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Sample Business ContractsHome: Sample Business Contracts:
________________________________________
622 BUILDING COMPANY LLC
Landlord,
iCAST, INC.
Tenant.
________________________________________
__________
LEASE
__________
Premises: 622 Third Avenue
New York, New York 10022
Entire 8/th/ Floor
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE PAGE
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<S> <C>
1. Premises; Term............................................................... 1
2. Commencement of Term......................................................... 1
3. Rent......................................................................... 2
4. Use.......................................................................... 4
5. Alterations, Fixtures........................................................ 5
6. Repairs...................................................................... 8
7. Floor Load; Noise............................................................ 9
8. Laws, Ordinances, Requirements of Public Authorities......................... 10
9. Insurance.................................................................... 12
10. Damage by Fire or Other Cause............................................... 14
11. Assignment, Subletting, Mortgaging.......................................... 16
12. Liability and Indemnity by Landlord and Tenant............................. 25
13. Moving of Heavy Equipment................................................... 27
14. Condemnation................................................................ 27
15. Entry, Right to Change Public Portions of the Building...................... 28
16. Conditional Limitations, Etc................................................ 29
17. Mechanic's Liens............................................................ 35
18. Landlord's and Tenant's Right to Perform Obligations....................... 35
19. Covenant of Quiet Enjoyment................................................. 36
20. Excavation.................................................................. 37
21. Services and Equipment...................................................... 37
22. Escalation.................................................................. 41
23. Electricity................................................................. 47
24. Broker...................................................................... 50
25. Subordination and Ground Lease.............................................. 50
26. Estoppel Certificate........................................................ 54
27. Waiver of Jury Trial........................................................ 54
28. Surrender of Premises....................................................... 55
29. Rules and Regulations....................................................... 55
30. Successors and Assigns and Definitions...................................... 56
31. Notices..................................................................... 57
32. No Waiver; Entire Agreement................................................. 57
33. Captions.................................................................... 59
34. Inability to Perform........................................................ 59
35. No Representations by Landlord.............................................. 60
36. Security Deposit............................................................ 60
37. Rent Control................................................................ 63
38. Landlord's Contribution..................................................... 63
39. Roof Equipment.............................................................. 64
</TABLE>
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TABLE OF CONTENTS
<TABLE>
<S> <C>
40. Additional Space............................................................. 65
41. Option for Renewal Term...................................................... 68
42. Arbitration.................................................................. 69
Testimonium and Signatures....................................................... 71
Acknowledgments.................................................................. 72
Schedule A Floor Plan........................................................... 73
Schedule B Description of Land.................................................. 74
Schedule C Rules and Regulations................................................ 75
Schedule D Cleaning Specifications.............................................. 79
Schedule E Definitions.......................................................... 81
</TABLE>
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INDENTURE OF LEASE made as of this 16/th/ day of Aug, 1999, between
622 BUILDING COMPANY LLC, a New York limited liability company, having an office
at 750 Lexington Avenue, New York, New York 10022 ("Landlord") and iCAST, INC.,
a Delaware corporation having an office at 304 Park Avenue South, 11/th/ floor,
New York, New York 10016 ("Tenant").
W I T N E S S E T H :
ARTICLE 1
Premises; Term
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord
the following space ("Demised Premises"): the entire 8/th/ floor as shown
crosshatched on the floor plan (Schedule A) attached hereto, in the office
building known as and by the street number 622 Third Avenue, in the Borough of
Manhattan, City and State of New York ("Building"), upon and subject to the
terms, covenants and conditions hereafter set forth.
TO HAVE AND TO HOLD the Demised Premises unto Tenant for a term
commencing on the date hereof (the "Commencement Date") and ending on a date
(the "Expiration Date") which shall be five (5) years and four (4) months after
the Commencement Date, plus the number of days required, if any, to have such
term expire on the last day of a calendar month, or on such earlier date upon
which said term may expire or terminate pursuant to the conditions of this Lease
or pursuant to law.
