STANDARD FORM OF OFFICE LEASE The Real Estate Board of New York, Inc.
Exhibit 10.1
7/04
STANDARD FORM OF OFFICE LEASE The Real Estate Board of New York, Inc. |
Agreement of Lease, made as of this 16th day of May in the year 2016, between 400 MADISON HOLDINGS, LLC a Delaware limited liability company, c/o Macklowe Management LLC, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, party of the first part, hereinafter referred to as OWNER, and REGENXBIO INC, a Delaware corporation, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, party of the second part, hereinafter referred to as TENANT,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner a portion of the eighth (8th) floor, designated by Owner as Suite 8F, substantially as shown on Exhibit A attached hereto (but excluding elements of the building which penetrate through the floor and janitor and electrical closets) (alternatively, the “demised premises” or the “Demised Premises”) in the building known as 000 Xxxxxxx Xxxxxx (alternatively, the “building” or the “Building”) in the Borough of Manhattan, City of New York, for the term of four (4) years.
(or until such term shall sooner cease and expire as hereinafter provided) to commence on the
DAY SET FORTH IN SECTION 37(a) , and to end on the
DAY SET FORTH IN SECTION 37(a)
both dates inclusive, at the annual rental rate SET FORTH IN SECTION 37(b)
which Tenant agrees to pay in lawful money of the United States, which shall be legal tender in payment of all debts and dues, public and private, at the time of payment, in equal monthly installments in advance on the first day of each month during said term, at the office of Owner or such other place as Owner may designate, without any setoff or deduction whatsoever, except that Tenant shall pay the first monthly installment(s) on the execution hereof (unless this lease be a renewal).
In the event that, at the commencement of the term of this lease, or thereafter, Tenant shall be in default in the payment of rent to Owner pursuant to the terms of another lease with Owner or with Owner’s predecessor in interest, Owner may at Owner’s option and without notice to Tenant add the amount of such arrears to any monthly installment of rent payable hereunder and the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors, administrators, legal representatives, successors and assigns, hereby covenant as follows:
Rent: |
1. Tenant shall pay the rent as above and as hereinafter provided. | |
Occupancy: | 2. Tenant shall use and occupy the demised premises for |
GENERAL AND EXECUTIVE OFFICES ONLY, and for no other purpose.
Rider to be added if necessary
In Witness Whereof, Owner and Tenant have respectively signed and sealed this lease as of the day and year first above written.
Owner: |
400 MADISON HOLDINGS, LLC | |||
By: |
/s/ Xxxxxx Xxxxxx | |||
Name: Xxxxxx Xxxxxx | ||||
Title: VP | ||||
Tenant: |
||||
By: |
/s/ Xxxxxxx Xxxxx | |||
Name: Xxxxxxx Xxxxx | ||||
Title: CEO |
IMPORTANT – PLEASE READ
RIDER TO OFFICE LEASE
TABLE OF CONTENTS
Article |
Page | |||||
37. |
TERM; FIXED RENT |
1 | ||||
38. |
TAXES |
2 | ||||
39. |
ATTORNMENT AND NOTICE TO OWNER |
3 | ||||
40. |
ASSIGNMENT AND SUBLETTING |
5 | ||||
41. |
INSURANCE |
10 | ||||
42. |
ELECTRIC ENERGY |
12 | ||||
43. |
OWNER’S SERVICES |
13 | ||||
44. |
LATE CHARGE |
15 | ||||
45. |
BROKER |
14 | ||||
46. |
MISCELLANEOUS PROVISIONS |
14 | ||||
47. |
NOTICES |
19 | ||||
48. |
HOLDOVER |
20 | ||||
49. |
SECURITY DEPOSIT |
21 | ||||
50. |
OWNER’S INITIAL WORK |
22 |
Schedule A |
- | Fixed Rent | ||
Exhibit A |
- | Floor Plan | ||
Exhibit B |
- | Cleaning Specifications | ||
Exhibit C |
- | Service Charge Rates | ||
Exhibit D |
- | Form of Letter of Credit | ||
Exhibit E |
- | Owner’s Initial Work | ||
Exhibit E-1 |
- | Owner’s Initial Work Plan | ||
Exhibit F |
- | HVAC Specifications |
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RIDER TO LEASE DATED May 16, 2016 BETWEEN 400 MADISON HOLDINGS, LLC, AS OWNER (“OWNER’’), AND REGENXBIO INC., AS TENANT (“TENANT”).
37. TERM: FIXED RENT.
(a) (i) The term of this lease shall commence on the earlier to occur of (1) the Substantial Completion Date (as hereinafter defined) and (2) the date on which Tenant, or anyone acting by, through or under Tenant shall take possession of all or any portion of the Demised Premises for any purpose whatsoever, other than for the purpose of performing Pre possession Activities pursuant to the provisions of Section 37(a)(ii) below (the earlier of such dates, the “Commencement Date”) and shall end at 11:59 p.m. on the day immediately preceding the fourth (4th) anniversary of the Rent Commencement Date (as hereinafter defined), provided that if the Commencement Date is not the first (1st) day of a calendar month, the term of this lease shall end on the last day of the calendar month in which the fourth (4th) anniversary of the Rent Commencement Date occurs (the “Expiration Date”), or on such earlier date upon which the term of this lease shall expire or be canceled or terminated pursuant to any of the terms, conditions or covenants of this lease or pursuant to law.
(ii) Notwithstanding the provisions of Section 37(a)(i) above,
(A) Tenant may have access to the Demised Premises prior to the Substantial Completion Date for the sole purpose of inspecting the Demised Premises, checking on the progress of the Owner’s Initial Work (as hereinafter defined), taking measurements and installing cables and wiring for Tenant’s telephone, computer and data systems (but not the systems themselves, which Tenant may install after the Commencement Date) (collectively, “Pre-possession Activities”) and such access shall not be deemed to trigger the Commencement Date. Pre-possession Activities shall not include installation or storage of (and Tenant shall not install or store) any materials, equipment or furniture in the Demised Premises prior to the Commencement Date. Doing so shall trigger the Commencement Date and Owner shall have no responsibility or liability for the safekeeping of any such items.
(B) In connection with all Pre-possession Activities (and as a condition to Owner’s permitting the same):
(1) Tenant shall comply with all applicable provisions of this lease governing alterations prior to requesting access to the Demised Premises therefor and shall comply with all applicable Building-standard reasonable rules and regulations of Owner in connection with such activities (it being agreed that Owner’s consent shall not be required with respect to Tenant’s performance of Pre-possession Activities, but Tenant shall nevertheless provide Owner with a reasonably detailed description of the work being performed and the schedule therefor);
(2) Tenant shall not interfere in any respect with the performance of Owner’s Initial Work, it being agreed that, subject to Section 37(a)(ii)(A) above, Owner and Tenant shall coordinate the conduct of the Pre-possession Activities so as to minimize such interference;
(3) Any delay suffered by Owner in the performance of Owner’s Initial Work by reason of such Pre-possession Activities shall constitute a Tenant’s Delay (as defined in Section 50(c) below) for purposes of this lease;
(4) Tenant shall make its initial request for access in connection with each Pre-possession Activity constituting a distinct activity (or project) upon not less than three (3) Business Days prior notice given by telephone and email to both Xxxxxxx Xxxxxx (000-000-0000; xxxxxxx@xxxxxxxx.xxx) and Xxxxxxx Xxxxxx (000-000-0000; xxxxxxx@xxxxxxxx.xxx), except for the taking of measurements and performing inspections, which request shall be made on reasonable advance notice (which may be made orally); and
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(5) Owner shall have no obligation to provide for the protection or safekeeping of any materials or equipment left or installed in the Demised Premises in connection with any Pre-possession Activities and Owner shall have no liability for damage or theft thereof, except to the extent arising out of the negligence or willful misconduct of Owner or Owner’s members, partners, directors, officers, agents, employees, contractors, invitees or licensees.
(b) The rental rate per period payable hereunder (sometimes referred to herein as the “rent”. “Rent”, or “Fixed Rent”) shall be as set forth in Schedule A annexed hereto and made a part hereof. Fixed Rent shall be payable in lawful money of the United States which shall be legal tender in payment of all debts and dues, public and private, at the time of payment, in equal monthly installments in advance on the Rent Commencement Date and thereafter on the first day of each month during the term of this lease, at the office of Owner or at such other place in the continental United States (excluding Alaska) as Owner may designate in writing, without any offset, reduction, deduction, defense and/or counterclaim whatsoever; provided, however, that the first monthly installment of rent shall be paid concurrently with the execution and delivery of this lease and such payment shall be applied to the monthly installment of rent due on the Rent Commencement Date. For purposes of this lease, the term “Additional Charges” shall mean all charges, fees and other sums of money (other than Fixed Rent) as shall be due and payable from time to time by Tenant to Owner pursuant to this lease. Fixed Rent and periodic Additional Charges shall be prorated for any partial period on a per diem basis.
(c) Notwithstanding anything to the contrary contained in this lease, Tenant shall be entitled to an abatement of the Fixed Rent payable for the period (the “Abatement Period”) from and including the Commencement Date to, but not including, the three (3) month anniversary of the Commencement Date (such 3-month anniversary, the “Rent Commencement Date”), provided, however, that during the Abatement Period, Tenant shall not be relieved of its obligation to pay the portion of Fixed Rent applicable to electricity charges pursuant to Article 42 below with respect to the Abatement Period, plus any Additional Charges with respect to the Abatement Period. Notwithstanding the foregoing, if this lease shall terminate (or Owner shall re-enter the Demised Premises) during the first two years of the term of this lease due to Tenant’s default hereunder, Tenant shall immediately repay to Owner the amounts abated during the Abatement Period.
(d) Promptly after the occurrence of the Commencement Date, Owner and Tenant shall confirm the Commencement Date, the Rent Commencement Date, the First Rent Adjustment Date (as defined in Schedule A below) and the Expiration Date by executing an instrument reasonably satisfactory to Owner and Tenant; provided, that, the failure by Owner or Tenant to execute such an instrument shall not affect the determination of such dates pursuant to the provisions of this lease.
38. TAXES.
(a) The terms defined below shall for the purposes of this lease have the meanings herein specified:
(i) “Taxes” shall mean all real estate taxes, sewer rents, water frontage charges and other assessments, special or otherwise, levied, assessed or imposed by the City of New York or any other taxing authority upon or with respect to the Building and the land thereunder (the “Land”) and all taxes assessed or imposed with respect to the rentals payable hereunder, other than general income, gross receipts and excess profits taxes (except that general income, gross receipts and excess profits taxes shall be included if covered by the provisions of the following sentence). Taxes shall also include any taxes, charges or assessments levied, assessed or imposed by any taxing authority in addition to or in lieu of the present method of real estate taxation, provided such additional or substitute taxes, charges and assessments are computed as if the Building were the sole property of Owner subject to said additional or substitute tax, charge or assessment. With respect to any Tax Year, all reasonable out-of-pocket expenses, including reasonable legal, 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 Tax Year. Notwithstanding the foregoing, Taxes shall not include personal property taxes, franchise taxes, gift taxes, capital or stock taxes, succession or inheritance taxes or estate taxes. Tenant hereby waives any right to institute or join in tax certiorari proceedings or other similar proceedings contesting the amount or validity of any Taxes.
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(ii) “Tax Year” shall mean each period of twelve (12) months, commencing on the first day of July of each such period, in which occurs any part of the term of this lease, or such other period of twelve (12) months occurring during the term of this lease as hereafter may be duly adopted as the fiscal year for real estate tax purposes of the City of New York.
(iii) “Tax Statement” shall mean an instrument or instruments setting forth Tenant’s Tax Payment (as hereinafter defined). Each Tax Statement shall be accompanied by a copy of the tax bills (or other evidence of the Taxes) upon which Tenant’s Tax Payment has been calculated. Upon request of Tenant, the first Tax Statement delivered to Tenant, shall include the tax bills for the Tax Years included in the definition of Base Taxes (as hereinafter defined) or other evidence of the calculation of the Base Taxes.
(iv) “Tenant’s Percentage” shall mean 2.113%.
(v) “Base Taxes” shall mean the average of (1) the Taxes payable for the Tax Year commencing July 1, 2015 and ending June 30, 2016 and (2) the Taxes payable for the Tax Year commencing July 1, 2016 and ending June 30, 2017.
(b) If the Taxes payable for any Tax Year shall exceed the Base Taxes, Tenant shall pay to Owner, as Additional Charges for such Tax Year, an amount (herein called the “Tax Payment”) equal to Tenant’s Percentage of the amount by which the Taxes payable by Owner for such Tax Year are greater than the Base Taxes.
(c) The Tax Payment for each Tax Year shall be due and payable in installments in the same manner that Taxes for such Tax Year are due and payable by Owner to the City of New York, except that Tenant shall pay each installment of the Tax Payment to Owner within thirty (30) days after Owner delivers the applicable Tax Statement to Tenant Owner’s failure to render a Tax Statement with respect to any Tax Year shall not prejudice Owner’s right thereafter to render a Tax Statement with respect to any such Tax Year nor shall the rendering of a Tax Statement prejudice Owner’s right thereafter to render a corrected Tax Statement for that Tax Year.
(d) In the event Taxes for any Tax Year or part thereof shall be reduced after Tenant shall have paid Tenant’s Tax Payment in respect of such Tax Year which reduction results in an overpayment by Tenant in respect of such Tax Payment, Owner shall set forth in the first Tax Statement thereafter submitted to Tenant the amount of such overpayment and, provided that Tenant is not then in default in the payment of Fixed Rent and Additional Charges and is not in default of any other provision of this lease beyond any applicable notice and cure period, Tenant shall receive a credit in the amount of such overpayment against the installment or installments of Tenant’s Tax Payment next falling due equal to Tenant’s Percentage of such refund, but in no event shall the credit exceed the amount of the Additional Charges paid by Tenant with respect to Taxes for said Tax Year, or if the term of this lease has ended, Owner shall refund such overpayment to Tenant within thirty (30) days after Owner receives the benefit of such tax reduction. If the Taxes comprising the Base Taxes are reduced as a result of an appropriate proceeding or otherwise, the Taxes as so reduced shall for all purposes be deemed to be Taxes for the Base Taxes, and Owner shall give notice to Tenant of the amount by which the Tax Payments previously made were less than the Tax Payments required to be made under this Article 38, and Tenant shall pay the amount of the deficiency within thirty (30) days after written demand therefor accompanied by a calculation of the adjustment for each Tax Year affected.
