EXECUTION COPY
44 WALL OWNER, LLC,
as Landlord
and
INDEPENDENT RESEARCH GROUP LLC,
as Tenant
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AGREEMENT OF LEASE
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Premises: Entire 10th Floor
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dated: As of May 10, 2004
TABLE OF CONTENTS
Page
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ARTICLE 1 BASIC LEASE PROVISIONS..................................................................................2
ARTICLE 2 PREMISES, TERM, RENT....................................................................................4
ARTICLE 3 USE AND OCCUPANCY.......................................................................................5
ARTICLE 4 CONDITION OF THE PREMISES; LANDLORD'S WORK..............................................................6
ARTICLE 5 ALTERATIONS............................................................................................12
ARTICLE 6 FLOOR LOAD.............................................................................................16
ARTICLE 7 REPAIRS................................................................................................17
ARTICLE 8 INCREASES IN TAXES AND OPERATING EXPENSES..............................................................18
ARTICLE 9 REQUIREMENTS OF LAW....................................................................................23
ARTICLE 10 SUBORDINATION.........................................................................................26
ARTICLE 11 SERVICES..............................................................................................28
ARTICLE 12 INSURANCE; PROPERTY LOSS OR DAMAGE; REIMBURSEMENT.....................................................32
ARTICLE 13 DESTRUCTION - FIRE OR OTHER CAUSE.....................................................................34
ARTICLE 14 EMINENT DOMAIN........................................................................................37
ARTICLE 15 ASSIGNMENT AND SUBLETTING.............................................................................38
ARTICLE 16 ELECTRICITY...........................................................................................47
ARTICLE 17 ACCESS TO PREMISES....................................................................................49
ARTICLE 18 DEFAULT...............................................................................................50
ARTICLE 19 REMEDIES AND DAMAGES..................................................................................52
ARTICLE 20 LANDLORD'S RIGHT TO CURE; FEES AND EXPENSES...........................................................54
ARTICLE 21 NO REPRESENTATIONS BY LANDLORD: LANDLORD'S APPROVAL...................................................55
ARTICLE 22 END OF TERM...........................................................................................56
ARTICLE 23 QUIET ENJOYMENT.......................................................................................57
ARTICLE 24 NO SURRENDER; NO WAIVER...............................................................................57
ARTICLE 25 WAIVER OF TRIAL BY JURY...............................................................................58
ARTICLE 26 INABILITY TO PERFORM..................................................................................59
ARTICLE 27 NOTICES...............................................................................................59
ARTICLE 28 RULES AND REGULATIONS.................................................................................60
ARTICLE 29 PARTNERSHIP TENANT....................................................................................61
ARTICLE 30 VAULT SPACE...........................................................................................62
ARTICLE 31 BROKER................................................................................................62
ARTICLE 32 INDEMNITY.............................................................................................63
ARTICLE 33 ADJACENT EXCAVATION; SHORING..........................................................................64
ARTICLE 34 ICIP..................................................................................................64
ARTICLE 35 INTENTIONALLY DELETED.................................................................................69
ARTICLE 36 MISCELLANEOUS.........................................................................................66
ARTICLE 37 SECURITY DEPOSIT......................................................................................70
ARTICLE 38 TELECOMMUNICATIONS....................................................................................72
EXHIBITS/SCHEDULE:
A - Floor Plans
B - Definitions
C - Cleaning Specifications
D - Rules and Regulations
Schedule A - Fixed Rent Schedule
Schedule B - Architectural Drawings and Specifications
Schedule C - Tenant Upgrades
AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE (collectively, as amended from
time-to-time, this "Lease") is made as of May 10, 2004, between 44 Wall Owner,
LLC ("Landlord"), a Delaware limited liability company, having an office c/o
Swig ▇▇▇▇▇▇ Equities, LLC, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and
Independent Research Group LLC ("Tenant"), a Delaware limited liability company,
having an office at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Landlord and Tenant hereby covenant and agree as follows:
ARTICLE 1
BASIC LEASE PROVISIONS
PREMISES Subject to Article 35, the entire tenth floor
of the Building, substantially as shown on
Exhibit A hereto.
BUILDING The building, fixtures, equipment and other
improvements and appurtenances now located or
hereafter erected, located or placed upon the
land known as ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇.
REAL PROPERTY The Building, together with the plot of land
upon which it stands.
COMMENCEMENT DATE The date of this Lease.
RENT COMMENCEMENT DATE The date which is the six month anniversary
of Landlord's Completion Date
(the "Possession Date").
EXPIRATION DATE The date that is the last day of the
month in which the tenth anniversary of the
Rent Commencement Date occurs.
TERM The period commencing on the Commencement
Date and ending on the Expiration Date.
PERMITTED USES Executive and general offices and trading
floor and for no other purpose.
BASE TAX YEAR Taxes payable for the Tax Year commencing on
July 1, 2004 and ending on June 30, 2005.
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TENANT'S PROPORTIONATE SHARE 5.183%.
AREA OF BUILDING 310,653 rentable square feet.
AREA OF PREMISES 16,100 rentable square feet.
The rentable square footage of the Building
and the Premises have been mutually
determined and agreed upon by Landlord and
Tenant for purposes of this Lease, and
Landlord makes no representation whatsoever
as to the actual square feet contained in the
Premises or the Building or any portions
thereof.
FIXED RENT See Schedule A hereto.
ADDITIONAL RENT All sums other than Fixed Rent payable by
Tenant to Landlord under this Lease,
including Tenant's Tax Payment, late charges,
overtime or excess service charges, and
interest and other costs related to Tenant's
failure to perform any of its obligations
under this Lease.
RENT Fixed Rent and Additional Rent, collectively.
INTEREST RATE The lesser of (i) 3% per annum above the Base
Rate and (ii) the maximum rate permitted by
applicable Requirements.
LATE CHARGE The lesser of (i) 2% of the outstanding
amount and (ii) the maximum amount permitted
by applicable law.
SECURITY DEPOSIT $383,716.00, subject to Article 37.
BROKER ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Inc.
LANDLORD'S AGENT Swig ▇▇▇▇▇▇ Equities, LLC, or any other
person designated at any time and from time
to time by Landlord as Landlord's Agent and
their successors and assigns.
PROFIT SHARE 50%.
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All capitalized terms used in the text of this Lease without
definition are defined in this Article 1 or in Exhibit B.
ARTICLE 2
PREMISES, TERM, RENT
Section 2.1 Lease of Premises. Subject to the terms of this Lease,
Landlord leases to Tenant and Tenant leases from Landlord the Premises for the
Term. In addition, Landlord grants to Tenant the right to use, on a
non-exclusive basis and in common with other tenants, the lobby area and other
Building common elements and common facilities serving the Premises.
Section 2.2 Payment of Rent.
(a) No Setoff; Manner of Payment. Tenant shall pay to
Landlord, without notice or demand, and without any set-off,
counterclaim, abatement or deduction whatsoever, except as may be
expressly set forth in this Lease, in lawful money of the United States
by wire transfer of funds to Landlord's account, as designated by
Landlord, or by check drawn upon a bank approved by Landlord: (i) Fixed
Rent in equal monthly, installments, in advance, on the first day of
each calendar month during the Term, commencing on the Rent
Commencement Date, and (ii) Additional Rent, at the times and in the
manner set forth in this Lease.
(b) Address. Tenant shall make each payment of Fixed Rent and
Additional Rent to Landlord at 44 Wall Owner, LLC, c/o Swig ▇▇▇▇▇▇
Equities, LLC, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and each
such payment shall reference the Building, or as otherwise directed by
Landlord.
Section 2.3 First Month's Rent. Tenant shall pay one month's Fixed Rent
upon the execution and delivery of this Lease. If the Rent Commencement Date is
on the first day of a month, such payment shall be credited towards the first
month's Fixed Rent payment. If the Rent Commencement Date is not the first day
of a month, then on the Rent Commencement Date Tenant shall pay Fixed Rent for
the period from the Rent Commencement Date through the last day of such month,
and the payment made by Tenant on the date of execution and delivery of this
Lease shall be credited towards Fixed Rent for the next succeeding calendar
month.
Section 2.4 Interest; Late Charge. If Tenant shall fail to pay any
installment of Fixed Rent after 10 days when due or any payment of Additional
Rent after 20 days when due, then (a) interest shall accrue on such installment
or payment as a late charge, from the date such installment or payment became
due until the date paid at the Interest Rate, and (b) Tenant shall pay Landlord
the Late Charge on the outstanding amount.
Section 2.5 Rent Credit. Tenant shall be entitled to receive a rent
credit equal to the amount of $14,443.00 per month (the "Rent Credit") for three
(3) months commencing on the Rent Commencement Date and ending on the day
immediately preceding the three (3) month anniversary of the Rent Commencement
Date. The rent credit described in this Section 2.5 shall
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be applied against the first three installments of Fixed Rent payable under this
Lease. Notwithstanding the foregoing, Tenant shall not be entitled to receive
any unused portion of the Rent Credit in the event this Lease is terminated or
the Rent Commencement Date does not occur subject to the terms herein.
ARTICLE 3
USE AND OCCUPANCY
Section 3.1 Permitted Uses; Licenses.
(a) Permitted Uses. Tenant shall use and occupy the Premises
for the Permitted Uses and for no other purpose. Tenant shall not use
or occupy or permit the use or occupancy of any part of the Premises in
a manner constituting a Prohibited Use. If Tenant uses or suffers the
use of the Premises for a purpose which constitutes a Prohibited Use or
violates any Requirement, or which causes the Building to be in
violation of any Requirement, then Tenant shall promptly discontinue
such use upon notice of such violation. Tenant's failure to discontinue
such use promptly (and, in all events, within 20 days after such
notice) shall be a material default hereunder and Landlord shall have
the right, without Tenant having any further period in which to cure,
(i) to terminate this Lease immediately by giving the 3 day notice
provided for in Section 18.1, and (ii) to exercise any and all rights
and remedies available to Landlord at law or in equity.
(b) Licenses and Permits. Tenant, at its expense, shall obtain
and at all times maintain and comply with the terms and conditions of
all licenses and permits required for the lawful conduct of the
Permitted Uses in the Premises.
Section 3.2 Prohibited Uses. Notwithstanding anything in this Lease to
the contrary, in no event shall the Premises be used or occupied by any Person
for any Prohibited Use.
Section 3.3 Delivery of Premises. Landlord shall deliver possession of
the Premises to Tenant within one-hundred twenty (120) days of the Bid Date (the
"Delivery Date"). As used herein, the "Bid Date" shall mean the day immediately
subsequent to the twelve (12) Business Day period following the Construction
Document Delivery (as hereinafter defined) during which Landlord shall solicit
bids to construct Landlord's Work (as hereinafter defined). If Landlord is
unable to deliver possession by the Delivery Date, due to any reason other than
any Tenant Delay or Unavoidable Delay, Tenant shall be entitled to an abatement
of Fixed Rent of two (2) days for every day after the Delivery Date the Premises
is not delivered to Tenant with Landlord's Work Substantially Completed.
Landlord shall be deemed to have delivered possession of the Premises to Tenant
and Tenant shall be deemed to have accepted possession of the Premises from
Landlord as of the Commencement Date, subject to Landlord's Substantial
Completion of Landlord's Work (excluding any Landlord's Additional Work) and
Tenant's agreement not to interfere with Landlord's prosecution of Landlord's
Work in accordance with Section 4.2. There shall be no postponement of the Rent
Commencement Date for (i) any Tenant Delay or (ii) any delay by Landlord in the
performance of Landlord's Additional Work and/or
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Punch List Items. The provisions of this Section are intended to constitute "an
express provision to the contrary" within the meaning of Section 223-a of the
New York Real Property Law or any successor Requirement. Tenant shall, upon
Landlord's request, execute and deliver an agreement setting forth the
Commencement Date, the Rent Commencement Date and the Expiration Date, but the
failure of Landlord to request such agreement or Tenant to execute and deliver
such agreement shall not affect the terms of this Lease.
ARTICLE 4
CONDITION OF THE PREMISES; LANDLORD'S WORK
Section 4.1 Condition. Subject to Landlord's completion of Landlord's
Work, Tenant accepts the Premises in its "AS IS" condition and agrees (a) that
neither Landlord nor Landlord's agents have made any representations or
warranties with respect to the Premises or the Building except as expressly set
forth herein, and (b) except for Landlord's Work, Landlord has no obligation to
perform any work, supply any materials, incur any expense or make any
alterations or improvements to the Premises to prepare the Premises for Tenant's
occupancy and possession of same. Promptly after receipt of Landlord's notice
pursuant to Section 4.3(b) hereof, Tenant shall arrange a walk-through of the
Premises with Landlord for the purpose of determining the Punch List Items to be
completed and, except for such Punch List Items, Tenant's occupancy of any part
of the Premises (other than occupancy for the purposes of installing Tenant's
Property) shall be conclusive evidence, as against Tenant, that Landlord has
Substantially Completed Landlord's Work and that, at such time, the Premises and
the Building were in a good and satisfactory condition as required by this
Lease. Notwithstanding the foregoing, the discovery of latent defects (if any)
following the Delivery Date shall not retroactively impact Landlord's Completion
Date and/or the Rent Commencement Date.
Section 4.2 Landlord's Work.
(a) Landlord's Obligation. Provided that this Lease is in full
force and effect, Landlord, at Landlord's expense (except as otherwise
provided in this Lease), shall construct the Premises substantially in
accordance with the Construction Documents, as defined in Section 4.3,
(collectively, but expressly excluding any Landlord's Additional Work
and Landlord's Excluded Work, "Landlord's Work"). "Landlord's Excluded
Work" shall mean, collectively, 'SS''SS' 3.1, 3.3, 3.4, 5.1, 7.2, 8.2
and 8.4 of Tenant Upgrades set forth on Schedule C. All costs and
expenses associated with Landlord's Work which are Tenant's obligation
to pay hereunder (including, without limitation, any items which
Landlord has agreed to perform at Tenant's sole cost and expense, the
Additional Construction Costs, all of Tenant's Soft Costs and Tenant
Upgrades) shall constitute Additional Rent under this Lease and shall
be due and payable within 10 Business Days after notice from Landlord
that any such Landlord's Work for which an invoice is submitted has
been completed.
(b) Survival. Tenant's obligation to pay for all Additional
Construction Costs shall survive the expiration or earlier termination
of this Lease.
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(c) Reasonable Efforts. Landlord shall use reasonable efforts
to Substantially Complete Landlord's Work and all Landlord's Additional
Work (if any) in a timely manner, however, in no event shall any delay
in Landlord's Substantial Completion of Landlord's Additional Work or
Landlord's Excluded Work in any way postpone the Rent Commencement Date
hereunder.
(d) Landlord's Completion Date. Landlord's Work, together with
Tenant Upgrades (but specifically excluding Landlord's Excluded Work),
shall be deemed Substantially Complete, subject to Tenant's right of
objection as set forth below, as of the date indicated by Landlord in a
written notice delivered to Tenant specifying the date on which
Landlord has Substantially Completed such work (such date being
"Landlord's Completion Date"). Prior to Landlord's Completion Date,
Landlord shall notify Tenant that Landlord wishes to jointly inspect
the Premises with Tenant or Tenant's representative. Tenant shall, or
shall cause its representative, to meet with Landlord, or Landlord's
representative, on such date at which time they shall jointly inspect
the Premises for the purpose of identifying Punch-List Items of
Landlord's Work or Landlord's Additional Work. Tenant's failure to
either (i) inspect the Premises on or before 10 Business Days after the
date specified in Landlord's notice to be the date of Substantial
Completion, or (ii) object in writing, delivered no later than the
expiration of such 10 Business Day period, to either (1) the date
specified in Landlord's notice or (2) the fact that Landlord has
Substantially Completed Landlord's Work or Landlord's Additional Work,
shall, in either case, be conclusive evidence that Landlord has
Substantially Completed such work. Notwithstanding the foregoing,
Tenant does not waive its right to raise issues subsequent to
Landlord's Completion Date, provided that such issues are latent
defects and not otherwise determinable by Tenant's inspection of the
Premises referenced above. Landlord shall complete all such Punch-List
Items within a reasonable time after being identified.
(e) Tenant's Access and Possession. Tenant shall have limited
access to the Premises for the period commencing on the date hereof and
ending on the day immediately preceding Landlord's Completion Date, on
reasonable conditions established by Landlord in order to permit Tenant
to (1) monitor the progress of Landlord's Work and any Landlord's
Additional Work or Tenant Upgrades, (2) following Tenant's reasonable
notice to Landlord, install personal property or other furnishings at
the Premises or (3) following Tenant's reasonable notice to Landlord,
install Tenant's Property (or, with Landlord's prior written approval,
which shall not be unreasonably withheld, cause any Tenant Party to
install Tenant's Property); provided that such access and possession do
not unreasonably interfere with Landlord's prosecution of Landlord's
Work or any Landlord's Additional Work or Tenant Upgrades.
Section 4.3 Construction Documents.
(a) Preparation of Architectural Drawings. Tenant has engaged
an architect to prepare Architectural Drawings and Specifications for
the construction of the Premises, which Architectural Drawings and
Specifications are set forth on Schedule B attached hereto (the
"Architectural Drawings and Specifications"). Landlord acknowledges
that Tenant has delivered to Landlord the Architectural Drawings and
Specifications and that
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Tenant and Landlord hereby acknowledge that each has approved the same
as of the date of this Lease. Landlord and Tenant acknowledge that,
without limitation, a list of Tenant upgrades are noted on the
Architectural Drawings and Specifications and are attached hereto as
Schedule C (the "Tenant Upgrades"). Notwithstanding anything to the
contrary contained herein, such Tenant Upgrades shall be performed at
Tenant's sole cost and expense and Landlord's Excluded Work shall not
impact Landlord's Substantial Completion of Landlord's Work.
(b) Engineering Drawings and Specifications/Construction
Documents. On the Commencement Date, Landlord shall, (i) at its sole
cost and expense, cause its engineer to prepare completed engineering
plans and specifications (including, to the extent applicable,
mechanical, electrical, plumbing, sprinkler and structural construction
drawings) (the "Engineering Drawings and Specifications"), based on and
consistent with the Architectural Drawings and Specifications, and (ii)
deliver the Engineering Drawings and Specifications to Tenant's
architect and Tenant's architect shall prepare a fully coordinated set
of construction documents incorporating the Architectural Drawings and
Specifications and the Engineering Drawings and Specifications
(collectively, the "Construction Documents"). Following Tenant's (or
Tenant's architect's) delivery to Landlord of the Construction
Documents (the "Construction Document Delivery"), but no later than the
Bid Date, Landlord shall complete the bidding of the work identified in
the Construction Documents and, to the extent practicable, shall obtain
separate pricing for each Tenant Upgrade. Upon receipt of such pricing,
Landlord shall deliver notice to Tenant as to the cost of each of the
Tenant Upgrades and Tenant shall have two (2) Business Days in which to
elect to proceed or not to proceed with each such Tenant Upgrade. The
Construction Document Delivery shall be deemed full authorization by
Tenant for Landlord to proceed with Landlord's Work and procure
necessary Work Permits therefor as hereinafter provided. Landlord
agrees to contribute up to $24,150.00 (the "Architect Contribution")
toward the cost of the preparation by Tenant's architect of the
Construction Documents ("Architect Work Cost"), payable directly to
Tenant promptly following receipt by Landlord of an invoice therefor;
provided, that Tenant shall not then be in default under this Lease;
provided, further, that if the Architect Work Cost shall be less than
the amount of the Architect Contribution, then the Architect
Contribution shall be reduced to the amount of such Architect Work
Cost. Landlord shall solely be responsible for the cost of all
engineering work. Following the completion of, and based upon, the
Construction Documents, Landlord shall perform Landlord's Work and
procure all of the required permits, licenses and other approvals
required in order to commence the Landlord's Work (the "Work Permits")
and obtain all applicable sign-offs; provided, that notwithstanding
anything to the contrary contained herein, Landlord's Work shall not
include (i) the installation of any voice, video, data or other wiring
(other than electrical) in the Premises, (ii) the installation of any
security system in the Premises, (iii) any equipment relating to voice,
video, data or security, including, without limitation, telephones and
(iv) furniture, systems furniture, equipment or distribution of power
within such furniture, systems furniture or equipment (other than
electrical connections as set forth in the Construction Documents for
such systems), trade fixtures or decorative effects (such as drapes and
pictures), office equipment or any other computer or telecommunications
installation. Tenant acknowledges that Landlord shall not be
responsible for any delays in the performance of the Landlord's Work
caused by
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Tenant's failure to timely approve the Construction Documents. Tenant
shall and shall cause its architect to reasonably cooperate with
Landlord, its employees, agents, subcontractors, engineers and all
other parties involved in the Landlord's Work and shall make itself and
cause the architect to make itself available at all reasonable times to
facilitate the completion of Landlord's Work.
(c) General Conditions of Landlord's Work.
(i) Notwithstanding anything to the contrary contained in this
Lease, Landlord shall not be required to perform, and Tenant shall not
request, any work which would (A) result in a violation of, or require
a change in, the Certificate of Occupancy; (B) materially and adversely
affect the outside appearance or use of the Building; (C) physically
affect any portion of the Building located outside the boundaries of
the Premises; (D) affect the structural integrity of the Building; or
(E) materially and adversely affect the proper functioning of any
air-conditioning, elevator, plumbing, electrical, sanitary, mechanical
and other service or system of the Building.
(ii) Notwithstanding anything to the contrary contained in
this Lease, neither the recommendation, designation, selection,
engagement or approval by Landlord of any subcontractors, architects or
engineers, nor the review or approval by Landlord of the Architectural
Drawings and Specifications or Construction Documents, shall constitute
a representation or warranty by Landlord that the Premises, when
constructed, will be suitable for their intended purpose. Tenant shall
not make or cause to be made any changes in the Construction Documents
without Landlord's prior written approval, which shall not be
unreasonably withheld or delayed, provided, that Landlord may, in
Landlord's sole and absolute discretion, disapprove any proposed
changes that (A) will result in a violation of, or require a change in,
the Certificate of Occupancy; (B) will materially and adversely affect
the outside appearance or use of the Building; (C) will physically
affect any portion of the Building located outside the boundaries of
the Premises; (D) will materially affect the structural integrity of
the Building, provided, that, in the case of any structural change
requested by Tenant under the Construction Documents, Landlord may, in
Landlord's sole discretion upon the Expiration Date or sooner
termination of the Term, cause Tenant to restore the Premises to the
condition of the Premises prior to any such Alteration; or (E) will
materially and adversely affect the proper functioning of any
air-conditioning, elevator, plumbing, electrical, sanitary, mechanical
and other service or system of the Building.
(iii) All Architectural Drawings and Specifications,
Landlord's Additional Work (if any) and Tenant Upgrades (if any)
submitted to Landlord must be signed and sealed in proper and
sufficient form for Landlord to obtain all necessary Work Permits for
Landlord's completion of Landlord's Work, Landlord's Additional Work
(if any) and Tenant Upgrades (if any).
(d) Landlord's Additional Work. Tenant shall have the right to
make or cause to be made reasonable changes from time to time to the
Construction Documents by delivering to Landlord revised plans and
specifications therefor (collectively, "Landlord's Additional Work") in
such form and detail as Landlord may reasonably
9
request. All Landlord's Additional Work shall be at Tenant's sole cost
and expense and subject to Landlord's prior written approval, which
approval shall not be unreasonably withheld, delayed or conditioned,
provided that Landlord may, in Landlord's sole and absolute discretion,
disapprove any proposed changes that (i) will result in a violation of,
or require a change in, the Certificate of Occupancy; (ii) will
materially and adversely affect the outside appearance or use of the
Building; (iii) will physically affect any portion of the Building
located outside the boundaries of the Premises; (iv) will materially
affect the structural integrity of the Building, provided, that, in the
case of any structural change requested by Tenant under the
Construction Documents, Landlord may, in Landlord's sole discretion
upon the Expiration Date or sooner termination of the Term, cause
Tenant to restore the Premises to the condition of the Premises prior
to any such Alteration; or (v) will materially and adversely affect the
proper functioning of any air-conditioning, elevator, plumbing,
electrical, sanitary, mechanical and other service or system of the
Building. Without limiting the generality of the foregoing, no
Landlord's Additional Work will be approved or processed unless (A) all
changes to and modifications of the Construction Documents are circled
or highlighted as per standard industry practices, and (B) such
Landlord's Additional Work conforms with the requirements of this
Lease. Landlord shall approve or reject any proposed Landlord's
Additional Work within 10 Business Days after receipt thereof. If
Landlord rejects any proposed Landlord's Additional Work, Landlord
shall provide Tenant with notice thereof stating the reasons for such
rejection. In the event Landlord rejects any proposed Landlord's
Additional Work, Tenant may revise such proposal and re-submit the same
pursuant to this Section 4.3(d). Upon receipt and approval of any
Landlord's Additional Work, Landlord shall provide Tenant with notice
thereof, which notice shall include (i) Landlord's estimation of the
amount of additional cost arising therefor, which shall include all
costs of materials, labor, Soft-Costs and all other out-of-pocket
expenses (collectively, "Additional Construction Costs") and (ii) any
specific terms or conditions for the performance of Landlord's
Additional Work, including the estimated delay arising from performance
of Landlord's completion of Landlord's Additional Work. Tenant shall
have 2 Business Days after receiving such notification of approval from
Landlord to advise Landlord that either (A) Tenant desires not to
proceed with Landlord's Additional Work or (B) Tenant accepts such
terms and conditions, in which case and concurrent with such
acceptance, Tenant shall pay Landlord, without set-off, Landlord's
estimation of the Additional Construction Costs. If Tenant fails to
instruct Landlord in writing within the foregoing 2-Business Day period
whether or not to proceed with the proposed Landlord's Additional Work,
then in such case Tenant shall be deemed to have instructed Landlord
not to proceed. Upon completion of Landlord's Additional Work and (i)
in the event the amount previously paid by Tenant as Additional
Construction Costs exceeds the actual Additional Construction Costs,
then Landlord shall promptly refund such excess to Tenant or (ii) in
the event the actual Additional Construction Costs exceeds the amount
previously paid by Tenant as Additional Construction Costs, then Tenant
shall promptly pay, without set-off, such shortfall to Landlord (such
obligation shall be deemed Additional Rent hereunder). Landlord shall
provide Tenant with such documentation as may be reasonably requested
by Tenant to verify the Additional Construction Costs.
(e) Tenant Delay.