IT IS MUTUALLY COVENANTED AND AGREED between Landlord and Tenant as
follows:
ARTICLE 2
Commencement of Term
Section 2.01. The term of this Lease, for which the Demised Premises
are hereby leased, shall commence on the Commencement Date, and the Landlord
shall deliver possession of the Demised Premises on the Commencement Date.
Section 2.02. Tenant has fully inspected the Demised Premises, is
familiar with the condition thereof and agrees to accept possession of the same
on the Commencement Date. Except as hereinafter provided, Landlord shall not be
required to do any work therein to make the same suitable for the operation of
<PAGE>
Tenant's business. However, Landlord, promptly following the execution of this
Lease and at its expense, shall (i) remove the dumbwaiter from the Demised
Premises and repair any damage to the Demised Premises caused by such removal
and (ii) do such work as may be required in the bathrooms on the 8/th/ floor so
that the same comply with the Americans' with Disabilities Act.
Landlord is presently refurbishing the Building lobby, and elevators.
If Landlord has not substantially completed such work by December 31, 1999,
subject to the provisions of Article 34, then Tenant shall be entitled to an
additional abatement of the minimum rent of one (1) day for each one (1)
business day thereafter until Landlord has substantially completed said work.
Section 2.03. Promptly after the Commencement Date, Landlord and
Tenant shall execute a statement in recordable form confirming the agreed upon
Commencement and Expiration Dates of this Lease, in accordance with the
foregoing provisions.
ARTICLE 3
Rent
Section 3.01. Tenant shall pay as rent for the Demised Premises, the
following:
(a) a fixed minimum rent (the "minimum rent") at the following annual
rates:
(i) $1,140,000.00 per annum (or $95,000.00 per month) for the first
year (inclusive of a partial month if the Commencement Date is not the
first day of a month) following the Commencement Date, provided if the
Commencement Date is not the first day of a month, then the minimum rent
for such month shall be prorated; and
(ii) $1,170,000.00 per annum (or $97,500.00 per month) for the
second year following the Commencement Date; and
(iii) $1,200,000.00 per annum (or $100,000.00 per month) for the
third year following the Commencement Date; and
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(iv) $1,230,000.00 per annum (or $102,500.00 per month) for the
fourth year remainder of the term following the Commencement date; and
(v) $1,260,000.00 per annum (or $105,000.00 per month) for the
remainder of the term; and
(b) all other sums and charges required to be paid by Tenant under
the terms of this Lease (including without limitation, the payments
required to be made under Article 22), which shall be deemed to be and are
sometimes referred to hereafter as additional rent.
Section 3.02. Notwithstanding the provisions of Section 3.01 hereof
and provided Tenant is not then in default under any of the provisions of this
Lease on its part to be performed, Tenant shall be entitled to an abatement of
the minimum rent only as follows: the amount of $97,500.00 for each of the
1/st/, 2/nd/, 3/rd/ and 4/th/ full months of the term succeeding the
Commencement Date. Tenant acknowledges that the consideration for the aforesaid
abatement of minimum rent is Tenant's agreement to perform all of the terms,
covenants and conditions of this Lease on its part to be performed. Tenant shall
be required to pay additional rent from and after the Commencement Date.
Section 3.03. The minimum rent shall be payable in equal monthly
installments in advance on the first day of each and every month during the term
of this Lease, except that the first installment of $97,500.00 shall be paid
upon the execution of this Lease and applied to the payment of minimum rent for
the fifth (5/th/) full month of the term.
Landlord and Tenant agree that Tenant shall pay minimum rent,
additional rent and other amounts now due or hereafter to become due to the
Landlord or its agents as provided for in this Lease, (as and when due) directly
to the following lock-box account:
622 Building Company LLC
P.O. Box 41007
Newark, New Jersey 07101-8700
All rent checks shall be made payable to 622 Building Company LLC.