(e) The expiration or termination of this lease during any Tax Year for any part or all of which there is a Tax Payment or refund due under this Article 38 shall not affect the rights or obligations of the parties hereto respecting such Tax Payment or refund and any Tax Statement relating to such Tax Payment shall, on a pro-rata basis, be sent to Tenant subsequent to, and all such rights and obligations shall survive, any such expiration or termination. Any such payment shall be (i) calculated based on a year of 365 days and paid based on the actual number of days elapsed and (ii) shall be payable within thirty (30) days after such Tax Statement is sent to Tenant.
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39. ATTORNMENT AND NOTICE TO OWNER.
Supplementing the provisions of Article 7 of this lease:
(a) This lease, and all rights of Tenant hereunder, are and shall be subject and subordinate to all ground leases, overriding leases and underlying leases of the Land and/or the Building and/or that portion of the Building of which the Demised Premises are a part, now or hereafter existing and to all mortgages and assignments of leases and rents (each such mortgage or assignment is hereinafter referred to as a “mortgage”) which may now or hereafter affect the Land and/or the Building and/or that portion of the Building of which the Demised Premises are a part and/or any of such leases, whether or not such mortgages shall also cover other lands and/or buildings and/or leases, to each and every advance made or hereafter to be made under such mortgages, and to all renewals, modifications, replacements and extensions of such leases and such mortgages and spreaders and consolidations of such mortgages. This Section shall be self-operative and no further instrument of subordination shall be required. In confirmation of such subordination, Tenant shall, within ten (10) business days after written request from Owner, execute, acknowledge and deliver any instrument that Owner, the lessor under any such lease or the holder of any such mortgage or any of their respective successors-in-interest may reasonably request to evidence such subordination. Any lease to which this lease is, at the time referred to, subject and subordinate is herein called “Superior Lease” and the lessor of a Superior Lease or its successor in interest, at the time referred to, is herein called “Superior Lessor”; and any mortgage to which this lease is, at the time referred to, subject and subordinate is herein called “Superior Mortgage” and the holder of a Superior Mortgage is herein called “Superior Mortgagee”.
(b) If any act or omission of Owner would give Tenant the right, immediately or after lapse of a period of time, to cancel or terminate this lease, or to xxxxx or offset against the payment of rent or to claim a partial or total eviction, Tenant shall not exercise such right until (i) it has given written notice of such act or omission to Owner and each Superior Mortgagee and each Superior Lessor whose name and address shall previously have been furnished to Tenant and (ii) a reasonable period for remedying such act or omission shall have elapsed following the giving of such notice (which reasonable period shall be the period to which Owner would be entitled under this lease or otherwise, after similar notice, to effect such remedy plus sixty (60) days). Owner represents and warrants to Tenant that as of the date of this lease, (i) the holder of the only Superior Mortgage encumbering the Land and Building is JPMorgan Chase Bank, N.A., 00 X. Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 and (ii) there is no Superior Lease. The provisions of this Section 39(b) shall not apply to Tenant’s right to terminate this Lease pursuant to Article 9 (as supplemented by Section 46(cc)), provided that Tenant notifies Lender at least sixty days prior to the termination date that Tenant intends to exercise such right.
(c) If any Superior Lessor or Superior Mortgagee, or any designee of any Superior Lessor or Superior Mortgagee, shall succeed to the rights of Owner under this lease, whether through possession or foreclosure action or delivery of a new lease or deed, then at the request of such party so succeeding to Owner’s rights (herein called “Successor Owner”), Tenant shall attorn to and recognize such Successor Owner as Owner under this lease and shall promptly execute and deliver any instrument that such Successor Owner may reasonably request to evidence such attornment. Upon such attornment this lease shall continue in full force and effect as a direct lease between the Successor Owner and Tenant upon all of the terms, conditions and covenants as are set forth in this lease, except that the Successor Owner shall not be:
(i) liable for any previous act or omission of Owner (or its predecessors in interest);
(ii) responsible for any moneys owing by Owner to the credit of Tenant;
(iii) subject to any credits, offsets, claims, counterclaims, demands or defenses which Tenant may have against Owner (or its predecessors in interest);
(iv) bound by any payments of rent which Tenant might have made for more than one (1) month in advance to Owner (or its predecessors in interest);
(v) bound by any covenant to undertake or complete any construction of the Demised Premises or any portion thereof;
(vi) required to account for any security deposit other than any security deposit actually delivered to the Successor Owner;
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(vii) bound by any obligation to make any payment to Tenant or grant or be subject to any credits, except for services, repairs, maintenance, and restoration provided for under this lease to be performed after the date of attornment and which Owners of like properties ordinarily perform at the owner’s expense, it being expressly understood, however, that the Successor Owner shall not be bound by an obligation to make payment to Tenant with respect to construction performed by or on behalf of Tenant at the Demised Premises;
(viii) bound by any modification of this lease made without the written consent of the Superior Mortgagee or Superior Lessor, as the case may be; or
(ix) required to remove any person occupying the Demised Premises or any part thereof.
(d) If a Superior Mortgagee or prospective superior mortgagee shall request modifications to this lease, Tenant shall not unreasonably withhold, delay or defer Tenant’s consent thereto, provided that such modifications shall not increase Tenant’s monetary obligations hereunder or increase tenant’s non-monetary obligations hereunder by more than a de minimis amount or adversely affect the leasehold interest hereby created or impair Tenant’s rights hereunder, in any case by more than a de minimis amount. In no event shall a requirement that the consent of any such Superior Mortgagee or prospective superior mortgagee be given for any modification of this lease or for any assignment or sublease, be deemed to materially adversely affect the leasehold interest hereby created.
40. ASSIGNMENT AND SUBLETTING.
(a) (i) Tenant shall not, whether voluntarily, involuntarily, or by operation of law or otherwise (A) assign or otherwise transfer this lease or the term and estate hereby granted, or offer or advertise to do so, (B) sublet the Demised Premises or offer or advertise to do so, or allow the same to be used, occupied or utilized by anyone other than Tenant, (C) mortgage, pledge, encumber or otherwise hypothecate this lease or the Demised Premises or any part thereof in a manner whatsoever or (D) permit the Demised Premises or part thereof to be occupied, or used for desk space, mailing privileges or otherwise, by any person other than Tenant without in each instance obtaining the prior written consent of Owner, except as otherwise provided pursuant to the express provisions of this Article 40.
(ii) Tenant expressly covenants and agrees that (A) if Tenant is a corporation, a transfer of more than fifty percent (50%) at any one time or, in the aggregate from time to time of the shares of any class of the issued and outstanding stock of Tenant, its successors or assigns, or the issuance of additional shares of any class of its stock to the extent of more than 50% of the number of shares of said class of stock issued and outstanding at the time that it became the tenant hereunder or (B) if Tenant is a partnership, limited liability company, unincorporated association or other entity, the sale or transfer of more than 50% of the partnership, membership, joint venture, unincorporated association interests or other form of beneficial interests of Tenant, its successors or assigns, shall constitute an assignment of this lease and, except as otherwise expressly provided in Section 40(b), unless in each instance the prior written consent of Owner has been obtained, shall constitute a default under this lease and shall entitle Owner to exercise all rights and remedies provided for herein in the case of default. Notwithstanding the foregoing provisions of this Section 40(a)(ii), transfers of stock in a corporation whose shares are traded in the “over-the-counter” market or any recognized national securities exchange shall not constitute an assignment for purposes of this lease, provided that the principal purpose of such transfer or transfers is not to avoid the restrictions on assignment otherwise applicable under this Article 40.
(b) (i) If Tenant is a corporation, limited liability company, partnership or similar entity, Owner’s consent shall not be required, with respect to sublettings to any corporation or similar entity or to any limited liability company, partnership or similar entity which is an Affiliate of Tenant, provided that (1) any such Affiliate is a reputable entity of good character, (2) a duplicate original instrument of sublease in form and substance reasonably satisfactory to Owner, duly executed by Tenant and such Affiliate, shall have been delivered to Owner within ten (10) days after the effective date of any such sublease and (3) such sublease is for a legitimate business purpose and not principally for the purpose of avoiding the restrictions on subleasing otherwise applicable under this Article 40. For purposes of this Article 40, the term “Affiliate” shall mean any entity which controls or is controlled by or under common control with tenant, and the term “control” shall mean, in the case of a corporation, ownership or voting control, directly or indirectly, of at least fifty (50%) percent of all the voting stock, and in case of a joint venture, limited liability company, partnership or similar entity, ownership, directly or indirectly, of at least fifty (50%) percent of all the general or other partnership, membership (or similar) interests therein.
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(ii) If Tenant is a corporation, limited liability company, partnership or similar entity, Owner’s consent shall not be required with respect to an assignment of this lease to an Affiliate of Tenant, provided that (1) the assignee is a reputable entity of good character, (2) a duplicate original instrument of assignment in form and substance reasonably satisfactory to Owner, duly executed by Tenant, shall have been delivered to Owner within ten (10) days after the effective date of any such assignment, (3) an instrument in form and substance reasonably satisfactory to Owner, duly executed by the assignee, in which such assignee assumes (as of the Commencement Date) observance and performance of, and agrees to be personally bound by, all of the terms, covenants and conditions of this lease on Tenant’s part to be performed and observed shall have been delivered to Owner not later than ten (10) days after the effective date of such assignment, (4) such assignment is for a legitimate business purpose and not principally for the purpose of avoiding the restrictions on assignment otherwise applicable under this Article 40 and (5) Tenant and such assignee have a combined net worth computed in accordance with generally accepted accounting principles at least equal to the net worth of Tenant immediately prior to the effective date of such assignment.
(iii) If Tenant is a corporation, limited liability company, partnership or similar entity, Owner’s consent shall not be required with respect to an assignment of this lease to a corporation, limited liability company, partnership or similar entity into or with which Tenant is merged or consolidated or transactions with a corporation, limited liability company, partnership or similar entity to which all or substantially all of Tenant’s assets are sold, provided that (1) the successor to Tenant is a reputable entity of good character, (2) a duplicate original instrument of assignment in form and substance reasonably satisfactory to Owner, duly executed by Tenant and such Affiliate, shall have been delivered to Owner within ten (10) days after the effective date of any such assignment, (3) an instrument in form and substance reasonably satisfactory to Owner, duly executed by the assignee, in which such assignee assumes (as of the Commencement Date) observance and performance of, and agrees to be bound by, all of the terms, covenants and conditions of this lease on Tenant’s part to be performed and observed shall have been delivered to Owner not more than ten (10) days after the effective date of such assignment, (4) such assignment is for a legitimate business purpose and not principally for the purpose of avoiding the restrictions on assignment otherwise applicable under this Article 40 and (5) such successor has a net worth computed in accordance with generally accepted accounting principles at least equal to the net worth of Tenant immediately prior to the effective date of such assignment.
(c) If this lease be assigned, whether or not in violation of the provisions of this lease, Owner may collect rent from the assignee. If the Demised Premises are sublet or used or occupied by anybody other than Tenant, whether or not in violation of this lease, and thereafter Tenant is in default under this lease beyond any applicable notice and cure period, Owner may thereafter collect rent payable to Tenant from the subtenant or occupant under its sublease or occupancy agreement. In either event, Owner shall apply the net amount collected to the Fixed Rent and Additional Charges herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any of the provisions of Section 40(a), or the acceptance of the assignee, subtenant or occupant as tenant, or a release of Tenant from the performance by Tenant of Tenant’s obligations under this lease. The consent by Owner to a particular assignment, mortgaging, subletting or use or occupancy by others shall not in any way be considered a consent by Owner to any other or further assignment, mortgaging or subletting or use or occupancy by others not expressly permitted by this Article 40. References in this lease to use or occupancy by others (that is, anyone other than Tenant) shall not be construed as limited to subtenants and those claiming under or through subtenants but shall also include licensees and others claiming under or through Tenant, immediately or remotely.
(d) Any assignment or transfer, whether made with or without Owner’s consent, shall be made only if, and shall not be effective until, the assignee shall execute, acknowledge and deliver to Owner an agreement in form and substance reasonably satisfactory to Owner whereby the assignee shall assume the obligations of this lease on the part of Tenant to be performed or observed (which shall be as of the effective date of such assignment, except for assignments made pursuant to the provisions of Section 40(b) above, which shall be as of and
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after the Commencement Date) and whereby the assignee shall agree that the provisions in Section 40(a) 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 Fixed Rent and/or Additional Charges by Owner from an assignee, transferee, or any other party, the original named Tenant shall remain fully liable for the payment of the Fixed Rent and Additional Charges and for the other obligations of this lease on the part of Tenant to be performed or observed.
(e) 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 Owner extending the time of, or modifying any of the obligations of, this lease, or by any waiver or failure of Owner to enforce any of the obligations of this lease.
(f) The listing of any name other than that of Tenant, whether on the doors of the Demised Premises or the Building directory, or otherwise, shall not operate to vest any right or interest in this lease or in the Demised Premises, nor shall it be deemed to be the consent of Owner to any assignment or transfer of this lease or to any sublease of the Demised Premises or to the use or occupancy thereof by others.
(g) Notwithstanding anything to the contrary contained in this Article 40, if Tenant shall at any time or times during the term of this lease desire to assign this lease or sublet all or any portion of the Demised Premises other than a transaction for which Owner’s consent is not required that is properly effectuated in accordance with the provisions of Section 40(b) above, Tenant shall give notice thereof to Owner, 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 at least 30 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 Demised Premises, and (iii) current financial information with respect to the proposed assignee or subtenant, including, without limitation, its most recent certified financial statements, if such financial statements are certified (or, if not, certified by the chief financial officer of the proposed assignee or subtenant as being true and correct). Such notice shall be deemed an offer from Tenant to Owner whereby Owner (or Owner’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 Demised Premises) or (B) terminate this lease with respect to the space covered by the proposed sublease (if the proposed transaction is a sublease of less than all or substantially all of the Demised Premises). Said option may be exercised by Owner by notice to Tenant at any time within 45 days after such notice has been given by Tenant to Owner; and during such 45-day period Tenant shall not assign this lease or sublet the Demised Premises to any person or entity.