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(i) If Landlord shall be delayed in the Substantial Completion
of the Landlord's Work as a result of any act, neglect, failure or omission of a
Tenant Party, including, without limitation, any of the following, such delay
shall be deemed a "Tenant Delay":
(a) Tenant's failure or failure to cause Tenant's architect to
reasonably cooperate with Landlord, Landlord's agent, the contractor
and all other parties involved in the Landlord's Work;
(b) Tenant's failure or omission, for any reason whatsoever,
to deliver the Construction Documents on or before the date which is 12
days following the execution of this Lease;
(d) Tenant's request for any change, addition or modification
in the Construction Documents;
(e) Tenant's failure to pay to Landlord the Additional
Construction Costs or any other costs associated with any Landlord's
Additional Work;
(f) Landlord's Additional Work (including, but not limited to,
the implementation, processing, review, analysis and approval thereof);
(g) Tenant's request for materials, finishes or installations
that are not listed on Schedule B or otherwise not readily available at
the time Landlord is ready to install same, unless within 2 Business
Days of being requested by Landlord to agree to substitute a material,
finish or installation that is comparable in quality and not
substantially greater in cost, Tenant agrees to such substitution;
(h) The performance of work by a person, firm or corporation
employed by Tenant which interferes with the performance of the
Landlord's Work and delays in the completion of the said work by said
person, firm or corporation, which interference and/or delay continues
for 24 hours after notice to Tenant (such notice to be subject to
Article 27 hereof);
(i) Any delay which results from any act or omission of a
Tenant Party, including delays due to changes in or additions to, or
interference with, or lack of cooperation with regard to, any work to
be done by Landlord including, without limitation, Landlord's Work and
Tenant Upgrades, or delays by Tenant in submission of information, or
selecting construction materials to be installed by Landlord as part of
the Landlord's Work (e.g., color of paint and carpet), if any, or
approving working drawings or estimates or giving authorizations or
approvals, and such delay continues for 24 hours after notice to Tenant
(which notice may be verbal); and/or
(j) Any other failure by Tenant to comply with Tenant's
obligations under this Lease, and such failure continues for 24 hours
after notice to Tenant (which notice may be verbal).
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(ii) Notwithstanding anything to the contrary contained
herein, if Landlord's Completion Date shall be delayed by reason of a Tenant
Delay, Landlord's Work shall be deemed Substantially Completed, and Landlord's
Completion Date shall be deemed to have occurred, as of the date that Landlord's
Work would have been Substantially Completed but for any such Tenant Delay and
there shall not be any postponement of the Rent Commencement Date or any other
rent abatement or monetary concession whatsoever.
(f) Miscellaneous. Landlord and Tenant acknowledge and agree
that Landlord is performing (or causing to be performed) the Landlord's Work as
an accommodation to Tenant and that such performance requires the cooperation by
both parties; therefore, Tenant agrees that, except as provided in this Lease,
nothing contained in this Article 4 nor the performance of the Landlord's Work
by Landlord (i) shall give rise to any liability or obligation of Landlord to
Tenant, (ii) shall entitle Tenant to any compensation, abatement or diminution
of basic annual rent or additional rent, or (iii) shall relieve Tenant from any
of its obligations under this Lease or otherwise or give rise to any rights of
Tenant as against Landlord or this Lease.
ARTICLE 5
ALTERATIONS
Section 5.1 Tenant's Alterations.
(a) Landlord's Approval. Tenant shall not make any
alterations, additions or other physical changes in or about the
Premises (collectively, "Alterations"), other than Alterations such as
painting, wall coverings, floor coverings, raised flooring,
installation of any equipment relating to voice, video, data or
security, including, without limitation, telephones and furniture,
furniture systems or equipment (including electrical wiring into
furniture systems or equipment), trade fixtures or decorative effects
(such as pictures) or office equipment (collectively, "Decorative
Alterations"), without Landlord's prior consent, which may be withheld
in Landlord's sole discretion. Notwithstanding the foregoing, Landlord
shall not unreasonably withhold its consent to Alterations so long as
such Alterations (i) do not affect the exterior of the building or
materially affect the Building Structure or Building Systems, provided,
that, Landlord may, in Landlord's sole discretion upon the Expiration
Date or sooner termination of the Term, cause Tenant to restore the
Premises to the condition of the Premises prior to any such Alteration,
(ii) are performed only by Landlord's designated contractors or by
contractors approved by Landlord to perform such Alterations, such
approval not to be unreasonably withheld or delayed, (iii) affect only
the Premises and are not visible from outside of the Premises or the
Building, (iv) do not affect the Certificate of Occupancy issued for
the Building or the Premises, (v) are consistent with the design,
construction and equipment of the Building, (vi) do not adversely
affect or increase the cost of any service furnished by Landlord to
Tenant or to any other tenant of the Building, (vii) do not violate or
adversely affect any landmark designation affecting the Building
(including, without limitation, insuring conformance with the Secretary
of Interior's Standards for Rehabilitation as interpreted by the State
Historic Preservation Office and the National Park Service and any and
all
12
New York City landmark regulations), and (viii) do not violate any
Requirement or cause the Premises or the Building to be non-compliant
with any Requirement.
(b) Plans and Specifications. Prior to making any Alterations,
Tenant, at its expense, shall (i) submit to Landlord for its approval,
which shall not be unreasonably withheld or delayed except as set forth
herein, detailed plans and specifications (including layout,
architectural, mechanical, electrical, plumbing, sprinkler and
structural drawings) of each proposed Alteration (other than Decorative
Alterations), and with respect to any Alteration affecting any Building
System, Tenant shall submit proof that the Alteration has been designed
by, or reviewed and approved by, Landlord's designated engineer for the
affected Building System, (ii) obtain all permits, approvals and
certificates required by any Governmental Authorities and (iii) furnish
to Landlord duplicate original policies or certificates of worker's
compensation (covering all persons to be employed by Tenant, and
Tenant's contractors and subcontractors in connection with such
Alteration), comprehensive public liability (including property damage
coverage) insurance and Builder's Risk coverage (issued on a completed
value basis) all in such form, with such companies, for such periods
and in such amounts as Landlord may reasonably require, naming
Landlord, Landlord's Agent, and their respective employees and agents,
any Lessor and any Mortgagee as additional insureds and (iv) furnish to
Landlord such other evidence of Tenant's ability to complete and to
fully pay for such Alterations (other than Decorative Alterations) as
is reasonably satisfactory to Landlord, however, in the event the
aggregate cost of such Alterations (other than Decorative Alterations)
exceeds $150,000.00, then Tenant shall deliver to Landlord an
irrevocable letter of credit in form, an amount and from an issuing
bank with principal offices in the United States and local offices in
the State of
New York, each reasonably satisfactory to Landlord, as
security for Tenant's ability to pay for such Alterations. The amount
of the letter of credit may be reduced by corresponding amounts on
account of lien waivers from Tenant's contractors. Following any such
reduction, any replacement letter of credit shall be subject to the
same requirements set forth in this Section 5.1(b). In connection with
any submission to Landlord pursuant to clause (i) above, Landlord shall
advise Tenant whether or not any of the Alterations described in the
submitted plans and specifications constitute Specialty Alterations,
and, if so, whether or not Landlord requires that such Specialty
Alterations be removed at the end of the Term. Tenant shall give
Landlord not less than 5 Business Days notice prior to performing any
Decorative Alteration which notice shall contain a description of such
Decorative Alteration. The review/alteration of Tenant drawings and/or
specifications by Landlord and any of its representatives is not
intended to verify Tenant's engineering or design requirements and/or
solutions. Notwithstanding the foregoing, Landlord may withhold consent
for any Alteration or Decorative Alteration that is inconsistent and
not reasonably in conformance with aesthetic standards applicable to
comparable buildings in Manhattan.
(c) Permits. Upon Tenant's request, Landlord shall reasonably
cooperate with Tenant in obtaining any permits, approvals or
certificates required to be obtained by Tenant in connection with any
permitted Alteration (if the provisions of the applicable Requirement
require that Landlord join in such application), provided that Tenant
shall reimburse Landlord for any cost, expense or liability in
connection therewith. Tenant shall indemnify, defend and hold harmless
Landlord for any Losses (as defined in Section
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32.1) arising out of Tenant's Alterations or related to any
applications or other filings related to such permits, approvals or
certificates required for any of Tenant's Alterations.
(d) Governmental Approvals. Upon completion of any Alteration,
Tenant, at its expense, shall promptly obtain certificates of final
approval of such Alterations required by any Governmental Authority and
shall furnish Landlord with copies thereof.
(e) Filed Plans. Within 30 days after completion of any
Alteration, Tenant, at its expense, shall deliver to Landlord one
reproductive set of the "as-built" plans and specifications for such
Alterations (other than Decorative Alterations) and either a diskette
copy of such "as-built" plans and specifications prepared on an AutoCAD
Computer Assisted Drafting and Design system (or such other system or
medium as Landlord may accept) using naming conventions issued by the
American Institute of Architects in June, 1990 (or such other naming
convention as Landlord may accept) or magnetic computer media of such
record drawings and specifications, translated in DXF format or such
other format as shall be required or acceptable to Landlord. Tenant
may, as an alternative, provide Landlord with marked drawings
specifically illustrating such Alterations.
Section 5.2 Manner and Quality of Alterations. All Alterations shall be
performed (a) in a good and workmanlike manner and free from defects, (b)
substantially in accordance with the plans and specifications as required under
Section 5.1, and by contractors reasonably approved by Landlord, (c) under the
supervision of a licensed architect reasonably satisfactory to Landlord (other
than Decorative Alterations), and (d) in compliance with all Requirements, the
terms of this Lease, and all standard procedures and regulations then prescribed
by Landlord for all work performed in the Building, and the Rules and
Regulations. All materials and equipment to be used in the Premises shall be of
first quality and at least equal to the applicable standards for the Building
then established by Landlord, and no such materials or equipment (other than
Tenant's Property) shall be subject to any lien, security interest or other
encumbrance. Any Tenant renovations must (i) be performed by those contractors
and subcontractors on Landlord's approved contractor's list and (ii) be
compatible with Building Class E System and other common systems, etc.
Section 5.3 Removal of Tenant's Property.
(a) Tenant's Property. Tenant's Property shall be and remain
the property of Tenant and Tenant may remove the same at any time on or
before the Expiration Date. On or prior to the Expiration Date or
sooner termination of the Term, Tenant shall, at Tenant's expense,
remove all Tenant's Property, except for such Tenant's Property which
Landlord had previously indicated in writing may remain on the
Premises.
(b) Specialty Alteration; Slab Penetrations. On or prior to
the Expiration Date or sooner termination of the Term, Tenant shall, at
Tenant's expense, and, unless otherwise directed by Landlord: (i)
provided that Landlord shall have advised Tenant of the request to
remove same in accordance with the provisions of Section 5.1(b), remove
any Specialty Alteration and (ii) close up any slab penetrations in the
Premises. At least 30 days prior to commencing the removal of any
Specialty Alterations or effecting such closings, Tenant shall notify
Landlord of its intention to remove such Specialty Alterations or
effect such
14
closings, and if Landlord notifies Tenant within such 30 day
period, Tenant shall not remove such Specialty Alterations or close
such slab penetrations, and the Specialty Alterations not so removed
shall become the property of Landlord upon the Expiration Date or
sooner termination of the Term.
(c) Intentionally Deleted.
(d) Damage. Tenant shall repair, in a good and workmanlike
manner, any damage to the Premises or the Building caused by Tenant's
removal of any Specialty Alterations or Tenant's Property or by the
closing by Tenant of any slab penetrations, and upon default thereof,
Tenant shall reimburse Landlord, on demand, for Landlord's cost of
repairing such damage.
(e) Abandonment. Any Specialty Alterations or Tenant's
Property not removed on or before the Expiration Date or sooner
termination of the Term shall be deemed abandoned and Landlord may
either retain the same as Landlord's property or, if Tenant is
obligated to remove the same hereunder, remove and dispose of same, and
repair and restore any damage caused thereby, at Tenant's cost and
without accountability to Tenant. This Section 5.3 shall survive the
expiration or earlier termination of this Lease.
Section 5.4 Mechanic's Liens. Tenant shall, in due course, pay in cash
all amounts due in respect of any Alteration undertaken by Tenant. Tenant, at
its expense, shall discharge any lien or charge filed against the Premises or
the Real Property in connection with any work claimed or determined in good
faith by Landlord to have been done by or on behalf of, or materials claimed or
determined in good faith by Landlord to have been furnished to, Tenant, within
15 days after Tenant's receipt of notice thereof by payment, filing the bond
required by applicable Requirements or otherwise in accordance with applicable
Requirements.
Section 5.5 Labor Relations. Tenant shall not employ, or permit the
employment of, any contractor, mechanic or laborer, or permit any materials to
be delivered to or used in the Building, if, in Landlord's sole judgment, such
employment, delivery or use will interfere or cause any conflict or disharmony
with other contractors, mechanics or laborers engaged in the construction,
maintenance or operation of the Building by Landlord, Tenant or others, or the
use and enjoyment of the Building by other tenants or occupants. In the event of
such interference, conflict or disharmony, upon Landlord's request, Tenant shall
cause all contractors, mechanics or laborers causing such interference or
conflict to leave the Building immediately.
Section 5.6 Tenant's Costs. Tenant shall pay to Landlord or its
designee, within 10 days after demand, all reasonable out-of-pocket costs
actually incurred by Landlord in connection with Tenant's Alterations, including
costs incurred in connection with (a) Landlord's review of the Alterations
(including review of requests for approval thereof) and (b) the provision of
Building personnel during the performance of any Alteration required by trade
union policy or otherwise, to operate elevators or otherwise to facilitate
Tenant's Alterations.
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Section 5.7 Tenant's Equipment. Tenant shall not move any heavy
machinery, heavy equipment, freight, bulky matter or fixtures (collectively,
"Equipment") into or out of the Building without Landlord's prior consent (which
consent shall not be unreasonably withheld or delayed) and payment to Landlord
of any reasonable out-of-pocket costs incurred by Landlord in connection
therewith. If such Equipment requires special handling, Tenant agrees (a) to
employ only persons holding a Master Rigger's License to perform such work, (b)
all work performed in connection therewith shall comply with all applicable
Requirements and (c) such work shall be done only during hours reasonably
designated by Landlord in accordance with the Building practices and procedures.
Section 5.8 Legal Compliance. The approval of plans or specifications,
or consent by Landlord to the making of any Alterations, does not constitute
Landlord's agreement or representation that such plans, specifications or
Alterations comply with any Requirements or the Certificate of Occupancy issued
for the Building. Landlord shall have no liability to Tenant or any other party
in connection with Landlord's approval of any plans and specifications for any
Alterations, or Landlord's consent to Tenant's performing any Alterations. If as
the result of any Alterations made by or on behalf of Tenant, Landlord is
required to make any alterations or improvements to any part of the Building in
order to comply with any Requirements, whether or not in or near the Premises,
Tenant shall pay all costs and expenses incurred by Landlord in connection with
such alterations or improvements as provided in Article 20.
Section 5.9 Windows.
(a) Window Pockets. Tenant acknowledges that the perimeter of
the ceiling of the Premises that is adjacent to any exterior window has been
designed and constructed with pockets that permit the windows in the Premises to
open. No Alteration may be undertaken which affects the foregoing design and
construction of such perimeter ceilings. No ceilings will be installed at a
height below the top of any window opening. If ceilings need to be dropped for
HVAC or other installations, the area of the lowered ceiling will be the minimum
feasible and will be set back from the exterior window as required to allow full
opening of the windows.
(b) Blinds. Landlord shall install, at Landlord's sole cost,
one inch (1") white tapeless Venetian blinds on all exterior windows. Tenant
agrees to maintain, at Tenant's sole cost, such blinds. No other window
treatment or covering shall be permitted to the extent such treatment or
covering is visible from the exterior of the Building.
ARTICLE 6
FLOOR LOAD
Tenant shall not place a load upon any floor of the Premises
that exceeds the maximum "live load" permitted by the Certificate of Occupancy
for the building issued by NYC Department of Buildings, pounds per square foot
"live load". Landlord reserves the right to reasonably designate the position of
all Equipment which Tenant wishes to place within the Premises, and to place
limitations on the weight thereof.
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ARTICLE 7
REPAIRS
Section 7.1 Landlord's Repair and Maintenance. Landlord shall operate,
maintain and, except as provided in Section 7.2 hereof, make all necessary
repairs (both structural and nonstructural) to (a) the Building Systems up to
the point of connection to the Premises, and (b) the public portions of the
Building, both exterior and interior, and structural elements (i.e., all floors
and ceiling slabs and bearing walls) within the Premises, except to the extent
such structural elements have been altered by Tenant, in conformance with
standards applicable to first-class renovated office buildings of comparable age
and quality in downtown Manhattan. Notwithstanding the foregoing, Landlord
shall, at Landlord's expense, make any repairs required to Landlord's Work to
the extent such repairs are required due to improper construction or
installation of Landlord's Work by Landlord, its agents, employees, licensees or
invitees.
Section 7.2 Tenant's Repair and Maintenance. Subject to Landlord's
repair obligations set forth in Section 7.1 above, Tenant shall promptly, at its
expense and in compliance with Article 5 and subject to Section 9.1(c) of this
Lease, (a) make all nonstructural repairs to the Premises and the fixtures,
equipment and appurtenances therein as and when needed to preserve the Premises
in good working order and condition, except for reasonable wear and tear and
damage for which Tenant is not responsible pursuant to this Lease, and (b)
replace scratched or damaged doors, signs and glass (other than exterior window
glass) in and about the Premises. Without limiting the foregoing, all damage to
the Premises or to any other part of the Building, or to any fixtures, equipment
and/or appurtenances thereof, whether requiring structural or nonstructural
repairs, caused by or resulting from any act, omission, neglect or improper
conduct of, or Alterations made by, or the moving of Tenant's fixtures,
furniture or equipment into, within or out of the Premises by any Tenant Party,
and all damage to any portion of the Building Systems located in the Premises
(other than damage caused by Landlord or any employee or representative of
Landlord), shall be repaired at Tenant's expense. Subject to Section 9.1(c) of
this Lease, such repairs shall be made by (i) Tenant, at Tenant's expense, if
the required repairs are nonstructural in nature and do not affect any Building
System or any portion of the Building outside of the Premises, or (ii) Landlord,
at Tenant's expense, if the required repairs are structural in nature, involve
replacement of exterior window glass (if damaged by Tenant) or affect any
Building System or any portion of the Building outside of the Premises (such
repairs shall be performed by either Landlord's employees, Landlord's contractor
or a contractor approved by Landlord in writing). All Tenant repairs shall be of
a quality and shall utilize construction materials at least equal to the
original work or construction and shall be made in accordance with this Lease.
Tenant shall give Landlord prompt notice of any defective condition of which
Tenant is aware in any Building System located in, servicing or passing through
the Premises. All Tenant repairs shall be of a quality at least equal to the
original work or construction using new construction materials, and shall be
made in accordance with this Lease. If Tenant fails to proceed with due
diligence to make any repairs required to be made by Tenant, Landlord may, after
7 Business Days notice, make such repairs and all costs and expenses incurred by
Landlord on account thereof shall be paid by Tenant as provided in Article 20.
17
Section 7.3 Vermin. Tenant shall, at its expense, cause the Premises to
be exterminated, from time to time as Landlord may reasonably direct or whenever
there is evidence of infestation to Landlord's reasonable satisfaction, by a
licensed exterminator designated by Landlord. Landlord shall secure from an
independent, licensed exterminator ("Designated Exterminator") a master
extermination agreement providing for available extermination services for all
tenants at the Building (the "Extermination Contract"). All extermination of the
Premises shall be made by the Designated Exterminator pursuant to the
Extermination Contract. Landlord may ▇▇▇▇ Tenant monthly, or in accordance with
such other period as payments become due and payable under the Extermination
Contract, for Tenant's pro rata share of all such extermination services under
the Extermination Contract plus 100% of all additional charges relating to
supplemental extermination services provided to the Premises. Tenant shall
promptly pay Landlord, as Additional Rent, when billed such amount.
Section 7.4 Interruptions Due to Repairs. Landlord reserves the right
to make all changes, alterations, additions, improvements, repairs or
replacements to the Building, including the Building Systems which provide
services to Tenant, as Landlord deems necessary or desirable, provided that in
no event shall the level of any Building service decrease in any material
respect from the level required of Landlord in this Lease as a result thereof
(other than temporary changes in the level of such services during the
performance of any such work by Landlord or as required by any Requirement).
Landlord shall use reasonable efforts to minimize interference with Tenant's use
and occupancy of the Premises during the making of such changes, repairs,
alterations, additions, improvements, repairs or replacements, provided that
Landlord shall have no obligation to employ contractors or labor at overtime or
other premium pay rates or to incur any other overtime costs or additional
expenses whatsoever, except in such cases when the changes, alterations,
additions, improvements, repairs or replacements are of a nature that are
typically performed during overtime. Except as otherwise provided herein, there
shall be no Rent abatement or allowance to Tenant for a diminution of rental
value, no actual or constructive eviction of Tenant, in whole or in part, no
relief from any of Tenant's other obligations under this Lease, and no liability
on the part of Landlord by reason of inconvenience, annoyance or injury to
business arising from Landlord, Tenant or others making, or failing to make, any
repairs, alterations, additions or improvements in or to any portion of the
Building or the Premises, or in or to fixtures, appurtenances or equipment
therein. Notwithstanding the foregoing, if such changes, alterations, additions,
improvements, repairs, replacements or disruptions of Building Services are
ongoing or continuous, and Tenant is prevented from using or entering the
Premises and conducting its business operations for more than four (4) Business
Days, Rent shall be abated for each day thereafter that Tenant is prevented from
using or entering the Premises and conducting its business therein.
ARTICLE 8
INCREASES IN TAXES AND OPERATING EXPENSES
Section 8.1 Definitions. For the purposes of this Article 8, the
following terms shall have the meanings set forth below:
18
(a) "Assessed Valuation" shall mean the amount for which the
Real Property is assessed pursuant to applicable provisions of the City
Charter and of the Administrative Code of the City of
New York for the
purpose of imposition of Taxes.
(b) "Base Taxes" shall mean an amount equal to the Taxes
payable (without regard to any abatements then in effect) in respect of
the Base Tax Year.
(c) "Statement" shall mean a statement containing a comparison
of the Taxes payable for the Base Tax Year and the Taxes payable for
any Tax Year.
(d) "Tax Year" shall mean the 12-month period from July 1
through June 30 (or such other period as hereinafter may be duly
adopted by the City of
New York as its fiscal year for real estate tax
purposes).
(e) "Taxes" shall mean (i) all real estate taxes, assessments
(including assessments made as a result of the Building being within a
business improvement district and giving effect to all abatements,
including, without limitation, those received under the
New York
Industrial and Commercial Incentive Program ("ICIP") and any increases
as a result of the diminution or expiration of any deferral or
abatement in real estate taxes in connection with such ICIP), sewer and
water rents, rates and charges and other governmental levies,
impositions or charges, whether general, special, ordinary,
extraordinary, foreseen or unforeseen, which may be assessed, levied or
imposed upon all or any part of the Real Property, and (ii) all
expenses (including reasonable attorneys' fees and disbursements and
experts' and other witnesses' fees) incurred in contesting any of the
foregoing or in connection with any application for a reduction of the
Assessed Valuation of all or any part of the Real Property or for a
judicial review thereof. Taxes shall not include (x) interest or
penalties incurred by Landlord as a result of Landlord's late payment
of Taxes, except for interest payable in connection with the
installment payment of assessments pursuant to the next sentence, or
(y) franchise, income, transfer, inheritance, gross receipts, payroll
or stamp or other similar taxes imposed upon Landlord. If Landlord
elects to pay any assessment in annual installments, then for the
purposes of this Article 8, (A) such assessment shall be deemed to have
been so divided and to be payable in the maximum number of installments
permitted by law, and (B) there shall be deemed included in Taxes for
each Tax Year the installments of such assessment becoming payable
during such Tax Year, together with interest payable during such Tax
Year on such installments and on all installments thereafter becoming
due as provided by applicable Requirements, all as if such assessment
had been so divided. If at any time the methods of taxation prevailing
on the date hereof shall be altered so that in lieu of or as an
addition to the whole or any part of Taxes, there shall be assessed,
levied or imposed (1) a tax, assessment, levy, imposition or charge
based on the franchise, income, gross receipts, payroll or stamp or
other similar taxes or rents received from the Real Property whether or
not wholly or partially as a capital levy or otherwise, (2) a tax,
assessment, levy, imposition or charge measured by or based in whole or
in part upon all or any part of the Real Property and imposed upon
Landlord, (3) a license fee measured by the rents, or (4) any other
tax, assessment, levy, imposition, charge or license fee however
described or imposed, then all such taxes, assessments, levies,
impositions, charges or license fees or the part thereof so measured or
based shall be
19
deemed to be Taxes, provided that any tax, assessment, levy, imposition
or charge imposed on income from the Real Property shall be calculated
as if the Real Property were the only asset of Landlord.
Section 8.2 Tenant's Tax Payment.
(a) Increases over Base Taxes. If the Taxes payable for any
Tax Year after the Base Tax Year exceed the Base Taxes, Tenant shall
pay to Landlord Tenant's Proportionate Share of such excess ("Tenant's
Tax Payment"). Tenant's Tax Payment for each Tax Year shall be due and
payable in installments in the same manner that Taxes for each Tax Year
shall be due and payable by Landlord to the applicable Governmental
Authority. Tenant shall pay Tenant's Proportionate Share of each such
installment within 30 days after a rendering of a statement therefore
by Landlord to Tenant, but in no event shall Tenant be required to pay
Tenant's Proportionate Share of any installment of Taxes more than 30
days prior to the date such installment of Taxes first becomes due to
the applicable Governmental Authority. Notwithstanding the foregoing,
if during any Tax Year, a Mortgagee requires Landlord to make monthly
payments to a tax escrow, Landlord may furnish to Tenant, in respect of
each Tax Year in which such Tax Year commences, a Statement setting
forth Landlord's reasonable estimate of Tenant's Tax Payment for such
Tax Year. Subject to the provisions of this Section 8.2(a), Tenant
shall pay to Landlord on the first day of each month during any such
Tax Year (and on the first day of each month thereafter in such Tax
Year) an amount equal to 1/12th of Landlord's estimate of Tenant's Tax
Payment for such Tax Year. If Tenant shall have been paying monthly
installments of the Tax Payment pursuant to the preceding sentence and
Landlord shall not furnish any such estimate for such Tax Year or if
Landlord shall furnish any such estimate subsequent to the commencement
thereof, then (x) until the first day of the month following the month
in which such estimate is furnished to Tenant, Tenant shall pay to
Landlord on the first day of each month an amount equal to the monthly
sum payable by Tenant to Landlord under this Section 8.2(a) for the
last month of the preceding Tax Year; (y) after such estimate is
furnished to Tenant, if the installments of Tenant's Tax Payment
previously made for such Tax Year were greater or less than the
installments of Tenant's Tax Payment to be made in accordance with such
estimate, then (1) if there is a deficiency, Tenant shall pay the
amount thereof to Landlord within 10 Business Days after such estimate
is furnished to Tenant, or (2) if there is an overpayment, Landlord
shall credit such overpayment against subsequent installments of Rent;
and (z) on the first day of the month following the month in which such
estimate is furnished to Tenant and monthly thereafter throughout such
Tax Year, Tenant shall pay to Landlord an amount equal to 1/12th of
Tenant's Tax Payment shown on such estimate. Landlord may, during each
Tax Year, furnish to Tenant a revised Statement of Landlord's estimate
of Tenant's Tax Payment for such Tax Year, and in such case, Tenant's
Tax Payment for such Tax Year shall be adjusted and any deficiencies
paid or overpayments credited, as the case may be, substantially in the
same manner as provided in the preceding sentence. After the end of
each Tax Year, Landlord shall furnish to Tenant a Statement of Taxes
for such Tax Year and (A) if such Statement shall show that the sums so
paid by Tenant were less than Tenant's Tax Payment for such Tax Year,
Tenant shall pay to Landlord the amount of such deficiency in Tenant's
Tax Payment within 20 Business Days after such Statement is furnished
to Tenant, or (B) if such
20
Statement shall show that the sums so paid by Tenant were more than
Tenant's Tax Payment for such Tax Year, Landlord shall, at its
election, pay to Tenant such overpayment in Tenant's Tax Payments or
credit such overpayment in Tenant's Tax Payment against subsequent
installments of Rent payable by Tenant; provided, that if the term of
this Lease shall have expired or been terminated and all amounts owing
from Tenant to Landlord shall have been paid in full, Landlord shall
pay such excess payment to Tenant within 20 Business Days after
Tenant's receipt of such Statement. If there shall be any increase in
the Taxes for any Tax Year (other than the Base Tax Year), whether
during or after such Tax Year, or if there shall be any decrease in the
Taxes for any Tax Year (other than the Base Tax Year), Tenant's Tax
Payment for such Tax Year shall be appropriately adjusted and any
deficiencies paid or overpayments credited, as the case may be,
substantially in the same manner as provided in the preceding sentence.
