall be brought in or taken out of the
Building, and also the hours at which such moving shall be done. No
furniture, office equipment, merchandise, large packages or parcels
shall be moved or transported in the passenger elevators at any time.
A - 2
CONFORMED COPY
XIII. All electrical fixtures hung along the perimeter of any tenant's
Premises must be fluorescent, of a quality, type, design and bulb color
approved by Landlord unless the prior reasonably consent of Landlord has
been obtained for other xxxxxxx.
XIV. The exterior windows and doors that reflect or admit light and air into
any premises or the halls, passageways or other public places in the
Building, shall not be covered or obstructed by any tenant, nor shall
any articles be placed on the windowsills.
XV. Canvassing, soliciting and peddling in the Building is prohibited and
each tenant shall cooperate to prevent same.
XVI. No tenant shall do any cooking, conduct any restaurant, luncheonette or
cafeteria for the sale or service of food or beverages to its employees
or to others, except as expressly permitted by the terms of this Lease
and otherwise approved in writing by Landlord. In addition, no tenant
shall cause or permit any odors of cooking or other processes or any
unusual or objectionable odors to emanate from the premises. The
foregoing shall not preclude tenant from having food or beverages
delivered to the premises, reheating food in a microwave, or keeping
food in a refrigerator, provided and upon the condition that no tenant
shall cause or permit any odors of cooking or other processes or any
unusual or objectionable odors to emanate from the premises.
A - 3
CONFORMED COPY
SCHEDULE B
TENANT'S INITIAL ALTERATION
I. Tenant shall perform or cause the performance of Alterations in and to
the Tenth Floor Space to prepare same for Tenant's initial occupancy
thereof ("Tenant's Initial Alteration"). All Alterations to be performed
by Tenant shall be, at a minimum, of a quality and standard equivalent
to the standards for construction set by Landlord, from time to time,
for the Building, and shall be subject to the prior approval of Landlord
as set forth in Article 3 hereof. Tenant shall submit to Landlord or, at
Landlords direction, Landlords Consultant, complete and detailed
architectural, mechanical and engineering plans and specifications
prepared by an architect or engineer licensed in the State of New York
and reasonably approved by Landlord, which plans and specifications
shall be stamped and certified by such architect or engineer, showing
Tenant's Initial Alteration, which plans and specifications shall be
prepared by Tenant, at Tenant's own cost and expense and shall be
sufficient and contain all information necessary and required for filing
the same with The City of New York Department of Buildings and shall
otherwise meet the requirements of the Building Code of The City of New
York. Landlord shall not object to Tenant's architect self-certifying
Tenant's plans and specifications showing Tenant's Initial Alteration.
At Tenant's request, Landlord agrees to sign and deliver to The City of
New York Department of Buildings' Form A1-1 (the "Form") authorizing
such professional certification of Tenant's plans and specifications by
Tenant's architect; provided, however, Landlord's signature on such Form
shall not be deemed to create any liability on the part of Landlord with
respect to the matters set forth in such Form. Tenant hereby agrees to
indemnify and hold Landlord harmless from and against any and all
claims, obligations, liabilities, losses, fines, suits, demands, costs
and expenses of any kind or nature incurred in connection with the
matters set forth in the Form, including, without limitation, any
requirements of the Building Code of The City of New York arising in
connection therewith. Tenant's plans and specifications shall include
all information necessary to reflect Tenant's requirements for the
design and installation of any supplemental air-conditioning equipment,
ductwork, heating, electrical, plumbing and other mechanical systems and
all work necessary to connect any non-standard facilities to the
Building's base mechanical, electrical and structural systems. Tenant's
submission shall include not less than three (3) sets of sepias and five
(5) sets of black and white prints (or at Landlord's direction, Tenant's
submission shall be on an electronic form).