(h) If Owner is entitled to the option to terminate this lease pursuant to the provisions of Section 40(g) above and Owner 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 Demised Premises, 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 Fixed Rent and Additional Charges shall be paid and apportioned to such date.
(i) If Owner is entitled to the option to terminate this lease pursuant to the provisions of Section 40(g) above and Owner exercises its option to terminate this lease with respect to the space covered by Tenant’s proposed sublease in any case where Tenant desires to sublet part of the Demised Premises, then (i) this lease shall end and expire with respect to such part of the Demised Premises on the date that the proposed sublease was to commence; (ii) from and after such date the Fixed Rent and Additional Charges shall be adjusted, based upon the proportion that the rentable area of the Demised Premises remaining bears to the total rentable area of the Demised Premises; and (iii) Tenant shall pay to Owner, upon demand, as Additional Charges hereunder the reasonable out-of-pocket costs incurred by Owner (without markup, fee, profit or overhead to Owner) in physically separating such part of the Demised Premises from the balance of the Demised Premises and in complying with any laws and requirements of any public authorities relating to such separation.
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(j) In the event Tenant shall have complied with the provisions of Section 40(g) and Owner does not exercise its options pursuant to Section 40(g) to terminate this lease in whole or in part, and provided that Tenant is not in default of any of Tenant’s obligations under this lease beyond the expiration of any applicable notice and/or cure period, either at the time Owner’s consent to such assignment or sublease is requested or at the commencement of the term of any proposed sublease or on the effective date of any such assignment, Owner’s consent (which must be in writing and in form satisfactory to Owner) to the proposed assignment or sublease shall not be unreasonably withheld or delayed, provided and upon condition that:
(i) In Owner’s reasonable judgment the proposed assignee or subtenant is engaged in a business and the Demised Premises will be used in a manner which is limited to the use expressly permitted under Article 2;
(ii) The proposed assignee or subtenant is a reputable person of good character whose tenancy shall comport with the first class character of the Building;
(iii) 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 or any person who controls the proposed assignee or subtenant, is (x) then an occupant of any part of the Building or (y) a person with whom Owner is then (or within the immediately preceding 6-month period was) negotiating to lease space in the Building;
(iv) The form of the proposed sublease shall be in form reasonably satisfactory to Owner and shall comply with the applicable provisions of this Article 40 (including, without limitation Section 40(1) below);
(v) There shall not be more than one (1) occupant of the Demised Premises at any time (i.e., either Tenant or Tenant’s subtenant);
(vi) Tenant shall, concurrently with the delivery of Owner’s consent, pay Owner the reimbursement amounts due pursuant to the provisions of Section 40(p) below;
(vii) No advertisement for a proposed assignment or sublease shall have stated the proposed rental, and Tenant shall not have listed the Demised Premises (or any portion thereof) for assignment or subletting, whether through a broker, agent, representative, any computerized or electronic listing system or service (including, without limitation “Co-Star” or “Re-locate”) or otherwise, at a rental rate less than the fixed rent and additional charges at which Owner is then offering to lease other space in the Building. Nothing contained in this subclause (vii) shall be construed to prohibit Tenant from actually entering into a sublease at a rental less than the amount described in the preceding sentence or from listing the Demised Premises (or any portion thereof) for assignment or subletting in compliance with the foregoing restrictions.
(k) In the event that (i) Owner fails to exercise any of its options under Section 40(g), and consents to a proposed assignment or sublease, and (ii) Tenant fails to execute and deliver the assignment or sublease to which Owner consented within 45 days after the giving of such consent, then, Tenant shall again comply with all of the provisions and conditions of Section 40(g) before assigning this lease or subletting all or part of the Demised Premises.
(l) With respect to each and every sublease or subletting authorized by Owner or permitted without Owner’s consent under the provisions of this lease, it is further agreed:
(i) No subletting shall be for a term ending later than one day prior to the expiration date of this lease.
(ii) Except for an assignment or sublease for which Owner’s consent is not required that is properly effectuated pursuant to the provisions of Section 40(b) above, no sublease shall be valid, and no subtenant shall take possession of the Demised Premises until an executed counterpart of such sublease has been delivered to Owner; provided, however, the foregoing shall not affect Tenant’s obligations and the conditions Tenant must satisfy with respect to an assignment or sublease effectuated pursuant to the provisions of Section 40(b) above.
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(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 dispossess by Owner under this lease Owner 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 Owner’s option, attorn to Owner pursuant to the then executory provisions of such sublease, except that Owner shall not (A) be liable for any previous act or omission of Tenant under such sublease, (B) be subject to any offset, 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 not previously consented to Owner in writing (which consent shall not be unreasonably withheld), or by any previous prepayment of more than one month’s rent.
(iv) Each sublease shall (A) provide that the subtenant may not assign its rights thereunder or further sublet the space demised under the sublease, in whole or in part, without Owner’s consent, which consent shall not be unreasonably withheld or delayed, but such right to sublet or assign shall be subject to all other provisions of this Article 40, including, without limitation, Owner’s rights under Section 40(g) and (B) set forth the terms and provisions of Section 40(b), with the subtenant being subject to the restrictions in Section 40(b) applicable to Tenant.
(m) Except for an assignment or sublease for which Owner’s consent is not required that is properly effectuated pursuant to the provisions of Section 40(b) above, if the Owner shall give its consent to any assignment of this lease or to any sublease, Tenant shall in consideration therefor, pay to Owner, as Additional Charges, an amount equal to fifty percent (50%) of the Assignment Profit (hereinafter defined) or Sublease Profit (hereinafter defined), as the case may be.
(i) The term “Assignment Profit” as used herein shall mean an amount equal to the excess of (x) all sums and other consideration paid to Tenant by the assignee for or by reason of such assignment, including, without limitation, any sums paid for Tenant’s fixtures, leasehold improvements, equipment, furniture, furnishings or other personal property over (y) the Transaction Costs (as hereinafter defined).
(ii) The term “Sublease Profit” as used herein shall mean an amount equal to the excess of (x) any rents, additional charges or other consideration payable under the sublease to Tenant by the subtenant (including, without limitation, any fee, penalty or charge paid by the subtenant for the right to cancel the sublease) which is in excess of the Fixed Rent and Additional Charges 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, without limitation, any sums paid for the value of Tenant’s fixtures, leasehold improvements, equipment, furniture, furnishings or other personal property over (y) the Transaction Costs.
(iii) The term “Transaction Costs” shall mean, with respect to any assignment or subletting, the following costs incurred by Tenant: the cost of work performed to prepare the Demised Premises for the assignee or subtenant, the sum of customary brokerage commissions incurred in connection with the assignment or sublease, and reasonable attorneys’ fees incurred in connection with the preparation and negotiation of the assignment or sublease (but not including attorneys’ fees incurred in connection with obtaining Owner’s consent to the assignment or sublease). In calculating Assignment Profit or Sublease Profit, all Transaction Costs shall be amortized on a straight-line basis over the term of the sublease (or over the balance of the term of this lease in the case of an assignment). Tenant acknowledges and agrees that if Tenant does not deliver to Owner a complete list of the Transaction Costs (and reasonable supporting documentation) within sixty (60) days after Owner shall have consented to the assignment or sublease in question, time being of the essence, then for purposes of this Section 40(m), Tenant will be conclusively deemed to have incurred no such Transaction Costs, other than those Transaction Costs that had previously been provided to Owner pursuant to this Section 40(m).
(n) The sums payable under Section 40(m) above shall be paid to Owner as and when paid by the assignee or the subtenant, as the case may be, to Tenant. Tenant shall use all reasonable efforts to collect (1) in the case of an assignment, all sums and other consideration payable to it by the assignee for or by reason of such assignment and (2) in the case of a sublease, all rents, additional charges and other consideration payable to it under the sublease and, in every case, Tenant shall, from time to time upon written demand by Owner, provide Owner with an accounting of all such sums payable to it by any such assignee and/or subtenant.
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(o) Each subletting shall be subject to all of the covenants, agreements, terms, provisions and conditions contained in this lease. Notwithstanding any subletting and/or acceptance of rent or additional charges by Owner from any subtenant, Tenant shall and will remain fully liable for the payment of the Fixed Rent and Additional Charges 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, and any such violation shall be deemed to be a violation by Tenant. Tenant further agrees that notwithstanding any such subletting, no other and further subletting of the Demised 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 40. If Owner shall decline to give its consent to any proposed assignment or sublease, or if Owner shall exercise any of its options under Section 40(g), Tenant shall indemnify, defend and hold harmless Owner 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 Owner by the proposed assignee or sublessee or by any brokers or other persons claiming a commission or similar compensation in connection with the proposed assignment or sublease.
(p) Excluding any transaction for which Owner’s consent is not required that is properly effectuated in accordance with the provisions of Section 40(b) above, Tenant shall reimburse Owner either concurrently with the delivery of Owner’s consent or, if Owner shall deny consent, then within thirty (30) days after written demand, for the actual reasonable out-of-pocket costs that may be incurred by Owner in connection with the assignment or sublease, including, without limitation, the reasonable out-of-pocket costs of making investigations as to the acceptability of the proposed assignee or subtenant, and reasonable out-of-pocket legal costs incurred in connection with Tenant’s request for consent to such assignment or sublease.
41. INSURANCE. Supplementing the provisions of Article 8 of this lease:
(a) Tenant shall at its own cost and expense at all times during the term of this lease maintain in force and effect, the following insurance, in blanket form or otherwise, with reputable and independent insurers admitted and licensed to do business in New York in amounts set forth below:
(i) All-risk property insurance (including fire insurance) on leasehold improvements and on all personal property in the Demised Premises or used in connection therewith including, without limitation, Tenant’s improvements, decorations, fixtures, furniture, stock and other contents) in an amount not less than the replacement cost thereof and time element coverage including extra expense to cover Tenant’s loss sustained by reason of a peril covered under the policy;
(ii) Business interruption insurance in such amounts as will reimburse Tenant for direct and indirect loss of earnings, for a period of twelve (12) months, attributable to all perils and casualties commonly insured against by prudent tenants or attributable to prevention of access to the Demised Premises or the Building as a result of such perils;
(iii) Commercial General liability insurance, including Products Liability insurance, at a $1,000,000 per occurrence, combined single limit, bodily injury and property damage, subject to a commercially reasonable deductible, including all standard Broad Form Commercial General Liability coverages. The Fire Legal Liability limit in the Broad Form endorsement shall be written in an amount not less than $250,000.00;
(iv) Umbrella Liability insurance at a $3,000,000 limit per occurrence and a $3,000,000 limit for general and specific aggregates subject to a $10,000 Self Insured Retention, providing excess coverage over all coverages included in the Commercial General Liability policy and Broad Form Commercial Liability endorsement noted in clause (iii) above. Said umbrella policies shall be included as underlying and the provisions of such policies shall apply in the same manner as the primary policies with no additional exclusions or limitations above those contained in the general liability policy; and
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(v) Statutory workers compensation insurance covering Tenant’s employees with employer’s liability limits of not less than $500,000.00 or statutory limit, whichever is greater.
(b) All insurance policies shall name Owner, its managing agent and their respective officers, partners, shareholders, directors, agents, employees and any owned, controlled, affiliated subsidiary company or corporation now existing or hereinafter constituted, as their interest may appear as an insured and, except for business interruption policies, shall also name any mortgagee or lessor of the Building as an additional insured, and shall be fully paid for by Tenant when obtained, and certificates therefor shall be submitted to Owner prior to the earlier to occur of (i) the Commencement Date or (ii) the date Tenant first enters upon the Demised Premises for performance of any Pre-possession Activities. Renewal policies shall be procured and certificates of such policies shall be submitted to Owner prior to the expiration of the existing policies. All insurance policies shall be issued by companies licensed to do business in New York State, with an A.M. Best rating of not less than A-:X.
(c) Owner and Tenant shall require that all contractors and subcontractors brought onto the Property have insurance coverage, at the contractor’s or subcontractor’s expense, in the following minimum amounts:
1. | Worker’s Compensation - Statutory Amount in the State of New York; |
2. | Employer’s Liability - $500,000 or such other higher limits imposed in accordance with the requirement, if any, of the laws of the State of New York; |
3. | Commercial General Liability - Unless otherwise approved in writing by Owner, $1,000,000 per occurrence, $2,000,000 general aggregate (per location) with Products/Completed Operations coverage (with evidence of Products/Completed Operations Coverage shown for a minimum of two years following completion of the work described in the contract); |
4. | Business Auto Liability including hired and non-owned auto coverage $1,000,000 combined single limit; and |
5. | Umbrella/Excess - $4,000,000. |
This insurance will be primary and noncontributory with respect to the insurance described above. Tenant shall ensure that Owner and Tenant are named as additional insureds on the contractor’s and subcontractor’s Commercial General Liability (CG 2010 ed. 1085 or CG 2010 AND CG2037) and Business Auto Liability insurance. The contractor’s and each subcontractor’s respective insurance carriers shall waive all rights of subrogation against Owner and Tenant with respect to losses payable under such policies. Tenant shall obtain and keep on file a Certificate of Insurance which shows that the contractor and each subcontractor is so insured. Tenant must obtain Owner’s permission to waive any of the above requirements. Higher amounts may be required by Owner if the work to be performed is hazardous.
(d) Supplementing the foregoing provisions of this Article 41, Tenant agrees, at Tenant’s sole cost and expense, to procure and maintain any other insurance, in such amounts and to include such provisions in its policies of insurance, which Owner may reasonably require from time to time, provided Owner is then requiring such other insurance of all other similarly situated tenants of the Building and Owner reasonably determines such other insurance to be comparable to what is then being required of office tenants by prudent owners of first class office buildings in midtown Manhattan.