Section 3.04. Tenant shall pay the minimum rent and additional rent in
lawful money of the United States which shall be legal tender for the payment of
all debts, public and private, at the time of payment.
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Section 3.05. The minimum rent and additional rent shall be payable by
Tenant without any set-off, abatement or deduction whatsoever and without notice
or demand, except as otherwise expressly provided herein.
ARTICLE 4
Use
Section 4.01. Tenant shall use and occupy the Demised Premises for
administrative, executive and general office purposes only, including a data
center and computer room.
Section 4.02. Notwithstanding the provisions of Section 4.01, Tenant
shall not use or allow the use of the Demised Premises or any part thereof (1)
for the cooking and/or sale of food, except that Tenant may have a coffee maker
and warm foods through a microwave; (2) for storage for sale of any alcoholic
beverage in the Demised Premises; (3) for the storage and/or sale of any product
or material from the Demised Premises; (4) for manufacturing or printing
purposes; (5) for the conduct of a school or training facility or similar type
of business which results in the presence of the general public in the Demised
Premises, except that Tenant may have training classes for its personnel
incidental to its business; (6) for the conduct of the business of an employment
agency or personnel agency; (7) for the conduct of any public auction or public
exhibition; (8) for occupancy by a foreign, United States, state, municipal or
other governmental or quasi-governmental body, agency or department or any
authority or other entity which is affiliated therewith or controlled thereby
and which has diplomatic or sovereign immunity or the like with respect to a
commercial lease; (9) for messenger or delivery service (excluding Tenant's own
employees or outside services); (10) as a public stenographer or typist; (11) as
a telephone or telegraph agency, except that Tenant as an incident to its
business may have audio visual and closed circuit television facilities and
other types of telecommunication equipment; (12) as a company engaged in the
business of renting office(s) or desk space in the Demised Premises; (13) as
medical offices or a laboratory; (14) as a travel agency; (15) as a dating
service; (16) as a restaurant; (17) as a night club, discotheque, arcade or like
kind establishments; (18) as a public or quasi-public health facility, radiation
treatment facility, methadone clinic or other drug related clinic, abortion
clinic, or for any practice conducted in or through the format of a clinic; (19)
as a pawn shop; (20) as an off-track betting parlor; (21) as a homeless shelter,
soup kitchen or similar use; (22) for the sale or display or pornographic
products or services; (23) for the use or storage of flammable liquids or
chemicals (unless incidental to a permitted use); (24) as a funeral parlor; (25)
for
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the sale or grooming of pets; or (26) for any form of spiritualist services,
such a fortune telling or reading. Furthermore, the Demised Premises shall not
be used for any purpose that would, in Landlord's reasonable judgment, create
unreasonable or excessive elevator or floor loads, impair or interfere with any
of the Building operations or the proper and economic heating, air-conditioning,
cleaning or any other services of the Building, interfere with the use of the
other areas of the Building by any other tenants, or impair the appearance of
the Building. Neither Tenant nor any person within Tenant's control shall use,
generate, store, treat and/or dispose of any Hazardous Materials (as hereinafter
defined) in, on, under or about the Demised Premises.
Section 4.03. If any governmental license or permit, other than a
Certificate of Occupancy or any license or permit required for the proper and
lawful conduct of Tenant's business in the Demised Premises, or any part
thereof, and if failure to secure such license or permit would in any way affect
Landlord, Tenant, at its expense, shall duly procure and thereafter maintain
such license or permit and submit the same for inspection by Landlord. Tenant
shall at all times comply with the terms and conditions of each such license or
permit.
Section 4.04. Tenant shall not at any time use or occupy, or permit
anyone to use or occupy, the Demised Premises, or do or permit anything to be
done in the Demised Premises, in violation of the Certificate of Occupancy, for
the Demised Premises or for the Building, and will not permit or cause any act
to be done or any condition to exist on the Demised Premises which may be
dangerous unless safeguarded as required by law, or which in law constitutes a
nuisance, public or private, or which may make void or voidable any insurance
then in force covering the Building and building equipment.