II. Tenant shall not perform work which would (a) require changes to
structural components of the Building or the exterior design of the
Building, (b) require any material modification to the Building's
mechanical installations or other Building installations outside the
Tenth Floor Space or (c) not be in compliance with all applicable laws,
rules, regulations and requirements of any governmental department
having jurisdiction over the Building and/or the construction of the
Tenth Floor Space, including but not limited to, the Americans with
Disabilities Act of 1990. Any changes required by any governmental
department affecting the construction of the Tenth Floor Space shall be
performed at Tenant's sole Cost.
CONFORMED COPY
III. At the time that Tenant submits its plans and specifications to Landlord
for Landlord's acceptance, such plans and specifications must be
transmitted to Landlord with a cover letter specifically stating that
"the enclosed plans and specifications are being transmitted to Landlord
for its review and acceptance pursuant to the terms of the Lease."
Landlord or Landlord's Consultant shall respond to Tenant's request for
acceptance of any plans and specifications described in Paragraph I
above within ten (10) business days following the submission of such
plans and specifications prepared in accordance with the terms hereof.
In the event Landlord or Landlord's Consultant shall fail to accept all
or a portion of any of Tenant's plans and specifications, such failure
to accept same shall be set forth in writing and shall include the
reasons therefor in reasonable detail, in which event Tenant shall
revise such plans and specifications and resubmit same to Landlord
promptly thereafter. Landlord or Landlord's Consultant shall respond to
Tenant's request for acceptance of any such revised plans within five
(5) business days following resubmission. The acceptance of plans and
specifications by Landlord or Landlord's Consultant (hereinafter
referred to as the "Final Plans") together with Tenant's satisfactory
compliance with the requirements set forth in Items (1) through (4) of
Schedule C annexed hereto, shall be deemed an authorization for Tenant
to proceed with Tenant's Initial Alteration, which shall be performed in
accordance with the provisions of Article 3 and Schedule D of this
Lease. Tenant shall reimburse Landlord for any reasonable fees of
Landlord's Consultant incurred in connection with Tenant's Initial
Alteration. Neither the recommendation or designation of an architect or
engineer nor the acceptance of the final plans and specifications by
Landlord or Landlord's Consultant shall be deemed to create any
liability on the part of Landlord with respect to the design or
specifications set forth in the Final Plans.
IV. Promptly following Tenant's submission of its complete and final plans
and specifications for all trades showing Tenant's Initial Alteration to
the Tenth Floor Space for Landlord's approval, Landlord shall deliver to
Tenant a Form ACP-5 with respect to Tenant's Initial Alteration to the
Tenth Floor Space.
V. Landlord agrees to reimburse Tenant for the cost of installing an
Air-Conditioning System to service the Tenth Floor Space (the
"Air-Conditioning Installation"), as approved by Landlord or Landlord's
Consultant and installed by Tenant within twelve (12) months of the
Commencement Date to the extent of the lesser of (i) $112,200.00 or (ii)
the actual cost to Tenant for the Air-Conditioning Installation (such
lesser amount being hereinafter referred to as "Landlord's
Contribution"). Provided this Lease is in full force and effect and
Tenant is not in default hereunder beyond applicable notice and grace
periods, Landlord shall pay Landlord's Contribution to Tenant within
thirty (30) days of submission by Tenant of (a) paid receipts (or such
other proof of payment as Landlord shall reasonably require) for work
done in connection with the Air-Conditioning Installation, (b) a written
statement from Tenant's architect or engineer that the work described on
any such invoices has been completed substantially in accordance with
the plans and specifications approved by Landlord, (c) a final lien
waiver executed by the contractor employed by Tenant in connection with
Air-Conditioning Installation, and (d) proof reasonably satisfactory to
Landlord that Tenant has complied with all of the conditions set forth
in this Schedule B (as applicable), which shall include, without
B - 2
CONFORMED COPY
limitation, submission of all of the items described on Schedule C
annexed hereto and made a part hereof.