(e) In the event of the failure of Tenant to procure or pay for any insurance required by the terms of this lease, and such failure is not remedied within three (3) business days after written notice of such failure by Owner to Tenant, then Owner may, without further notice to Tenant and in addition to any other remedies it may have, procure the same and pay the premiums therefor; and any reasonable sums expended by Owner for this purpose shall be and become due and payable to Owner as Additional Charges and shall be paid to Owner within thirty (30) days after written demand accompanied by reasonable supporting documentation of such sums. Owner shall have the same remedies for the nonpayment therefor as for the nonpayment of Fixed Rent.
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(f) Owner may from time to time require that the amount of the insurance to be maintained by Tenant under this Article be increased to the amount which is then customarily required by prudent owners of first class office buildings in midtown Manhattan.
(g) Notwithstanding anything to the contrary contained in the Lease, including Article 9, to the extent Owner is required to repair the Demised Premises as a result of fire or other casualty. Owner shall perform such repairs only to the extent of available insurance proceeds not otherwise applied by the holder of mortgage or deed of trust securing any financing obtained by Owner with respect to the Building.
(h) Owner, at its expense, will obtain and keep in force “all risk” (special causes of loss) insurance for the Building in an amount equal to the replacement cost of the Building, and commercial and excess general liability insurance coverage in an aggregate amount of not less than Five Million Dollars ($5,000,000). Owner reserves the right to maintain such additional insurance as is customary for a prudent owner of similar properties or to meet Owner’s mortgagee’s insurance requirements, if any. Owner may elect to keep and maintain in full force and effect during the term of this lease, rental abatement insurance against abatement or loss of Rent in case of fire or other casualty, in an amount at least equal to the amount of the Rent payable by Tenant during the then current lease year as reasonably determined by Owner.
42. ELECTRIC ENERGY.
(a) Subject to the provisions of this Article 42, Owner shall furnish the electric energy that Tenant shall reasonably require in the Demised Premises for the purposes permitted under this lease on a “rent inclusion” basis and there shall be no separate charge to Tenant for such electric energy, such electric energy being included in Owner’s services which are covered by the Fixed Rent. Owner and Tenant agree that the Base Electric Charge (hereinafter defined) represents the amount initially included in the annual Fixed Rent set forth in Section 37(b) hereof to cover the furnishing of such electric energy by Owner on a rent inclusion basis and that such Base Electric Charge component of Fixed Rent shall in no event be subject to reduction, but shall be subject to being increased as hereinafter provided. Owner shall not be liable in any event to Tenant for any failure, interruption or defect in the supply or character of electric energy furnished to the Demised Premises by reason of any requirement, act or omission of the public utility serving the Building with electricity or for any other reason not attributable solely to the willful misconduct or negligence of Owner, its agents, employees, servants or contractors (but in no event shall Owner be responsible for any consequential damages). Except in the event of an emergency, Owner shall notify Tenant prior to any anticipated service or utility interruption initiated by Owner and, subject to the provisions of this lease, Owner shall diligently prosecute such repair, maintenance and restoration thereof to completion. For purposes of this Article 42, the “Base Electric Charge” shall mean an annual amount equal to Thirteen Thousand Five Hundred Twenty-Seven and 50/100 Dollars ($13,527.50).
(b) Owner will furnish electric energy to Tenant through currently installed electric facilities for Tenant’s reasonable use of such lighting and other electrical fixtures, appliances and equipment required for the conduct of Tenant’s business in the Demised Premises. At any time, and from time to time, after Tenant shall have entered into possession of the Demised Premises, or any portion thereof, Owner may designate an independent electrical consultant to make a survey or resurvey of the electrical consumption and power load on the Demised Premises to determine Tenant’s average electrical consumption and demand taking into account, such usage factors as Owner may reasonably determine. If the electrical consultant shall determine that either (i) Tenant’s average electrical consumption or (ii) the aggregate load of the electrical equipment connected by Tenant in the Demised Premises (excluding base-Building heat, air-conditioning, ventilation and other Building systems) is greater than Tenant’s Estimated Usage (as hereinafter defined), then the Fixed Rent hereunder shall, upon written notice from Owner to Tenant, be increased in the same proportion as such increase in Tenant’s consumption or connected load, as the case may be. The effective date of the increase in Fixed Rent as aforesaid shall be on the date that such increase in such electric consumption or connected load occurred (as reasonably determined by the electrical consultant) or, with respect to the initial
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survey, as of the Commencement Date. The initial unpaid amount of each such adjustment shall be paid within thirty (30) days after Owner furnishes Tenant with a statement thereof. Thereafter, the Fixed Rent shall be increased appropriately. In no event shall the “rent-inclusion” component of Fixed Rent hereunder ever be less than the Base Electric Charge. As used herein, the term “Tenant’s Estimated Usage” means six (6) xxxxx per usable square foot (connected load), but specifically excluding the electricity required to supply base-Building heat, air-conditioning, ventilation and other Building systems to the Demised Premises.
(c) If at any time during the term of this lease the Electric Rate (as hereinafter defined) shall be changed from the Electric Rate then in effect on the date of this lease (as same may have been increased or decreased pursuant to the provisions of this Article), then, effective as of the date of each such change in the Electric Rate, the charge for electricity included in the Fixed Rent shall be increased or decreased in proportion to such change in the Electric Rate (as determined by Owner’s electrical consultant but in no event, however, shall such electric consumption charge be reduced below the Electric Rate in effect on the date of this lease). The term “Electric Rate” shall mean at the time in question 112% of the public utility (and/or third party supplier) rate schedule (including all surcharges, taxes, fuel adjustments, taxes regularly passed on to consumers by the public utility, and other sums payable in respect thereof) for the supply of electric energy to Owner for the Building Notwithstanding the foregoing provisions of this Section, if the public utility rate schedule (with such inclusions) applicable to Owner for the purchase of electric energy for the Building shall be less than the public utility rate schedule applicable to Owner if Owner were to purchase electricity solely for the Demised Premises, then the higher rate schedule shall be used in determining the Electric Rate.
(d) Tenant’s use of electric energy in the Demised Premises shall not at any time exceed the capacity of any of the electrical conductors and equipment in or otherwise serving the Demised Premises.
(e) Owner reserves the right to discontinue furnishing electric energy to Tenant in the Demised Premises at any time upon not less than ninety (90) days’ notice to Tenant. If Owner exercises such right, this lease shall continue in full force and effect and shall be unaffected thereby, except that from and after the effective date of such termination Owner shall not be obligated to furnish electric energy to Tenant and the Fixed Rent payable under this lease shall be reduced by the Base Electric Charge. If Owner so discontinues furnishing electric energy to Tenant, Tenant shall arrange to obtain electric energy directly from the public utility company furnishing electric energy to the Building. Such electric energy may be furnished to Tenant by means of the then existing Building system feeders, risers and wiring to the extent that the same are available, suitable and safe for such purpose. All meters and additional panel boards, feeders, risers, wiring and other conductors and equipment which may be required to obtain electric energy directly from such public utility company shall be furnished and installed by Owner at Owner’s expense.
(f) Owner represents and warrants that the capacity of the electrical conductors and equipment servicing the Demised Premises are, as of the date of this lease, capable of providing a connected load of not less than Tenant’s Estimated Usage, and will remain at least at such capacity during the term of this lease.
43. OWNER’S SERVICES. Supplementing the provisions of Article 29 of this lease:
(a) Subject to the provisions of Section 29(e) hereof, Owner shall, at Owner’s expense (except as set forth below), furnish to the Demised Premises at the temperatures, pressures and degrees of humidity and in volumes and velocities in accordance with the specifications annexed hereto as Exhibit F and made a part hereof and all applicable laws, (i) from 8:00 a.m. to 8:00 p.m. (the “HVAC Hours”) on Business Days, cool and tempered air (“air-conditioning”) from April 1 through October 31 (the “Cooling Season”) and (ii) during Business Hours on Business Days, heat during times other than the Cooling Season. As used in this lease, the term “Business Days” shall mean all days except (1) Saturdays, (2) Sundays and (3) the following holidays: New Year’s Day, Xxxxxx Xxxxxx Xxxx Day, President’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving, the day following Thanksgiving, Christmas and any other days which shall be either (x) observed by the federal or state governments as legal holidays or (y) designated as a holiday by the applicable Building Service Union Employee Service contract or by the applicable Operating Engineers contract. As used in this lease, the term “Business Hours” means 8:00 a.m. to 6:00 p.m. on Business Days.
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(b) If Tenant requires ventilation or air-conditioning services during hours other than during the HVAC Hours on Business Days or outside of the Cooling Season, Owner shall furnish such services initially at the rates set forth on Exhibit C (subject to increase as set forth in Section 43(g) below) per hour, per zone, of service to Tenant at Tenant’s expense (minimum 2 hours).
(c) Owner shall not be responsible for any failure to supply air-conditioning at reasonable temperatures, pressures or degrees of humidity or in reasonable volumes or velocities in any room or other area of the Demised Premises by reason of any machinery or equipment installed therein by Tenant, or which has a human occupancy factor in excess of one person per 100 rentable square feet. Tenant agrees to cooperate with Owner at all times and to abide by all rules regulations and requirements which Owner may reasonably prescribe for the proper functioning and protection of the air-conditioning system serving Tenant.
(d) (i) Owner will cause general and executive office portions of the Demised Premises to be cleaned in accordance with the cleaning specifications annexed hereto as Exhibit B and made a part hereof. Tenant shall pay to Owner as Additional Charges (within thirty (30) days after written demand therefor demand accompanied by reasonable supporting documentation of such charges) Owner’s Building-standard charge (initially at the rates set forth on Exhibit C subject to increase as set forth in Section 43(g) below) for (x) any cleaning of the Demised Premises or any part thereof which is above the Building-standard requirements, (y) any cleaning done at the request of Tenant of any portions of the Demised Premises which may be used for the preparation, dispensing or consumption of food or beverages or for storage, shipping room, classroom or similar purposes or predominantly for the operation of computer, data processing or similar equipment and (z) the removal of any of Tenant’s above Building-standard refuse and rubbish from the Building.
(ii) All cleaning which is in addition to the base Building cleaning shall be provided by Owner’s vendor of such services. Owner, its cleaning contractor and their employees shall have access to the Demised Premises at all times after 5:30 P.M. and before 8:00 A.M. and shall have the right to use, without charge therefor, all light, power and water in the Demised Premises reasonably required to clean the Demised Premises as required under this Section. Tenant shall comply with any reasonable rules Owner and/or its cleaning contractor and/or any consultant to Owner may establish, and which shall be enforced in a non-discriminatory manner against Tenant vis-à-vis other office tenants, regarding the management and recycling of solid waste, as may be necessary for Owner to comply with any applicable legal requirements.
(e) Owner, at its expense, shall furnish adequate water to the Demised Premises for drinking, lavatory and cleaning purposes. If Tenant uses water for any other purpose or in unreasonable quantities, and such use is not promptly discontinued after written demand by Owner, Owner may install, at Tenant’s sole cost and expense, meters to measure Tenant’s consumption of water for such other purposes, and the cost of maintaining such meters shall be paid by Tenant. Tenant shall reimburse Owner for the cost of quantities of water usage shown on such meters which is above Building-standard usage (at the rates paid by Owner for water supplied to the Building), and Owner’s reasonable Building-standard charge for the any hot water furnished by Owner to the Demised Premises, in each case within thirty (30) days after written demand therefor accompanied by reasonable supporting documentation of such charges.
(f) Subject to the terms of this lease, throughout the term, Owner shall make (i) all passenger elevators in the elevator bank serving the Demised Premises available from the lobby to service the Demised Premises during Business Hours on Business Days and (ii) at least one passenger elevator in the elevator bank serving the Demised Premises available from the main Building lobby to service the Demised Premises at all other times. Throughout the term of this lease and subject to such reasonable rules and regulations of Owner as may from time to time be in effect, and which shall be enforced in a non-discriminatory manner against Tenant vis-à-vis other office tenants, Tenant shall be entitled, during Business Hours on Business Days, to use the freight elevators serving the Demised Premises, without charge, on a first-come, first serve basis in common with Owner and the other tenants of the Building. If Tenant shall require the use of the Building’s freight elevators at times other than Business Hours on Business Days,
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Owner shall provide the same for the use of Tenant on a first-come, first-serve scheduled basis with Owner and the other tenants or occupants of the Building, provided Tenant gives Owner reasonable prior written notice of the requested time and use of such elevators and Tenant pays, as Additional Charges within thirty (30) days after written demand therefor accompanied by reasonable supporting documentation of such charges, for such freight elevator usage, an amount equal to Owner’s Building-standard hourly charge therefor (initially at the rate set forth on Exhibit C subject to increase as set forth in Section 43(g) below). All after-hours freight elevator usage shall be in no less than four (4) hour increments.
(g) Owner’s Building-standard charges in effect on the date hereof for various services are set forth on Exhibit C annexed hereto, which charges are subject to increase on a Building-wide basis from time-to-time as determined by Owner based upon increases in union rates and other costs incurred by Owner to provide such services.
(h) Notwithstanding anything to the contrary herein, if Tenant is in default in the payment of Fixed Rent or Additional Charges or Tenant is in default under any of the other covenants of this lease beyond the expiration of any applicable notice and/or cure period, Owner shall not be required to furnish any overtime services (i.e., other than during Business Hours on Business Days) unless Tenant shall have first delivered to Owner adequate cash or other security for the payment of such overtime services, as determined by Owner.