Section 4.05. Landlord represents that the existing Certificate of
Occupancy permits the use of the Demised Premises for the purposes set forth in
Section 4.01, and that Landlord shall not change the Certificate of Occupancy to
prohibit such uses.
ARTICLE 5
Alterations, Fixtures
Section 5.01. Tenant, without Landlord's prior consent, shall make no
structural alterations, installations, additions, or improvements in or to the
Demised Premises ("work") including, but not limited to, an air-conditioning or
cooling
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system, or any unit or part thereof or other apparatus of like or other nature,
railings, mezzanine floors, galleries and the like. However, Tenant may make
non-structural interior work, subject to Landlord's prior written consent which
shall not be unreasonably withheld or delayed. Notwithstanding the foregoing,
Tenant, without Landlord's consent but subject to Landlord's approval of
contractors, may make non-structural interior work which does not affect the
structural integrity of the Building or the Building systems, does not affect
the other tenants in the Building, does not violate any mortgage, does not cost
more than $50,000 in the aggregate during any twelve (12) month period, and
Tenant has given not less than ten (10) days prior notice thereof. With respect
to any work requiring Landlord's approval and performance by any contractor
other than Landlord, Tenant shall pay to Landlord ten (10%) percent of the cost
of such work for supervision, coordination and other expenses incurred by
Landlord in connection therewith. However, such ten (10%) percent charge shall
not apply to Tenant's initial work in the Demised Premises nor does it apply to
painting, wallcovering, carpeting or furnishings. Workers' compensation and
public liability insurance and property damage insurance, all in amounts and
with companies and/or forms reasonably satisfactory to Landlord, shall be
provided and at all times maintained by Tenant's contractors engaged in the
performance of the work, and before proceeding with the work, certificates of
such insurance shall be furnished to Landlord. If consented to by Landlord, all
such work shall be done at Tenant's sole expense and in full compliance with all
governmental authorities having jurisdiction thereover. Upon completion of such
work, Tenant shall deliver to Landlord full scale "as built" plans for the same.
Landlord upon request of Tenant, will waive its right to any lien upon Tenant's
trade fixtures and equipment, in such form as shall be reasonably acceptable to
Landlord. All work affixed to the realty or if not so affixed but for which
Tenant shall have received a credit, shall become the property of Landlord,
subject to Tenant's right to replace same during the term hereof with items of
equal quality class and value, and shall remain upon, and be surrendered with,
the Demised Premises as a part thereof at the end of the term or any renewal or
extension term, as the case may be, without allowance to Tenant or charge to
Landlord, unless Landlord elects otherwise on notice to Tenant given at the time
that Landlord has consented to the work. However, if Landlord shall elect at the
time Tenant requests consent to any work, otherwise, Tenant at Tenant's expense,
at or prior to any termination of this Lease, shall remove all such work or such
portion thereof as Landlord shall elect and Tenant shall restore the Demised
Premises to its original condition, reasonable wear and tear excepted, at
Tenant's expense. However, Tenant shall not be obligated to remove its initial
work in the Demised Premises. If any Building facilities or services, including
but not limited to air-conditioning and ventilating equipment installed by
Landlord, are adversely affected or damaged by reason of the work by Tenant,
Tenant, at its expense, shall repair such damage to the extent such damage has
been caused by Tenant's work and shall correct the work so as to prevent any
further damage or adverse effect on such facilities or services.
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Section 5.02. Prior to commencing any work pursuant to the provisions
of Section 5.01, Tenant shall furnish to Landlord:
(a) Plans and specifications for the work to be done. However,
if Landlord fails to respond to Tenant's request for Landlord's consent to
the work within ten (10) business days after its receipt of such request
together with all required information, then Landlord shall be deemed to
have consented thereto.