B - 3
CONFORMED COPY
SCHEDULE C
REQUIREMENTS FOR
"CERTIFICATES OF FINAL APPROVAL"
1. All required Building Department Forms must be properly filled out and
completed by the approved architect/engineer of record or Building
Department expediter, as required.
2. All forms are to be submitted to Landlord for Landlord's review and
signature prior to submission of final plans and forms to the New York
City Building Department, as required.
3. All pertinent forms and filed plans are to be stamped and sealed by a
licensed architect and/or professional engineer, as required. All
controlled inspections are to be performed by the architect/engineer of
record unless approved otherwise by the Landlord.
4. A copy of all approved forms, permits and approved NYC Building
Department plans (stamped and signed by the New York City Building
Department) are to be submitted to the building office prior to start of
work.
5. Copies of all completed inspection reports and NYC Building Department
sign-offs are to be submitted to the building office immediately
following completion of construction, as required.
6. All claims, violations or discrepancies with improperly filed plans,
applications, or improperly completed work shall become the sole
responsibility of the applicant to resolve, as required.
7. All changes to previously approved plans and applications must be filed
under an amended application, as required. Landlord reserves the right
to withhold approvals to proceed with changes until associated plans are
properly filed with the New York City Building Department, as required.
8. The architect/engineer of record accepts full responsibility for any and
all discrepancies or violations which arise out of non-compliance with
all local laws and building codes having jurisdiction over the work.
9. The Landlord reserves the right to reject any and all work requests and
new work applications that are not properly filed or accompanied by
approved plans and building permits.
10. All ACP's and asbestos inspections must be conducted by a licensed and
fully qualified asbestos inspection agency approved by Landlord.
Checklist of "Certificates of Final Approval" required to be furnished
by Tenant pursuant to Article 3 (Alterations) of Lease.
CONFORMED COPY
These forms must be furnished by the Architect/Engineer of record or
Building Department expediter (filing agency) and approved by Landlord prior to
submitting all plans and forms to the New York City Building Department for
final approval.
Form Description
---- -----------
___* PW-1 Building Notice Application (Plan work
approval application)
___* PW-1B Plumbing/Mechanical Equipment Application
and Inspection Report
___* PW-1 Statement Form B
___* TR-1 Amendment Controlled Inspection Report
___ PW-2 Building Permit Form (All Disciplines)
___ B Form 708 Building Permit "Card"
___* TR-1 Certification of Completed Inspection and
Certified Completion Letter by Architect/
Engineer of record or Building Department
expediter
___ PW-3 Cost Affidavit Form
___ PW-4 Equipment Use Application Form
___* PW-6 Revised Certificate of Occupancy for change
in use (if applicable)
___ Form ACP-7 New York City Department of Environmental
or Protection Asbestos Inspection Report as
prepared by a licensed and approved asbestos
Form ACP-5 inspection agency
Building Department Equipment Use Permits
for all new HVAC equipment installed under
this application.
* These Items must be perforated (with the date and New York City Building
Department Stamp) to signify New York City Building Department Approval.
All forms must bear proper approvals and sign-off prior to authorization
given by Landlord to proceed with the work.
C - 2
CONFORMED COPY
SCHEDULE D
TENANT ALTERATION WORK AND NEW CONSTRUCTION
CONDITIONS AND REQUIREMENTS
1. No Alterations are permitted to commence until original Certificates of
Insurance required from Tenant's general contractor (the "General
Contractor") and all subcontractors complying with the attached
requirements are on file with the Building office.
2. All New York City Building Department applications with assigned BN# and
permits must be on file with the Building office prior to starting work.
A copy of the building permit must also be posted on the job site by the
General Contractor. The General Contractor shall make all arrangements
with Landlord's expediter for final inspections and sign-offs prior to
substantial completion.
3. The General Contractor shall comply with all Federal, State and local
laws, building codes, OSHA requirements, and all laws having
jurisdiction over the performance and handling of the Alterations.