44. LATE CHARGE. In addition to any other remedies Owner may have under this lease, and without reducing or adversely affecting any of Owner’s rights and remedies hereunder, if any Fixed Rent or Additional Charges payable by Tenant to Owner hereunder is not paid within five (5) days of the due date thereof, Tenant shall pay Owner as Additional Charges, on or before the first day of the following month, 5¢ for each dollar so overdue, or the maximum rate permitted by law, whichever is less, in order to defray Owner’s administrative and other costs in connection therewith. Without limiting the foregoing, if Tenant is late in making any payment due to Owner from Tenant under this lease for fifteen (15) or more days then, in addition to Owner’s right to collect the late charge described above, interest shall become due and owing to Owner on such payment from the date when it was due, i.e., as to Fixed Rent, from the first day of the relevant calendar month, and as to Additional Charges, from the day due pursuant to the provisions of this lease, computed at a rate equal to the lesser of (i) two percent (2%) per month, and (ii) the maximum rate permitted by applicable law. Owner and Tenant agree that the above charges are fair and reasonable damages to Owner resulting from late payment and do not constitute a penalty. Nothing contained in this paragraph shall be intended to violate any applicable law, code or regulation and in all instances all such charges shall be automatically reduced to any maximum applicable legal rate or charge. The provisions of this Article 44 are in addition to all other remedies available to Owner for nonpayment of Fixed Rent or Additional Charges.
45. BROKER. Tenant represents to Owner, and Owner represents to Tenant, that Real Estate Investors Group, Xxxxx Xxxx LaSalle Broker, Inc. and Macklowe Management LLC (collectively, “Broker”) are the only brokers or agents with whom each such party has had any conversations or negotiations concerning the Demised Premises or this lease. Each party hereto hereby agrees to indemnify, defend and hold the other party harmless from and against (a) any claim for a fee or brokerage commission made by any party other than Broker and (b) any expenses incurred by such party in connection with such claim, to the extent such claim arises out of the misrepresentation by such other party. Owner shall pay all fees and brokerage commissions due to Broker, if any, concerning the Demised Premises and this lease, pursuant to a separate written agreement.
46. MISCELLANEOUS PROVISIONS.
(a) No agreement shall be effective to change, modify, waive, release, discharge, terminate or effect an abandonment of this lease, in whole or in part, unless such agreement is in writing, expressly refers to this lease and is signed by the party against whom enforcement of the change, modification, waiver, release, discharge, termination or effectuation of the abandonment is sought.
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(b) Owner and any successor in interest to Owner shall be under no personal liability with respect to any of the provisions of this lease, and if Owner or any successor in interest to Owner is in breach or default with respect to its obligations under this lease, Tenant shall look solely to the interest of Owner or such successor in interest in the Land and Building (including the rents, sale or insurance proceeds and condemnation awards therefrom) for the satisfaction of Tenant’s remedies and in no event shall Tenant attempt to secure any personal judgment against Owner or against any successor in interest to Owner or against any partner, member, principals (disclosed or undisclosed), employee or agent of Owner or any successor in interest to Owner by reason of such default by Owner or any successor in interest to Owner.
(c) If and to the extent that there is a conflict between the provisions contained in the printed portion of the lease to which this Rider is attached and the provisions contained in this Rider, then the provision contained in this Rider shall govern and be controlling to the extent necessary to resolve such conflict.
(d) Notwithstanding anything to the contrary contained herein, Owner shall not be in default of any of its obligations hereunder unless Owner has failed to perform such obligation within thirty (30) days (or promptly in case of emergency) of receipt of notice from Tenant of such failure (which may be oral in case of emergency), provided that if the nature of such default is such that more than thirty (30) days (or promptly in case of emergency) is required to cure the same, Owner shall not be in default hereunder if Owner commences such cure within such thirty (30) day period (or promptly in case of emergency) and diligently prosecutes the same to completion.
(e) Notwithstanding any provision of this lease to the contrary, if Tenant shall request Owner’s consent pursuant to any of the provisions of this lease and Owner shall fail or refuse to grant such consent, Tenant shall not be entitled to, and Tenant hereby waives, any monetary damages, and Tenant shall not make any claim for monetary damages by way of setoff, counterclaim or defense, based upon any claim or assertion by Tenant that Owner has withheld or delayed granting any such consent, and Tenant’s sole remedy to dispute Owner’s failure or refusal to grant its consent shall be an action for specific performance or injunction and such remedy shall be available only in those cases where Owner has expressly agreed in writing not to unreasonably withhold, condition or delay its consent or where as a matter of law Owner may not unreasonably withhold, condition or delay its consent
(f) Intentionally omitted.
(g) Notwithstanding any provision of this lease to the contrary, if, more than two (2) times during the term of this lease, (i) Tenant, or anyone claiming by, through or under Tenant, tenders to Owner a check in respect of any amount due and payable under this lease, and (ii) such check is returned unpaid for any reason, including, without limitation, for reason of insufficient funds, then Owner shall have the right (but no obligation) to require that all amounts due and payable under this lease for the remainder of the term of this lease be remitted in certified funds.
(h) Tenant shall indemnify and hold harmless Owner and Owner’s mortgagee and its and their respective partners, directors, officer, agents and employees from and against any and all claims arising from or in connection with (i) any conduct or management of the Demised Premises or of any business therein, or any work or thing whatsoever done, or any condition created (other than by Owner or its managing agent) in or about the Demised Premises during the term of this lease or during the period of time, if any, prior to the Commencement Date that Tenant may have been given access to the Demised Premises; (ii) any act, omission or negligence of Tenant or any of its subtenants or licensees or its or their partners, directors, officers, agents, employees or contractors; (iii) any accident, injury or damage whatever occurring in, at or upon the Demised Premises, unless due to the negligence or willful misconduct of Owner or any of Owner’s agents, employees, servants, contractors, invitees, subtenants or licensees; and (iv) any breach or default by Tenant in the full and prompt payment and performance of Tenant’s obligation under this lease; together with all costs, expenses and liabilities incurred in or in connection with each such claim or action or proceeding brought thereon, including, without limitation, reasonable attorneys’ fees and expenses. In case any action or proceeding be brought against Owner and/or its mortgagee and/or its or their partners, directors, officers, agents and/or employees by reason of any such claim, Tenant, upon notice from Owner or such mortgage, shall resist and defend such action or proceeding (by counsel reasonably satisfactory to Owner or such mortgagee). The provisions of this Section 46(h) shall survive the expiration or earlier termination of this lease.
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(i) Supplementing the provisions of Article 35 of this lease, each estoppel certificate furnished pursuant to said Article 35 shall also include such additional information related to Tenant, this lease or the Demised Premises as Owner shall reasonably request.
(j) Supplementing the provisions of Articles 34 and 49 of this lease, Tenant shall immediately replenish the portion of the security deposit from time to time applied by Owner pursuant to said Article 34.
(k) (A) Supplementing the provisions of Article 17 above, in case any of the following events shall occur:
(i) Tenant shall at any time be in default of any of Tenant’s monetary obligations contained herein and such default shall continue for five (5) Business Days after written notice thereof has been given to Tenant by Owner; or
(ii) Tenant shall at any time be in default in any of its covenants and agreements contained herein, other than its monetary obligations, and such default shall continue for twenty (20) days after written notice thereof has been given to Tenant by Owner specifying the particulars thereof, or, if such default is not susceptible of being cured within such 20-day period, Tenant shall not commence the cure such default within such 20-day period and, having so commenced, thereafter fail to pursue with due diligence and dispatch the curing of such default; or
(iii) Tenant shall default in the performance of substantially the same non-monetary term or condition of this lease more than three (3) times during any 24-month period during the term of this lease and notwithstanding that such defaults shall have been cured within the applicable period as provided above; or
(iv) Tenant shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors; or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or of all or any part of its property, or of any or all of the royalties, revenues, rents, issues or profits thereof, or shall make any general assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due; or
(v) A court of competent jurisdiction shall enter an order, judgment or decree approving a petition filed against Tenant seeking any reorganization, dissolution or similar relief under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, and such order, judgment or decree shall remain unvacated and unstayed for an aggregate of sixty (60) days (whether or not consecutive) from the first date of entry thereof; or any trustee, receiver or liquidator of Tenant or of all or any part of its property, or of any or all of the royalties, revenues, rents, issues or profits thereof shall be appointed without the consent or acquiescence of Tenant and such appointment shall remain unvacated and unstayed for an aggregate of sixty (60) days (whether or not consecutive); or
(vi) A writ of execution or attachment or similar process shall be levied against any equipment in the Demised Premises, any purported interest of Tenant in the Demised Premises, or Tenant’s rights to payments hereunder; and such execution, attachment, or similar process is not released, bonded, satisfied or stayed within thirty (30) days after its entry or levy;
then, upon the occurrence of any such events, in addition to any and all rights and remedies of Owner under this lease, including the right to seek damages for any breach of this lease, Owner shall have the right, at its option, to terminate this lease by giving five (5) days, written notice to Tenant of its intent to terminate this lease and the estate created hereby, and, in the event such notice is given, this lease and the estate herein granted shall terminate upon the expiration of such five (5) days with the same effect as if the last of such days were the Expiration Date, but Tenant shall remain liable for damages as provided herein or pursuant to law.
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(B) Upon the expiration or earlier termination of this lease for any reason, Owner may, upon such early termination of this lease as provided in Section 46(k)(A) above, without notice, re-enter the Demised Premises, and dispossess Tenant and the legal representative of Tenant or other occupant of the Demised Premises by summary or other legal proceedings, and remove their effects and hold the Demised Premises as if this lease had not been made and Tenant hereby waives the service of notice of intention to re-enter or to institute legal proceedings to that end.
(1) Tenant shall cause the Demised Premises to be free at all times of all rats, mice, other vermin and insects, and shall take whatever reasonable precautions that Owner reasonably deems necessary to prevent any such vermin or insects from existing in the Demised Premises or permeating from the Demised Premises into any other parts of the Building or outside the Building. If it is reasonably determined by Owner that such services are necessary in the Demised Premises, Tenant shall employ an exterminator who will utilize the prevailing industry-standard method for the prevention of any infestation by, and extermination of, said animals and insects. If, in Owner’s reasonable judgment, Tenant shall fail to satisfactorily carry out the provisions of this subparagraph, Owner may, but shall not be obligated to, employ an exterminator service, and the reasonable out-of-pocket cost and expense incurred by Owner for such exterminator service shall be repaid to Owner by Tenant, within thirty (30) days demand, and such amounts so repayable shall be considered Additional Charges hereunder. Notwithstanding the foregoing, in the event that extermination outside the Demised Premises is necessary due to vermin and insects emanating from the Demises Premises, then Owner shall have the right to designate an exterminator or exterminating company to provide services to the portions of the Building outside of the Demised Premises, and Tenant shall pay the actual, reasonable out-of-pocket cost and expense of employing such exterminator or exterminating company. Owner shall cause the common areas of the Building to be exterminated in accordance with Owner’s extermination program for the Building.
(m) Tenant shall pay to Owner, as Additional Charges with respect to each calendar year during the term of this lease, an amount (collectively, “Tenant’s BID Payment”) equal to Tenant’s Percentage of the BID Charges (as hereinafter defined) for such calendar year, to the extent such charges are not otherwise included in the Tax Payments payable by Tenant. At any time after the expiration of such year, Owner may furnish to Tenant a statement (which shall include invoices or other reasonably detailed evidence of the BID Charges for such calendar year) setting forth the Tenant’s BID Payment for such year, which Tenant shall pay within thirty (30) days after Tenant’s receipt of such statement from Owner. The BID Charges upon which Tenant’s BID Payment is based shall be appropriately pro rated for the calendar years in which the Commencement Date and Expiration Date shall occur. As used herein, the term “BID Charges” means all charges imposed upon or against the Land and/or Building, Owner or the owner of the Land and/or Building with respect to any business improvement district.
(n) Subject to the provisions of this lease, Tenant shall have access to the Building, at least one (1) passenger elevator serving the 8th floor, and the Demised Premises, 24 hours a day, 7 days a week.
(o) (i) Subject to the terms of this lease, Tenant, at its expense, may install signage adjacent to the entrance door to the Demised Premises that identifies Tenant, which signage shall be of design, size, material and quality, and installed in location(s), in each case approved in writing by Owner (which approval shall not be unreasonably withheld or delayed, provided that such signage complies with the signage program adopted by Owner from time to time for the Building). Any such signage installed by (or at the direction of) Tenant shall be removed by Tenant on or prior to the Expiration Date or the earlier termination of this lease. The installation and removal of signage (including, without limitation, the repair of any damage occasioned thereby) shall be performed at Tenant’s sole cost and expense.
(ii) If Owner shall maintain a directory in the Building lobby, Tenant shall be entitled to not fewer than Tenant’s Percentage of available listings on said directory. Tenant acknowledges that there is no directory in the lobby of the Building on the date of this lease.
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(p) Tenant shall have the right to non-exclusive use of the Building conference room and lounge area located on the second floor of the Building (the “Second Floor Facilities”), in common with Owner, other tenants and occupants of the Building, and any other persons or entities to which Owner shall allow use of the Second Floor Facilities. Availability of the Second Floor Facilities shall be on a first-come first-serve basis (but the lounge area may not be reserved) and Tenant shall pay, within thirty (30) days after written demand accompanied by reasonable supporting documentation of such charges, Owner’s then established Building-standard charge for use of the conference room and any charges for incidental services provided by Owner at Tenant’s request in connection therewith (initially at the rates set forth on Exhibit C, but subject to increase as set forth in Section 43(g) above). There is no charge currently for use of the lounge area. Notwithstanding the foregoing, Owner reserves the right to cease providing use of the Second Floor Facilities; provided, that, such cessation is on a Building-wide basis and not discriminatory against Tenant.
(q) If any of the Fixed Rent or Additional Charges payable under the terms and provisions of this lease shall be or become uncollectible, reduced or required to be refunded because of any act or law enacted by a governmental authority, Tenant shall enter into such agreement(s) and take such other steps (without additional expense to Tenant) as Owner may reasonably request and as may be legally permissible to permit Owner to collect the maximum rents which from time to time during the continuance of such legal rent restriction may be legally permissible (and not in excess of the amounts reserved therefor under this lease). Upon the termination of such legal rent restriction, (i) the Fixed Rent and/or Additional Charges shall become and thereafter be payable in accordance with the amounts reserved herein for the periods following such termination, and (ii) Tenant shall pay to Owner promptly upon being billed, to the maximum extent legally permissible, an amount equal to (x) the Fixed Rent and/or Additional Charges which would have been paid pursuant to this lease but for such legal rent restriction less (y) the rents paid by Tenant during the period such legal rent restriction was in effect.