(b) Apportionment - Tax Year. Taxes for each real estate tax
fiscal year shall be apportioned on the basis of the number of days in
such fiscal year included in any particular Tax Year subsequent to the
Base Tax Year for the purpose of making the computations under this
Section.
(c) Certiorari Proceedings. Tenant shall not (and hereby
waives any and all rights it may now or hereafter have to) institute or
maintain any action, proceeding or application in any court or other
body having the power to fix or review assessed valuations or tax
rates, for the purpose of reducing Taxes. The filing of any such
proceeding by Tenant without Landlord's consent shall be an immediate
Event of Default hereunder. If the Taxes payable for the Base Tax Year
are reduced, the Base Taxes shall be correspondingly revised, the
Additional Rent previously paid or payable on account of Tenant's Tax
Payment hereunder for all Tax Years shall be recomputed on the basis of
such reduction, and Tenant shall pay to Landlord within 10 Business
Days after being billed therefor, any deficiency between the amount of
such Additional Rent previously computed and paid by Tenant to
Landlord, and the amount due as a result of such recomputations. If the
Taxes payable for the Base Tax Year are increased then Landlord shall
either pay to Tenant, or at Landlord's election, credit against
subsequent payments of Rent due, the amount by which such Additional
Rent previously paid on account of Tenant's Tax Payment exceeds the
amount actually due as a result of such recomputations. If Landlord
receives a refund or credit of Taxes for any Tax Year, Landlord shall
recalculate Tenant's Tax Payment for the applicable periods (taking
into account the provisions of Sections 8.2(a) and (b)) and shall, as
and when such refund payment or credit is received, at its election,
either pay to Tenant, or credit against subsequent payments of Rent due
hereunder, an amount equal to Tenant's Proportionate Share of the
refund, net of any expenses incurred by Landlord in achieving such
refund and adjustments to Tenant's Tax Payments resulting from such
recalculation, which amount shall not exceed Tenant's Tax Payment paid
for such Tax Year. Landlord shall not be obligated to file any
application or institute any proceeding seeking a reduction in Taxes or
the Assessed Valuation.
(d) Payment Due Regardless of Exemption. Tenant shall be
obligated to make Tenant's Tax Payment regardless of whether Tenant may
be exempt from the payment of any taxes as the result of any reduction,
abatement, or exemption from Taxes granted or
21
agreed to by any Governmental Authority, or by reason of Tenant's
diplomatic or other tax exempt status.
(e) Apportionment - Lease Term. If the Expiration Date shall
occur on a date other than the last day of a Tax Year, any Additional
Rent payable by Tenant to Landlord under this Section 8.2 for the Tax
Year in which such Expiration Date occurs shall be apportioned on the
basis of the number of days in the period from such last day to the
Expiration Date shall bear to the total number of days in such Tax
Year. In the event of the expiration or earlier termination of this
Lease, any Additional Rent under this Section 8.2 shall be paid or
adjusted within 30 days after such Additional Rent becomes due.
Notwithstanding anything to the contrary herein, in no event shall
Fixed Rent ever be reduced by operation of this Section 8.2.
(f) Occupancy or Rent Tax. Tenant shall be responsible for any
applicable occupancy or rent tax now in effect or hereafter enacted and
applicable to Tenant's occupancy of the Premises, regardless of whether
imposed by its terms upon Landlord or Tenant and, if such tax is
payable by Landlord, Tenant shall promptly pay (without duplication)
such amounts to Landlord, upon Landlord's demand, as Additional Rent.
(g) Lower Manhattan Commercial Revitalization Program.
Landlord shall use reasonable efforts to cooperate with Tenant (but
shall have no obligation to expend any monies in connection therewith,
including, without limitation, filing fees and legal fees) in
connection with Tenant's application to receive real estate tax
abatements currently available under Title 4 of Article 4 of the Real
Property Tax Law of the State of
New York ("Title 4"). Pursuant to
Title 4, Landlord hereby informs Tenant that
(1) an application for abatement of real property taxes
pursuant to Title 4 will be made for the Premises;
(2) the Rent, including amounts payable by Tenant for
Taxes, will be adjusted to accurately reflect any
abatement of Taxes granted pursuant to Title 4 for the
Premises;
(3) at least $10 per square foot or $35 per square foot
must be spent on improvements to the Premises and the
common areas, the amount being dependent upon the
length of this Lease and whether it is a new or renewal
lease, provided, however, that with respect to a lease
commencing on or after April 1, 1997, if by the 60th
day following the Rent Commencement Date, Tenant
employs 125 or fewer employees in the relevant
Premises, at least $5 per square foot must be spent on
improvements to the Premises and the common areas; and
(4) all abatements granted with respect to a building
pursuant to Title 4 will be revoked, if, during the
benefit period, real estate taxes or water or sewer
charges or other lienable charges are unpaid for more
than one year, unless such delinquent amounts are paid
as provided in Subdivision four of Section Four Hundred
Ninety-Nine of Title 4.
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Section 8.3 Formula. The computations of Additional Rent under this
Article 8 are intended to constitute a formula for an agreed rental adjustment
and may or may not constitute an actual reimbursement to Landlord for Taxes.
Section 8.4 Non-Waiver; Disputes.
(a) No Waiver. Landlord's failure to render any Statement on a
timely basis with respect to any Tax Year shall not prejudice
Landlord's right to thereafter render a Statement, with respect to such
Tax Year or any subsequent Tax Year, nor shall the rendering of a
Statement prejudice Landlord's right to thereafter render a corrected
Statement for any Tax Year.
(b) Disputes. Each Statement sent to Tenant shall be
conclusively binding upon Tenant unless Tenant shall, (i) pay to
Landlord when due, the amount set forth in such Statement, without
prejudice to Tenant's right to dispute such Statement, and (ii) within
60 days after such Statement is sent, send a written notice to Landlord
objecting to such Statement and specifying the reasons for Tenant's
claim that such Statement is incorrect. Notwithstanding the
above-referenced 60 day period, Tenant shall have 18 months after such
Statement is sent to send a written notice to Landlord objecting to any
real estate taxes and specifying the reasons for Tenant's claim that
such real estate taxes are incorrect. Tenant agrees that Tenant will
not employ, in connection with any dispute under this Lease, any Person
who is to be compensated in whole or in part, on a contingency fee
basis. If the parties are unable to resolve any such dispute within 30
days following the giving of Tenant's notice of objection either party
may within 10 days after the expiration of such 30-day period refer the
issues raised to an independent firm of certified public accountants
selected by Landlord and reasonably acceptable to Tenant, and the
decision of such accountants shall be conclusively binding upon
Landlord and Tenant. In connection therewith, Tenant and such
accountants shall execute and deliver to Landlord a confidentiality
agreement, in form and substance reasonably satisfactory to Landlord,
whereby such parties agree not to disclose to any third party any of
the information obtained in connection with such review, or the
substance of any admissions or stipulations by any party in connection
therewith, or of any resulting reconciliation, compromise or
settlement. The non-prevailing party shall pay the fees and expenses
relating to such procedure.
Section 8.5 No Reduction in Rent. Anything in this Article 8 to the
contrary notwithstanding, under no circumstances shall any decrease in Taxes in
any Tax Year below the Base Taxes result in a reduction in the Fixed Rent or any
other component of Additional Rent payable hereunder.
ARTICLE 9
REQUIREMENTS OF LAW
Section 9.1 Compliance.
23
(a) Tenant's Compliance. Tenant, at its expense, shall comply
(or cause to be complied) with all Requirements applicable to the
Premises, regardless of whether imposed by their terms upon Landlord or
Tenant; provided, however, that Tenant shall not be obligated to comply
with any Requirement requiring any structural alteration to the
Premises unless the application of such Requirement arises from (i)
Tenant's manner of use or occupancy of the Premises (as distinguished
from the use or occupancy of the Premises for office purposes
generally), (ii) any cause or condition created by or on behalf of any
Tenant Party (including any Alterations), (iii) the breach of any of
Tenant's obligation under this Lease, (iv) the Americans with
Disabilities Act or
New York City Local Law #58 (as each of the same
may be amended from time to time and any Requirements of similar
import), provided that Tenant shall only be responsible for any
Requirement under this Section 9.1(a)(iv) arising out of Tenant's
manner of use or occupancy of the Premises (as distinguished from the
use or occupancy of the Premises for office purposes generally), or (v)
any Hazardous Materials having been brought into the Building or
affected by any Tenant Party. All repairs and alterations to the
Premises, required to be made by Tenant as provided above to cause the
Premises to comply with any Requirements shall be made by (i) Tenant,
at Tenant's expense, if the required repairs are nonstructural in
nature and do not affect any Building System or any portion of the
Building outside of the Premises, or (ii) Landlord, at Tenant's
expense, if the required repairs are structural in nature, involve
replacement of exterior window glass (if damaged by Tenant) or affect
any Building System or any portion of the Building outside of the
Premises (such repairs shall be done by Landlord's employees,
Landlord's contractor or a contractor approved by Landlord in writing).
If Tenant obtains knowledge of any failure to comply with any
Requirements applicable to the Premises, Tenant shall give Landlord
prompt written notice thereof.
(b) Hazardous Materials. Tenant shall not (i) cause or permit
any Hazardous Materials to be brought into the Building, (ii) cause or
permit the storage or use of Hazardous Materials in any manner not
permitted by any Requirements, or (iii) cause or permit the escape,
disposal or release of any Hazardous Materials within or in the
vicinity of the Building. Nothing herein shall be deemed to prevent
Tenant's use of any Hazardous Materials customarily used in the
ordinary course of office work, provided such use is in accordance with
all Requirements. Tenant shall be responsible, at its expense, for all
matters directly or indirectly based on, or arising or resulting from
the actual or alleged presence of Hazardous Materials in the Premises
or in the Building that is caused or permitted by Tenant or any Tenant
Party. Tenant shall provide to Landlord copies of all communications
received by Tenant with respect to any Requirements relating to
Hazardous Materials, and/or any claims made in connection therewith.
Landlord or its agents may perform environmental inspections of the
Premises; provided, that, Landlord shall use reasonable efforts (not
including overtime) to minimize interference with Tenant's use and
occupancy of the Premises during such interference. The covenants
contained in this subsection shall survive the expiration or earlier
termination of this Lease.
(c) Landlord's Compliance. Landlord shall comply with (or
cause to be complied with) all Requirements applicable to the Building
and the Building Systems which are not the obligation of Tenant, to the
extent that non-compliance would materially impair
24
Tenant's use and occupancy of the Premises and Tenant's ability to
conduct its business in the Premises for office use; provided, however,
that Landlord may contest the legality or applicability of any such
Requirement and may defer compliance therewith during the pendency of
such contest.
(d) Landlord's Insurance. Tenant shall not cause or permit any
action or condition that would (i) invalidate or conflict with
Landlord's insurance policies, (ii) violate applicable rules,
regulations and guidelines of the Fire Department, Fire Insurance
Rating Organization or any other authority having jurisdiction over the
Building, or (iii) cause an increase in the premiums for fire insurance
then covering the Building over that payable with respect to comparable
first-class office buildings or (iv) result in insurance companies of
good standing refusing to insure the Building or any property therein
in amounts and against risks as reasonably determined by Landlord. If
the fire insurance premiums increase as a result of Tenant's failure to
comply with the provisions of this Article, Tenant shall promptly cure
such failure and shall reimburse Landlord, as Additional Rent, for the
increased fire insurance premiums paid by Landlord as a result of such
failure by Tenant. In any action or proceeding to which Landlord and
Tenant are parties, a schedule or "make up" of rates for the Building
or the Premises issued by the appropriate Fire Insurance Rating
Organization, or other body fixing such fire insurance rates, shall be
conclusive evidence of the fire insurance rates then applicable to the
Building.
Section 9.2 Fire Alarm System. In connection with Landlord's Work,
Landlord shall, at its sole cost, install a fire-alarm and life-safety system at
the Premises. Thereafter, any Alteration undertaken by Tenant requiring any
modification to such systems shall be installed by Tenant, at Tenant's sole
cost. Tenant shall maintain in good order and repair all fire-alarm and
life-safety systems installed at the Premises. Tenant's installation and
maintenance shall be performed (a) on behalf of Tenant only by Landlord's
designated contractors or by contractors approved by Landlord in writing to
perform such installation and maintenance, and (b) in accordance with this
Lease, the Rules and Regulations and all Requirements. If the Fire Insurance
Rating Organization or any Governmental Authority or any of Landlord's insurers
requires or recommends any modifications and/or Alterations be made or any
additional equipment be supplied in connection with the fire alarm and
life-safety system serving the Building or the Premises by reason of Tenant's
particular business or use of the Premises, any Alteration performed by Tenant
or the location of the partitions, trade fixtures, or other contents of the
Premises, Landlord (to the extent such modifications or Alterations are
structural, affect any Building System or involve the performance of work
outside of the Premises) or Tenant (to the extent such modifications or
Alterations are nonstructural, do not affect any Building System and do not
involve the performance of work outside the Premises) shall make such
modifications and/or Alterations, and supply such additional equipment, in
either case at Tenant's expense.
Section 9.3 Limitations on Rent. If at any time during the Term by
reason of any Requirement the Rent is not fully collectible, Tenant shall take
such other steps (without additional expense to Tenant) as Landlord may request,
and as may be legally permissible, to permit Landlord to collect the maximum
rents which may during the continuance of such restriction be legally
permissible (but not in excess of the Rent reserved under this Lease). Upon the
termination of such restriction during the Term, Tenant shall pay to Landlord,
in addition to
25
the Rent for the period following such termination of the restriction, if
legally permissible, the portion of Rent which would have been paid pursuant to
this Lease but for such legal restriction less the Rent paid by Tenant to
Landlord while such restriction was in effect, together with interest thereon at
the Base Rate.
ARTICLE 10
SUBORDINATION
Section 10.1 Subordination and Attornment.
(a) Subordination. This Lease and Tenant's rights hereunder
are subject and subordinate to all Mortgages and Superior Leases, and,
at the request of any Mortgagee or Lessor, Tenant shall attorn to such
Mortgagee or Lessor, its successors in interest or any purchaser in a
foreclosure sale.
(b) Attornment. If a Lessor or Mortgagee or any other Person
shall succeed to the rights of Landlord under this Lease, whether
through possession, foreclosure action, the delivery of a new lease or
deed, a bankruptcy proceeding or otherwise then at the request of the
successor landlord and upon such successor landlord's written agreement
to accept Tenant's attornment and to recognize Tenant's interest under
this Lease, Tenant shall be deemed to have attorned to and recognized
such successor landlord as Landlord under this Lease. The provisions of
this Article are self-operative and require no further instruments to
give effect hereto; provided, however, that Tenant shall promptly
execute and deliver any instrument that such successor landlord may
reasonably request (x) evidencing such attornment, (y) setting forth
the terms and conditions of Tenant's tenancy, and (z) containing such
other terms and conditions as may be required by such Mortgagee or
Lessor, provided such terms and conditions do not materially increase
Tenant's obligations or materially and adversely affect the rights of
Tenant under this Lease. Upon such attornment this Lease shall continue
in full force and effect as a direct lease between such successor
landlord and Tenant upon all of the terms, conditions and covenants set
forth in this Lease except that such successor landlord shall not be:
(i) liable for any previous act or omission of Landlord
under this Lease;
(ii) subject to any credit, demand, claim,
counterclaim, offset or defense which theretofore accrued to
Tenant against Landlord;
(iii) bound by any previous modification of this Lease,
or by any previous prepayment of more than one month's Fixed
Rent or Additional Rent;
26
(iv) bound by any covenant or obligation of Landlord to
perform, undertake or complete any work in the Premises or to
prepare the Premises for Tenant's occupancy or to make any
payment in regard thereto;
(v) required to account for any security deposit of
Tenant other than any security deposit actually delivered to
Mortgagee, Lessor or any successor landlord by Landlord;
(vi) bound by any obligation to make any payment to
Tenant or grant any credits, except for services, repairs,
maintenance and restoration provided for under this Lease
to be performed by Landlord after the date of such
attornment, and
(vii) responsible for any monies (other than
overpayments of Tenant's Tax Payment for the then current Tax
Year) owing by Landlord to Tenant.
(c) Non-Disturbance Agreement. Landlord shall use commercially
reasonable efforts to obtain for Tenant from any current and future
Lessor or Mortgagee a non-disturbance and attornment agreement in such
Lessor's or Mortgagee's standard form (a "Non-Disturbance Agreement").
Notwithstanding the foregoing, provided Landlord complies with its
obligations set forth in this Section 10.1(c), this Lease and Tenant's
obligations hereunder shall not be affected or impaired in any respect
should any such Lessor or Mortgagee decline to enter into such a
Non-Disturbance Agreement. If such Lessor or Mortgagee executes and
delivers to Landlord a Non-Disturbance Agreement and Landlord delivers
the same to Tenant, and Tenant either fails or refuses to execute and
deliver said Non-Disturbance Agreement within 10 days following
Landlord's delivery of such Non-Disturbance Agreement to Tenant, this
Lease shall be subject and subordinate to such Superior Lease or
Mortgage and Tenant shall automatically be deemed to be subject to and
subordinate to such Lessor or Mortgagee and Landlord shall have no
further obligation to obtain a Non-Disturbance Agreement for Tenant
from such Lessor or Mortgagee.
Section 10.2 Mortgage or Superior Lease Defaults. Tenant shall not
cause a default under any Superior Lease or Mortgage, or omit to do anything
that Tenant is obligated to do under the terms of this Lease so as to cause
Landlord to be in default under any applicable Superior Lease or Mortgage. Any
Mortgagee may elect that this Lease shall have priority over the Mortgage that
it holds and, upon notification to Tenant by such Mortgagee, this Lease shall be
deemed to have priority over such Mortgage, regardless of the date of this
Lease. In connection with any financing of the Real Property, the Building or of
the interest of the lessee under any Superior Lease, Tenant shall consent to any
reasonable modifications of this Lease requested by any lending institution,
provided such modifications do not materially increase the obligations, or
materially and adversely affect the rights, of Tenant under this Lease.
Section 10.3 Tenant's Termination Right. As long as any Superior Lease
or Mortgage or mezzanine financing arrangement shall exist, Tenant shall not
seek to terminate this Lease by reason of any act or omission of Landlord (a)
until Tenant shall have given notice of such act or omission to all Lessors
and/or Mortgagees, and (b) until a reasonable period of time shall have elapsed
following the giving of notice of such default and the expiration of any
applicable notice or grace periods (unless such act or omission is not capable
of being remedied within a reasonable period of time) during which period such
Lessors and/or Mortgagees or other such lenders shall have the right, but not
the obligation, after obtaining possession of the Real
27
Property or the interests of the owner of the Real Property to remedy such act
or omission and thereafter diligently proceed to so remedy such act or
obligation. If any Lessor or Mortgagee or other such lender elects to remedy
such act or omission of Landlord, Tenant shall not seek to terminate this Lease
so long as such Lessor or Mortgagee or other such lender is proceeding with
reasonable diligence to effect such remedy.
Section 10.4 Applicability. The provisions of this Article shall (a)
inure to the benefit of Landlord, any future owner of the Building or the Real
Property or the interests of the owner of the Real Property, any Lessor or
Mortgagee and any sublessor thereof and (b) apply notwithstanding that, as a
matter of law, this Lease may terminate upon the termination of any Superior
Lease or the foreclosure of any Mortgage.
Section 10.5 Future Condominium Declaration. This Lease and Tenant's
rights hereunder are and will be subject and subordinate to any condominium
declaration, by-laws and other instruments (collectively, the "Declaration")
which may be recorded in order to subject the Building to a condominium form of
ownership pursuant to Article 9B of the
New York Real Property Law or any
successor statute, provided that the Declaration does not by its terms increase
the Rent, materially increase Tenant's non-Rent obligations or materially and
adversely affect Tenant's rights under this Lease. At Landlord's request, and
subject to the foregoing proviso, Tenant will execute and deliver to Landlord an
amendment of this Lease confirming such subordination and modifying this Lease
to conform to such condominium regime, including, without limitation,
effectuating any necessary modification to Tenant's Proportionate Share.
ARTICLE 11
SERVICES
Section 11.1 Elevators.
(a) Elevator Service. Landlord, at its expense, shall provide
passenger elevator service to the Premises at all times (with at least
one car available during Overtime Periods, as defined in Section
11.1(b)), and at least one freight elevator serving the Premises
available, on a non-exclusive "first come, first serve" basis with
other Building tenants, on all Business Days from 8:00 a.m. to 6:00
p.m. ("Business Hours").
(b) Overtime Freight Elevators. The Rent does not reflect or
include any charge to Tenant for the furnishing of any freight elevator
service during any periods other than during Business Hours or Business
Days ("Overtime Periods"). Landlord shall not be required to furnish
any freight elevator service during Overtime Periods unless Tenant
delivers notice to Landlord's property management office serving the
Building requesting such service at least 24 hours prior to the time at
which such freight elevator service is to be provided, but Landlord
shall use reasonable efforts (without obligation to incur any
additional cost) to arrange such service on such shorter notice as
Tenant shall provide. If Landlord furnishes freight elevator service to
the Premises during Overtime Periods,
28
Tenant shall promptly pay to Landlord, Landlord's then established
rates for such service in the Building.
Section 11.2 HVAC.
(a) Heating, Ventilation and Air Conditioning of Premises.
From and after the date that Tenant first occupies the Premises for the
conduct of Tenant's business, heat, ventilation and air-conditioning to
the Premises shall be operated by Tenant and made available to the
Premises 24 hours per day, 7 days per week. If Tenant operates such
heat, ventilation or air conditioning services at times other than
during Business Hours on Business Days, Tenant shall pay to Landlord,
as additional rent, within 30 days following demand therefor, the
Overtime HVAC Rate with respect thereto. "Overtime HVAC Rate" means, as
of the Commencement Date, an annual charge of $300.00 per ton (such
amount increased in proportion to the increase, if any, in the Consumer
Price Index for the month in which the Commencement Date falls).
Notwithstanding anything in this Section 11.2(a) to the contrary,
air-conditioning shall only be available from May 1st through October
15th.
(b) Supplemental HVAC. Tenant shall have the right to install
supplementary heat, ventilation or air conditioning services equipment
(a "Supplemental HVAC System") to exclusively serve the Premises, the
specifications and installation of which system shall be subject to
Landlord's approval. Throughout the term of this Lease, it shall be
Tenant's exclusive responsibility to maintain, repair or replace the
Supplemental HVAC System, as necessary to keep same in working order.
Landlord shall have no responsibility to maintain, repair or replace
the Supplemental HVAC System. The Supplemental HVAC System shall, on
the Expiration Date, automatically become the sole and exclusive
property of Landlord, without any payment from Landlord to Tenant with
respect thereto.
Section 11.3 Condenser Water.
(a) Condenser Water. If Tenant shall install a Supplemental
HVAC System, and such system is not an air-cooled system, then
Landlord, upon prior written notice by Tenant, shall cause to be
supplied additional condenser water from 8:00 a.m. to 6:00 p.m., to the
extent reasonably available, to the Supplemental HVAC System, and
Tenant shall pay to Landlord as Additional Rent within 10 Business Days
of being billed therefor, (i) $1,500 per floor as an initial tap-in
charge in connection therewith, and (ii) an annual charge, payable in
advance, of $300 per ton of such condenser water (such amount increased
in proportion to the increase, if any, in the Consumer Price Index for
the month in which the Commencement Date falls) for the rated capacity
of the Supplemental HVAC System.
(b) Overtime Periods.
(i) The Rent, and the amounts to be paid pursuant to
Section 11.3(a) hereof, do not reflect or include any charge
to Tenant for the furnishing of any condenser water to or for
the benefit of the Premises during any Overtime
29
Periods. Landlord shall not be required to furnish any
condenser water during Overtime Periods unless Tenant delivers
notice to Landlord's property management office serving the
Building requesting such services at least 24 hours prior to
the time at which such condenser water is to be provided, but
Landlord shall use reasonable efforts (without obligation to
incur any additional cost) to arrange such condenser water on
such shorter notice as Tenant shall provide. If Landlord shall
furnish condenser water to or for the benefit of the Premises
during Overtime Periods, Tenant shall pay to Landlord,
Landlord's then established rates for such service in the
Building.
(ii) If Tenant shall so elect by written notice to
Landlord, Landlord shall cause to be provided to Tenant
overtime condenser water on an annual basis for all Overtime
Periods for the Supplemental HVAC System only, and Tenant
shall pay to Landlord as Additional Rent an annual charge,
payable in advance, within 10 Business Days of being billed
therefore, of $300 per ton of rated capacity of the
Supplemental HVAC System to be served by such condenser water
(such charge increased in proportion to the increase, if any,
in the Consumer Price Index for the month in which the
Commencement Date falls).
(c) Landlord Not Responsible. Landlord shall not be
responsible if either the normal operation of the Building System shall
fail to provide condenser water to the central building-wide heating,
ventilation or air-conditioning system or the Supplemental HVAC System,
by reason of (i) any machinery or equipment installed by or on behalf
of Tenant or any person claiming through or under Tenant, which shall
have an electrical load in excess of the average electrical load and
human occupancy factors for the Condenser Water System as designed, as
the case may be, or (ii) any rearrangement of partitioning or other
Alterations made or performed by or on behalf of Tenant or any Person
claiming through or under Tenant.
Section 11.4 Cleaning.