4. The existing "Class E" fire alarm system (including all wiring and
controls), if any, must be maintained at all times. Any additions or
alterations to the existing system shall be coordinated with the
Building office as required. All final tie-in work is to be performed by
Landlord's fire alarm vendor and coordinated by the General Contractor.
All costs for the tie-ins are reimbursable to Landlord by Tenant.
5. All wood used, whether temporary or not, such as blocking, form work,
doors, frames, etc. shall be fire rated in accordance with the New York
City Building and Fire Code requirements governing this work.
6. Building standby personnel (i.e. Building operating engineer and/or
elevator operator), required for all construction will be at Landlord's
discretion. Freight elevators used for overtime deliveries must be
scheduled in writing with Landlord at least 24 hours in advance, as
required. All costs associated are reimbursable to Landlord by Tenant,
as provided in Article 29 of this Lease.
7. The General Contractor shall comply with the Rules and Regulations of
the Building elevators and the manner of handling materials, equipment
and debris to avoid conflict and interference with Building operations.
All bulk deliveries or removals will be made prior to 8:00 a.m. and
after 5:00 p.m. or on weekends, as required.
8. No exterior hoisting will be permitted. All products or materials
specified are to be assembled on-site, and delivered to the site in such
a manner so as to allow unobstructed passage through the Building's
freight elevator, lobbies, corridors, etc. The General Contractor will
be responsible for protection of all finished spaces, as required.
CONFORMED COPY
9. All construction personnel must use the freight elevator at all times.
Any and all tradesman found riding the passenger elevators without prior
approval from Landlord will be escorted out of the Building and not be
allowed re-entry without written approval from the Building office.
10. During the performance of Alterations, Tenant's construction supervisor
or job superintendent must be present on the job site at all times.
11. During the performance of Alterations, all demolition work shall be
performed after 6:00 p.m. during the week or on weekends. This would
include carting or rubbish removal as well as performing any operations
that would disturb other Building tenants or other occupants (drilling,
chopping, grinding, recircuiting, etc.).
12. No conduits or cutouts are permitted to be installed in the floor slab
without prior written approval from Landlord. Landlord reserves the
right to restrict locations of such items to areas that will not
interfere with the Building's framing system or components. No conduits
or cutouts are permitted outside of Tenant's Premises.
13. Plumbing connections to Building supply, waste and vent lines are to be
performed after normal working hours, and coordinated with the Building
manager, and are to include the following minimum requirements:
A. Separate shutoff valves for all new hot and/or cold water supply
lines (including associated access doors).
B. Patch and repair of existing construction on floor below,
immediately following completion of plumbing work (to be
performed after normal working hours, as required).
14. The General Contractor must coordinate all work to occur in public
spaces, core areas and other tenant occupied spaces with Landlord, and
perform all such work after normal working hours (to include associated
patch and repair work). The General Contractor shall provide all
required protection of existing finishes within the affected area(s).
15. The General Contractor must perform all floor coring, drilling or
trenching after normal business hours, and obtain Landlord's permission
and approval of same prior to performing such work.
16. Convector mounted outlets and associated conduits, wiring, boxes, etc.,
shall be located and installed in areas where they will not hinder the
operation or maintenance of existing fan coil units or prevent removal
or replacement of access panels or removable covers.
17. The General Contractor shall be responsible for all final tests,
inspections and approvals associated with all modifications, deletions
or additions to Building Class "E" systems and equipment.
D - 2
CONFORMED COPY
18. Recircuiting of existing power/lighting panels and circuits affecting
Building and/or tenant operations are to be performed after normal
business hours and coordinated with the Building office in advance, as
required.
19. All burning and welding to be performed in occupied or finished areas
shall be performed after normal business hours and coordinated with the
Building office in advance, as required. Proper ventilation of the work
area will be required in order to perform this work.
20. The General Contractor shall provide Landlord's managing agent and the
Building office with all approved submittal and closeout documents as
well as all required final inspections and Building Department sign-offs
just prior to or immediately following completion of construction.