(b) Copies of all governmental permits and authorizations which
may be required in connection with such work.
(c) A certificate evidencing that Tenant (or Tenant's contractor)
has procured workers' compensation insurance covering all persons employed
in connection with the work who might assert claims for death or bodily
injury against Landlord, Tenant, any mortgagee or the Building.
(d) Such additional personal injury and property damage insurance
(over and above the insurance required to be carried by Tenant pursuant to
the provisions of Section 9.03) as Landlord may reasonably require because
of the nature of the work to be done by Tenant.
(e) With respect to Tenant's work, other than Tenant's initial
work, exceeding the cost of $50,000, a bond or other security satisfactory
to Landlord, in the amount of one hundred ten (110%) percent of the
aggregate cost of the work, to insure completion of such work.
Section 5.03. Where furnished by or at the expense of Tenant (except
the replacement of an item theretofore furnished and paid for by Landlord or for
which Tenant has received a credit), all movable property, furniture,
furnishings, roller files, equipment and trade fixtures ("personalty") other
than those affixed to the realty in such manner as to cause material damage upon
its removal, shall remain the property of and shall be removed by Tenant on or
prior to any termination or expiration of this Lease, and, in the case of damage
by reason of such removal, Tenant, at Tenant's expense, promptly shall repair
the damage. If Tenant does not remove any such personalty, Landlord, after two
(2) business days notice to Tenant, at its election, (a) may cause the
personalty to be removed and placed in storage at Tenant's expense or (b) may
treat the personalty as abandoned and may dispose of the personalty as it sees
fit without accounting to Tenant for any proceeds realized upon such disposal.
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Section 5.04. Tenant agrees that the exercise of its rights pursuant
to the provisions of this Article 5 shall not be done in a manner which would
create any work stoppage, picketing, labor disruption or dispute or violate
Landlord's union contracts affecting the Building or interfere with the business
of Landlord or any Tenant or occupant of the Building. In the event of the
occurrence of any condition described above arising from the exercise by Tenant
of its right pursuant to the provisions of this Article 5, Tenant shall,
immediately upon notice from Landlord, cease the manner of exercise of such
right giving rise to such condition. In the event Tenant fails to cease such
manner of exercise of its rights as aforesaid, Landlord, in addition to any
rights available to it under this Lease and pursuant to law, shall have the
right to injunction. With respect to Tenant's work, Tenant shall make all
arrangements for, and pay all expenses incurred in connection with, use of the
freight elevators servicing the Demised Premises during those hours other than
as provided in Section 21.01(a) in accordance with Landlord's customary charges
therefor.
ARTICLE 6
Repairs
Section 6.01. Except as provided in Articles 10 and 14, Tenant shall
take good care of the Demised Premises and the fixtures wholly contained therein
and all portions of the HVAC, mechanical, plumbing and electrical systems wholly
contained within and exclusively serving the Demised Premises, and at its sole
cost and expense make all repairs thereto as and when needed to preserve them in
good working order and condition. All damage or injury to the Demised Premises
or the Building or to any building equipment or systems caused by Tenant moving
property in or out of the Building or by installation or removal of personalty
or resulting from negligence or conduct of Tenant, its employees, agents,
contractors, customers, invitees and visitors, shall be repaired, promptly by
Tenant at Tenant's expense, and whether or not involving structural changes or
alterations, to the satisfaction of Landlord. All repairs shall include
replacements or substitutions where necessary and shall be at least equal to
the quality, class and value of the property repaired, replaced or substituted
and shall be done in a good and workmanlike manner.