(a) General Cleaning. Landlord shall cause the Premises
(excluding any portions thereof used for the storage, preparation,
service or consumption of food or beverages, as an exhibition area or
classroom, for storage, as a shipping room, mail room or similar
purposes, for private bathrooms, showers or exercise facilities, as a
trading floor, or primarily for operation of computer, data processing,
reproduction, duplicating or similar equipment) to be cleaned,
substantially in accordance with the standards set forth in Exhibit C,
on Monday through Friday evenings of Business Days. Any areas of the
Premises requiring cleaning which Landlord is not required to clean
under this Section 11.4, and any additional cleaning of any portion of
the Premises requested by Tenant shall be done at Tenant's expense, by
Landlord's employees or Landlord's contractor, at rates which shall be
competitive with rates of other cleaning contractors providing services
to first-class office buildings in downtown Manhattan. Landlord and its
cleaning contractor and their respective employees shall have access to
the Premises at all times except that between 8:00 AM and 6:00 PM on
Business Days, such access shall only be for day matron or
▇▇▇▇▇▇-duties.
30
(b) Exterior Windows. Notwithstanding anything to the contrary
in Section 11.4(a), Landlord shall cause the exterior windows of the
Premises to be cleaned in accordance with ordinary commercial standards
twice annually during the Term of this Lease. Tenant shall pay for the
cost of such cleaning within ten (10) days after a ▇▇▇▇ is rendered
therefor. At Tenant's option, and at Tenant's sole cost and expense,
Tenant may procure additional exterior window cleaning services from
Landlord's designated contractor at any time during the Term of this
Lease.
Section 11.5 Water. Landlord, at Landlord's expense, shall provide to
the floor on which the Premises are located tap water for drinking and lavatory
purposes. If Tenant requires or uses water for any additional purposes, Landlord
may install a meter to measure the water furnished. Tenant shall pay the cost of
such installation, and for all maintenance, repairs and replacements thereto and
for the reasonable charges of Landlord for the water furnished. Tenant shall
also pay Landlord's reasonable charge for any required pumping or heating
thereof, and any sewer rent, tax and/or charge now or hereafter assessed or
imposed upon the Premises or the Real Property pursuant to any Requirement. If
any tax is imposed upon Landlord's receipts from the sale or resale of water to
Tenant, Tenant shall reimburse Landlord for such tax, if and to the extent
permitted by applicable Requirements.
Section 11.6 Refuse and Rubbish Removal. Landlord shall provide refuse
and rubbish removal services at the Premises for ordinary office refuse and
rubbish pursuant to regulations reasonably established by Landlord. Tenant shall
pay to Landlord, within 10 Business Days after delivery of an invoice therefor,
Landlord's reasonable charge for such removal to the extent that the refuse
generated by Tenant exceeds, in Landlord's reasonable judgment, the refuse and
rubbish customarily generated by executive and general office tenants. Tenant
shall not dispose of any refuse and rubbish in the public areas of the Building,
and if any Tenant Party does so, Tenant shall be liable for Landlord's
reasonable charge for such removal. Tenant shall cause all Tenant Parties to
observe such additional rules and regulations regarding rubbish removal and/or
recycling as Landlord may, from time to time, reasonably impose.
Section 11.7 Service Interruptions. Landlord reserves the right to
suspend any service when necessary, by reason of Unavoidable Delays, accidents
or emergencies, or for repairs, alterations or improvements which, in Landlord's
reasonable judgment, are necessary or appropriate until such Unavoidable Delay,
accident or emergency shall cease or such repairs, alterations or improvements
are completed, and, except as provided herein, Landlord shall not be liable to
Tenant for any interruption, curtailment or failure to supply services. Landlord
shall use industry standard reasonable efforts (for comparable buildings in
Manhattan) to restore such service, remedy such situation and minimize any
interference with Tenant's business. Except as otherwise provided herein, the
exercise of any such right or the occurrence of any such failure by Landlord
shall not (a) constitute an actual or constructive eviction, in whole or in
part, (b) entitle Tenant to any compensation, abatement or diminution of Rent,
(c) relieve Tenant from any of its obligations under this Lease or (d) impose
any liability upon Landlord by reason of inconvenience to Tenant, or
interruption of Tenant's business, or otherwise.
Section 11.8 Messenger Center. Landlord may, from time to time, offer a
messenger center at the Building for ordinary office messenger services to be
used by tenants at the Building. Tenant acknowledges that use of the messenger
center shall be subject to any rules
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and regulations now or hereafter established by Landlord (including, without
limitation, payment of an amount equal to Landlord's standard charge therefor).
As of the date of this Lease, Landlord's standard charge for such use is $150
per month.
Section 11.9 Building Directory. Landlord shall, at the request of
Tenant, maintain a commercially reasonable number of listings on the directory
located in the Building lobby of the names of Tenant and any officers or
employees of Tenant, provided that the number of listings shall be in the same
proportion to the capacity of the directory as Tenant's Proportionate Share is
to the rentable square foot area of the Building. Tenant shall deliver to
Landlord, on or prior to the Commencement Date, a list of all names to be
included in the directory. Tenant may deliver revised listings to Landlord from
time to time throughout the Term (but Landlord shall not be obligated to revise
the directory more often than once a month), and Tenant shall pay Landlord's
then established charge therefor.
Section 11.10 Building Access. Subject to the terms of this Lease,
Tenant shall have access into the Building and the Premises twenty-four hours a
day, three hundred and sixty-five days a year.
Section 11.11 No Other Services. Except as provided in this Article 11,
Landlord shall not be required to provide any services to the Premises.
ARTICLE 12
INSURANCE; PROPERTY LOSS OR DAMAGE; REIMBURSEMENT
Section 12.1 Insurance.
(a) Tenant. Tenant, at its expense, shall obtain and keep in
full force and effect during the Term and prior to having access to the
Premises:
(i) a policy of commercial general liability insurance
on an occurrence basis against claims for personal injury,
death and/or property damage occurring in or about (1) the
Premises, or (2) the Building (to the extent a claim may be
asserted by a Person present at the Building, by, under or
through Tenant); under which Tenant is named as the insured
and Landlord, Landlord's Agent, any Lessors, any Mortgagees
and any other parties whose names shall have been furnished by
Landlord to Tenant from time to time are named as additional
insureds, which insurance shall provide primary coverage
without contribution from any other insurance carried by or
for the benefit of Landlord, Landlord's Agent or any Lessors
or Mortgagees named as additional insureds, and Tenant agrees
to obtain blanket broad-form contractual liability coverage to
insure its indemnity obligations set forth in Article 32
hereof. The minimum limits of
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liability applying exclusively to the Premises shall be a
combined single limit with respect to each occurrence and in
the aggregate in an amount of not less than $10,000,000;
provided, however, that Landlord shall retain the right to
require Tenant to increase such coverage, from time to time,
to that amount of insurance which in Landlord's reasonable
judgment is then being customarily required by landlords for
similar office space in first-class buildings in the City of
New York. The deductible or self insured retention for such
policy shall in no event exceed $10,000 per occurrence at any
time. If the aggregate limit applying to the Premises is
reduced by the payment of a claim or establishment of a
reserve equal to or greater than 50% of the annual aggregate,
Tenant shall immediately arrange to have the aggregate limit
restored by endorsement to the existing policy or the purchase
of an additional insurance policy unless, in Landlord's
reasonable judgment, Tenant maintains sufficient excess
liability insurance (with a drop down endorsement) to satisfy
the liability requirements of this Lease without the
reinstatement of the aggregate limit;
(ii) insurance against loss or damage by fire, and such
other risks and hazards as are insurable under then available
standard forms of "all risk" property insurance policies with
extended coverage, insuring Tenant's Property, and all
Specialty Alterations for the full insurable value thereof or
replacement cost value thereof, having a deductible amount, if
any, as reasonably determined by Landlord;
(iii) during the performance of any Alteration, until
completion thereof, Builder's risk insurance on an "all risk"
basis and on a completed value form including a Permission to
Complete and Occupy endorsement, for full replacement value
covering the interest of Landlord and Tenant (and their
respective contractors and subcontractors), any Mortgagee and
any Lessor in all work incorporated in the Building and all
materials and equipment in or about the Premises;
(iv) Workers' Compensation Insurance, as required by
applicable Requirements;
(v) New York State disability benefits as required by
law;
(vi) Business Interruption Insurance; and
(vii) such other insurance in such amounts as Landlord,
any Mortgagee and/or any Lessor may reasonably require from
time to time.
(b) Required Provisions. All insurance required to be carried
by Tenant pursuant to the terms of this Lease (i) shall contain a
provision that (A) no act or omission of Tenant shall affect or limit
the obligation of the insurance company to pay the amount of any loss
sustained, (B) the policy shall be noncancellable and/or no material
change in coverage shall be made thereto unless Landlord, Lessors and
Mortgagees shall have received 30 days' prior notice of the same, by
certified mail, return receipt requested, and
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(C) Tenant shall be solely responsible for the payment of all premiums
under such policies and Landlord, Lessors and Mortgagees shall have no
obligation for the payment thereof, and (ii) shall be effected under
valid and enforceable policies issued by reputable and independent
insurers permitted to do business in the State of New York and rated in
Best's Insurance Guide, or any successor thereto (or if there be none,
an organization having a national reputation) as having a Best's Rating
of "A-" and a "Financial Size Category" of at least "X" or, if such
ratings are not then in effect, the equivalent thereof or such other
financial rating as Landlord may at any time consider appropriate.
(c) Evidence. On or prior to the Commencement Date, Tenant
shall deliver to Landlord appropriate policies of insurance, including
evidence of waivers of subrogation required to be carried by each party
pursuant to this Article 12. Evidence of each renewal or replacement of
a policy shall be delivered by Tenant to Landlord at least 10 days
prior to the expiration of such policy. In lieu of the policies of
insurance required to be delivered to Landlord pursuant to this Article
(the "Policies"), Tenant may deliver to Landlord a certification from
Tenant's insurance company (on the form currently designated "▇▇▇▇▇
27", or the equivalent, rather than on the form currently designated
"▇▇▇▇▇ 25-S", or the equivalent) which shall be binding on Tenant's
insurance company, and which shall expressly provide that such
certification (i) conveys to Landlord and any other named insured
and/or additional insureds thereunder (the "Insured Parties") all the
rights and privileges afforded under the applicable Policies as primary
insurance and (ii) contain an unconditional obligation of the insurance
company to advise all Insured Parties in writing by certified mail,
return receipt requested, at least 30 days in advance of any
termination or change to the applicable Policies that would affect the
interest of any of the Insured Parties.
Section 12.2 Waiver of Subrogation. Landlord and Tenant shall each
procure an appropriate clause in or endorsement to any property insurance
covering the Premises, the Building and personal property, fixtures and
equipment located therein, wherein the insurance companies shall waive
subrogation or consent to a waiver of right of recovery, and Landlord and Tenant
agree not to make any claim against, or seek to recover from, the other for any
loss or damage to its property or the property of others resulting from fire and
other hazards to the extent covered by such property insurance provided,
however, that the release, discharge, exoneration and covenant not to ▇▇▇
contained herein shall be limited by and coextensive with the terms and
provisions of the waiver of subrogation or waiver of right of recovery. If the
payment of an additional premium is required for the inclusion of, or consent
to, a waiver of subrogation, each party shall advise the other, in writing, of
the amount of any such additional premiums and the other party may pay such
additional premium. If such other party shall not elect to pay such additional
premium, then the first party shall not be required to obtain such waiver of
subrogation or consent to waiver. Tenant acknowledges that Landlord shall not
carry insurance on, and shall not be responsible for, (a) damage to any
Specialty Alterations, (b) Tenant's Property and (c) any loss suffered by Tenant
due to interruption of Tenant's business.
ARTICLE 13
DESTRUCTION - FIRE OR OTHER CAUSE
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Section 13.1 Restoration. If the Premises are damaged by fire or other
casualty, or if the Building is damaged such that Tenant is deprived of
reasonable access to the Premises, Tenant shall give prompt notice to Landlord,
and the damage shall be repaired by Landlord, at its expense, to substantially
the condition of the Premises prior to the damage (including Landlord's Work),
subject to the provisions of any Mortgage or Superior Lease, but Landlord shall
have no obligation to repair or restore (a) Tenant's Property or (b) any
Specialty Alterations. Notwithstanding the foregoing, Landlord shall be
obligated to restore Landlord's Work to the extent (i) such fire or other
casualty is covered under Landlord's insurance policy, (ii) the proceeds from
such fire or casualty have been paid to Landlord or any Mortgagee, (iii) such
proceeds have been released to Landlord for purposes of such repair or
restoration by any Mortgagee and (iv) such proceeds are sufficient for the
completion of Landlord's Work. Until such time as the restoration of the
Premises is Substantially Completed or would have been Substantially Completed
but for Tenant Delay, Fixed Rent and Tenant's Tax Payment shall be reduced in
the proportion by which the area of the part of the Premises (excluding any
portion thereof then used principally for storage) which is not usable (or
accessible) and is not used by Tenant bears to the total area of the Premises
(excluding any such portion).
Section 13.2 Landlord's Termination Right. Notwithstanding anything to
the contrary contained in Section 13.1, if the Premises are totally damaged or
are rendered wholly untenantable, or if the Building is so damaged that, in
Landlord's reasonable opinion, substantial alteration, demolition, or
reconstruction of the Building is required (whether or not the Premises are so
damaged or rendered untenantable), then in either of such events, Landlord may,
not later than 120 days following the date of the damage, give Tenant a notice
terminating this Lease, provided that if the Premises are not damaged, Landlord
may not terminate this Lease unless Landlord similarly terminates the leases of
other office tenants in the Building aggregating at least either (a) 50% of the
portion of the Building occupied for office purposes immediately prior to such
damage or (b) 50% of the rentable area of the Building located in the elevator
bank servicing the Premises. If this Lease is so terminated, (i) the Term shall
expire upon the date set forth in Landlord's notice, which shall not be less
than 30 days after such notice is given, and Tenant shall vacate the Premises
and surrender the same to Landlord no later than the date set forth in the
notice, (ii) Tenant's liability for Rent shall cease as of the date of the
damage and (iii) any prepaid Rent for any period after the date of the damage
shall be refunded by Landlord to Tenant.
Section 13.3 Tenant's Termination Right. If more than 50% of the
Premises is totally damaged and are thereby rendered substantially untenantable,
or in the case of damage or destruction to the public portions of the Building
necessary for access to the Premises, and if Landlord elects to restore the
Premises, Landlord shall, within 75 days following the date of the damage, cause
a contractor or architect selected by Landlord to give notice (the "Restoration
Notice") to Tenant of the date by which such contractor or architect estimates
the restoration of the Premises shall be Substantially Completed. If such date,
as set forth in the Restoration Notice, is more than 7 months from the date of
such damage (the "Outside Repair Date"), then Tenant shall have the right to
terminate this Lease by giving notice (the "Termination Notice") to Landlord not
later than 30 days following Tenant's receipt of the Restoration Notice. In
addition, if Tenant elects not to terminate this Lease in the manner set forth
above and the restoration of the Premises is not completed by the Outside Repair
Date (as such date may be extended due to adjustment of insurance claims,
Unavoidable Delay or Tenant Delay) and
35
provided Landlord is not diligently proceeding with the restoration of the
Premises, Tenant shall have the right to terminate this Lease by a Termination
Notice given to Landlord not later than 30 days after the Outside Repair Date
(as so extended). If Tenant delivers to Landlord a Termination Notice, this
Lease shall be deemed to have terminated as of the date of the giving of the
Termination Notice, in the manner set forth in the second sentence of Section
13.2.
Section 13.4 Damage During Final 18 Months. Notwithstanding anything
set forth to the contrary in this Article 13, in the event that any damage
rendering the Premises wholly untenantable occurs during the final 18 months of
the Term, either Landlord or Tenant may terminate this Lease by notice to the
other party within 30 days after the occurrence of such damage and this Lease
shall expire on the 30th day after the date of such notice. For purposes of this
Section 13.4, the Premises shall be deemed wholly untenantable if due to such
damage, Tenant shall be precluded from using more than 50% of the Premises for
the conduct of its business and Tenant's inability to so use the Premises is
reasonably expected to continue until at least the earlier of (a) the Expiration
Date and (b) the 90th day after the date when such damage occurs.
Section 13.5 Waiver of Real Property Law 'SS' 227. This Article 13 constitutes
an express agreement governing any case of damage or destruction of the Premises
or the Building by fire or other casualty, and Section 227 of the Real Property
Law of the State of New York, which provides for such contingency in the absence
of an express agreement, and any other applicable Requirement of like nature and
purpose now or hereafter in force, shall have no application in any such case.
Section 13.6 Inability to Collect. Notwithstanding any of the foregoing
provisions of this Article, if Landlord or any Lessor or Mortgagee shall be
unable to collect all of the insurance proceeds (including rent insurance
proceeds) applicable to damage or destruction of the Premises or the Building by
reason of any action or inaction on the part of Tenant or any Tenant Party,
then, without prejudice to any other remedies which may be available against
Tenant, (i) there shall be no abatement of Rent, and (ii) Landlord shall have no
obligation to restore the Premises.
Section 13.7 Landlord's Liability. Any Building employee to whom any
property shall be entrusted by or on behalf of Tenant shall be deemed to be
acting as Tenant's agent with respect to such property and neither Landlord nor
any of the Indemnities shall be liable for any damage to such property, or for
the loss of or damage to any property of Tenant by theft or otherwise. None of
the Indemnities shall be liable for any injury or damage to persons or property
or interruption of Tenant's business resulting from fire or other casualty, any
damage caused by other tenants or persons in the Building or by construction of
any private, public or quasi-public work, or any latent defect in the Premises
or in the Building (except that Landlord shall be required to repair the same to
the extent provided in Article 7). No penalty shall accrue for delays that may
arise by reason of adjustment of fire insurance on the part of Landlord or
Tenant, or Unavoidable Delays, in connection with any repair or restoration of
any portion of the Premises or of the Building. Landlord shall use reasonable
efforts to minimize interference with Tenant's use and occupancy of the Premises
during the performance of any such repair or restoration, provided, however,
that Landlord shall have no obligation to employ contractors or labor at
overtime or other premium pay rates or to incur any other overtime costs or
additional expenses whatsoever. Nothing in this Section 13.7 shall affect any
right of Landlord to be
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indemnified by Tenant under Article 32 for payments made to compensate for
losses of third parties.
Section 13.8 Windows. If at any time any windows of the Premises are
temporarily closed, darkened or covered over by reason of repairs, maintenance,
alterations or improvements to the Building, or any of such windows are
permanently closed, darkened or covered over due to any Requirement, Landlord
shall not be liable for any damage Tenant may sustain and Tenant shall not be
entitled to any compensation or abatement of any Rent, nor shall the same
release Tenant from its obligations hereunder or constitute an actual or
constructive eviction.
ARTICLE 14
EMINENT DOMAIN
Section 14.1 Taking.
(a) Total Taking. If all or substantially all of the Premises,
the Building or the Real Property shall be acquired or condemned for
any public or quasi-public purpose, this Lease shall terminate and the
Term shall end as of the date of the vesting of title, with the same
effect as if such date were the Expiration Date, and Rent shall be
prorated and adjusted as of such date.
(b) Partial Taking. If only a part of the Premises, the
Building or the Real Property shall be acquired or condemned, this
Lease and the Term shall continue in full force and effect, provided
that from and after the date of the vesting of title, the Fixed Rent,
Tenant's Tax Payment and Tenant's Proportionate Share shall be modified
to reflect the reduction of the Premises and/or the Building as a
result of such acquisition or condemnation.
(c) Landlord's Termination Right. Whether or not the Premises
are affected, Landlord may give to Tenant, within 60 days following the
date upon which Landlord receives notice that all or a portion of the
Building or the Real Property has been acquired or condemned, a notice
of termination of this Lease, provided that Landlord elects to
terminate leases (including this Lease) affecting at least either (i)
33% of the portion of the Building occupied for office purposes
immediately prior to such acquisition or condemnation or (ii) 50% of
the rentable area of the Building (excluding any rentable area leased
by Landlord or its Affiliates) located in the elevator bank servicing
the Premises.
(d) Tenant's Termination Right. If the part of the Building or
the Real Property so acquired or condemned contains a substantial part
of the total area of the Premises immediately prior to such acquisition
or condemnation, or if, by reason of such acquisition or condemnation,
Tenant no longer has reasonable means of access to the Premises, Tenant
may terminate this Lease by notice to Landlord given within 120 days
following the date upon which Tenant received notice of such
acquisition or condemnation. If Tenant so notifies Landlord, this Lease
shall terminate and the Term
37
shall end and expire upon the date set forth in the notice, which date
shall not be more than 30 days following the giving of such notice. If
a part of the Premises shall be so acquired or condemned and this Lease
and the Term shall not be terminated in accordance with this Section
14.1, Landlord, at Landlord's expense, but without requiring Landlord
to spend more than it collects as an award, shall, subject to the
provisions of any Mortgage or Superior Lease, restore that part of the
Premises not so acquired or condemned to a self-contained rental unit
substantially equivalent (with respect to character, quality,
appearance and services) to that which existed immediately prior to
such acquisition or condemnation, excluding Tenant's Property and/or
Specialty Alterations.
(e) Apportionment of Rent. Upon any termination of this Lease
pursuant to the provisions of this Article 14, Fixed Rent and Tenant's
Tax Payment shall be apportioned as of, and shall be paid or refunded
up to and including, the date of such termination.
(f) Applicability. The provisions of Sections 14.1 and 14.2
shall not apply to any acquisition or condemnation of all or any part
of the Premises for a period of 18 months or less.
Section 14.2 Awards. Upon any acquisition or condemnation of all or any
part of the Real Property, Landlord shall receive the entire award for any such
acquisition or condemnation, and Tenant shall have no claim against Landlord or
the condemning authority for the value of any unexpired portion of the Term,
Tenant's Alterations or improvements; and Tenant hereby assigns to Landlord all
of its right in and to such award. Nothing contained in this Article 14 shall be
deemed to prevent Tenant from making a separate claim in any condemnation
proceedings for the then value of any Tenant's Property or Specialty Alteration
included in such taking and for any moving expenses, provided any such award is
in addition to, and does not result in a reduction of, the award made to
Landlord.
Section 14.3 Temporary Taking. Notwithstanding the provisions of
Section 14.1, if all or any part of the Premises is acquired or condemned
temporarily for a period of 18 months or less during the Term for any public or
quasi-public use or purpose, Tenant shall give prompt notice to Landlord and the
Term shall not be reduced or affected in any way and Tenant shall continue to
pay all Rent payable by Tenant without reduction or abatement and to perform all
of its other obligations under this Lease, except to the extent prevented from
doing so by the condemning authority, and Tenant shall be entitled to receive
any award or payment from the condemning authority for such use, which award
shall be received, held and applied by Tenant as a trust fund for payment of the
Rent falling due, provided that if the acquisition or condemnation is for a
period extending beyond the Term, such award shall be apportioned between
Landlord and Tenant and Landlord shall receive the portion of such award
relating to the period after the Term. If the acquisition or condemnation of all
or any part of the Premises is for a period of more than 18 months, the
provisions of Sections 14.1 and 14.2 shall apply.
ARTICLE 15
ASSIGNMENT AND SUBLETTING
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Section 15.1 Assignment or Subletting.
(a) No Assignment or Subletting. Except as expressly set forth
herein, Tenant shall not, directly or indirectly, assign, mortgage,
pledge, encumber, or otherwise transfer this Lease, whether by
operation of law or otherwise, and shall not sublet (or underlet),
license, franchise, permit or suffer the Premises or any part thereof
to be used or occupied by others (whether for desk space, mailing
privileges or otherwise), without Landlord's prior consent in each
instance. Any assignment, sublease, license, franchise, mortgage,
pledge, encumbrance or transfer in contravention of the provisions of
this Article 15 shall be null and void.
(b) Collection of Rent. If, without Landlord's consent, this
Lease is assigned, or any part of the Premises is sublet or occupied by
anyone other than Tenant or this Lease or the Premises or any of
Tenant's Property is encumbered (by operation of law or otherwise),
Landlord may collect rent from the assignee, subtenant or occupant, and
apply the net amount collected to the Rent herein reserved. No such
collection of rent shall be deemed to be (i) a waiver of the provisions
of this Article 15, (ii) an acceptance of the assignee, subtenant or
occupant as tenant, or (iii) a release of Tenant from the performance
of any of the terms, Tenant's covenants and conditions to be performed
by hereunder. Tenant shall remain fully liable for the obligations
under this Lease, including the payment of Rent.
(c) Further Assignment/Subletting. Landlord's consent to any
assignment or subletting shall not relieve Tenant from the obligation
to obtain Landlord's express consent to any further assignment or
subletting. In no event shall any permitted subtenant assign or
encumber its sublease or further sublet any portion of its sublet
space, or otherwise suffer or permit any portion of the sublet space to
be used or occupied by others without Landlord's consent.
Section 15.2 Tenant's Notice. If Tenant desires to assign this Lease or
sublet all or any portion of the Premises, Tenant shall give notice thereof to
Landlord (the "Assignment/Sublet Notice Date"), which shall be accompanied by
(i) the date Tenant desires the assignment or sublet to be effective (the
"Assignment/Sublet Start Date"), and (ii) (A) the material business terms on
which Tenant would offer to assign or sublet such premises, and (B) a
description of the portion of the Premises to be sublet or assigned.
Such notice shall be deemed an irrevocable offer from Tenant
to Landlord whereby Landlord (or Landlord's designee) shall be granted the
right, at Landlord's option, if the proposed transaction is an assignment of
this Lease or a subletting in excess of 40% of the rentable square footage of
the Premises: (a) to terminate this Lease with respect to such space as Tenant
proposes to sublease, upon the terms and conditions hereinafter set forth, or
(b) in the case of an assignment or sublet of 75% or more of the Premises, to
terminate this Lease with respect to the entire Premises by giving Tenant notice
thereof no later than twenty-five (25) days after delivery of the
Assignment/Sublet Notice Date, provided Landlord shall provide Tenant with
substantially similar space in the Building under substantially the same terms,
covenants and conditions taking into consideration the proportional difference
of the Premises to the new Premises. Such option, once exercised by notice from
Landlord to Tenant, shall take effect on
39
the Assignment/Sublet Start Date and Tenant shall have the option to be
relocated by Landlord to the aforesaid substitute space at Landlord's cost if
the proposed transaction is an assignment of this Lease or a subletting of 75%
or more of the rentable square footage of the Premises.
Section 15.3 Landlord's Termination. If Landlord exercises its option
to terminate all or a portion of this Lease pursuant to
Section 15.2:
(a) this Lease shall end and expire with respect to all or a
portion of the Premises, as the case may be, on the Assignment/Sublet
Start Date,
(b) Fixed Rent and Tenant's Tax Payment shall be apportioned,
paid or refunded as of such date,
(c) Tenant, upon Landlord's request, shall enter into an
amendment of this Lease ratifying and confirming such total or partial
termination, and setting forth any appropriate modifications to the
terms and provisions hereof, and
(d) Landlord shall be free to lease the Premises (or any part
thereof) to Tenant's prospective assignee or subtenant , if any.
Section 15.4 Intentionally Deleted.
Section 15.5 Conditions to Assignment/Subletting.