21. Any and all Alterations to the Building sprinkler system (including
draining of system) are to be performed after normal business hours and
coordinated with the Building office, as required. All costs associated
with the shut down, drain and refill of the sprinkler system are
reimbursable to Landlord.
22. The General Contractor shall be responsible for any and all daily
cleanup required to keep the job site clean throughout the entire course
of the Alterations. No debris shall be allowed to accumulate in any
public spaces,
23. The General Contractor shall be responsible for proper protection of all
existing finishes and construction for Alterations to be performed in
common Building areas. All Alterations to be performed in occupied areas
outside of the Premises shall be performed after normal business hours
and coordinated with the Building office, as required.
24. The General Contractor shall perform any and all hoisting associated
with the Alterations after normal business hours. The General Contractor
will obtain all required permits and insurance to perform work of this
nature. The General Contractor shall specify hoisting methods and
provide all required permits and insurance to Landlord's managing agent
and the Building office prior to commencement of Alterations.
25. Union labor shall be used by all contractors and subcontractors
performing any and all Alterations within the Building. All contractors
and subcontractors shall perform all work in a professional manner, and
shall work in close harmony with one another as well as with the
Building management and maintenance personnel.
26. The General Contractor shall forward complete copies of all approved
contractor submittal, and Building and Fire Department sign-offs and
Statement of Responsibility forms, to the Building office immediately
following completion of construction.
27. Two (2) complete sets of "as-built" Final Plans and an additional set in
an acceptable electronic format must be delivered to Landlord upon final
completion of the Alterations.
D - 3
CONFORMED COPY
INSURANCE REQUIREMENTS
LIABILITY LIMITATIONS
---------------------
A. Comprehensive or Commercial General Liability Insurance written on an
occurrence basis, to afford protection of $5,000.000 combined single
limit for personal injury, bodily injury and/or death and Broad Form
property damage arising out of any one occurrence (or such lesser
amounts as may be commercially reasonable with respect to the insurance
to be maintained by any subcontractors); and which insurance shall
include coverage for premises-operations (including explosion, collapse
and underground coverage), elevators, contractual liability, owner's and
contractor's protective liability, and completed operations liability.
B. Comprehensive Auto Liability Insurance covering the use of all owned,
non-owned and hired vehicles providing bodily injury and property damage
coverage, all on a per occurrence basis, at a combined single limit of
$1,000,000.
C. Worker's Compensation Insurance providing statutory benefits for
contractor's employees and Employer's Liability Coverage in an amount
not less than $100,000/$500,000/$100,000.
D. Property coverage damage to or loss of use of contractor's equipment.
CERTIFICATE HOLDER
------------------
EBS Fifth Property Associates LLC
c/o Emmes Realty Services LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ADDITIONAL INSUREDS
-------------------
EBS Fifth Property Associates LLC
c/o Emmes Realty Services LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EBS Duo LLC
c/o Emmes Asset Management Company LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Emmes EBS MM LLC
c/o Emmes Asset Management Company LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
D - 4
CONFORMED COPY
Salomon Brothers Realty Corp.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Emmes Asset Management Company LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Emmes Realty Services LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
In addition to listing each of the Additional Insured parties, as noted above,
the Certificate of Insurance, general liability form, shall state that "The
General Aggregate limit applies separately to each project."
The name and address of the Additional Insureds shall appear on the Certificate
of Insurance. The insurance agent's address and telephone number is also
required.
D - 5
CONFORMED COPY
SCHEDULE E
LANDLORD'S WINDOW INSTALLATION
I. Landlord agrees, at its sole cost and expense and without charge to
Tenant, to provide and install now exterior windows throughout the tenth floor
of the Building (including the Tenth Floor Expansion Space), which Work shall be
of design, capacity, finish and color of the standard adopted by Landlord for
the Building (which shall be comparable to the windows presently installed in
the Eleventh Floor).