Section 6.02. Landlord, at its expense, shall maintain and make all
repairs and replacements, structural and otherwise, to the exterior and public
portions of the Building, the Building systems up to its connection with the
Demised Premises, and to the Demised Premises, unless Tenant is required to make
them under the provisions of Section 6.01 or unless required as a result of the
performance
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or existence of alterations performed by Tenant or on Tenant's behalf, in which
event Tenant, at its expense, shall perform such maintenance, repairs or
replacements. Tenant shall notify Landlord of the necessity for any repairs for
which Landlord may be responsible in the Demised Premises under the provisions
of this Section. Landlord shall have no liability to Tenant by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or permitted
by this Lease, or required by law, to make in or to any portion of the Building
or the Demised Premises, or in or to the fixtures, equipment or appurtenances of
the Building or the Demised Premises. Notwithstanding the foregoing, Landlord
shall use reasonable efforts to make such repairs or changes in a manner to
minimize its interference with the normal conduct of Tenant's business, provided
Landlord shall not be required to employ overtime or premium labor.
Section 6.03. Tenant shall not store or place any materials or other
obstructions in the lobby or other public portions of the Building, or on the
sidewalk abutting the Building.
ARTICLE 7
Floor Load; Noise
Section 7.01. Tenant shall not place a load upon any floor of the
Demised Premises which exceeds the load per square foot which such floor was
designed to carry (50 lbs. live per square foot).
Section 7.02. Business machines and mechanical equipment belonging to
Tenant which cause noise, vibration or any other nuisance that may be
transmitted to the structure or other portions of the Building or to the Demised
Premises, to such a degree as to be objectionable to Landlord or which interfere
with the use or enjoyment by other tenants of their premises or the public
portions of the Building, shall be placed and maintained by Tenant, at Tenant's
expense, in settings of cork, rubber or spring type vibration eliminators
sufficient to eliminate such objectionable or interfering noise or vibration.
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ARTICLE 8
Laws, Ordinances, Requirements of Public Authorities
Section 8.01. (a) Subject to the provisions of this Article 8, Tenant, at
its expense, shall comply with all laws, orders, ordinances, rules and
regulations and directions of Federal, State, County and Municipal authorities
and departments thereof having jurisdiction over the Demised Premises and the
Building, including but not limited to the Americans With Disabilities Act
("Governmental Requirements"), referable to Tenant or the Demised Premises,
arising by reason of Tenant's particular manner of use of the Demised Premises
(other than in contradistinction merely for the office uses permitted in Section
4.01 ) or any installations made therein by or at Tenant's request, or any
default by Tenant under this Lease.
(b) Except as otherwise provided herein, Tenant covenants and agrees
that Tenant shall, at Tenant's sole cost and expense, comply at all times with
all Governmental Requirements governing the use, generation, storage, treatment
and/or disposal of any "Hazardous Materials" (which term shall mean any
biologically or chemically active or other toxic or hazardous wastes, pollutants
or substances, including, without limitation, asbestos, PCBs, petroleum products
and by-products, substances defined or listed as "hazardous substances" or
"toxic substances" or similarly identified in or pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. (S) 9601 et
seq., and as hazardous wastes under the Resource Conservation and Recovery Act,
42 U.S.C. (S) 6010 et seq., any chemical substance or mixture regulated under
the Toxic Substance Control Act of 1976, as amended, 15 U.S.C. (S) 2601 et seq.,
any "toxic pollutant" under the Clean Water Act, 33 U.S.C. (S) 466 et seq., as
amended, any hazardous air pollutant under the Clean Air Act, 42 U.S.C. (S) 7401
et seq., hazardous materials identified in or pursuant to the Hazardous
Materials Transportation Act, 49 U.S.C. (S) 1802 et seq., and any hazardous or
toxic substances or pollutant regulated under any other Governmental
Requirements). Tenant shall agree to execute, from time to time, at Landlord's
request, affidavits, representations and the like concerning Tenant's best
knowledge and belief regarding the presence of Hazardous Materials in, on, under
or about the Demised Premises, the Building or the Land. Tenant shall indemnify