(a) Consent. Provided that no Event of Default then exists and
Landlord has not exercised its right to recapture provided under
Section 15.2 or Landlord has no right to recapture under Section 15.2,
Landlord's consent to any proposed assignment or subletting of all or
any portion of the Premises shall not be unreasonably withheld or
delayed. Such consent shall be granted or denied, as the case may be,
within 30 days after Landlord's receipt of (i) a true and complete
statement reasonably detailing the identity of the proposed assignee or
subtenant, the nature of its business and its proposed use of the
Premises, or sublet space, as the case may be, (ii) current financial
information with respect to the proposed assignee or subtenant,
including its most recent financial statements, and (iii) any other
information Landlord may reasonably request, provided that:
(A) in Landlord's reasonable judgment, the proposed
assignee or subtenant is engaged in a business or activity,
and the Premises, or sublet space, as the case may be, will be
used in a manner, which (1) is in keeping with the then
standards of the Building, (2) limits the use of the Premises,
or sublet space, as the case may be, to general and executive
offices and trading floor as permitted under this Lease, and
(3) does not violate any restrictions set forth in this Lease,
any Mortgage or Superior Lease or any negative covenant as to
use of the Premises required by any other lease in the
Building;
(B) the proposed assignee or subtenant is a reputable
Person or entity of good character with sufficient financial
means to perform all of its obligations under this Lease or
the sublease, as the case may be, and Landlord has been
40
furnished with reasonable proof thereof, and Landlord or any
managing member of Landlord is not litigating against or has
been threatened with litigation by such proposed assignee of
subtenant or its Affiliates within the prior 12 months;
(C) if Landlord has comparable space available in the
Building for a lease for a comparable term, neither the
proposed assignee or subtenant nor any Affiliate of the
proposed assignee or subtenant is then an occupant of the
Building;
(D) the proposed assignee or subtenant is not a Person
or entity (or Affiliate of a Person or entity) with whom
Landlord or Landlord's Agent is then, or has been within the
prior 4 months, negotiating in connection with the rental of
substantially similar space in the Building;
(E) the form of the proposed sublease or instrument of
assignment shall be reasonably satisfactory to Landlord and
shall comply with the provisions of this Article 15;
(F) there shall be not more than 2 occupants (including
Tenant) for the Premises;
(G) Tenant shall, within 30 days after demand therefor,
reimburse Landlord for all reasonable expenses incurred by
Landlord in connection with such assignment or sublease,
including any investigations as to the acceptability of the
proposed assignee or subtenant, reviewing any plans and
specifications for Alterations proposed to be made in
connection therewith, and all legal costs reasonably incurred
in connection with the granting of any requested consent;
(H) Tenant has not and shall not (A) publicize the
availability of the Premises or the sublet space, as the case
may be, or (B) permit its broker, agent or other entity to
publicize the availability of the Premises, or the sublet
space, as the case may be; in each instance, for subletting at
a rental rate of less than the aggregate fixed rent and
additional rent at which Landlord is then offering to lease
other comparable space in the Building, determined as though
the Premises were vacant and in their then "as is" condition,
and taking into account (x) the length of the term of the
proposed sublease, and (y) the location of the Premises in the
Building;
(I) the proposed assignee or subtenant shall not be
entitled, directly or indirectly, to diplomatic or sovereign
immunity, regardless of whether the proposed assignee or
subtenant agrees to waive such diplomatic or sovereign
immunity, and shall be subject to the service of process in,
and the jurisdiction of the courts of, the City and State of
New York;
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(J) if the proposed subtenant or assignee is an entity
organized under the laws of any jurisdiction other than the
United States or any state thereof, or is not a United States
citizen, if an individual, such Person shall waive any
immunity to which it may be entitled, and shall be subject to
the service of process in, and the jurisdiction of the courts
of, the City and State of New York;
(K) in Landlord's reasonable judgment, the proposed
assignee or subtenant shall not be of a type or character, or
engaged in a business or activity, or owned or controlled by
or identified with any entity, which may result in protests or
civil disorders or commotions at, or other disruptions of the
normal business activities in, the Building; and
(L) in the case of a subletting of less than all of the
Premises, both the sublet space and the balance of the
Premises shall, in Landlord's reasonable opinion, be of
commercially reasonable configuration and reasonably lettable
to unrelated third-parties.
(b) Other Requirements. With respect to each and every
subletting and/or assignment authorized by Landlord under the
provisions of this Lease, it is further agreed that:
(i) the form of the proposed assignment or sublease and the
form of Landlord's consent shall be reasonably satisfactory to Landlord
and shall comply with the provisions of this Article;
(ii) no sublease shall be for a term ending later than one day
prior to the Expiration Date of this Lease;
(iii) no subtenant shall take possession of any part of the
Premises, until an executed counterpart of such sublease has been
delivered to Landlord and approved by Landlord as provided in Section
15.5(a);
(iv) if an Event of Default shall occur at any time prior to
the effective date of such assignment or subletting, then Landlord's
consent thereto, if previously granted, shall be immediately deemed
revoked without further notice to Tenant, and if such assignment or
subletting would have been permitted without Landlord's consent
pursuant to Section 15.9, such permission shall be void and without
force and effect, and in either such case, any such assignment or
subletting shall constitute a further Event of Default hereunder; and
(v) each sublease shall be subject and subordinate to this
Lease and to the matters to which this Lease is or shall be
subordinate, it being the intention of Landlord and Tenant that Tenant
shall assume and be liable to Landlord for any and all acts and
omissions of all subtenants and anyone claiming under or through any
subtenants which, if performed or omitted by Tenant, would be a default
under this Lease; and Tenant and each subtenant shall be deemed to have
agreed that upon the occurrence and during the continuation of an Event
of Default
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hereunder, Tenant has hereby assigned to Landlord, and Landlord may, at
its option, accept such assignment of, all right, title and interest of
Tenant as sublandlord under such sublease, together with all
modifications, extensions and renewals thereof then in effect, and such
subtenant shall, at Landlord's option and upon notice from Landlord,
attorn to Landlord pursuant to the then executory provisions of this
Lease other than the monetary terms of this Lease, which monetary terms
shall be governed by the terms of such sublease, except that Landlord
shall not be (A) liable for any previous act or omission of Tenant
under such sublease, (B) subject to any counterclaim, offset or
defense, which theretofore accrued to such subtenant against Tenant,
(C) bound by any previous modification of such sublease not consented
to by Landlord, or by any prepayment of more than one month's rent and
additional rent under such sublease, (D) bound to return such
subtenant's security deposit, if any, except to the extent that
Landlord shall receive actual possession of such deposit and such
subtenant shall be entitled to the return of all or any portion of such
deposit under the terms of its sublease, or (E) obligated to make any
payment to or on behalf of such subtenant, or to perform any work in
the subleased space or the Building, or in any way to prepare the
subleased space for occupancy, beyond Landlord's obligations under this
Lease. The provisions of this Section 15.5(b)(v) shall be
self-operative, and no further instrument shall be required to give
effect to this provision, provided that the subtenant shall execute and
deliver to Landlord any instruments Landlord may reasonably request to
evidence and confirm such subordination and attornment.
Section 15.6 Binding on Tenant; Indemnification of Landlord.
Notwithstanding any assignment or subletting or any acceptance of Rent by
Landlord from any assignee or subtenant, Tenant shall remain fully liable for
the payment of all Rent due and for the performance of all other terms,
covenants and conditions contained in this Lease on Tenant's part to be observed
and performed, and any default under any term, covenant or condition of this
Lease by any subtenant or assignee or anyone claiming under or through any
subtenant or assignee shall be deemed to be a default under this Lease by
Tenant. In connection with the foregoing, Tenant waives any defenses that at law
or in equity would limit or release its liability under the preceding sentence.
Tenant shall indemnify, defend, protect and hold harmless Landlord from and
against any and all Losses resulting from any claims that may be made against
Landlord by the proposed assignee or subtenant or anyone claiming under or
through any subtenant or by any brokers or other Persons claiming a commission
or similar compensation in connection with the proposed assignment or sublease,
irrespective of whether Landlord shall give or decline to give its consent to
any proposed assignment or sublease, or if Landlord shall exercise any of its
options under this Article 15.
Section 15.7 Tenant's Failure to Complete. If Landlord consents to a
proposed assignment or sublease and Tenant fails to execute and deliver to
Landlord such assignment or sublease within 120 days after the giving of such
consent or the economic terms of such sublease in the aggregate are less than
90% of the value of the economic terms proposed to Landlord pursuant to Section
15.2, then Tenant shall again comply with all of the provisions and conditions
of Sections 15.2, 15.4 and 15.5 hereof before assigning this Lease or subletting
all or part of the Premises.
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Section 15.8 Profits. If Tenant shall enter into any assignment or
sublease permitted hereunder or consented to by Landlord, Tenant shall, within
60 days of Landlord's consent to such assignment or sublease, deliver to
Landlord a complete list of Tenant's reasonable third-party brokerage fees,
tenant work allowances and rent concessions paid or to be paid in connection
with such transaction, together with a list of all of Tenant's Property to be
transferred to such assignee or sublessee. Tenant shall deliver to Landlord
evidence of the payment of such fees promptly after the same are paid. In
consideration of such assignment or subletting, Tenant shall pay to Landlord:
(a) Assignment. In the case of an assignment, on the effective
date of the assignment, an amount equal to the Profit Share of all sums
and other consideration paid to Tenant by the assignee for or by reason
of such assignment (including sums paid for the sale or rental of
Tenant's Property, less, in the case of a sale thereof, the then fair
market value thereof, as reasonably determined by Landlord) after first
deducting Tenant's reasonable third-party brokerage fees, tenant work
allowances and rent concessions in connection with such transaction; or
(b) Sublease. In the case of a sublease, the Profit Share of any
consideration payable under the sublease to Tenant by the subtenant
which exceeds on a per square foot basis the Fixed Rent and Additional
Rent accruing during the term of the sublease in respect of the
subleased space (together with any sums paid for the sale or rental of
Tenant's Property, less, in the case of the sale thereof, the then fair
market value thereof, as reasonably determined by Landlord, and
amortized over the remaining term of a subletting) after first
deducting Tenant's reasonable third-party brokerage fees, tenant work
allowances and rent concessions in connection with such transaction,
and if such sublease is less than the entire Premises, the actual cost
incurred by Tenant in separately demising the subleased space. The sums
payable under this clause shall be paid by Tenant to Landlord as and
when paid by the subtenant to Tenant.
Section 15.9 Transfers; Applicability; Takeover Agreements.
(a) Transfers. The following shall each be deemed a voluntary
assignment of this Lease for the purposes of this Article 15:
(i) Corporation. If Tenant is a corporation, either (1) the
transfer by one or more transfers, directly or indirectly, by
operation of law or otherwise, of a majority of the stock of
Tenant or (2) the issuance of new stock or treasury stock which
results in a majority of the stock of Tenant being held by a
Person or Persons that do not hold a majority of the stock of
Tenant on the date hereof.
(ii) Partnership. If Tenant is a partnership, the transfer by
one or more transfers, directly or indirectly, by operation of law
or otherwise, of Control or a majority interest in such
partnership in such partnership or otherwise in violation of the
provisions of Section 29.2.
(iii) Limited Liability Company or Other Legal Entity. If
Tenant is a limited liability company, trust, or any other legal
entity, the transfer by one or
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more transfers, directly or indirectly, by operation of law
or otherwise, of Control of such entity or of a majority of the
ownership or beneficial interests in such entity.
(b) Permitted Assignments. Notwithstanding anything to the
contrary set forth in Section 15.9(a) above, the following shall each
be deemed not to constitute a voluntary assignment of this Lease (and
thus the terms of Sections 15.1, 15.2, 15.3, 15.4 and 15.8 are not
applicable thereto and each of the following may be undertaken without
Landlord's prior consent):
(i) Publicly Traded Ownership Interests. Transfers of shares
of stock, partnership units or limited liability membership
interests (or other ownership interest) (collectively, "Ownership
Interests") of Tenant if and so long as Tenant is publicly traded
on a nationally recognized exchange or through the
"over-the-counter" market.
(ii) Death of Transferor. Transfers of Ownership Interests in
connection with the death of a shareholder, partner, member or
other equity-holder (as applicable) of Tenant.
(iii) Mergers, Consolidations and Sale of Assets.
Transactions with a Person into or with which Tenant is merged or
consolidated or to which substantially all of Tenant's assets or
outstanding Ownership Interests are transferred so long as (1)
such transfer was made for a legitimate independent business
purpose and not for the purpose of transferring this Lease, (2)
the successor to Tenant has a net worth computed in accordance
with generally accepted accounting principles at least equal to
the net worth of the original Tenant on the date of this Lease and
(3) proof satisfactory to Landlord of such net worth is delivered
to Landlord promptly following the effective date of any such
transaction, provided, that this Section 15.9(b)(iii) does not
constitute a waiver of any rights or remedies Landlord may have
with respect to this Lease.
(iv) Sublet to Related Entity. Upon prior notice to Landlord,
Tenant may permit any Person which Controls, is Controlled by, or
is under common Control with Tenant (only for so long as such
relationship exists, a "Related Entity") to sublet or assign all
or part of the Premises for any Permitted Use for so long as such
Person remains a Related Entity, provided the requirements set
forth in Section 15.5(a)(F), (J) and (K) and Section
15.9(b)(v)(1)-(3) are satisfied; such sublease shall not be deemed
to vest in any such Related Entity any right or interest in this
Lease or the Premises nor shall it relieve, release, impair or
discharge any of Tenant's obligations hereunder.
(v) Permitted Occupancy by Affiliates. Upon prior notice to
Landlord, Tenant may permit any of Tenant's subsidiaries or
Affiliates to occupy the Premises (only for so long as such Person
shall be a subsidiary or Affiliate of Tenant) for general and
executive office and trading floor use; provided that (1) no
compensation other than intra-corporate cost reimbursement is paid
therefore,
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(2) such occupancy shall not be deemed a subletting or
assignment hereunder and (3) such occupancy shall be subject to
all of the terms and conditions of this Lease.
(c) Applicability. The limitations set forth in this Section 15.9
shall apply to subtenant(s) and assignee(s) of this Lease, if any, and
any transfer by any such entity in violation of the limitations set
forth in this Section 15.9 shall be a transfer in violation of Section
15.1.
(d) Takeover Agreements. Any amendment or extension of a sublease
and/or any other agreement by which a landlord (or its affiliate) of a
building other than the Building agrees to assume or perform the
obligations of Tenant under this Lease shall be deemed a sublease for
the purposes of Section 15.1 hereof.
Section 15.10 Assumption of Obligations. Any assignment or transfer,
whether made with Landlord's consent or without Landlord's consent, if and to
the extent permitted hereunder, shall not be effective unless and until the
assignee executes, acknowledges and delivers to Landlord (a) an agreement in
form and substance satisfactory to Landlord whereby the assignee (i) assumes
Tenant's obligations under this Lease and (ii) agrees that, notwithstanding such
assignment or transfer, the provisions of Section 15.1 hereof shall be binding
upon it in respect of all future assignments and transfers and (b) certificates
or policies of insurance as required under Article 12.
Section 15.11 Tenant's Liability. The joint and several liability of
Tenant and any successors-in-interest of Tenant and the due performance of
Tenant's obligations under this Lease shall not be discharged, released or
impaired by any agreement or stipulation made by Landlord, or any grantee or
assignee of Landlord, extending the time, or modifying any of the terms and
provisions of this Lease, or by any, waiver or failure of Landlord, or any
grantee or assignee of Landlord, to enforce any of the terms and provisions of
this Lease.
Section 15.12 Listings in Building Directory. The listing of any name
other than that of Tenant on the doors of the Premises, any Building directory
or elsewhere shall not vest any right or interest in this Lease or in the
Premises, nor be deemed to constitute Landlord's consent to any assignment or
transfer of this Lease or to any sublease of the Premises or to the use or
occupancy thereof by others. Any such listing shall constitute a privilege
revocable in Landlord's discretion by notice to Tenant.
Section 15.13 Lease Disaffirmance or Rejection. If at any time after an
assignment by Tenant named herein, this Lease is disaffirmed or rejected in any
proceeding of the types described in Sections 18.1(e) and (f) hereof or any
similar proceeding, or upon a termination of this Lease due to any such
proceeding, Tenant named herein, upon request of Landlord given within 30 days
after such disaffirmance, rejection or termination (and actual notice thereof to
Landlord in the event of a disaffirmance or rejection or in the event of
termination other than by act of Landlord), shall (a) pay to Landlord all Rent
and other charges due and owing by the assignee to Landlord under this Lease to
and including the date of such disaffirmance, rejection or termination, and (b)
as "tenant," enter into a new lease of the Premises with Landlord for a term
commencing on the effective date of such disaffirmance, rejection or termination
and
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ending on the Expiration Date, unless sooner terminated in accordance
therewith, at the same Rent and upon the then executory terms, covenants and
conditions contained in this Lease, except that (i) the rights of Tenant named
herein under the new lease shall be subject to the possessory rights of any
Persons claiming through or under such assignee or by virtue of any statute or
of any order of any court, (ii) such new lease shall require all defaults
existing under this Lease to be cured by Tenant named herein with due diligence,
and (iii) such new lease shall require Tenant named herein to pay all Rent
which, had this Lease not been so disaffirmed, rejected or terminated, would
have become due under the provisions of this Lease after the date of such
disaffirmance, rejection or termination with respect to any period prior
thereto. If Tenant named herein defaults in its obligations to enter into such
new lease for a period of 10 days after Landlord's request, then, in addition to
all other rights and remedies by reason of default, either at law or in equity,
Landlord shall have the same rights and remedies against Tenant named herein as
if it had entered into such new lease and such new lease had thereafter been
terminated as of the commencement date thereof by reason of Tenant's default
thereunder.
ARTICLE 16
ELECTRICITY
Section 16.1 Submeter.
(a) Tenant's demand for, and consumption of, electricity in the
Premises shall be determined by meter or meters installed (or, if
existing, retrofitted) by Landlord at Landlord's expense. Tenant shall
pay for such electric consumption within 15 days after rendition of
bills therefor, which bills shall be rendered by or on behalf of
Landlord separately for each meter.
(b) The amount payable by Tenant for electricity consumed within
the Premises shall be, for any applicable billing period, calculated at
the then applicable rate obtained by Landlord for the Building (i.e.,
Landlord's actual cost), plus (i) Landlord's charge for overhead and
supervision in the amount of 4% of the total electric ▇▇▇▇ and (ii) any
taxes or other charges in connection therewith. If any tax shall be
imposed upon Landlord's receipts from the sale or resale of electrical
energy to Tenant, the pro rata share applicable to the electrical
energy services received by Tenant shall be passed on to, included in
the ▇▇▇▇ of, and paid by Tenant if and to the extent permitted by law.
(c) If the Commencement Date shall occur prior to the installation
of meters in the Premises, then Tenant shall pay $2.50 per rentable
square foot of space in the Premises, per annum (the "Interim Electric
Charge"), on account of Tenant's use of electricity in the Premises for
the period commencing on the Commencement Date and ending on the date
that the meters measuring Tenant's consumption of electricity in the
Premises are installed and are operational. The Interim Electric Charge
shall be paid by Tenant monthly within 10 days after submission of a
▇▇▇▇ therefor.
Section 16.2 Use of Electricity. Landlord shall redistribute or furnish
electricity to or for the use of Tenant in the Premises for the operation of
Tenant's electrical systems and
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equipment in the Premises, at a level sufficient to accommodate a connected load
of 5.5 ▇▇▇▇▇ per useable square foot of office space in the Premises (excluding
HVAC) (the "Permitted Capacity"). Tenant shall at all times comply with the
rules and regulations of the utility company supplying electricity to the
Building. Tenant shall not use any electrical equipment which, in Landlord's
reasonable judgment, would exceed the Permitted Capacity or interfere with
electrical service to other tenants of the Building. Tenant shall not make or
perform, or permit the making or performance of, any Alterations to wiring
installations or other electrical facilities in or serving the Premises, or make
any additions to the office equipment or other appliances in the Premises which
utilize electrical energy (other than ordinary small office equipment) without
the prior consent of Landlord, in each instance, which consent shall not be
unreasonably withheld or delayed, and in compliance with this Lease.
Section 16.3 Service Disruption. Landlord shall not be liable in any
way to Tenant for any failure, defect or interruption of, or change in the
supply, character and/or quantity of, electric service furnished to the Premises
for any reason except if attributable solely to the gross negligence or willful
misconduct of Landlord (but in no event shall Landlord be responsible for any
consequential damages), nor shall there be any allowance to Tenant for a
diminution of rental value, nor shall the same constitute an actual or
constructive eviction of Tenant, in whole or in part, or relieve Tenant from any
of its Lease obligations, and no liability shall arise on the part of Landlord
by reason of inconvenience, annoyance or injury to business, whether electricity
is provided by public or private utility or by any electricity generation system
owned and operated by Landlord. In addition to Landlord's obligations under
Section 7.4, Landlord shall use reasonable efforts to minimize interference with
Tenant's use and occupancy of the Premises as a result of any such failure,
defect or interruption of, or change in the supply, character and/or quantity
of, electric service, provided that Landlord shall have no obligation to employ
contractors or labor at overtime or other premium pay rates or to incur any
other overtime costs or additional expenses whatsoever.
Section 16.4 Discontinuance of Service. Landlord reserves the right to
discontinue furnishing electricity to Tenant in the Premises on not less than 30
days notice to Tenant, if Landlord discontinues furnishing electricity to
tenants (including Tenant) leasing an aggregate of at least 50% of the rentable
area of the Building, or is required to do so under applicable Requirements. If
Landlord exercises such right, or is compelled to discontinue furnishing
electricity to Tenant, this Lease shall continue in full force and effect and
shall be unaffected thereby except that from and after the effective date of
such discontinuance, Landlord shall not be obligated to furnish electricity to
Tenant hereunder. If Landlord discontinues furnishing electricity, Landlord
shall use commercially reasonable efforts to facilitate Tenant to obtain
electricity service directly from an alternate utility company or other
electricity provider serving the Premises to the extent available, suitable and
safe for such purposes. All equipment which may be required to obtain
electricity of substantially the same quantity, quality and character shall be
installed by Landlord at the sole cost and expense of (i) Landlord, if Landlord
voluntarily discontinues such service, or (ii) Tenant, if (A) Landlord is
compelled to discontinue such service by the utility company or pursuant to
applicable Requirements, or (B) such discontinuance arises out of the acts or
omissions of Tenant. Landlord will not voluntarily discontinue furnishing
electricity to Tenant until Tenant is able to receive electricity directly from
the utility company or other company servicing the Building, unless the utility
company or other company is not prepared to furnish electricity to the Premises
on the date required as a
48
result of Tenant's Delay or negligence in arranging for service, Tenant's
refusal to provide the utility company or other company with a deposit or other
security requested by the utility company, or Tenant's refusal to take any other
action requested by the utility company or other company.
ARTICLE 17
ACCESS TO PREMISES
Section 17.1 Access.
(a) Landlord's Access to Erect, Use and Maintain Ducts, Pipes and
Conduits. Tenant shall permit Landlord, Landlord's agents, utility
companies and other service providers servicing the Building to erect,
use and maintain ducts, pipes and conduits in and through the Premises
provided such use does not materially reduce the usable area of the
Premises. Landlord shall promptly repair any damage to the Premises or
Tenant's Property caused by any work performed pursuant to this
Article. Any pipes, ducts, or conduits installed in or through the
Premises pursuant to this Section 17.1 shall either be concealed
behind, beneath or within then existing partitioning, columns, ceilings
or floors located in the Premises, or completely furred at points
immediately adjacent to existing partitioning columns or ceilings
located in the Premises. In exercising its rights under this Section
17.1, Landlord shall use reasonable efforts (without use of overtime)
to minimize any interference with Tenant's use of the Premises for the
conduct of Tenant's business.
(b) Right to Inspect and Show. Subject to Landlord's obligation to
use reasonable efforts to minimize interference with Tenant's
occupancy, Landlord, any Lessor or Mortgagee and any other party
designated by Landlord and their respective agents shall have the right
to enter the Premises at all reasonable times, upon reasonable notice
(which notice may be oral) except in the case of emergency, (i) to
examine the Premises, (ii) to show the Premises to prospective
purchasers, Mortgagees or Lessors of the Building and their respective
agents and representatives or others, and during the last 18 months of
the Term to prospective lessees of premises in the Building and (iii)
to make such repairs, alterations or additions to the Premises or the
Building (A) as Landlord may deem necessary or appropriate, including
the right to modify or change the facade of and the windows in the
Building and to install solar film on the windows, (B) which Landlord
may elect to perform following Tenant's failure to perform or (C) to
comply with any Requirements, and Landlord shall be allowed to take all
material into the Premises that may be required for the performance of
such work without the same constituting an actual or constructive
eviction of Tenant in whole or in part and without any abatement of
Rent.
(c) Right to Use and Access for Purpose of Building Operation. All
parts (except surfaces facing the interior of the Premises) of all
walls, windows and doors bounding the Premises, including exterior
Building walls, exterior core corridor walls, and doors and entrances
(other than doors and entrances solely connecting areas within the
Premises),
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all balconies, terraces and roofs adjacent to the Premises, all
space in or adjacent to the Premises used for shafts, stacks, risers,
fan rooms, electrical and communication closets, stairways, mail
chutes, conduits and other mechanical facilities, Building Systems and
Building facilities are not part of the Premises, and Landlord shall
have the use thereof and access thereto through the Premises for the
purposes of Building operation, maintenance, alteration and repair.
Section 17.2 Intentionally Deleted.
Section 17.3 Alterations to Building. Landlord has the right at any
time to (a) change the name, number or designation by which the Building is
commonly known, (b) repair, modify, improve and alter the Building (including,
without limitation, to change the arrangement or location of entrances or
passageways, concourses, plazas, doors and doorways, and corridors, elevators,
stairs, toilets or other public parts of the Building) without any such acts
constituting an actual or constructive eviction and without incurring any
liability to Tenant, so long as same does not deny Tenant access to the Premises
nor materially diminish the character of the Building. Landlord shall use
reasonable efforts to minimize interference with Tenant's use and occupancy of
the Premises during the making of any such changes or alterations, provided that
Landlord shall have no obligation to employ contractors or labor at overtime or
other premium pay rates or to incur any other overtime costs or additional
expenses, except to the extent the changes or alterations are of a nature that
are typically performed at overtime.