II. Landlord and Tenant acknowledge that the window installation involves
the procurement of long lead items and, accordingly, may be performed
simultaneously with Tenant's Initial Alteration and/or after Tenant has taken
possession of the Tenth Floor Space for the conduct of its business therein.
Landlord shall schedule the window installation after consultation with Tenant
and shall use reasonable efforts to minimize unreasonable interference with
Tenant's use and occupancy of the Tenth Floor Space in finalizing the schedule.
However, once the window installation begins, Landlord shall have the right to
complete the window installation on a continuous, uninterrupted schedule without
Tenant interference. Tenant acknowledges that the window installation shall be
performed at such times, including normal business hours, and in such a manner
as Landlord shall reasonably determine; provided, however, Landlord and Tenant
agree to mutually cooperate with one another to avoid unreasonable interference
with Tenant's Initial Alteration or Tenant's use and enjoyment of the Tenth
Floor Space during the performance of the window installation. In addition,
Tenant agrees (i) not interfere with the performance of the window installation
and shall coordinate Tenant's Initial Alteration so that it does not interfere
with the performance of the window installation, (ii) to cooperate with Landlord
or Landlord's agent during the performance of such work, including, but not
limited to, the temporary removal and relocation of Tenant's fixtures, equipment
and other personalty by Tenant, to the extent reasonably necessary, and (iii) to
release Landlord from all losses, costs, damages and expenses incurred as a
result of such work, unless any such loss, cost, damage or expense arises from
Landlord's negligence or willful misconduct.
E - 1
CONFORMED COPY
Exhibit C
FF&E
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10th 11th
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Item Floor Floor Description
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PO-1 36
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PO-2 8
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PO-3
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PO-4
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PO-5
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PO-6
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PO-7
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Interior Offices 8
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Conf. Rms. 2 2
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Lg. Conf. Tables 3 3 Technion-10th fl. 1-118x48,
2-48x96 11th fl 3-48 x 96 Xxxxx Laminate
10th fl - 1 - 48" diam, 1-36"
diam xx xxx, 1-36: versteel -
11th fl
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Sm. Conf. Tables 5 2 3-36: diam.
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Conf. Chairs 8 Steelcase Black
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Desk Chairs 112 125 Teknion/Amicus Black Wheels
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Desks 19 70 Teknion - 29" x 60" Xxxxx Laminate
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Rolling Desk 6 Teknion - 29" x 60" Grey top Laminate
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Returns 13 67 Teknion - 23" x 36" Xxxxx Laminate
Teknion - 5' x 5' 10th fl - 6' x 6'
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Cubicles 90 51 11th fl.
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Ref Furn
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Trading Desks
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Side Chairs 49 105 Teknion Black Amicus
Guest Chairs Black
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Files
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36" - 2 Drawer 17 17 Teknion/Chronicle Black Metal
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36" - 3 Drawer Teknion/Chronicle Black Metal
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36" - 4 Drawer Teknion/Chronicle Black Metal
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36" - 5 Drawer 37 45 Teknion/Chronicle Black Metal
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30" - 2 Drawer 6 Teknion/Chronicle Black Metal
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30" - 5 Drawer Teknion/Chronicle Black Metal
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18" - 2 Drawer Teknion/Chronicle Black Metal
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15" - 2 Drawer 82 Teknion/Chronicle Black Metal
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30" - 4 Drawer Teknion/Chronicle Black Meal
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CONFORMED COPY
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10th 11th
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Item Floor Floor Description
---- ----- ----- -----------
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Pedestal 99 Teknion Black Metal
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Trading Pedestals
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2 Door Cabinets 2 Teknion Black
(36x36)
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Book Shelves 24 Teknion-36" x 5' black, 5 shelves Black
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Refrigerators 1 2 GE 34 1/2" x 67 1/2" white White
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Microwaves 1 2 GE - 23 1/2" white White
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Couches 4 Black Leather w/2 side chairs Black/Wood
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