(r) (i) This lease shall be construed and interpreted in accordance with and governed by the laws of the State of New York without regard to conflict of laws principles. If either Owner or Tenant desires to bring an action against the other in connection with this lease, such action shall be brought in the federal courts located in the Southern District of New York, or in the state courts located in New York County. Owner and Tenant consent to the jurisdiction of such courts and waive any right to have such action transferred from such courts on the grounds of improper venue or inconvenient forum except that either Owner or Tenant shall be entitled to remove any such action from state court to the aforesaid federal court.
(ii) Tenant agrees that a New York judgment against Tenant shall be enforceable as a final judgment, binding on Tenant in the jurisdiction of Tenant’s formation and principal place of business, with all local defenses waived to the fullest extent. At any time and from time to time, Tenant agrees to execute and deliver to Owner an express waiver (in writing) of any such local defenses or limitations on suretyship or otherwise, to the extent that applicable law permits such waiver.
(s) This lease shall be deemed to have been jointly prepared by both of the parties hereto, and any ambiguities or uncertainties herein shall not be construed for or against either of them.
(t) Except as otherwise expressly provided in this lease, the obligations of this lease shall bind and benefit the successors and assigns of the parties hereto with the same effect as if mentioned in each instance where a party is named or referred to; provided, however, that no violation of the provisions of Article 40 shall operate to vest any rights in any successor or assignee of Tenant.
(u) This lease shall not be binding on Owner or Tenant unless and until each of Owner and Tenant shall have executed this lease and Owner shall have delivered a fully executed original counterpart of this lease to Tenant.
(v) (i) Owner and Tenant each represents and warrants to the other that (A) it is (1) not currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control of the Department of the Treasury (“OFAC”) and/or on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation, and (2) not a person or entity with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction,
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or other prohibition of United States law, regulation, or Executive Order of the President of the United States, and (B) none of its funds or other assets constitute property of, or are beneficially owned, directly or indirectly, by, any Embargoed Person. The term “Embargoed Person” means any person, entity or government subject to trade restrictions under U.S. law, including but not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder with the result that the investment in the representing party is prohibited by law or the representing party is in violation of law.
(ii) Owner and Tenant each hereby covenants and agrees (A) to comply with all laws and other legal requirements relating to money laundering, anti-terrorism, trade embargos and economic sanctions, now or hereafter in effect, (B) to immediately notify the other party in writing if any of the representations, warranties or covenants set forth in this paragraph or the preceding paragraph are no longer true or have been breached or if such party has a reasonable basis to believe that they may no longer be true or have been breached, and (C) not to use funds from any “Prohibited Person” (as such term is defined in the September 24, 2001 Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism) to make any payment due to the other party under this lease.
(w) Owner hereby represents and warrants that, on the Commencement Date, the Demised Premises are free of asbestos-containing material (“ACM”), the presence of which violates applicable laws. Further, if after the Commencement Date there is ACM discovered in the Demised Premises, the presence of which violates applicable laws and such presence does not arise by any act or thing done by Tenant (or anyone acting by, through, under or at the direction of Tenant), then Owner shall promptly and at its own cost, remediate such ACM in accordance with applicable laws. All such remediation work shall be treated as a repair and be performed in accordance with the provisions of Article 4 above (including, without limitation insert No. 4B thereto).
(x) Intentionally omitted.
(y) Notwithstanding anything to the contrary contained in Article 3, Owner’s consent shall not be required with respect to any work performed in the Demised Premises the cost of which, by itself or together with any other work that constitutes a single project does not exceed $30,000 and which consists of purely decorative painting, wall-covering, carpeting and finish work, which does not require the preparation and filing of plans to obtain a building permit and which otherwise complies with the requirements established by Owner from time to time for Building-standard materials and finishes; provided that, all such work shall be performed in accordance with the other provisions of this lease, including, but not limited to, Article 3.
(z) All contractors and subcontractors at any tier performing any construction, repair, refurbishment or restoration, including, without limitation, tenant improvements, build-out, alterations, additions, improvements, renovations, repairs, remodeling, painting and installations of fixtures, mechanical, electrical, plumbing, data, security, telecommunication, low voltage or elevator equipment or systems or other equipment, or with respect to any other construction work in, on, or to the demised premises (including any such work performed by any person who contracts to provide services to any portion of the Building, such as cable, DSL, communications, telecommunications or similar services) shall: (i) be bound by and signatory to a collective bargaining agreement with a labor organization (x) whose jurisdiction covers the type of work to be performed at the demised premises, and (y) who is an Approved Building Trades Department Contractor or Subcontractor (as hereinafter defined) and (ii) observe area standards for wages and other terms and conditions of employment, including fringe benefits. For purposes hereof, an “Approved Building Trades Department Contractor or Subcontractor” is a contractor or subcontractor who is currently affiliated with the Building and Construction Trades Department of the AFL-CIO (the “BCTD”) or, if no such BCTD-affiliated contractor or subcontractor is available for a particular trade (e.g., carpentry work), a contractor or subcontractor which is affiliated with a national trade union which was formerly affiliated with the BCTD and which recognizes (and will recognize and respect, for its work on the Building, the jurisdictional limitations established by the local BCTD.
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(aa) Notwithstanding anything to the contrary contained in Article 6, Tenant shall not be required to make any alterations or improvements to comply with any present and future laws, orders and regulations of all state, federal, municipal and local governments, departments, commissions and boards and any direction of any public officer pursuant to law, and all orders, rules and regulations of the New York Board of Fire Underwriters, Insurance Services Office, or any similar body which shall impose any violation, order or duty upon Owner or Tenant with respect to the Demised Premises (each, a “Requirement”) the need for compliance with which arises from Tenant’s permitted use of the Demised Premises if such Requirement (a “General Applicability Law”) is applicable to substantially all office tenants in the Building or to substantially all office tenants in comparable buildings in New York City and the requirement for compliance with such Requirement does not arise by reason of (i) the abatement of any nuisance in, on or about the Demised Premises caused by Tenant, its agents, employees, contractors, guests or anyone claiming by, through or under Tenant, (ii) the particular manner of conduct of Tenant’s business or operation of its installations, equipment or other property therein, including, without limitation, the performance of any work by Tenant, (iii) any cause or condition created by or at the instance of Tenant or (iv) the breach of any of Tenant’s obligations hereunder, whether or not such compliance requires work which is structural or non-structural, ordinary or extraordinary, foreseen or unforeseen, and (b) be responsible for the cost of compliance with any Requirements in respect of the Building outside the Demised Premises if the requirement for compliance with such Requirement arises solely by reason of one of the provisions set forth in the preceding subsections (i) through (iv) of subclause (a) above. Tenant shall pay all the costs, expenses, fines, penalties and damages which may be imposed upon Owner or any Superior Mortgagee or Superior Lessor by reason of or arising out of Tenant’s failure to fully and promptly comply with and observe the provisions of Article 6.
(bb) Subject to the provisions of Article 9 and Article 41, and except to the extent caused by the negligence or willful misconduct of Tenant or its employees, agents or contractors, Owner shall indemnify, defend and hold Tenant, its shareholders, directors, officers, partners, employees and agents harmless from and against any and all claims arising from (i) any accident, injury or damage caused to any person or the property of any person in or about the common or public areas of the Building (specifically excluding the Demised Premises) to the extent attributable to Owner’s negligence or willful misconduct or (ii) the breach by Owner of its obligations under this lease, together with all costs, expenses and liabilities incurred in or in connection with each such claim or action or proceeding brought thereon, including, without limitation, reasonable attorneys’ fees and expenses.
(cc) Notwithstanding anything to the contrary contained in Article 9:
(i) As soon as reasonably practicable, but in any event no later than ninety (90) days following the date of any fire or other casualty rendering any portion of the Demised Premises unusable, Owner shall notify Tenant of Owner’s good faith best estimate of the date (the “Estimated Date”) by which the repair and restoration necessary to render such portion of the Demised Premises no longer unusable can be completed (“Owner’s Repair Notice”). Notwithstanding anything herein to the contrary, if, by reason of a fire or other casualty, (1) fifty percent (50%) or more of the Demised Premises are rendered wholly unusable or (whether or not the Demised Premises are damaged in whole or in part) the Building shall be so damaged that Owner shall decide to demolish it or to rebuild it, and (2) the Estimated Date set forth in Owner’s Repair Notice with respect to such fire or other casualty is after the date (the “Outside Repair Date”) which is the six (6) month anniversary of the date of such fire or other casualty (a fire or other casualty meeting the requirements of the preceding subclauses (1) and (2) being a “Substantial Casualty”), then Tenant shall have (with respect to any one casualty) a one-time right (except as set forth in subclause (ii) below) to terminate this lease by written notice (the “Damage Termination Notice”) given to Owner within thirty (30) days following Owner’s giving of Owner’s Repair Notice. Such termination shall be effective as of the date which is sixty (60) days after the Damage Termination Notice, and, upon delivery of such notice and the expiration of such 90-day period, this lease and the term hereof shall expire as fully and completely as if such date were the date originally set forth for the termination of this lease. Tenant’s failure to deliver the Damage Termination Notice in the time and manner required by this subclause (i) shall be deemed an irrevocable waiver of Tenant’s right to terminate this lease pursuant to this subclause (i). Notwithstanding the foregoing, if at the time of such fire or other casualty the remaining term of this lease is 1 year or less, then the 6-month period set forth above shall be reduced to three (3) months.
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(ii) In the event of any Substantial Casualty, if the repair or restoration necessary to render the Demised Premises no longer unusable (provided that Tenant does not use the Demised Premises for any purpose) is not substantially completed by the Outside Repair Date, as such Outside Repair Date shall be extended due to delays caused or occasioned by Owner’s inability to perform as described in Article 27 hereof by reason of the occurrence of a so-called force majeure event or by Tenant, its agents, employees, contractors, architects, engineers or servants, then Tenant shall be entitled to terminate this lease by a Damage Termination Notice given to Owner within thirty (30) days after the Outside Repair Date (as so extended) and, upon the giving of such notice, this lease and the term hereof shall expire as of the date which is thirty (30) days after the giving of such notice (the “Damage Termination Date”); provided, however, if Tenant delivers a Damage Termination Notice pursuant to this subclause (ii) to Owner, then Owner shall have the right to suspend the occurrence of the Damage Termination Date for a period of thirty (30) days after the date of the Damage Termination Notice by delivering to Tenant, within ten (10) Business Days after Owner’s receipt of such Damage Termination Notice, a certificate of Owner’s contractor responsible for the repairs of such damage certifying that it is such contractor’s good faith judgment that the repairs shall be substantially completed within thirty (30) days after the date of the Damage Termination Notice. If the repairs shall be substantially completed prior to the expiration of such thirty (30) day period, the Damage Termination Notice shall be null and void and of no force or effect, and this lease shall continue, but if the repairs shall not be substantially completed within such thirty (30) day period, then this lease shall terminate upon the expiration of such thirty (30) day period.
(dd) Notwithstanding anything to the contrary contained in Article 13, except in the event of an emergency or where such entry is required by applicable law, Owner’s right of entry shall be exercised following reasonable advance notice to Tenant (which may be given orally) and Tenant shall be afforded the opportunity to have a representative of Tenant present during such access. Owner agrees that while exercising such right of entry or making such repairs, replacements or improvements, Owner shall perform its work diligently and shall use commercially reasonable efforts to avoid interfering with Tenant’s business or disrupting the same (including, but not limited to, except in an emergency, adhering to Tenant’s reasonable written requirements (provided to Owner in advance) prior to entering any area in the Demised Premises designated by Tenant as secure or sensitive), but in no event shall Owner be obligated to perform work on an overtime or premium basis. Upon conclusion of the activities for which access was needed, Owner shall remove its tools and materials and all debris from the access areas and repair any damage to the Demised Premises and/or Tenant’s property caused by the activities contemplated by such access.
(ee) No additions to or modifications of the Rules and Regulations shall be binding upon Tenant until Tenant has received a written copy thereof and further provided that such additions or modifications shall not contradict anything contained in this lease nor increase Tenant’s obligations or lessen its rights hereunder beyond a de minimis extent. Owner shall not discriminate against Tenant (vis-à-vis other office Tenants of the Building) in the enforcement of any Rules and Regulations. In the event of any inconsistency between the terms of this lease and any Rules and Regulations, the terms of this lease shall govern.
(ff) If either party commences an action, proceeding, demand, claim, action, cause of action or suit against the other party arising out of or in connection with this lease, then the prevailing party shall be reimbursed by the other party for all reasonable costs and expenses, including reasonable attorneys’ fees and expenses, incurred by the prevailing party in such action, proceeding, demand, claim, action, cause of action or suit, and in any appeal in connection therewith.
(gg) Owner and Tenant each warrants and represents to the other that (i) it is duly incorporated or otherwise established or formed and validly existing under the laws of its state of incorporation, establishment or formation, (ii) it has and is duly qualified to do business in the State of New York, (iii) it has full corporate, partnership, trust, association or other appropriate power and authority to enter into this lease and to perform all its obligations hereunder, (iv) each person (and all of the persons if more than one signs) signing this lease on behalf of it is duly and validly authorized to do so and (v) neither (1) the execution, delivery or performance of this lease nor (2) the consummation of the transactions contemplated hereby will violate or conflict with any provision of documents or instruments under which it is constituted or to which it is a party.
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(hh) This lease may be executed in counterparts, each of which shall be deemed a part of an original and all of which together shall constitute one (1) agreement. Signature pages may be detached from the counterparts and attached to a single copy of this lease to form one (1) document. The parties acknowledge and agree that notwithstanding any law or presumption to the contrary, the exchange of copies of this lease and signature pages by electronic or facsimile transmission shall constitute effective execution and delivery of this lease for all purposes, and signatures of the parties hereto transmitted electronically or via facsimile shall be deemed to be their original signature for all purposes.