ARTICLE 18
DEFAULT
Section 18.1 Tenant's Defaults. Each of the following events shall be
an "Event of Default" hereunder:
(a) Failure to Pay. Tenant fails to pay when due any installment
of (i) Fixed Rent and such default continues for 5 Business Days after
notice of such default is given to Tenant, and (ii) Additional Rent
after such default continues for 10 Business Days after notice of such
default is given to Tenant; except that if Landlord shall have given
two such notices of default in the payment of any Rent in any 12-month
period, Tenant shall not be entitled to any further notice of
delinquency in the payment of any Rent or an extended period in which
to make payment until such time as 12 consecutive months shall have
elapsed without Tenant having failed to make any such payment when due,
and the occurrence of any default in the payment of any Rent within
such 12-month period after the giving of two such notices shall
constitute an Event of Default; or
(b) Breach of Covenant or Condition. Tenant defaults in the
observance or performance of any other term, covenant or condition of
this Lease to be observed or performed by Tenant (other than a default
of the type described in Sections 18.1(a), (c), (d), (e), (f), or (g))
and such default continues for more than 30 days after notice by
Landlord to Tenant of such default; or if such default is of such a
nature that it can be remedied but cannot be completely remedied within
30 days, Tenant fails to commence
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to remedy such default within 30 days after such notice or, with
respect to any such default, Tenant, having commenced such remedy
within 30 days after such notice, fails to diligently prosecute to
completion all steps necessary to remedy such default or Tenant fails
to complete such remedy within 90 days, or such longer reasonable time,
provided, Tenant is diligently undertaking efforts to remedy such
condition; or
(c) Tenant's Interest Shall Devolve. Tenant's interest in this
Lease shall devolve upon or pass to any Person, whether by operation of
law or otherwise, except as expressly permitted under Article 15
hereof; or
(d) Tenant Unable to Pay its Debts. Tenant generally does not, or
is unable to, or admits in writing its inability to, pay its debts as
they become due; or
(e) Voluntary Bankruptcy Petition; Insolvency. Tenant files a
voluntary petition in bankruptcy or insolvency, or is adjudicated a
bankrupt or insolvent, or files any petition or answer seeking any
reorganization, liquidation, dissolution or similar relief under any
present or future federal bankruptcy act or any other present or future
applicable Requirements, or makes an assignment for the benefit of
creditors or seeks or consents to or acquiesces in the appointment of
any trustee, receiver, liquidator or other similar official for Tenant
or for all or any part of Tenant's property; or
(f) Involuntary Bankruptcy Petition. If, within 90 days after the
commencement of any proceeding against Tenant, whether by the filing of
a petition or otherwise, seeking bankruptcy, insolvency,
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any future federal
bankruptcy act or any other present or future applicable Requirements,
such proceeding shall not have been dismissed, or if, within 60 days
after the appointment of any trustee, receiver, liquidator or other
similar official for Tenant or for all or any part of Tenant's
property, without the consent or acquiescence of Tenant, such
appointment shall not have been vacated or otherwise discharged, or if
any lien, execution or attachment or other similar filing shall be made
or issued against Tenant or any of Tenant's property pursuant to which
the Premises shall be taken or occupied or attempted to be taken or
occupied by someone other than Tenant; or
(g) Recourse to Security Deposit. If Landlord applies or retains
any part of the Security Deposit, and Tenant fails to deposit with
Landlord the amount so applied or retained by Landlord, or to provide
Landlord with a replacement Letter of Credit (as defined in Section
37.2), if applicable, within 10 days after notice by Landlord to Tenant
stating the amount applied or retained.
Upon the occurrence of any one or more of such Events of Default,
Landlord may, at its sole option, give to Tenant 3 days notice of cancellation
of this Lease, in which event this Lease and the Term shall come to an end and
expire (whether or not the Term shall have commenced) upon the expiration of
such three day period with the same force and effect as if the date set forth in
the notice was the Expiration Date stated herein; and Tenant shall then quit and
surrender the Premises to Landlord, but Tenant shall remain liable for damages
as provided in Article 19 hereof.
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ARTICLE 19
REMEDIES AND DAMAGES
Section 19.1 Remedies; Tenant's Waiver; Other Remedies.
(a) Landlord's Remedies. If any Event of Default occurs, or this
Lease and the Term terminates as provided in Article 18:
(i) Surrender of Possession. Tenant shall quit and surrender
the Premises to Landlord, and Landlord and its agents may
immediately, or at any time after such Event of Default, re-enter
the Premises or any part thereof, without notice, either by
summary proceedings, or by any other applicable action or
proceeding, or by force (to the extent permitted by applicable
Requirements) or otherwise in accordance with applicable legal
proceedings (without being liable to indictment, prosecution or
damages therefor), and may repossess the Premises and dispossess
Tenant and any other Persons from the Premises and remove any and
all of their property and effects from the Premises.
(ii) Landlord's Reletting. Landlord, at Landlord's option,
may relet all or any part of the Premises from time to time,
either in the name of Landlord or otherwise, to such tenant or
tenants, for any term ending before, on or after the Expiration
Date, at such rental and upon such other conditions (which may
include concessions and free rent periods) as Landlord, in its
sole discretion, may determine. Landlord shall have no obligation
to and shall not be liable for refusal or failure to relet or, in
the event of any such reletting, for refusal or failure to collect
any rent due upon any such reletting; and no such refusal or
failure shall relieve Tenant of or otherwise affect, any liability
under this Lease, except to the extent required by law. Landlord,
at Landlord's option, may make such alterations, decorations and
other physical changes in and to the Premises as Landlord, in its
sole discretion, considers advisable or necessary in connection
with such reletting or proposed reletting, without relieving
Tenant of any liability under this Lease or otherwise affecting
any such liability. In the event Landlord relets the Premises,
Landlord shall credit Tenant with the net rents received by
Landlord from such reletting, such net rents to be determined by
first deducting from the gross rents as and when received by
Landlord from such reletting the expenses incurred or paid by
Landlord in terminating this Lease or in re-entering the Premises
and in securing possession thereof, as well as the expenses of
reletting, including altering and preparing the Premises or any
portion thereof for new tenants, brokers' commissions, advertising
expenses, and all other expenses properly chargeable against the
Premises and the rental therefrom; it being understood that any
such reletting may be for a period shorter or longer than the
remaining Term but in no event shall Tenant be entitled to receive
any excess or such net rents other than sums payable by Tenant to
Landlord hereunder, nor shall Tenant be entitled in any suit for
the collection of damages pursuant to this
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subsection to a credit in respect of any net rents from a
reletting, except to the extent that such net rents are actually
received by Landlord.
(b) Tenant's Waiver. Tenant, on its own behalf and on behalf of
all persons claiming through or under Tenant, including all creditors,
hereby waives all rights which Tenant and all such Persons might
otherwise have under any Requirement (i) to the service of any notice
of intention to re-enter or to institute legal proceedings, (ii) to
redeem, or to re-enter or repossess the Premises, or (iii) to restore
the operation of this Lease, after (A) Tenant shall have been
dispossessed or ejected by judgment or by warrant of any court or
judge, (B) any re-entry by Landlord, or (C) any expiration or early
termination of the term of this Lease, whether such dispossession,
re-entry, expiration or termination shall be by operation of law or
pursuant to the provisions of this Lease. The words "re-enter",
"re-entry" and "re-entered" as used in this Lease shall not be deemed
to be restricted to their technical legal meanings.
(c) Other Remedies. Upon the breach or threatened breach by
Tenant, or any persons claiming through or under Tenant, of any term,
covenant or condition of this Lease, Landlord shall have the right to
enjoin such breach and to invoke any other remedy allowed by applicable
Requirements or in equity as if re-entry, summary proceedings and other
special remedies were not provided in this Lease for such breach. The
rights to invoke the remedies set forth above are cumulative and shall
not preclude Landlord from invoking any other remedy allowed at law or
in equity.
Section 19.2 Landlord's Damages; Reletting.
(a) Landlord's Damages. If this Lease and the Term expire and come
to an end as provided in Article 18, or by or under any summary
proceeding or any other action or proceeding, or if Landlord shall
re-enter the Premises as provided in Section 19.1(a)(1), then, in any
of such events:
(i) Tenant shall pay to Landlord all Rent payable under this
Lease by Tenant to Landlord up to the Expiration Date or to the
date of re-entry upon the Premises by Landlord, as the case may
be;
(ii) Landlord shall be entitled to retain all monies, if any,
paid by Tenant to Landlord, whether as prepaid Rent, any security
deposit or otherwise, and to draw upon any letter of credit or
other security deposited by Tenant hereunder and retain the
proceeds thereof, which monies, to the extent not otherwise
applied to amounts due and owing to Landlord, shall be credited by
Landlord against any damages payable by Tenant to Landlord.
Notwithstanding the foregoing, if the amount of the security
deposit is greater than the damages or any other amount owed to
Landlord, the excess amount shall be returned to Tenant;
(iii) Tenant shall pay to Landlord, in monthly installments,
on the days specified in this Lease for payment of installments of
Fixed Rent, any Deficiency; it being understood that Landlord
shall be entitled to recover the Deficiency from
53
Tenant each month as the same shall arise, and no suit to
collect the amount of the Deficiency for any month, shall
prejudice Landlord's right to collect the Deficiency for any
subsequent month by a similar proceeding; and
(iv) whether or not Landlord shall have collected any monthly
Deficiency, Tenant shall pay to Landlord, on demand, in lieu of
any further Deficiency and as liquidated and agreed final damages,
a sum equal to the amount by which the Rent for the period which
otherwise would have constituted the unexpired portion of the Term
(assuming Additional Rent during such period to be the same as had
been payable for the year immediately preceding such termination
or re-entry, increased in each succeeding year by 4% (on a
compounded basis)) exceeds the then fair and reasonable rental
value of the Premises, for the same period (with both amounts
being discounted to present value at a rate of interest equal to
1% below the then Base Rate) less the aggregate amount of
Deficiencies theretofore collected by Landlord pursuant to the
provisions of Section 19.2(a)(iii) for the same period. If, before
presentation of proof of such liquidated damages to any court,
commission or tribunal, the Premises, or any part thereof, shall
have been relet by Landlord for the period which otherwise would
have constituted the unexpired portion of the Term, or any part
thereof, the amount of rent reserved upon such reletting shall be
deemed, prima facie, to be the fair and reasonable rental value
for the part or the whole of the Premises so relet during the term
of the reletting.
(b) Reletting. If the Premises, or any part thereof, shall be
relet together with other space in the Building, the rents collected or
reserved under any such reletting and the expenses of any such
reletting shall be equitably apportioned for the purposes of this
Section 19.2. Tenant shall not be entitled to any rents collected or
payable under any reletting, whether or not such rents exceed the Fixed
Rent reserved in this Lease. Nothing contained in Articles 18 or 19
shall be deemed to limit or preclude the recovery by Landlord from
Tenant of the maximum amount allowed to be obtained as damages under
applicable Requirements, or of any sums or damages to which Landlord
may be entitled in addition to the damages set forth in this Section
19.2.
Section 19.3 Default Interest; Other Rights of Landlord. Any damages
payable under this Lease and not paid when due shall bear interest at the
Interest Rate from the due date until paid, and the interest shall be deemed
Additional Rent. If Tenant fails to pay any Additional Rent when due, Landlord,
in addition to any other right or remedy, shall have the same rights and
remedies as in the case of a default by Tenant in the payment of Fixed Rent. If
Tenant is in arrears in the payment of Rent, Tenant waives Tenant's right, if
any, to designate the items against which any payments made by Tenant are to be
credited, and Landlord may apply any payments made by Tenant to any items
Landlord sees fit, regardless of any request by Tenant.
ARTICLE 20
LANDLORD'S RIGHT TO CURE; FEES AND EXPENSES
54
Section 20.1 Landlord's Right to Cure. If Tenant defaults in the
performance of its obligations under this Lease, Landlord, without thereby
waiving such default, may perform such obligation for the account and at the
expense of Tenant: (a) immediately or at any time thereafter and without notice,
in the case of emergency or in the case the default (i) materially interferes
with the use by any other tenant of any space in the Building, (ii) materially
interferes with the efficient operation of the Building, (iii) will result in a
violation of any Requirement, (iv) will result in a cancellation of any
insurance policy maintained by Landlord, or (v) will result in a breach of or
default under any Superior Lease or Mortgage, and (b) in any other case if such
default continues after 10 Business Days from the date Landlord gives notice of
Landlord's intention so to perform the defaulted obligation if Tenant does not
cure within such 10 Business Day period. Notwithstanding the foregoing, Landlord
shall use its reasonable efforts to notify Tenant of Landlord's intent to
perform any Tenant obligation, provided, however, that a failure of Landlord to
provide such notice shall not prevent Landlord from collecting its costs from
Tenant nor of calling a default with respect to such Tenant obligation. All
actual costs and expenses incurred by Landlord in connection with any such
performance by it for the account of Tenant and all costs and expenses,
including reasonable counsel fees and disbursements, incurred by Landlord in any
action or proceeding (including any summary dispossess proceeding) brought by
Landlord to enforce any obligation of Tenant under this Lease and/or right of
Landlord in or to the Premises, shall be paid by Tenant to Landlord on demand,
with interest thereon at the Interest Rate from the date incurred by Landlord.
Except as expressly provided to the contrary in this Lease, all out-of-pocket
costs and expenses which, pursuant to this Lease (including the Rules and
Regulations) are incurred by Landlord and payable to Landlord by Tenant, and all
charges, amounts and sums payable to Landlord by Tenant for any property,
material, labor, utility or other services which, pursuant to this Lease or at
the request and for the account of Tenant, are provided, furnished or rendered
by Landlord, shall become due and payable by Tenant to Landlord in accordance
with the terms of the bills rendered by Landlord to Tenant.
Section 20.2 Reimbursement For Tenant's Default. Tenant shall reimburse
Landlord, within 10 days after demand, for all actual expenditures (including
reasonable attorney fees and disbursements) made by, or damages, costs or fines
sustained or incurred by, Landlord due to any default by Tenant under this
Lease, with interest thereon at the Interest Rate, from the date such
expenditures were made, or damages, costs or fines incurred, until the date
reimbursed by Tenant.
ARTICLE 21
NO REPRESENTATIONS BY LANDLORD: LANDLORD'S APPROVAL
Section 21.1 No Representations. Except as expressly set forth herein, Landlord
and Landlord's agents have made no warranties, representations, statements or
promises with respect to (i) the rentable and usable areas of the Premises or
the Building, (ii) the amount of any current or future Taxes or Wage Rate, (iii)
the compliance with applicable Requirements of the Premises or the Building, or
(iv) the suitability of the Premises for any particular use or purpose. No
rights, easements or licenses are acquired by Tenant under this Lease by
implication or
55
otherwise. Tenant is entering into this Lease after full investigation and is
not relying upon any statement or representation made by Landlord not embodied
in this Lease.
Section 21.2 Consents; Approvals. All references in this Lease to the
consent or approval of Landlord mean the written consent or approval of
Landlord, duly executed by Landlord. All consents or approvals of Landlord may
be granted or withheld in Landlord's sole discretion unless specifically
provided to the contrary in this Lease.
Section 21.3 No Money Damages. Wherever in this Lease Landlord's
consent or approval is required, if Landlord refuses to grant such consent or
approval, whether or not Landlord expressly agreed that such consent or approval
would not be unreasonably withheld, Tenant shall not make, and Tenant hereby
waives, any claim for money damages (including any claim by way of set-off,
counterclaim or defense) based upon Tenant's claim or assertion that Landlord
unreasonably withheld or delayed its consent or approval. Tenant's sole remedy
shall be an action or proceeding to enforce such provision, by specific
performance, injunction or declaratory judgment. In no event shall Landlord be
liable for, and Tenant, on behalf of itself and all other Tenant Parties, hereby
waives any claim for, any indirect, consequential or punitive damages, including
loss of profits or business opportunity, arising under or in connection with
this Lease, even if due to the gross negligence or willful misconduct of
Landlord of its agents or employees. Notwithstanding the foregoing, and solely
with respect to a dispute over Landlord's refusal to grant any consent or
approval under this Lease where Landlord's consent or approval is expressly
required not to be unreasonably withheld, Tenant shall be entitled and Landlord
agrees to submit such dispute to expedited arbitration before the American
Arbitration Association.
Section 21.4 Miscellaneous. Notwithstanding the foregoing, Landlord
represents and warrants that, as of the date hereof, Landlord is the sole owner
of fee title to the Building subject to no ground leases. Landlord's interest in
the Building is subject to that certain Amended and Restated Mortgage,
Assignment of Leases and Rents and Security Agreement dated January 14, 2004
between Landlord and ▇▇▇▇▇▇ Brothers Holdings Inc.
ARTICLE 22
END OF TERM
Section 22.1 Expiration. Upon the expiration or other termination of
this Lease, Tenant shall quit and surrender the Premises to Landlord, vacant,
broom clean and in good order and condition, ordinary wear and tear and damage
for which Tenant is not responsible under the terms of this Lease excepted, and
Tenant shall remove all of Tenant's Property and Tenant's Specialty Alterations
as may be required pursuant to Article 5 of this Lease. The foregoing obligation
shall survive the expiration or sooner termination of the Term. If the last day
of the Term or any renewal thereof falls on Saturday or Sunday, this Lease shall
expire on the immediately preceding Business Day.
Section 22.2 Holdover Rent. Landlord and Tenant recognize that the
damage to Landlord resulting from any failure by Tenant to timely surrender
possession of the Premises
56
may be substantial, may exceed the amount of the Rent theretofore payable
hereunder, and will be impossible to measure accurately. Tenant therefore agrees
that if possession of the Premises is not surrendered to Landlord on or before
the Expiration Date or sooner termination of the Term, in addition to any other
rights or remedies Landlord may have hereunder or at law, Tenant shall (a) pay
to Landlord for each month (or any portion thereof) during which Tenant holds
over in the Premises after the Expiration Date or sooner termination of the
Term, a sum equal to the greater of (A) one and three-quarters (1 3/4) times the
Rent payable under this Lease for the last full calendar month of the Term and
(B) the fair market rental value of the Premises for such month (as reasonably
determined by Landlord), (b) be liable to Landlord for (i) any payment or rent
concession which Landlord may be required to make to any tenant obtained by
Landlord for all or any part of the Premises (a "New Tenant") in order to induce
such New Tenant not to terminate its lease by reason of the holding-over by
Tenant, and (ii) the loss of the benefit of the bargain if any New Tenant shall
terminate its lease by reason of the holding-over by Tenant, and (c) indemnify
Landlord against all claims for damages by any New Tenant. No holding-over by
Tenant, nor the payment to Landlord of the amounts specified above, shall
operate to extend the Term hereof. Nothing herein contained shall be deemed to
permit Tenant to retain possession of the Premises after the Expiration Date or
sooner termination of this Lease (including, without limitation, pursuant to any
month-to-month or other periodic tenancy) and no acceptance by Landlord of
payments from Tenant after the Expiration Date or sooner termination of the Term
shall be deemed to be other than on account of the amount to be paid by Tenant
in accordance with the provisions of this Article 22. All of Tenant's
obligations under this Article shall survive the expiration or earlier
termination of the Term of this Lease.
Section 22.3 Waiver of Stay. Tenant expressly waives, for itself and
for any Person claiming through or under Tenant, any rights which Tenant or any
such Person may have under the provisions of Section 2201 of the New York Civil
Practice Law and Rules and of any successor law of like import then in force, in
connection with any holdover summary proceedings which Landlord may institute to
enforce the foregoing provisions of this Article 22.
ARTICLE 23
QUIET ENJOYMENT
Provided this Lease is in full force and effect and no Event
of Default then exists, Tenant may peaceably and quietly enjoy the Premises
without hindrance by Landlord or any Person lawfully claiming through or under
Landlord subject to the terms and conditions of this Lease and to all Superior
Leases and Mortgages.
ARTICLE 24
NO SURRENDER; NO WAIVER
57
Section 24.1 No Surrender or Release. No act or thing done by Landlord
or Landlord's agents or employees during the Term shall be deemed an acceptance
of a surrender of the Premises, and no provision of this Lease shall be deemed
to have been waived by Landlord, unless such waiver is in writing and is signed
by Landlord, and any such waiver shall be effective only for the specific
purpose and in the specific instance in which given. If Tenant at any time
desires to have Landlord sublet the Premises for Tenant's account, Landlord or
Landlord's agents are authorized to receive Tenant's keys to the Premises for
such purpose without releasing Tenant from any of the obligations under this
Lease, and Tenant hereby relieves Landlord of any liability for loss of or
damage to any of Tenant's effects in connection with such subletting.
Section 24.2 No Waiver. The failure of either party to seek redress for
violation of, or to insist upon the strict performance of, any covenant or
condition of this Lease, or any of the Rules and Regulations, shall not be
construed as a waiver or relinquishment of the future performance of such
obligations of this Lease or the Rules and Regulations, or of the right to
exercise such election but the same shall continue and remain in full force and
effect with respect to any subsequent breach, act or omission. The receipt by
Landlord of any Rent payable pursuant to this Lease or any other sums with
knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly Fixed Rent or Additional Rent herein stipulated shall be
deemed to be other than a payment on account of the earliest stipulated Fixed
Rent or Additional Rent, or as Landlord may elect to apply such payment, nor
shall any endorsement or acceptance of any check or other payment in the face of
a statement on such check or any letter accompanying such check or payment be
deemed an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such Fixed Rent
or Additional Rent or pursue any other remedy provided in this Lease. The
existence of a right of renewal or extension of this Lease, or the exercise of
such right, shall not limit Landlord's right to terminate this Lease in
accordance with the terms hereof.
ARTICLE 25
WAIVER OF TRIAL BY JURY
LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY
MATTERS IN ANY WAY ARISING OUT OF OR CONNECTED WITH THIS LEASE, THE RELATIONSHIP
OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES, OR THE
ENFORCEMENT OF ANY REMEDY UNDER ANY REQUIREMENT. If Landlord commences any
summary proceeding against Tenant, Tenant will not interpose any counterclaim of
any nature or description in any such proceeding (unless failure to impose such
counterclaim would preclude Tenant from asserting in a separate action the claim
which is the subject of such counterclaim), and will not seek to consolidate
such proceeding with any other action which may have been or will be brought in
any other court by Tenant.
58
ARTICLE 26
INABILITY TO PERFORM
Landlord shall use reasonable efforts to promptly notify
Tenant of any Unavoidable Delay that prevents Landlord from fulfilling any of
its obligations under this Lease.
ARTICLE 27
NOTICES
Except as otherwise expressly provided in this Lease,
consents, notices, demands, requests, approval or other communications given
under this Lease shall be in writing and shall be deemed sufficiently given or
rendered if delivered by hand (provided a signed receipt is obtained) or if sent
by registered or certified mail (return receipt requested) or by a nationally
recognized overnight delivery service making receipted deliveries or by
facsimile transmission (provided confirmation of such transmission is obtained
and a copy of the notice is sent by one of the other permitted means), addressed
as follows:
If to Tenant
------------
(If given prior to the Commencement Date): ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(If given on or after the Commencement Date): Independent Research Group LLC
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
59
if to Landlord: 44 Wall Owner, LLC
-------------- c/o Swig ▇▇▇▇▇▇ Equities, LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: any Mortgagee or Lessor which shall have
requested copies of notices, by notice given
to Tenant in accordance with the provisions
of this Article 27 at the address designated
by such Mortgagee or Lessor.
or to such other address(es) as either Landlord or Tenant or
any Mortgagee or Lessor may designate as its new address) for such purpose by
notice given to the other in accordance with the provisions of this Article 27.
Any such approval, consent, notice, demand, request or other communication shall
be deemed to have been given on the date of receipted delivery or refusal to
accept delivery as provided in this Article 27 or the date delivery is first
attempted but cannot be made due to a change of address of which no notice was
given.
ARTICLE 28
RULES AND REGULATIONS
Tenant and all Tenant Parties shall observe and comply with
the existing Rules and Regulations and any Rules and Regulations that are
hereinafter enacted and universally applied to all office tenants of the
Building, as supplemented or amended from time to time, provided that in case of
any conflict or inconsistency between the provisions of this Lease and any of
the Rules and Regulations as originally promulgated or as supplemented or
amended from time to time, the provisions of this Lease shall control. Landlord
reserves the right, from time to time, to adopt additional Rules and Regulations
and to amend the Rules and Regulations then in effect. Nothing contained in this
Lease shall impose upon Landlord any obligation to enforce the Rules and
Regulations or terms, covenants or conditions in any other lease against any
other Building tenant, and Landlord shall not be liable to Tenant for violation
of the Rules and Regulations by any other tenant, its employees, agents,
visitors or licensees, except that Landlord shall not enforce any Rule or
Regulation against Tenant in a discriminatory fashion.
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ARTICLE 29
PARTNERSHIP TENANT
Section 29.1 Partnership Tenant. If Tenant, or a permitted assignee of
this Lease pursuant to Article 15 hereof, is a partnership, or is comprised of
two or more Persons, individually or as partners of a partnership (any such
partnership and such Persons are referred to in this Article as "Partnership
Tenant"), the following shall apply: (a) the liability of each of the general
partners (excluding Persons solely holding interests as limited partners), each
of the partners in a limited liability partnership or Persons comprising
Partnership Tenant (the "Partners") shall be joint and several; (b) each of the
Partners hereby consents in advance to, and agrees to be bound by, any written
instrument which may hereafter be executed by Partnership Tenant or any of the
Partners, which shall modify, extend or discharge this Lease, in whole or in
part, or surrender all or any part of the Premises to Landlord; (c) any bills,
statements, notices, demands, requests or other communications given or rendered
to Partnership Tenant or to any of the Partners shall be binding upon
Partnership Tenant and all of the Partners; (d) if Partnership Tenant shall
admit new Partners, all new Partners shall, by their admission to Partnership
Tenant, be deemed to have assumed joint and several liability for the
performance of all of the terms, covenants and conditions of this Lease on
Tenant's part to be observed and performed; (e) Partnership Tenant shall give
prompt notice to Landlord of the admission of any new Partners, and upon demand
of Landlord, shall cause each such new partner to execute and deliver to
Landlord an agreement in form and substance satisfactory to Landlord, wherein
each new Partner shall assume joint and several liability for the performance of
all the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed (but neither Landlord's failure to request any such
agreement nor the failure of any new Partner to execute or deliver any such
agreement to Landlord shall vitiate the provisions of this Section 29.1(e); and
(f) no change in the Partners of Partnership Tenant resulting from the admission
of a new Partner, or the death, retirement or withdrawal of a Partner shall
release Partnership Tenant or any Partner or former Partner from their
obligations under this Lease.
Section 29.2 Change of Partners. If Tenant is a Partnership Tenant, (a)
the admission of new Partners, the withdrawal (in the ordinary course of
business), retirement, death, incompetency or bankruptcy of any Partner, or the
reallocation of partnership interests among the Partners shall constitute an
assignment of this Lease unless Partners holding in the aggregate not less than
80% of the partnership interests in Partnership Tenant immediately prior to such
event remain as Partners holding not less than 80% of the partnership interests
in Partnership Tenant during the 12-month period immediately following such
event (i.e., the transfer, by any of the foregoing means, of more than 20% of
the partnership interests in Partnership Tenant in any consecutive 12-month
period shall constitute an assignment of this Lease subject to the provisions of
Article 15), and (b) the reorganization of Partnership Tenant into a
professional corporation or a limited liability partnership, or the
reorganization of Tenant from a professional corporation or a limited liability
partnership into a partnership, shall constitute an assignment of this Lease
unless immediately following such reorganization the Partners or shareholders,
as the case may be, of Tenant shall be the same as those existing immediately
prior to such reorganization, and shall acknowledge in writing to Landlord that
they remain fully liable, jointly and severally, under this Lease as provided in
this Article 29. If Tenant shall become a
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professional corporation, each individual shareholder, shareholder-employee, new
individual shareholder and new shareholder-employee of any professional
corporation which is a shareholder in Tenant shall have the same personal
liability (if any) as such individual or shareholder-employee would have under
this Lease if Tenant were a partnership and such individual or
shareholder-employee were a Partner or admitted as a new Partner. If any
individual Partner in Tenant is or becomes a shareholder-employee of a
professional corporation, such individual shall have the same personal liability
under this Lease as such individual would have if he and not the professional
corporation were a Partner of Tenant. If Tenant shall become a limited liability
partnership, (i) each Partner therein shall continue to have the same personal
liability as such Partner had under this Lease prior to Tenant becoming a
limited liability partnership, and (ii) each new partner admitted to such
limited liability partnership shall be bound by the provisions of Section 29.1,
and shall execute and deliver to Landlord the assumption agreement required
pursuant to Section 29.1(e) hereof.