47. NOTICES. All notices, consents, demands and other communications from one party to the other that are given pursuant to the terms of this lease shall be in writing and shall be delivered (including delivery by commercial delivery services), or sent by the United States mail, certified or registered (return receipt requested), postage prepaid, or sent via nationally recognized overnight courier. Notices shall be deemed given (i) on the date of delivery, if delivered via commercial delivery service (unless such date is a weekend or holiday, in which event such notice shall be deemed given on the next succeeding Business Day), (ii) three (3) Business Days following deposit in the United States mail, if sent via certified or registered mail (return receipt requested and postage prepaid) or (iii) on the Business Day next succeeding the date upon which such notice is given to any nationally recognized overnight courier. All notices, consents, demands and other communications shall be addressed as follows:
If to Owner: |
400 Madison Holdings, LLC | |
c/o Macklowe Management | ||
000 Xxxx 00xx Xxxxxx; 00xx Xxxxx | ||
Xxx Xxxx, Xxx Xxxx 00000 | ||
Attn: General Counsel | ||
With a copy to: |
400 Madison Holdings, Inc. | |
c/o ASB Capital Management, LLC | ||
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000 Xxxx | ||
Xxxxxxxx, Xxxxxxxx 00000 | ||
Attn: Xxxxxx Xxxxxx | ||
Vice President | ||
If to Tenant: |
||
0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000 | ||
Xxxxxxxxx, XX 00000 | ||
Attn: General Counsel | ||
With copies |
||
by email to: |
Xxxxx@xxxxxxxxx.xxx | |
and | ||
Xxxxxxxx@xxxxxxxxx.xxx | ||
Address for Invoices to Tenant shall be: |
0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
Notwithstanding the foregoing, communications from Owner, such as correspondence and Rent bills for Fixed Rent and/or Additional Charges, which are sent in the ordinary course of business need only be sent to Tenant and may be sent exclusively by regular mail and Building-wide notices or notices to Tenant regarding operating and/or repairs at the Building may be sent to the Demised Premises. Notices given by Owner’s managing agent shall be deemed to constitute a valid notice if addressed and sent in accordance with the provisions of this Article 47.
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48. HOLDOVER.
(a) If Tenant shall hold over after the expiration or sooner termination of the term of this lease, then Tenant shall pay on the first day of each month of the holdover period as Fixed Rent, an amount equal to the greater of (i) the sum of (1) the Applicable Percentage (as hereinafter defined) times one-twelfth of the sum of the Fixed Rent and (2) the Additional Charges payable by Tenant during the last year of the term of this lease and (ii) one hundred twenty-five percent (125%) of the fair market rental value of the Demised Premises during the holdover period. It is stipulated and agreed that Owner shall not be required to perform any work, furnish any materials or make any repairs within the Demised Premises during the holdover period (as determined by Owner). It is further stipulated and agreed that if Owner shall, at any time after the expiration or sooner termination of the term, proceed to remove Tenant from the Demised Premises as a holdover, the Fixed Rent and Additional Charges for the use and occupancy of the Demised Premises during any holdover period shall be calculated in the same manner as set forth above. No holding over by Tenant shall operate to extend the term of this lease. As used herein, “Applicable Percentage” means (x) 150% for the first month of the holdover and (y) 200% thereafter.
(b) Anything to the contrary notwithstanding, the acceptance of any rent paid by Tenant pursuant to Section 48(a) above shall not preclude Owner from commencing and prosecuting a holdover or summary eviction proceeding, and the preceding sentence shall be deemed to be an “agreement expressly providing otherwise” within the meaning of Section 232-c of the Real Property Law of the State of New York.
(c) If Tenant shall hold-over or remain in possession of any portion of the Demised Premises beyond the date that is thirty (30) days after the Expiration Date, Tenant shall be subject not only to summary proceeding and all damages related thereto, but also to any damages arising out of any lost opportunities (and/or new leases) by Owner to re-let the Demised Premises (or any part thereof). All damages to Owner by reason of such holding over by Tenant may be the subject of a separate action and need not be asserted by Owner in any summary proceedings against Tenant.
49. SECURITY DEPOSIT. Supplementing the provisions of Article 34 hereof:
(a) On the date hereof, Tenant shall be obligated to deliver to Owner security in the amount of Two Hundred Twenty-Four Thousand Six Hundred Fifty-Three and 14/100 Dollars ($224,653.14) (the “Security Deposit”) in the form of an unconditional irrevocable standby letter of credit (an “L/C”) in the original principal amount of the Security Deposit.
(b) Tenant shall deliver to Owner the L/C in the amount of the Security Deposit in the form of Exhibit D attached hereto or otherwise in form and substance reasonably satisfactory to Owner, and naming Owner as beneficiary, as security for the faithful performance and observance by Tenant of its obligations under this lease. The L/C and any renewal L/C shall be drawn on a bank or trust company located in New York City which is a member of the New York Clearing House Association, or otherwise reasonably satisfactory to Owner. If Tenant defaults in the full and prompt payment and performance of any of Tenant’s covenants or obligations under this lease beyond any applicable notice and cure period, including, without limitation, a default in the payment of Fixed Rent or Additional Charges, or a failure to timely provide a renewal L/C to Owner as provided below, Owner may present the L/C for payment and use, apply or retain the whole or any part of the proceeds thereof, to the extent required for the payment of any Fixed Rent, Additional Charges or any other sums owing or which may become due and owing under this lease. If Owner shall so apply, use or retain all or any part of the Security Deposit, Tenant shall upon demand by Owner, immediately deposit with Owner a sum of cash or an endorsement to the L/C in form and substance reasonably satisfactory to Owner equal to the amount used, applied or retained, as security as aforesaid, failing which Owner shall have the same rights and remedies as under this lease for non-payment of Fixed Rent. In the event that Tenant shall fully and faithfully comply with the terms, covenants and conditions of this lease, the L/C, or so much of the proceeds thereof as shall remain after any application pursuant to the terms of this lease, shall be returned to Tenant promptly after the expiration or sooner termination of the term hereof and delivery of possession of the entire Demised Premises to Owner in the manner required by the terms of this lease, together with any documentation reasonably required by the issuer of the L/C to permit its cancellation. The L/C shall provide that it is automatically transferable without the issuer’s consent by utilizing the issuer’s customary transfer form, at no charge and without liability to Owner and without changing the form or substance of the L/C (or, if there is such a charge to transfer the L/C, Tenant shall pay such charge within five (5) Business Days after demand by Owner, failing which Owner may present the L/C for payment). Tenant agrees to cause the issuer to renew said L/C, in the same
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form (or such other form as may be satisfactory to Owner in its sole discretion) from time to time during the term of this lease, at least thirty (30) days prior to the expiration of said L/C or any renewal thereof so that an L/C issued by the issuer to Owner shall be in force and effect through the term of this lease. In the event of any sale, transfer or leasing of Owner’s interest in the Building, Owner shall have the right to transfer either the L/C or any sums collected thereunder, together with any other unapplied sums held by Owner as security and the interest thereon, if any, to which Tenant is entitled, to the vendee, transferee or lessee, and after such transfer and upon giving notice to Tenant of such fact and the name and address of the transferee, Owner shall thereupon be released by Tenant from all liability for the return or payment thereof, and Tenant shall look solely to the new owner for the return of payment of same. Owner hereby approves Silicon Valley Bank as an issuer of the L/C.
(c) The Security Deposit constitutes security for any and all present and future obligations and liabilities of Tenant under this lease. Tenant hereby expressly agrees that Owner is not required to apply the Security Deposit against the obligations of Tenant in any particular order. Owner, in its sole discretion, may apply the Security Deposit against any obligation under this lease in any order it may elect including, without limitation, any Fixed Rent and Additional Charges that accrue after Tenant vacates the Premises and/or any re-letting charges incurred by Owner as a result of Tenant vacating the Premises prior to the expiration of this tease.
50. OWNER’S INITIAL WORK.
(a) Owner or its designated contractor(s), in accordance with the provisions of this Article 50, shall perform the work (“Owner’s Initial Work”) set forth on Exhibit E attached hereto and made a part hereof. Tenant may not make changes to Owner’s Initial Work during Owner’s performance thereof. Owner’s Initial Work shall be performed by Owner only once, it being understood that Owner’s obligation to perform Owner’s Initial Work is a single, non-recurring obligation.
(b) (i) For purposes of this lease, the term “Substantial Completion Date” shall mean the date on which Owner’s Initial Work is substantially completed or would have been substantially completed but for any Tenant’s Delay (as hereinafter defined), it being understood that substantial completion shall occur notwithstanding the fact that minor details, balancing or adjustments may not then have been completed, provided that such uncompleted work shall not materially interfere with Tenant’s use of the Demised Premises. The taking of possession of the Demised Premises by Tenant shall be deemed a delivery of the Demised Premises by Owner, substantial completion of Owner’s Initial Work and an acceptance by Tenant of the Demised Premises, subject to the correction of latent defects and the completion of any minor punchlist work with respect to Owner’s Initial Work. Owner shall proceed diligently to (i) complete any such punch-list work and (ii) correct any latent defects following notice thereof to Owner.
(ii) Tenant hereby acknowledges that the Commencement Date hereunder is indeterminate and shall occur only as provided in Article 37 hereof and Tenant, therefore, waives any right to rescind this lease under any applicable law, including, without limitation, Section 223(a) of the Real Property law of the State of New York. Tenant further waives any damages which may result from any delay in the substantial completion of Owner’s Initial Work (or any portion thereof) or the delivery of possession of the Demised Premises on or by any particular date or dates.
(c) The term “Tenant’s Delay” shall mean any delay that Owner may encounter in commencing or performing Owner’s Initial Work (or any portion thereof) or Owner’s other obligations pursuant to this Article 50 by reason of any act, neglect, failure or omission by Tenant, its agents, servants, employees, contractors or subcontractors, or in the performance of Tenant’s obligations under this Article 50 including, without limitation, Tenant’s failure to promptly provide information necessary for Owner to substantially complete Owner’s Initial Work.
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(d) Except for Owner’s Initial Work, Owner shall have no obligation to pay any money or perform any other work in, or make any alteration, or improvements to, the Demised Premises or the Building to ready the Demised Premises or the Building for Tenant’s initial occupancy.
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SCHEDULE A
Fixed Rent
Period | Annual Fixed Rent* | |
From and including the Commencement Date to, but not including, the first day of the month in which the first anniversary of the Commencement Date occurs (such first day of the month, the “First Rent Adjustment Date”) |
Two Hundred Ninety-Nine Thousand Five Hundred Thirty-Seven and 50/100 Dollars ($299,537.50), payable in equal monthly installments of $24,961.46 | |
From and including the First Rent Adjustment Date to, but not including, the first anniversary of the First Rent Adjustment Date |
Three Hundred Eight Thousand One Hundred Seventeen and 80/100 Dollars ($308,117.80) payable in equal monthly installments of $25,676.48 | |
From and including the first anniversary of the First Rent Adjustment Date to, but not including, the second anniversary of the First Rent Adjustment Date |
Three Hundred Sixteen Thousand Nine Hundred Fifty-Five and 51/100 Dollars ($316,955.51) payable in equal monthly installments of $26,412.96 | |
From and including the second anniversary of the First Rent Adjustment Date to, but not including, the third anniversary of the First Rent Adjustment Date |
Three Hundred Twenty-Six Thousand Fifty-Eight and 35/100 Dollars ($326,058.35) payable in equal monthly installments of $27,171.53 | |
From and including the third anniversary of the First Rent Adjustment Date to and including the Expiration Date |
Three Hundred Thirty-Five Thousand Four Hundred Thirty-Four and 27/100 Dollars ($335,434.27) payable in equal monthly installments of $27,952.86 |
* The Annual Fixed Rent set forth above includes the Base Electric Charge. |
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EXHIBIT A
Floor Plan
[See attached]
This floor plan is annexed to and made a part of this lease solely to indicate the Demised Premises and its location on the 8th floor of the Building by shading. All areas, conditions, dimensions and locations are approximate.
Note: Any furniture and equipment shown on the attached floor plan is for reference only and is not to be provided by Owner. All furniture and equipment is to be provided by Tenant at its expense.
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EXHIBIT B
000 Xxxxxxx Xxxxxx
TENANT CLEANING LEASE EXHIBIT
Page 1 of 2
OFFICES AND OTHER TENANT AREAS
Cleaning and additional cleaning operations shall be scheduled so that an absolute minimum number of lights are to be left on all times. Upon completion of the cleaning, all lights must be turned off. All doors shall be closed and locked if applicable.