ARTICLE 30
VAULT SPACE
Notwithstanding anything contained in this Lease or indicated
on any sketch, blueprint or plan, no vaults, vault space or other space outside
the boundaries of the Real Property are included in the Premises. Landlord makes
no representation as to the location of the boundaries of the Real Property. All
vaults and vault space and all other space outside the boundaries of the Real
Property that Tenant may be permitted to use or occupy are to be used or
occupied under a revocable license. If any such license shall be revoked, or if
the amount of such space shall be diminished as required by any Governmental
Authority or by any public utility company, such revocation, diminution or
requisition shall not (i) constitute an actual or constructive eviction, in
whole or in part, (ii) entitle Tenant to any abatement or diminution of Rent,
(iii) relieve Tenant from any of its obligations under this Lease, or (iv)
impose any liability upon Landlord. Any fee, tax or charge imposed by any
Governmental Authority for any such vaults, vault space or other space occupied
by Tenant shall be paid by Tenant.
ARTICLE 31
BROKER
Each of Landlord and Tenant represents and warrants to the other that
it has not dealt with any broker in connection with this Lease other than the
Broker and that, to the best of its knowledge and belief, no other broker,
finder or like entity procured or negotiated this Lease or is entitled to any
fee or commission in connection herewith. Each of Landlord and Tenant shall
indemnify, defend, protect and hold the other party harmless from and against
any and all Losses which the indemnified party may incur by reason of any claim
of or liability to any broker, finder or like agent (other than the Broker)
arising out of any dealings claimed to have occurred between the indemnifying
party and the claimant in connection with this Lease, or the above
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representation being false. Landlord shall be responsible for the commission due
and payable to the Broker pursuant to a separate agreement.
ARTICLE 32
INDEMNITY
Section 32.1 Tenant's Indemnity.
(a) Indemnification. Tenant or any Tenant Party shall not do or
permit to be done any act or thing upon the Premises or the Building
which may subject Landlord to any liability or responsibility for
injury, damages to persons or property or to any liability by reason of
any violation of law or of any Requirement, and shall exercise such
control over the Premises as to fully protect the Indemnitees against
any such liability. Tenant shall indemnify, defend, protect and hold
harmless each of the Indemnitees from and against any and all Losses,
resulting from any claims (i) against the Indemnitees arising from any
act, omission or negligence of any Tenant Party or any accident, injury
or damage whatsoever in or about the Premises (except to the extent
caused by or arising out of the willful misconduct or gross negligence
of Landlord or any of the Indemnitees) caused to any person or to the
property of any person and occurring during the Term or during the
period of time, if any, prior to the commencement or following the
expiration of the Term that any Tenant Party may have been given access
to any portion of the Premises for the purpose of performing work or
otherwise, in or about the Premises, and (ii) against the Indemnitees
resulting from any breach, violation or nonperformance of any covenant,
condition or agreement of this Lease on the part of Tenant to be
fulfilled, kept, observed and performed.
(b) Indemnity Inclusions. As used in this Lease, the term "Losses"
means any and all losses, liabilities, damages, claims, judgments,
fines, suits, demands, costs, interest and expenses of any kind or
nature (including reasonable attorneys' fees and disbursements)
incurred in connection with any claim, proceeding or judgment and the
defense thereof, and including all costs of repairing any damage to the
Premises or the Building or the appurtenances of any of the foregoing
to which a particular indemnity and hold harmless agreement applies.
Section 32.2 Defense and Settlement. If any claim, action or proceeding
is made or brought against any Indemnitee, then upon demand by an Indemnitee,
Tenant, at its sole cost and expense, shall resist or defend such claim, action
or proceeding in the Indemnitee's name (if necessary), by attorneys approved by
the Indemnitee, which approval shall not be unreasonably withheld. Attorneys for
Tenant's insurer shall hereby be deemed approved for purposes of this Section
32.2. Notwithstanding the foregoing, an Indemnitee may retain its own attorneys
to participate or assist in defending any claim, action or proceeding involving
potential liability of $750,000 or more, provided that Tenant shall control the
defense and Tenant shall pay the reasonable fees and disbursements of such
attorneys. Notwithstanding anything herein contained to the contrary, Tenant may
direct the Indemnitee to settle any claim, suit or other proceeding, provided
that (a) such settlement shall involve no obligation on the part of the
Indemnitee other
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than the payment of money, (b) any payments to be made pursuant to such
settlement shall be paid in full exclusively by Tenant at the time such
settlement is reached, (c) such settlement shall not require the Indemnitee to
admit any liability, and (d) the Indemnitee shall have received an unconditional
release from the other parties to such claim, suit or other proceeding. The
provisions of this Article 32 shall survive the expiration or earlier
termination of this Lease.
ARTICLE 33
ADJACENT EXCAVATION; SHORING
If an excavation shall be made, or shall be authorized to be
made, upon land adjacent to the Real Property, Tenant shall, upon notice, afford
to the Person causing or authorized to cause such excavation license to enter
upon the Premises for the purpose of doing such work as such Person shall deem
necessary to preserve the wall or the Building from injury or damage and to
support the same by proper foundations. In connection with such license, Tenant
shall have no right to claim any damages or indemnity against Landlord, or
diminution or abatement of Rent, provided that Tenant shall continue to have
access to the Premises.
ARTICLE 34
ICIP
Section 34.1 Industrial and Commercial Incentive Program.
(a) For purposes of this Section 34.1, the term "Project" shall
mean, collectively, (i) the performance by Landlord of Landlord's Work
and (ii) the performance by Tenant of any Alterations in the Premises
or the Building. All other terms used herein, unless otherwise defined
in this Lease, shall have the meanings ascribed to them in Sections
11-256 through 11-267 of the Administrative Code of the City of New
York, authorized by Title 2-D of Article 4 of the New York Real
Property Tax Law and all rules and regulations promulgated thereunder
(herein collectively called the "Industrial and Commercial Incentive
Program" or the "ICIP Program").
(b) Landlord hereby notifies Tenant that Landlord is seeking the
benefits and entitlements provided by Section 489-bbbb, Subdivision 5
of the ICIP Program. Tenant agrees to comply (and, with respect to any
contractors and subcontractors performing work on the Project, to
include or require, as the case may be, provisions in their contracts
and subcontracts requiring such contractors and subcontractors to
comply, and promptly following receipt of notice of any failure of such
contractors or subcontractors to comply, to use reasonable efforts to
enforce such contractual obligations to comply, including, without
limitation, by way of the termination of such contracts and/or
subcontracts) with all applicable provisions, regulations and
requirements of the ICIP Program so that the Building will receive the
benefits and entitlements provided by the ICIP Program (the "ICIP
Benefits").
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(c) (i) Tenant shall, prior to the performance of any Alterations
in or to the Premises or the Building, or the issuance of any building
permits or award of any construction contracts in connection therewith,
notify Landlord of its intent to perform such Alterations and the
estimated cost thereof in order to enable Landlord to include such
Alterations in the Building's application for ICIP Benefits.
(ii) Tenant hereby agrees that it will submit any proofs of
expenditure, plans, reports, certificates of continuing use and other
submissions that may be required to qualify for the ICIP Benefits that
may be available in connection with the Project (the "ICIP
Submissions") as and within the time periods required by the applicable
rules and regulations of any ICIP Submissions required to be made to
the New York City Department of Finance ("DOF"), the New York City
Department of Business Services ("DBS") or the New York City Office of
Labor Services ("OLS"), and will attend any meetings required by the
DOF, DBS or OLS or any other governmental agency charged with
administration or enforcement of the ICIP Program.
(d) (i) Tenant acknowledges that the ICIP Program imposes certain
requirements with respect to the hiring and training practices, among
other matters, of construction managers, contractors and subcontractors
(collectively herein called "Tenant's Contractors") engaged to perform
work in the Building for Building tenants. Accordingly, in order to
ensure that no actions taken by Tenant's Contractors will cause the
Building to fail to qualify for or to lose the ICIP Benefits, Tenant
shall use only such Tenant's Contractors that qualify under and
otherwise satisfy the requirements of the ICIP Program for performance
of work comprising part of the Project.
(ii) (A) All of Tenant's Contractors employed in connection
with the Project shall be contractually required by Tenant to
comply with the provisions of the ICIP Program, including without
limitation the OLS requirements applicable to construction
projects benefiting from the ICIP Program. Such compliance, as of
the date hereof, includes without limitation the following: the
submission and approval of Construction Employment Report(s), and
other periodic reports, attendance at a pre-construction
conference and other conferences with representatives of the OLS
and adherence to the provisions of Article 22 of the ICIP Rules
and Regulations, the provisions of New York City Charter Chapter
13-B and the provisions of Executive Order No. 50 (1980) and the
rules and regulations promulgated thereunder. Tenant hereby agrees
that it shall indemnify and hold harmless Landlord and its
members, partners, directors, officers, agents and employees from
and against any and all claims, loss, damage, liability, cost or
expense arising from or in connection with any failure by Tenant
or Tenant's Contractors to comply with the provisions of the ICIP
Program. If Landlord is notified of any violation of the ICIP
Program by Tenant's Contractors, Landlord shall promptly advise
Tenant thereof and send a copy of such notice to Tenant, and
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Tenant will take all appropriate diligent steps to cause Tenant's
Contractors to cure such violations.
(B) At Landlord's request, to the extent required to enable
Landlord to file annual certificates of continuing use as required
by the ICIP Program and/or to continue to receive the ICIP
Benefits, Tenant shall (i) report to Landlord the use of the
Premises, the number of workers permanently engaged in employment
in the Premises, the nature of each worker's employment, the
number of such workers who reside in New York City and the New
York City residency of each worker, (ii) provide access to the
Premises by employees and agents of any governmental agency
enforcing the ICIP Program (including, without limitation, the
DOF) at all reasonable times, upon reasonable notice when
requested by Landlord and (iii) enforce the contractual
obligations of Tenant's Contractors to comply with the OLS
requirements.
(e) Tenant hereby agrees that it shall indemnify and hold
harmless Landlord and its members, partners, directors, officers,
agents and employees from and against any and all claims, loss,
damage, liability, cost or expense arising from the Building's
failure to qualify for or the loss of the ICIP Benefits as a
result of Tenant's failure to comply with its obligations set
forth in this Section 34.1 or any requirement of the ICIP Program,
or as a result of Tenant's Contractors failure to comply with any
requirement of the ICIP Program.
ARTICLE 35
INTENTIONALLY DELETED
ARTICLE 36
MISCELLANEOUS
Section 36.1 Delivery. This Lease shall not be binding upon Landlord
unless and until Landlord shall have executed and delivered a fully executed
copy of this Lease to Tenant.
Section 36.2 Transfer of Real Property. Landlord's obligations under
this Lease shall not be binding upon the Landlord named herein after the sale,
conveyance, assignment or transfer or lease of Landlord's interest (collectively
a "Transfer") by Landlord (or upon any subsequent landlord after the Transfer by
such subsequent landlord) of its interest in the Building or the Real Property,
as the case may be, and in the event of any such Transfer, Landlord (and any
such subsequent landlord) shall be entirely freed and relieved of all covenants
and obligations of Landlord hereunder (provided Landlord has transferred any
Security Deposit given by the Tenant), and the transferee of Landlord's interest
(or that of such subsequent
66
landlord) in the Building or the Real Property, as the case may be, shall be
deemed to have assumed all obligations under this Lease.
Section 36.3 Limitation on Liability. The liability of Landlord for
Landlord's obligations under this Lease shall be limited to Landlord's interest
from time to time in the Real Property and Tenant and any Tenant Party shall not
look to any other property or assets of Landlord or the property or assets of
any Indemnitees in seeking either to enforce Landlord's obligations under this
Lease or to satisfy a judgment for Landlord's failure to perform such
obligations; and none of the Indemnitees shall be personally liable for the
performance of Landlord's obligations under this Lease.
Section 36.4 Rent. Notwithstanding anything to the contrary contained
in this Lease, all amounts payable by Tenant to or on behalf of Landlord under
this Lease, whether or not expressly denominated Fixed Rent, Tenant's Tax
Payment, Tenant's Operating Payment, Additional Rent or Rent, shall constitute
rent for the purposes of Section 502(b)(6) of the United States Bankruptcy Code
and other Requirements.
Section 36.5 Entire Agreement. This Lease (including any Schedules and
Exhibits referred to herein and all supplementary agreements provided for
herein) contains the entire agreement between the parties and all prior
negotiations and agreements are merged into this Lease. All of the Schedules and
Exhibits attached hereto are incorporated in and made a part of this Lease,
provided that in the event of any inconsistency between the terms and provisions
of this Lease and the terms and provisions of the Schedules and Exhibits hereto,
the terms and provisions of this Lease shall control. All Article and Section
references set forth herein shall, unless the context otherwise requires, be
deemed references to the Articles and Sections of this Lease.
Section 36.6 Governing Law. This Lease shall be governed in all
respects by the laws of the State of New York applicable to agreements made and
to be performed wholly within the State.
Section 36.7 Unenforceability. If any provision of this Lease, or its
application to any Person or circumstance, shall ever be held to be invalid or
unenforceable, then in each such event the remainder of this Lease or the
application of such provision to any other Person or any other circumstance
(other than those as to which it shall be invalid or unenforceable) shall not be
thereby affected, and each provision hereof shall remain valid and enforceable
to the fullest extent permitted by applicable Requirements.
Section 36.8 Consent to Jurisdiction; Waiver of Immunity.
(a) Consent to Jurisdiction. Except as expressly provided to the
contrary in this Lease, Tenant and any Tenant Party agree that all
disputes arising, directly or indirectly, out of or relating to this
Lease, and all actions to enforce this Lease, shall be dealt with and
adjudicated in the state courts of the State of New York or the federal
courts for the Southern District of New York; and for that purpose
Tenant and any Tenant Party expressly and irrevocably submit themselves
to the jurisdiction of such courts. Tenant and any Tenant Party agree
that so far as is permitted under applicable Requirements, this
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consent to personal jurisdiction shall be self-operative and no
further instrument or action, other than service of process in one of
the manners specified in this Lease, or as otherwise permitted by
applicable Requirements, shall be necessary in order to confer
jurisdiction upon it in any such court. Tenant and any Tenant Party
further agree that judgment against them in any such action or
proceeding shall be conclusive and, to the extent permitted by
applicable Requirements, may be enforced in any other jurisdiction
within or outside the United States of America by suit on the judgment,
a certified or exemplified copy of which shall be conclusive evidence
of the fact and of the amount of its indebtedness.
(b) Waiver of Immunity. To the extent that Tenant and any Tenant
Party have or hereafter may acquire any immunity from jurisdiction of
any court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property, Tenant
irrevocably waives such immunity in respect of its obligations under
this Lease.
Section 36.9 Landlord's Agent. Unless Landlord shall render written
notice to Tenant to the contrary, Landlord's Agent is authorized to act as
Landlord's agent in connection with the performance of this Lease, and Tenant
shall direct all correspondence and requests to, and shall be entitled to rely
upon correspondence received from, Landlord's Agent, as agent for Landlord in
accordance with Article 27. Tenant acknowledges that Landlord's Agent is acting
solely as agent for Landlord in connection with the foregoing; and neither
Landlord's Agent nor any of its direct or indirect partners, officers,
shareholders, directors, employees, principals, agents or representatives shall
have any liability to Tenant in connection with the performance of this Lease,
and Tenant waives any and all claims against any and all of such parties arising
out of, or in any way connected with, this Lease, the Building or the Real
Property.
Section 36.10 Estoppels. Within 7 days following request from Landlord,
any Mortgagee or any Lessor, Tenant shall deliver to Landlord a written
statement executed and acknowledged by Tenant, in form satisfactory to Landlord,
(a) stating the Commencement Date, and the Expiration Date, and that
this Lease is then in full force and effect and has not been
modified (or if modified, setting forth all modifications) and,
if requested, certifying as to a copy of this Lease, as it may
have been amended,
(b) setting forth the date to which the Fixed Rent and any
Additional Rent have been paid, together with the amount of
monthly Fixed Rent and Tenant's Tax Payment then payable,
(c) stating whether or not, to the best of Tenant's knowledge,
Landlord is in default under this Lease, and, if Tenant asserts
that Landlord is in default, setting forth the specific nature of
any such defaults,
(d) stating whether Landlord has failed to complete any work
required to be performed by Landlord under this Lease,
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(e) stating whether there are any sums payable to Tenant by Landlord
under this Lease,
(f) stating the amount of the Security Deposit, if any, under this
Lease,
(g) stating whether there are any subleases or assignments affecting
the Premises,
(h) stating the address of Tenant to which all notices and
communications under the Lease shall be sent, and
(i) responding to any other matters reasonably requested by Landlord,
such Mortgagee or such Lessor.
Tenant acknowledges that any statement delivered pursuant to this
Section 36.10 may be relied upon by (i) any proposed purchaser of all or any
portion of Landlord's interest in the Real Property, the Building or any
Superior Lease, (ii) any proposed lender of any such purchaser, (iii) any owner
of the Real Property, the Building or all or any portion of Landlord's interest
in the Real Property, the Building or any Superior Lease, (iv) any proposed or
existing Mortgagee, or assignee thereof or (v) any proposed or existing Lessor,
or assignee thereof.
Section 36.11 Certain Rules of Interpretation. For purposes of this
Lease, whenever the words "include", "includes", or "including" are used, they
shall be deemed to be followed by the words "without being limited to" and,
whenever the circumstances or the context requires, the singular shall be
construed as the plural, the masculine shall be construed as the feminine and/or
the neuter and vice versa. This Lease shall be interpreted and enforced without
the aid of any canon, custom or rule of law requiring or suggesting construction
against the party drafting or causing the drafting of the provision in question.
The Commencement Date of this Lease is subject to Section 9-1.3(d) of the New
York Estates, Powers and Trust Laws.
Section 36.12 Captions. The captions in this Lease are inserted only as
a matter of convenience and for reference and in no way define, limit or
describe the scope of this Lease or the intent of any provision hereof.
Section 36.13 Parties Bound. The terms, covenants, conditions and
agreements contained in this Lease shall bind and inure to the benefit of
Landlord and Tenant and, except as otherwise provided in this Lease, to their
respective legal representatives, successors, and assigns.
Section 36.14 Counterparts. This Lease may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument.
Section 36.15 Memorandum of Lease. Neither this Lease nor a memorandum
in respect of this Lease shall be recorded.
Section 36.16 Survival. All obligations and liabilities of Landlord or
Tenant to the other which accrued before the expiration or other termination of
this Lease, and all such obligations
69
and liabilities which by their nature or under the circumstances can only be, or
by the provisions of this Lease may be, performed after such expiration or other
termination, shall survive the expiration or other termination of this Lease.
Without limiting the generality of the foregoing, the rights and obligations of
the parties with respect to any indemnity under this Lease, and with respect to
Fixed Rent, Tenant's Tax Payment and any other amounts payable under this Lease,
shall survive the expiration or other termination of this Lease.
ARTICLE 37
SECURITY DEPOSIT
Section 37.1 Security Deposit. Tenant shall deposit the Security
Deposit with Landlord upon the execution of this Lease in cash as security for
the faithful performance and observance by Tenant of the terms, covenants and
conditions of this Lease, including the surrender of possession of the Premises
to Landlord as herein provided. Landlord shall hold the Security Deposit and the
unapplied proceeds of any Letter of Credit in an interest-bearing account at a
commercial bank selected by Landlord located in the State of New York that
provides FDIC insured accounts in accordance with Section 7-103 of the New York
General Obligation Law (or any successor thereto). Landlord shall be entitled to
receive and retain as an administrative expense that portion of any interest
received thereon which represents the maximum fee permitted under such law. The
balance of any interest shall be added to and held as part of the security
deposited under this Lease.
Section 37.2 Letter of Credit. In lieu of a cash deposit, Tenant may
deliver the Security Deposit to Landlord in the form of a clean, irrevocable,
stand-by and unconditional letter of credit in the amount of the Security
Deposit (the "Letter of Credit") issued by and drawable upon any commercial
bank, trust company, national banking association or savings and loan
association with offices for banking purposes in the Borough of Manhattan, City
of New York (the "Issuing Bank"), which has outstanding unsecured, uninsured and
unguaranteed indebtedness, or shall have issued a letter of credit or other
credit facility that constitutes the primary security for any outstanding
indebtedness (which is otherwise uninsured and unguaranteed), that is then
rated, without regard to qualification of such rating by symbols such as "+" or
"-" or numerical notation, "Aa" or better by ▇▇▇▇▇'▇ Investors Service and "AA"
or better by Standard & Poor's Rating Service, and has combined capital, surplus
and undivided profits of not less than $50,000,000,000. The Letter of Credit
shall (a) name Landlord as beneficiary, (b) be in the amount of the Security
Deposit (subject to increase and decrease as provided under Section 37.1(a) and
(b)), (c) have a term of not less than one year, (d) permit multiple drawings,
(e) be fully transferable by Landlord without the payment of any fees or charges
by Landlord, and (f) otherwise be in form and content satisfactory to Landlord.
If upon any transfer of the Letter of Credit, any fees or charges shall be so
imposed, then such fees or charges shall be payable solely by Tenant and the
Letter of Credit shall so specify. The Letter of Credit shall provide that it
shall be deemed automatically renewed, without amendment, for consecutive
periods of one year each thereafter during the Term through the date that is at
least 60 days after the Expiration Date, unless the Issuing Bank sends a notice
(the "Non-Renewal Notice") to Landlord by certified mail, return receipt
requested, not less than 45 days next
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preceding the then expiration date of the Letter of Credit stating that the
Issuing Bank has elected not to renew the Letter of Credit. Landlord shall have
the right, upon receipt of the Non-Renewal Notice, to draw the full amount of
the Letter of Credit, by sight draft on the Issuing Bank, and shall thereafter
hold or apply the cash proceeds of the Letter of Credit pursuant to the terms of
this Article. The Letter of Credit shall state that drafts drawn under and in
compliance with the terms of the Letter of Credit will be duly honored upon
presentation to the Issuing Bank at an office location in Manhattan. The Letter
of Credit shall be subject in all respects to the Uniform Customs and Practice
for Documentary Credits (1993 revision), International Chamber of Commerce
Publication No. 500.
Section 37.3 Application of Security. If Tenant defaults beyond
applicable notice and cure periods in the payment or performance of any of the
terms, covenants or conditions of this Lease, including the payment of Rent,
Landlord may apply or retain the whole or any part of the cash Security Deposit
or may notify the Issuing Bank and thereupon receive all or a portion of the
Security Deposit represented by the Letter of Credit and use, apply or retain
the whole or any part of such proceeds, as the case may be, to the extent
required for the payment of any Fixed Rent or any other sum as to which Tenant
is in default, including (a) any sum which Landlord may expend or may be
required to expend by reason of Tenant's default, and/or (b) any damages or
Deficiency to which Landlord is entitled pursuant to this Lease or applicable
Requirements, whether such damages or Deficiency accrues before or after summary
proceedings or other reentry by Landlord. If Landlord applies or retains any
part of the Security Deposit, Tenant, upon demand, shall deposit with Landlord
the amount so applied or retained so that Landlord shall have the full Security
Deposit on hand at all times during the Term. If Tenant shall fully and
faithfully comply with all of the terms, covenants and conditions of this Lease,
the Security Deposit (or so much thereof as remains) shall be returned to Tenant
after the Expiration Date and after delivery of possession of the Premises to
Landlord in the manner required by this Lease. Tenant expressly agrees that
Tenant shall have no right to apply any portion of the Security Deposit against
any of Tenant's obligations to pay Rent hereunder.
Section 37.4 Transfer. Upon a sale of the Real Property or the Building
or a leasing of the Building, or any financing of Landlord's interest therein,
Landlord shall have the right to transfer the cash Security Deposit or the
Letter of Credit, as applicable, to the vendee, lessee or lender. With respect
to the Letter of Credit, within 5 days after notice of such sale, leasing or
financing, Tenant, at its sole cost, shall arrange for the transfer of the
Letter of Credit to the new landlord or the lender, as designated by Landlord in
the foregoing notice or have the Letter of Credit reissued in the name of the
new landlord or the lender. Tenant shall look solely to the new landlord or
lender for the return of such cash Security Deposit or Letter of Credit and the
provisions hereof shall apply to every transfer or assignment made of the
Security Deposit to a new landlord. Tenant shall not assign or encumber or
attempt to assign or encumber the cash Security Deposit or Letter of Credit and
neither Landlord nor its successors or assigns shall be bound by any such action
or attempted assignment, or encumbrance.
Section 37.5 Reduction of Security Deposit. (a) Tenant shall be
entitled to a reduction in the amount of the Security Deposit of (i) $69,766.00
on the 4th anniversary of the Rent Commencement Date and (ii) an additional
$69,766.00 on the 5th anniversary of the Rent Commencement Date (each of the
dates in clauses (i) through (ii) is called a "Reduction Date" and each such
reduction which is to occur on a Reduction Date, subject to the terms hereof, is
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referred to as a "Reduction Amount"); provided, that (A) Tenant, under this
Lease, is not in (x) monetary default or (y) non-monetary default beyond
applicable notice and grace periods as of the applicable Reduction Date, (B)
Landlord has not previously drawn on the Security Deposit by reason of any
default on the part of Tenant prior to the applicable Reduction Date, and (C) in
no event shall the Security Deposit be reduced to less than $244,184.00. If the
Security Deposit is being held by Landlord as cash, then within 10 Business Days
after any applicable Reduction Date under this Section 37.5, Landlord shall
deliver to Tenant the applicable Reduction Amount. If the Security Deposit is
being held by Landlord in the form of a letter of credit pursuant to Section
37.2, Tenant shall deliver to Landlord an amendment to the Letter of Credit (the
form and substance of such amendment to be reasonably satisfactory to Landlord),
reducing the amount of the Letter of Credit by the applicable Reduction Amount,
and Landlord shall execute the amendment and such other documents as are
reasonably necessary to reduce the amount of the Letter of Credit in accordance
with the terms hereof.
ARTICLE 38
TELECOMMUNICATIONS
Landlord shall provide access to the Building a limited but reasonable
number of third-party communication service providers to make available to
Tenant (at Tenant's sole cost) telephone, cable television, data and high-speed
internet access to the Premises. The terms of Tenant's access to and use of such
services shall be governed by separate agreements between Tenant and the
relevant third-party service providers. Landlord shall have no liability
whatsoever relating to or in connection with such service and shall have no
obligation whatsoever with respect to the installation, maintenance and repair
of any system, wiring, cabling, electrical equipment or other equipment relating
thereto other than arising out of its willful misconduct. Notwithstanding the
foregoing, Tenant shall have access to reasonable dedicated riser space
throughout the Term of the Lease for Tenant's telecommunications and data
wiring.
72
IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement of
Lease as of the day and year first above written.
LANDLORD
--------
44 WALL OWNER, LLC,
a Delaware limited liability company
By: 44 Wall Mezz, LLC,
a Delaware limited liability company
By: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, LLC
a New York limited liability company
By: SBE 44 Management, LLC
a New York limited liability company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Member
TENANT
------
INDEPENDENT RESEARCH GROUP LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
Tenant's Federal Identification Number:
73
TENANT ACKNOWLEDGMENT FORM
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On May 5, 2004, before me, the undersigned, personally appeared
___________________________, personally known to me or proved to me on the basis
of satisfactory evidence to be the individual whose name is subscribed to within
instrument and acknowledged to me that he executed the same in his capacity, and
that by his signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument.
Notary Public
(Affix Stamp & Seal)
EXHIBIT A
FLOOR PLAN
The floor plan which follows is intended solely to identify the general
location of the Premises, and should not be used for any other purpose. All
areas, dimensions and locations are approximate, and any physical conditions
indicated may not exist as shown.
EXHIBIT B
DEFINITIONS
Affiliate: With respect to any Person, any other Person that, directly
or indirectly (through one or more intermediaries), Controls, is Controlled by,
or is under common Control with, such first Person.
Base Rate: The annual rate of interest publicly announced from time to
time by Citibank, N.A., or its successor, in New York, New York as its "base
rate" (or such other term as may be used by Citibank, N.A., from time to time,
for the rate presently referred to as its "base rate").
Building Systems: The mechanical, electrical, plumbing, sanitary,
sprinkler, heating, ventilation and air conditioning, security, life-safety,
elevator and other service systems or facilities of the Building up to (but not
including) the point of localized distribution to the Premises excluding,
however, the Supplemental HVAC System and any supplemental HVAC system of other
tenants in the Building and the horizontal distribution systems within and
servicing the Premises and by which mechanical, electrical, plumbing, sanitary,
heating, ventilating and air conditioning, security, life-safety and other
service systems are distributed from the base Building risers, feeders,
panelboards, etc., for provision of such services to the Premises.
Business Days: All days, excluding Saturdays, Sundays and all days
observed, without duplication, by either the State of New York, the Federal
Government or the labor unions servicing the Building as holidays.
Code: The Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder.
Condenser Water System: The water tower, piping loop, pumps and
connection valves designed to provide condenser water to the Building's central
system and any Supplemental HVAC System, expressly excluding any Supplemental
HVAC System and its connection to the Condenser Water System.
Consumer Price Index: shall mean the Consumer Price Index for All Urban
Consumers published by the Bureau of Labor Statistics of the United States
Department of Labor, New York, N.Y.-Northeastern N.J. Area, All Items
(1982-84=100), or any successor index thereto appropriately adjusted. In the
event that the Consumer Price Index is converted to a different standard
reference base or otherwise revised, the determination of adjustments provided
for herein shall be made with the use of such conversion factor, formula or
table for converting the Consumer Price Index as may be published by the Bureau
of Labor Statistics, or, if said Bureau shall not publish the same, then with
the use of such conversion factor, formula or table as may be published by
▇▇▇▇▇▇▇▇-▇▇▇▇, Inc., or any other nationally recognized publisher of similar
statistical information. If the Consumer Price Index ceases to be published, and
there is no successor thereto, such other index as Landlord and Tenant shall
agree upon in writing shall be substituted for the Consumer Price Index. If
Landlord and Tenant are unable to agree as to such
substituted index, such matter shall be submitted to the American Arbitration
Association or any successor organization for determination in accordance with
the regulations and procedures thereof then obtaining for commercial
arbitration.
Control: (i) (a) The ownership, directly or indirectly, of more than
50% of the voting stock of a corporation, or (b) in the case of any Person which
is not a corporation, the ownership, directly or indirectly, of more than 50% of
the beneficial ownership interest in such Person, or (ii) in the case of any
such Person, the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person.
Cost Per Kilowatt Hour: (a) The total cost for electricity incurred by
Landlord to service the Building during a particular billing period (including
energy charges, demand charges, surcharges, time-of-day charges, fuel adjustment
charges, rate adjustment charges, taxes, rebates and any other factors used by
the public utility company in computing its charges to Landlord), divided by (b)
the total kilowatt hours purchased by Landlord to provide electricity to the
Building during such period.
Deficiency: The difference between (a) the Fixed Rent and Additional
Rent for the period which otherwise would have constituted the unexpired portion
of the Term (assuming the Additional Rent for each year thereof to be the same
as was payable for the year immediately preceding such termination or re-entry),
and (b) the net amount, if any, of rents collected under any reletting effected
pursuant to the provisions of this Lease for any part of such period (after
first deducting from such rents all expenses incurred by Landlord in connection
with the termination of this Lease, Landlord's re-entry upon the Premises and
such reletting, including repossession costs, brokerage commissions, attorneys'
fees and disbursements, and alteration costs).
Governmental Authority (Authorities): The United States of America, the
City, County or State of New York, or any political subdivision, agency,
department, commission, board, bureau or instrumentality of any of the
foregoing, or any landmarks preservation agency (or other entity designated or
accepted for such purpose by any Governmental Authority or landmarks
preservation agency), now existing or hereafter created, having jurisdiction
over the Real Property or any portion thereof or the curbs, sidewalks, and areas
adjacent thereto.
Hazardous Materials: Any substances, materials or wastes currently or
in the future deemed or defined in any Requirements as "hazardous substances",
"toxic substances", contaminants", "pollutants" or words of similar import.
HVAC: Heating, ventilation and air-conditioning.
Indemnitees: Landlord, Landlord's Agent, each Mortgagee and Lessor, and
each of their respective direct and indirect partners, officers, shareholders,
managers, directors, members, trustees, beneficiaries, employees, principals,
contractors, licensees, invitees, servants, agents and representatives.
Lessor: A lessor under a Superior Lease.
B-2
Mortgage(s): Any mortgage, trust indenture or other financing document
(including any assignment of leases and rents) which may now or hereafter affect
the Premises, the Real Property, the Building or any Superior Lease and the
leasehold interest created thereby, and all renewals, extensions, supplements,
amendments, modifications, consolidations and replacements thereof or thereto,
substitutions therefor and advances made thereunder.
Mortgagee(s): Any mortgagee, trustee or other holder of a Mortgage.
Person: Any individual, corporation, partnership, limited liability
company, limited liability partnership, joint venture, estate, trust,
unincorporated association, business trust, tenancy-in-common or other entity,
or any Governmental Authority.
Prohibited Use: Any use or occupancy of the Premises that in Landlord's
reasonable judgment would be likely to: (a) cause damage to the Building, the
Premises or any equipment, facilities or other systems therein; (b) impair the
appearance of the Premises or the Building; (c) interfere with the efficient and
economical maintenance, operation and repair of the Premises or the Building or
the equipment, facilities or systems thereof; (d) adversely affect any service
provided to, and/or the use and occupancy by, any Building tenant or occupants;
(e) violate the Certificate of Occupancy issued for the Premises or the Building
or (f) adversely affect the image of the Building as a first-class office
location in downtown Manhattan. "Prohibited Use" also includes the use of any
part of the Premises for: (i) a restaurant or bar; (ii) the preparation,
consumption, storage, manufacture or sale of food or beverages (except in
connection with vending machines and/or warming kitchens installed for the use
of Tenant's employees only), liquor, tobacco or drugs; (iii) the business of
photocopying, multilith or offset printing (except photocopying in connection
with Tenant's own business); (iv) a typing or stenography business; (v) a school
or classroom; (vi) lodging or sleeping; (vii) the operation of retail facilities
(meaning a business whose primary patronage arises from the generalized
solicitation of the general public to visit Tenant's offices in person without a
prior appointment) of a savings and loan association or retail facilities of any
financial, lending, securities brokerage or investment activity; (viii) a
payroll office; (ix) a ▇▇▇▇▇▇, beauty or manicure shop; (x) an employment
agency, executive search firm or similar enterprise; (xi) offices of any
Governmental Authority, any foreign government, the United Nations, or any
agency or department of the foregoing; (xii) the acceptance, delivery,
distribution, manufacture, retail sale, storage of merchandise or auction of
merchandise, goods or property of any kind to the general public which could
reasonably be expected to create a volume of pedestrian traffic substantially in
excess of that normally encountered in the Premises; (xiii) the rendering of
medical, dental or other therapeutic or diagnostic services; (xiv) a discount
drug store or discount clothing store or a "fast food" restaurant; (xv) any
illegal purposes or any activity constituting a nuisance; or (xvi) the business
of providing furnished office suites and ancillary office services to the
occupants of such suites.
Requirements: All present and future laws, rules, orders, ordinances,
regulations, statutes, requirements, codes and executive orders, extraordinary
and ordinary, of (i) all Governmental Authorities, including the Americans With
Disabilities Act, 42 U.S.C. 'SS' 12101 (et seq.), New York City Local Law 58 of
1987, and any law of like import, and all rules, regulations and government
orders with respect thereto, and any of the foregoing relating to Hazardous
Materials, environmental matters, public health and safety matters and landmarks
preservation, (ii) any applicable fire rating bureau or other body exercising
similar functions,
B-3
affecting the Real Property or the maintenance, use or occupation thereof, or
any street, avenue or sidewalk comprising a part of or in front thereof or any
vault in or under the same and (iii) all requirements of all insurance bodies
affecting the Premises.
Rules and Regulations: The rules and regulations annexed to and made a
part of this Lease as Exhibit D, as they may be modified from time to time by
Landlord.
Soft-Costs: Collectively, any and all architectural fees, engineering
fees, legal fees and other consultant fees and other so-called "soft-costs".
Specialty Alterations: Alterations consisting of kitchens, pantries,
executive bathrooms, computer installations, safe deposit boxes, vaults,
libraries or file rooms requiring reinforcement of floors, internal staircases,
conveyors, dumbwaiters, other Alterations of a similar character.
Substantial Completion: As to any construction performed by any party
in the Premises, including any Alteration and Landlord's Work (or Landlord's
Additional Work, as applicable), "Substantial Completion" or "Substantially
Completed" means that such work has been completed, as reasonably determined by
Landlord's architect and reasonable confirmed by Tenant's architect, in
accordance with (a) the provisions of this Lease applicable thereto, (b) the
plans and specifications for such work, and (c) all applicable Requirements,
except for minor details of construction, decoration and mechanical adjustments,
if any, the non-completion of which does not materially interfere with Tenant's
use of the Premises or which, in accordance with good construction practice,
should be completed after the completion of other work to be performed in the
Premises (collectively, the "Punch List Items").
Superior Lease(s): Any ground or underlying lease of the Real Property
or any part thereof heretofore or hereafter made by Landlord and all renewals,
extensions, supplements, amendments, modifications, consolidations, and
replacements thereof.
Tenant Party: Any of Tenant, any Affiliate of Tenant, any subtenant or
any other occupant of the Premises, or any of their respective direct or
indirect partners, officers, shareholders, directors, members, trustees,
beneficiaries, employees, principals, contractors, sub-contractors, licensees,
invitees, visitors, servants, agents, or representatives, including, without
limitation, any architect or engineer employed or consulted in connection with
the Architectural Drawings and Specifications, Constructions Documents or the
Premises.
Tenant's Property: Tenant's movable fixtures and movable partitions,
telephone and other equipment, computer systems, trade fixtures, furniture,
furnishings, and other items of personal property that are removable without
material damage to the Premises or Building.
Unavoidable Delays: Landlord's inability to fulfill or delay in
fulfilling any of its obligations under this Lease expressly or impliedly to be
performed by Landlord (including, without limitation, Landlord's inability to
make or delay in making any repairs, additions, alterations, improvements or
decorations or Landlord's inability to supply or delay in supplying any
equipment or fixtures), if Landlord's inability or delay is due to or arises by
reason of strikes, labor troubles or by accident, or by any cause, whatsoever
beyond Landlord's reasonable control, including, without limitation,
Requirements, laws, governmental preemption in connection with a national
emergency, shortages, or unavailability of labor fuel, steam, water,
B-4
electricity or materials, or delays caused by other tenants, mechanical
breakdown, acts of God, enemy or terrorist action, civil commotion, fire or
other casualty.
EXHIBIT C
CLEANING SPECIFICATIONS
A. NIGHTLY: (Five nights per week - Monday through Friday excluding Union
Holidays)
(1) All stone, ceramic tile, marble, terrazzo and other unwaxed flooring
to be swept nightly using approved dust-down preparations.
(2) All linoleum, vinyl, rubber, asphalt tile and other similar types of
flooring (that may be waxed) to be swept nightly using approved
dust-down preparation. Waxing, if any, shall be done at tenant's
expense.
(3) All carpets will be thoroughly vacuumed one time per week.
(4) Hand dust with treated masalin cloths all office furniture, file
cabinets and windowsills (excluding the periodic high dusting required
under Section "D" of this Exhibit C).
(5) Empty all waste receptacles nightly and remove wastepaper from the
demised premises to designated building areas (excluding all wet areas
and liners).
(6) Wash clean all water fountains and coolers nightly.
(7) Dust all telephones as necessary.
(8) Keep locker and slop sink rooms in a neat and orderly condition at all
times.
(9) Sweep all interior uncarpeted staircases.
(10) Clean all glass furniture tops.
(11) Lock all entrance doors nightly after completion of cleaning
B. PERIODIC CLEANING:
To be performed quarterly unless otherwise specified.
High dust premises completely including the following:
(1) Dust all pictures, frames, charts, graphs and similar wall hangings
not reached in nightly cleaning.
(2) Dust clean all vertical surfaces, such as walls, partitions, doors,
bucks and other surfaces not reached in nightly cleaning.
(3) Dust all Venetian blinds twice per year and dust all ceiling
ventilation louvers twice per year.
C. LAVATORIES: (to be performed nightly)
(1) Scour, wash and disinfect all toilet seats (both sides), basins,
bowls, urinals and tile walls near urinals, throughout.
(2) Sweep and wash all lavatory floors using proper disinfectants.
(3) Wash and polish all mirrors, powder shelves, bright work and enameled
surfaces in all lavatories (contractor shall use only non-abrasive
material to avoid damage and deterioration to chrome fixtures).
(4) Hand dust and clean, washing where necessary, all partitions,
dispensers and receptacles in all lavatories and restrooms.
(5) Service sanitary napkin dispensers (napkins to be supplied by
contractor).
(6) Empty paper towel and sanitary napkin disposal receptacles and remove
paper to designated areas.
(7) Fill and clean all soap, towel, and toilet tissue dispensers. Supplies
therefor to be furnished by contractor at a reasonable charge to
Tenant. If the demised premises consists of a part of a rentable
floor, said charge to Tenant shall that portion of a reasonable charge
for such supplies that is reasonably allocated to Tenant.
(8) Empty and clean sanitary disposal receptacles.
(9) Clean and wash all receptacles and dispensers.
(10) Remove finger marks from painted surfaces.
D. PERIODIC:
(1) Clean and wash all partitions once every two weeks.
(2) Scrub floors as necessary, but not less than once per month.
(3) Hand dust, clean and wash all tile walls and ceilings including
washable acoustical tile, once each month; more if necessary.
(4) High dusting shall be done once each month, which will include lights,
walls and grills.
(5) Wipe all lighting fixtures twice per year.
C-2
EXHIBIT D
RULES AND REGULATIONS
1. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds, shades, screens or other obstructions
shall be attached to or hung in or used in connection with any exterior window
or entry door of the Premises, without the prior written consent of Landlord.
2. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed to any part of the outside of the Premises or
Building or on the inside of the Premises if the same can be seen from the
outside of the Premises without the prior written consent of Landlord. Lettering
on doors, if and when approved by Landlord, shall be inscribed, painted or
affixed for Tenant, at Tenant's sole cost and expense, in a building standard
size, color and style and acceptable to Landlord in Landlord's sole discretion.
3. The grills, louvers, skylights, windows and doors that reflect or admit
light and/or air into the Premises, halls, passageways or other public places in
the Building shall not be covered or obstructed by Tenant, nor shall any
bottles, parcels or other articles be placed on the window ▇▇▇▇▇, radiators or
convectors.
4. Landlord shall have the right to prohibit any advertising by Tenant
which, in Landlord's opinion, tends to impair the reputation of the Building or
its desirability as a Building for offices, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising.
5. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by Tenant or
used for any purpose other than ingress or egress to and from the Premises and
for delivery of merchandise, equipment and other personal property in prompt and
efficient manner, using elevators and passageways designated for such delivery
by Landlord.
6. Except in those areas designated by Tenant as "security areas", all
locks or bolts of any kind shall be operable by the Grand Master Key or via card
key. No locks shall be placed upon any of the doors or windows by Tenant, nor
shall any changes be made in locks or the mechanism thereof that shall make such
locks inoperable by said Grand Master Key or card key. Tenant shall, upon the
termination of its tenancy, turn over to Landlord all keys/cards of stores,
offices and toilet rooms, either furnished to or otherwise procured by Tenant
and in the event of the loss of any keys/cards furnished by Landlord, Tenant
shall pay to Landlord the cost thereof.
7. Tenant shall keep the entrance door to the Premises closed at all times.
8. All removals or the carrying in or out of any freight, furniture,
packages, boxes, crates or any other object or matter of any description must
take place during Building standard hours. Landlord reserves the right to
inspect all objects and matter to be brought into the Building and to exclude
from the Building all objects and matter which violates any of these Rules and
Regulations or the lease of which these Rules and Regulations are a part.
Landlord
may require that any person leaving the public areas of the Building with any
package, object or matter submit a pass, listing each package, object or matter
being removed, but the establishment and enforcement of such requirement shall
not impose any responsibility on Landlord for the protection of Tenant against
the removal of property from the Premises.
9. There shall not be used in any space or in the public halls of the
Building, either by Tenant or by jobbers or any others in the moving or delivery
or receipt of safes, freight, furniture, packages, boxes, crates, paper, office
material or any other matter or thing, any hand trucks except those equipped
with rubber tires, side guards and such other safeguards as Landlord requires.
10. None of Tenant's employees, visitors or contractors shall be permitted
to have access to the Building's roof, mechanical, electrical or telephone rooms
without permission from Landlord.
11. Tenant shall not make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of this or neighboring Buildings
or premises or those having business with them.
12. Tenant shall not lay floor tile, or other similar floor covering so
that the same shall come in direct contact with the floor of the Premises and,
if such floor covering is desired to be used, an interlining of builder's
deadening felt shall be first affixed to the floor by a paste or other material,
soluble in water, the use of cement or other similar adhesive material being
expressly prohibited.
13. Neither Tenant nor any of Tenant's servants, employees, agents,
visitors or licensees shall at any time bring or keep upon the Premises any
hazardous material, inflammable, combustible or explosive fluid, chemical or
substance except such minimal quantities as are incidental to normal office
occupancy.
14. Tenant shall not use or keep, or permit to be used or kept, any
hazardous or toxic materials or any foul or noxious gas or substance in the
Premises, permit or suffer the Premises to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of the Building by
reason of noise, odors, vibrations or interfere in any way with other tenants or
those having business therein.
15. Tenant shall not cause or permit any odors of cooking or other
processes or any unusual or objectionable odors to emanate from the Premises
that would annoy other tenants or create a public or private nuisance.
16. Except as specifically provided in the Lease, Tenant shall not do any
cooking or conduct any restaurant, luncheonette or cafeteria for the sale or
service of food or beverages to its employees or to others.
17. Tenant may, at its sole cost and expense and subject to compliance with
all applicable requirements of the Lease, install and maintain vending machines
for the exclusive use by Tenant, its officers, employees and business guests,
provided that each machine, where necessary, shall have a waterproof pan
thereunder and be connected to a drain. Tenant shall not
D-2
permit the delivery of any food or beverage to the Premises, except by persons
approved by Landlord, which approval shall not be unreasonably withheld or
delayed.
18. Tenant shall not employ any person or persons other than the janitor of
Landlord for the purpose of cleaning the Premises, unless otherwise agreed to by
Landlord in writing. Tenant shall not cause any unnecessary labor by reason of
Tenant's carelessness or indifference in the preservation of good order and
cleanliness.
19. Tenant shall store all its trash, garbage and recyclables within its
Premises. No material shall be disposed of which may result in a violation of
any Requirement or ordinance governing such disposal. All garbage and refuse
disposal shall be made only through entranceways and elevators provided for such
purposes and at such times as Landlord shall designate. Tenant shall use
Building's hauler.
20. Tenant shall, at its expense, provide artificial light for the
employees of Landlord while doing janitor service or other cleaning, and in
making repairs or alterations in the Premises.
21. Tenant shall not ▇▇▇▇, paint, drill into or in any way deface any part
of the Premises or the Building, except with the prior written consent of
Landlord in the case of the Premises, which consent shall be granted or withheld
in accordance with the Lease to the extent such consent is required thereunder.
No boring, cutting or stringing of wires shall be permitted, except with prior
written consent of Landlord, and as Landlord may direct.
22. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein.
All damages resulting from any misuse of the fixtures shall be borne by Tenant,
if Tenant's servants, employees, agents, visitors or licensees shall have caused
the same.
23. Tenant, before closing and leaving the Premises at any time, shall see
that all lights, water, faucets, etc., are turned off. All entrance doors in the
Premises shall be left locked by Tenant when the Premises are not in use.
24. No, vehicles or animals of any kind (except for seeing eye dogs) shall
be brought into or kept by Tenant in or about the Premises or the Building.
25. Canvassing, soliciting and peddling in the Building is prohibited and
Tenant shall cooperate to prevent the same.
26. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
27. The Premises shall not be used for manufacturing, for the storage of
merchandise, or for the sale of merchandise, goods or property of any kind at
auction or otherwise, except as specifically permitted by the Lease.
D-3
28. Tenant shall not occupy or permit any portion of the Premises as an
office for a public stenographer or public typist or for the possession,
storage, manufacture or sale of narcotics, dope or tobacco in any form or as a
▇▇▇▇▇▇ or manicure shop or as an employment bureau. Tenant shall not engage or
pay any employees on the Premises, except those actually working for Tenant on
the Premises, nor advertise for labor giving an address at the Premises.
29. Tenant shall not accept barbering or boot blacking services in the
Premises, from any company or persons not approved by Landlord, which approval
shall not be unreasonably withheld, and at hours and under regulations other
than as reasonably fixed by Landlord.
30. The requirements of Tenant will be attended to only upon written
application at the office of the building, except in the event of any emergency
condition. Employees of Landlord or Landlord's agents shall not perform any work
or do anything outside of the regular duties, unless under special instructions
from the office of Landlord or in response to an emergency condition.
31. Tenant shall be responsible for the delivery and pick up of all mail
from the United States Post Office.
32. Landlord reserves the right to exclude from the Building between the
hours of 6 P.M. and 8 A.M. and at all hours on Saturdays, Sundays and holidays
observed by the Building all persons who do not present a pass to the Building
signed or approved by Landlord, which approval shall not be unreasonably
withheld. Tenant shall be responsible for all persons for whom a pass shall be
issued at the request of Tenant and shall be liable to Landlord for all acts of
such persons.
33. Landlord may waive any one or more of these Rules and Regulations for
the benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of any
other tenant or tenants, nor prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all of the tenants of the Building.
34. Landlord shall not be responsible to Tenant or to any other person for
the non-observance or violation of these Rules and Regulations by any other
tenant or other person. Tenant shall be deemed to have read the Rules and
Regulations and to have agreed to abide by them as a condition to its occupancy
of the Premises.
35. These Rules and Regulations are in addition to, and shall not be
constructed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of the Lease.
D-4
SCHEDULE A
FIXED RENT SCHEDULE
-----------------------------------------------------------------------------------------------------------
PERIOD FIXED RENT FIXED RENT
(BOTH DATES INCLUSIVE) (PER ANNUM) (PER MONTH)
-----------------------------------------------------------------------------------------------------------
Commencing on the Rent Commencement Date $418,600.00 $34,883.33
through and including the day immediately
preceding the first (1st) anniversary of
the Rent Commencement Date
-----------------------------------------------------------------------------------------------------------
Commencing on first (1st) anniversary of $425,925.50 $35,493.79
the Rent Commencement Date through and
including the day immediately preceding
the second (2nd) anniversary of the Rent
Commencement Date
-----------------------------------------------------------------------------------------------------------
Commencing on the second (2nd) anniversary $433,379.20 $36,114.93
of the Rent Commencement Date through and
including the day immediately preceding
the third (3rd) anniversary of the Rent
Commencement Date
-----------------------------------------------------------------------------------------------------------
Commencing on the third (3rd) anniversary $440,963.34 $36,746.94
of the Rent Commencement Date through and
including the day immediately preceding
the fourth (4th) anniversary of the Rent
Commencement Date
-----------------------------------------------------------------------------------------------------------
Commencing on the fourth (4th) anniversary $448,680.20 $37,390.02
of the Rent Commencement Date through and
including the day immediately preceding the
fifth (5th) anniversary of the Rent
Commencement Date
-----------------------------------------------------------------------------------------------------------
Commencing on the fifth (5th) anniversary $488,732.09 $40,727.67
of the Rent Commencement Date through and
including the day immediately preceding
the sixth (6th) anniversary of the Rent
Commencement Date
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
PERIOD FIXED RENT FIXED RENT
(BOTH DATES INCLUSIVE) (PER ANNUM) (PER MONTH)
-----------------------------------------------------------------------------------------------------------
Commencing on the sixth (6th) anniversary $497,284.91 $41,440.41
of the Rent Commencement Date through and
including the day immediately preceding
seventh (7th) anniversary of the Rent
Commencement Date
-----------------------------------------------------------------------------------------------------------
Commencing on the seventh (7th) $505,987.39 $42,165.62
anniversary of the Rent Commencement
Date through and including the day
immediately preceding the eighth
(8th) anniversary of the Rent Commencement Date
-----------------------------------------------------------------------------------------------------------
Commencing on the eighth (8th) $514,842.17 $42,903.51
anniversary of the Rent Commencement Date
through and including the day
immediately preceding the ninth
(9th) anniversary of the Rent Commencement Date
-----------------------------------------------------------------------------------------------------------
Commencing on the ninth (9th) anniversary $523,851.91 $43,654.33
of the Rent Commencement Date through and
including the Expiration Date
-----------------------------------------------------------------------------------------------------------
SCHEDULE B
ARCHITECTURAL DRAWINGS AND SPECIFICATIONS
SCHEDULE C
TENANT UPGRADES