Nightly
Ø | Litter shall be removed from all floor surfaces. All carpeting and rugs are to be vacuum-cleaned using an approved rotary-type vacuum cleaner one (1) time per week. |
Ø | Dust all furniture nightly. |
Ø | Remove regular office trash from office areas and bring to the central collection point. |
Ø | Damp-wipe all telephones as necessary with approved cleaner/disinfectant. |
Ø | Keep slop sink clean and polished. Janitorial rooms are to be kept in a neat and orderly condition at all times. |
Ø | Clean all water fountains and coolers, Remove all fingerprints from all painted surfaces near light switches and entrance doors. |
Weekly
Ø | Dust all baseboards, accessible convector covers/xxxxx and chair rails. |
Monthly
Ø | All stone, ceramic tiles, marble, terrazzo and other un-waxed flooring to be swept, dusted and washed once a month. |
Ø | All linoleum, vinyl, rubber VCT tile and other similar types of flooring to be swept monthly using approved dust-down preparation. |
Quarterly
Ø | Dust all picture frames, charts and similar hangings that are not reached in nightly cleaning. |
Ø | Dust all air conditioning louvers, grilles, etc. not reached in nightly cleaning. |
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BASE BUILDING LAVATORIES
Nightly
Ø | Scour, wash, and disinfect all toilet seats (both sides) basins, bowls, and urinals throughout. |
Ø | Sweep and wash all lavatory floors using proper cleaner/disinfectants. |
Ø | Wash all mirrors, powder shelves, bright work, and enameled surfaces in all lavatories. |
Ø | Hand dust all clean, washing where necessary, all partitions, dispensers, and receptacles in all lavatories and rest rooms. |
Ø | Empty waste, wipe clean and polish all receptacles and remove paper to designated areas. |
Ø | Fill soap dispenser systems. |
Ø | Supply and service all disposable paper product dispensers. |
Ø | Empty and clean sanitary disposal receptacles. |
Ø | Clean and wash all receptacles and dispensers with a cleaning/disinfectant solution. |
Ø | Remove fingerprint marks from painted surfaces. |
Weekly
Ø | Clean and wash all partitions with disinfectant once a week, more frequently if necessary. |
Monthly
Ø | Machine scrub floors once a month. |
Ø | Hand-dust, clean, and wash all tile walls. |
Ø | High dusting, which will include lights, walls, and grilles. |
WINDOW CLEANING
Ø | Wash the interior and exterior of all building windows four times per year. |
- | Does not include glass office fronts or glass doors. |
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EXHIBIT C
Service Charge Rates
Macklowe Management LLC
2016 Service Charge Rates
000 Xxxxxxx Xxxxxx
EFFECTIVE 1/1/2016
Each Bin |
||||||||
$85.00 |
PLUS TAX | |||||||
Garbage Removal Rubbish (paper, books & Office refuse) Other (furniture, computers, office equipment & misc. debris) |
* Please contact Property Management office for pricing |
| ||||||
2nd Floor Conference Rooms Conference Room “A” (Videoconferencing/Data Sharing) 2nd Floor Tenant Event (Lounge & Conference Room) |
Per Hour $200.00 $500.00 |
|
PLUS TAX PLUS TAX |
| ||||
Freight Elevator Service After hours weekdays (after 5:00pm or before 8:00am) Weekends (4 hour minimum) |
Per Hour $109.00 $109.00 |
4 HOUR MIN. | ||||||
Overtime Air Conditioning Per A/C Zone (2 hour minimum) |
Per Hour $100.00 |
|||||||
Security Access New or Replacement Suite Door/Men’s or Ladies’ Room Keys (10-Key Min.) New or Replacement Key Fobs |
Each $7.00 $38.00 |
10 KEY MIN. | ||||||
Other Labor | Straight Time Per Hour | Overtime Per Hour | ||||||
Superintendent Handymen Xxxxxx Fire Safety Director Security Guard |
$74.00 $71.00 $64.00 $74.00 $52.00 |
$110.00 $107.00 $96.00 $111.00 $78.00 |
|
PLUS TAX PLUS TAX PLUS TAX
PLUS TAX |
| |||
Previous Rate Change: 1/1/2016
|
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EXHIBIT D
Form of Letter of Credit
[BankName] |
[Bank Name] | |
[Bank Address] |
ISSUE DATE: [ ] | |
L/C NO.: [ ] | ||
Cable Address: [ ] | ||
Advising Bank ***************DIRECT******************* |
APPLICANT: [ ] | |
Beneficiary | ||
400 MADISON HOLDINGS, LLC | AMOUNT: USD[ ] | |
c/o ASB CAPITAL MANAGEMENT, LLC | ||
0000 XXXXXXXXX XXXXXX, XXXXX 0000X | [AMOUNT IN WORDS] | |
XXXXXXXX, XX 00000 | (XXXXXX XXXXXX DOLLARS) |
GENTLEMEN:
WE HEREBY ESTABLISH THIS IRREVOCABLE STANDBY LETTER OF CREDIT NO. [ ] IN YOUR FAVOR
FOR AN AGGREGATE AMOUNT NOT TO EXCEED THE AMOUNT INDICATED ABOVE, EXPIRING AT OUR COUNTERS IN NEW YORK WITH OUR CLOSE OF BUSINESS ON [ ].
THIS LETTER OF CREDIT IS AVAILABLE WITH [BANK NAME], NEW YORK AGAINST PRESENTATION OF YOUR DRAFT AT SIGHT DRAWN ON [BANK NAME], NEW YORK WHEN ACCOMPANIED BY THE DOCUMENTS INDICATED HEREIN.
BENEFICIARY’S DATED STATEMENT PURPORTEDLY SIGNED BY ONE OF ITS OFFICIALS READING: “THE AMOUNT OF THIS DRAWING USD.................. UNDER [BANK NAME] LETTER OF CREDIT NUMBER [ ] REPRESENTS FUNDS DUE US AS [(APPLICANT)] HAS FAILED TO MEET ITS OBLIGATIONS UNDER A LEASE AGREEMENT BETWEEN [(APPLICANT)], AS TENANT, AND [(BENEFICIARY)] AS LANDLORD.”
ALL CORRESPONDENCE AND ANY DRAWINGS PRESENTED ARE TO BE DIRECTED TO OUR OFFICE AT [BANK ADDRESS, DEPARTMENT AND TELEPHONE #’(s)].
IT IS A CONDITION OF THIS IRREVOCABLE LETTER OF CREDIT THAT IT SHALL BE AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR AN ADDITIONAL PERIOD OF ONE YEAR FROM THE PRESENT OR EACH FUTURE EXPIRATION DATE, UNLESS AT LEAST 30 DAYS PRIOR TO SUCH DATE WE SEND YOU NOTICE IN WRITING BY REGISTERED MAIL OR HAND DELIVERY AT THE ABOVE ADDRESS, THAT WE ELECT NOT TO RENEW THIS LETTER OF CREDIT FOR SUCH ADDITIONAL PERIOD. HOWEVER, IN NO EVENT SHALL THIS LETTER OF CREDIT BE EXTENDED BEYOND THE FINAL EXPIRY DATE OF [ .] ANY SUCH NOTICE SHALL BE EFFECTIVE WHEN SENT BY US AND UPON SUCH NOTICE TO YOU, YOU MAY DRAW DRAFTS ON US AT SIGHT FOR AN AMOUNT NOT TO EXCEED THE BALANCE REMAINING IN THIS LETTER OF CREDIT WITHIN THE THEN APPLICABLE EXPIRY DATE, ACCOMPANIED BY YOUR DATED STATEMENT PURPORTEDLY SIGNED BY ONE OF YOUR OFFICIALS READING: “THE AMOUNT OF THIS DRAWING USD......... UNDER [BANK NAME] LETTER OF CREDIT NUMBER [ ] REPRESENTS FUNDS DUE US AS WE HAVE RECEIVED NOTICE FROM [BANK NAME] OF THEIR DECISION NOT TO EXTEND LETTER OF CREDIT NUMBER [ ] FOR AN ADDITIONAL YEAR.”
|
Authorized Signature |
.....CONTINUED....
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[Bank Name] |
[Bank Name] | |
[Bank Address] |
ISSUEDATE: [ ] | |
L/C NO.: [ ] | ||
Cable Address: [ ] |
||
Advising Bank ***************DIRECT******************* |
APPLICANT:[ ] | |
Beneficiary 400 MADISON HOLDINGS, LLC |
AMOUNT: USD[ ] | |
c/o ASB CAPITAL MANAGEMENT, LLC 0000 XXXXXXXXX XXXXXX. XXXXX 0000X |
XXXXXX XX WORDS] | |
XXXXXXXX, XX 00000 |
(XXXXXX XXXXXX DOLLARS) |
THIS LETTER OF CREDIT IS TRANSFERABLE IN ITS ENTIRETY (BUT NOT IN PART) AND [BANK NAME) ONLY IS AUTHORIZED TO ACT AS THE TRANSFERRING BANK.
WE SHALL NOT RECOGNIZE ANY TRANSFER OF THIS LETTER OF CREDIT UNTIL THIS ORIGINAL LETTER OF CREDIT TOGETHER WITH ANY AMENDMENTS AND A SIGNED AND COMPLETED TRANSFER FORM SATISFACTORY TO US IS RECEIVED BY US. TRANSFER FEES ARE FOR THE ACCOUNT OF THE APPLICANT.
TRANSFER FORMS ATTACHED.
THE CORRECTNESS OF THE SIGNATURE AND TITLE OF THE PERSON SIGNING THE TRANSFER FORMS MUST BE VERIFIED BY YOUR BANK.
IN CASE OF ANY TRANSFER UNDER THIS LETTER OF CREDIT, THE DRAFT AND ANY REQUIRED STATEMENT MUST BE EXECUTED BY THE TRANSFEREE.
THIS LETTER OF CREDIT MAY NOT BE TRANSFERRED TO ANY PERSON WITH WHICH U.S. PERSONS ARE PROHIBITED FROM DOING BUSINESS UNDER U.S. FOREIGN ASSETS CONTROL REGULATIONS OR OTHER APPLICABLE U.S. LAWS AND REGULATIONS.
PARTIAL DRAWINGS ARE ALLOWED.
WE HEREBY AGREE WITH YOU THAT DRAFTS DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT SHALL BE DULY HONORED UPON PRESENTATION TO US.
WE HEREBY ISSUE THIS STANDBY CREDIT IN YOUR FAVOR. IT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION INTERNATIONAL CHAMBER OF COMMERCE, PARIS, FRANCE PUBLICATION NO. 600) AND ENGAGES US IN ACCORDANCE WITH THE TERMS THEREOF. THE NUMBER AND THE DATE OF OUR CREDIT AND THE NAME OF OUR BANK MUST BE QUOTED ON ALL DRAFTS REQUIRED.
|
Authorized Signature |
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New York, New York | ||
[BANK NAME] |
||
[BANK ADDRESS] |
ATTENTION: STANDBY LETTER OF CREDIT DEPARTMENT
RE: |
LETTER OF CREDIT NO. [ ] | |
ISSUED BY: [BANK NAME], NEW YORK |
GENTLEMEN:
FOR VALUE RECEIVED, THE UNDERSIGNED BENEFICIARY HEREBY IRREVOCABLY TRANSFERS TO:
[NAME OF TRANSFEREE]
[ADDRESS]
ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY TO DRAW UNDER THE ABOVE LETTER OF CREDIT IN ITS ENTIRETY.
BY THIS TRANSFER. ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY IN SUCH LETTER OF CREDIT ARE TRANSFERRED TO THE TRANSFEREE AND THE TRANSFEREE SHALL HAVE THE SOLE RIGHTS AS BENEFICIARY THEREOF, INCLUDING SOLE RIGHTS RELATING TO ANY AMENDMENTS WHETHER INCREASES OR EXTENSIONS OR OTHER AMENDMENTS AND WHETHER NOW EXISTING OR HEREAFTER MADE. ALL AMENDMENTS ARE TO BE ADVISED DIRECT TO THE TRANSFEREE WITHOUT NECESSITY OF ANY CONSENT OF OR NOTICE TO THE UNDERSIGNED BENEFICIARY.
THE ADVICE OF SUCH LETTER OF CREDIT IS RETURNED HEREWITH, AND WE ASK YOU TO ENDORSE THE TRANSFER ON THE REVERSE HEREOF, AND FORWARD IT DIRECT TO THE TRANSFEREE WITH YOUR CUSTOMARY NOTICE OF TRANSFER.
YOURS VERY TRULY,
SIGNATURE OF BENEFICIARY |
SIGNATURE GUARANTEED AND IS IN CONFORMITY TO THAT ON FILE WITH US AS TO SIGNER’S AUTHORIZATION FOR THE EXECUTION OF THESE INSTRUMENTS.
BANK:
|
| |
BY: |
| |
TITLE: |
THIS FORM MUST BE EXECUTED IN DUPLICATE.
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EXHIBIT E
Owner’s Initial Work
Pursuant to Article 50 of this lease, Owner agrees, at its sole cost and expense, to perform in the Demised Premises the work substantially as shown on the plan attached hereto as Exhibit E-1 and made a part hereof (the “Owner’s Initial Work Plan”), all of which shall be of material, design, capacity, finish and color adopted by Owner for the Building, unless otherwise indicated, including, without limitation, the following:
1. | Combine the corner office and the office immediately to its west to create a single office, substantially as shown on the Owner’s Initial Work Plan. |
2. | Combine the two (2) southerly-most offices on the eastern side of the Demised Premises (i.e., overlooking Madison Avenue) to create a single larger room, substantially as shown on the Owner’s Initial Work Plan. |
3. | Provide a new Building-standard pantry, substantially as shown on the Owner’s Initial Work Plan. |
4. | Paint the Demised Premises using Building-standard paint (Tenant to choose a color paint from a book of Building-standard colors maintained in the Building’s management office, subject to Owner’s consent, which shall not be unreasonably withheld). |
5. | Install Building-standard carpeting in the carpeted areas of the Demised Premises (Tenant to choose a color carpeting from a book of Building-standard carpeting maintained in the Building’s management office, subject to Owner’s consent, which shall not be unreasonably withheld). |
Note:
Tenant shall respond within three (3) business days to each request made by Owner for additional information necessary for Owner to complete the Owner’s Initial Work. Each day beyond the expiration of such 3-business-day period that Tenant shall fail to provide the necessary information requested by Owner shall constitute a day of Tenant’s Delay. In addition, if Tenant shall fail to provide such necessary information beyond the date which is seven (7) business days after Owner’s request, then Owner may upon notice to Tenant, complete the work for which such information was necessary, in the manner determined by Owner, provided that Owner shall do so in a manner consistent with the Owner’s Initial Work Plan and good construction practice.
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Exhibit E-1
Owner’s Initial Work Plan
[See attached]
This floor plan is annexed to and made a part of this lease solely to indicate the Owner’s Initial Work to be performed within the Demised Premises. All areas, conditions, dimensions and locations are approximate.
Note: Furniture and equipment shown on Owner’s Initial Work Plan is for reference only and is not part of Owner’s Initial Work, nor is any to be provided by Owner. All furniture and equipment is to be provided by Tenant at its expense, subject to payment of the Terrace Allowance as provided in this lease.
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Exhibit F
HVAC Specifications
[See attached]
-37-
400 MADISON HVAC SPECIFICATIONS
HEATING, VENTILATION AND AIR CONDITIONING SYSTEMS
1. | HVAC Design Criteria: |
Temperature and Humidity Design Conditions
Summer: |
Outdoor Indoor |
89°F dry bulb. 73°F wet bulb 78°F dry bulb |
||||||
|
Winter: |
Outdoor Indoor |
15°F dry bulb 70°F dry bulb (no humidity control) |
Cooling Load Conditions
|
People: |
One person per 100 usable sq. ft. | ||
Outside Air Quality: |
0.13 cfm per usable sq. ft. (New York City Ventilation Code) |