and hold harmless Landlord, its partners, officers, shareholders, members,
directors and employees, Overlandlord and
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any mortgagee (collectively, the "Indemnitees"), from and against any loss,
cost, damage, liability or expense (including attorneys' fees and disbursements)
arising by reason of any cleanup, removal, remediation, detoxification action or
any other activity required or recommended of any Indemnitees by any government
authority by reason of the presence in or about the Land, the Building or the
Demised Premises of any Hazardous Materials, as a result of or in connection
with the act or omission of Tenant or any person or entity within Tenant's
control or the breach of this Lease by Tenant or any person or entity within
Tenant's control. The foregoing covenants and indemnity shall survive the
expiration of any termination of this Lease. Tenant, at its own cost and
expense, may contest, in any manner permitted by Governmental Requirements
(including appeals to a court, governmental department or authority having
jurisdiction), the validity or the enforcement of any Government Requirements
which Tenant is required to comply, and may defer compliance, provided that (i)
such non-compliance shall not subject Landlord to criminal prosecution or
subject the Land and/or Building to sale or any lien, unless Tenant posts a bond
to remove such lien, (ii) Tenant shall indemnify Landlord against any cost,
damage or injury from such non-compliance, and if any mortgagee shall require,
Tenant shall deliver a surety bond by a surety company approved by such
mortgagee and Landlord with respect to such indemnity, and (iii) Tenant shall
promptly, diligently and continuously prosecute such contest. Landlord, at no
expense to Landlord, shall cooperate with Tenant and execute any required
documents, provided Landlord is reasonably satisfied that the facts set forth in
such documents are accurate.
(c) Landlord, at its expense, shall comply with and cure Governmental
Requirements relating to the public portions of the Building and to the Demised
Premises, provided that Tenant is not obligated to comply with them under the
provisions of subdivision (a) of this Section. Landlord, at its expense, may
contest the validity of any Governmental Requirements and postpone compliance
therewith pending such contest.
(d) Landlord represents that on the Commencement Date the Demised
Premises will be free of Hazardous Materials and in compliance with applicable
Governmental Requirements. Landlord, at its expense, agrees to remedy any
condition arising out of a breach of the representations contained in this
subdivision (d) and agrees to indemnify and hold Tenant harmless from and
against any costs,
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expenses and damages arising out of a breach of such representations.
Section 8.02. If Tenant receives written notice of any violation of
any Governmental Requirements applicable to the Demised Premises, it shall give
prompt notice thereof to Landlord.
Section 8.03. Tenant will not clean, nor allow any window in the
Demised Premises to be cleaned, from the outside in violation of Section 202 of
the Labor Law or the rules of the Board of Standards and Appeals or of any other
board or body having or asserting jurisdiction.
ARTICLE 9
Insurance
Section 9.01. Provided Tenant has notice of the applicable
provisions, Tenant shall not do or permit to be done any act or thing in or upon
the Demised Premises which will invalidate or be in conflict with the
Certificate of Occupancy for the Building or the terms of the insurance policies
covering the Building and the property and equipment therein; and, subject to
Section 8.01, Tenant, at its expense, shall comply with all rules, orders,
regulations and requirements of the New York Board of Fire Underwriters or any
other similar body having jurisdiction, and of the insurance carriers, and shall
not knowingly do or permit anything to be done in or upon the Demised Premises
in a manner which increases the rate of insurance for the Building or any
property or equipment therein over the rate in effect on the Commencement Date,
provided further that nothing in this Section shall prohibit the uses permitted
under Section 4.01.
Section 9.02. If, by reason of Tenant's failure to comply with the
provisions of Section 9.01 or any of the other provisions of this Lease, the
rate of insurance for the Building or the property and equipment of Landlord
shall be higher than on the Commencement Date, Tenant shall pay to Landlord any
additional or increased insurance premiums to the extent resulting therefrom
thereafter paid by Landlord, and Tenant shall make such payment forthwith on
demand of Landlord. In any action or proceeding wherein Landlord and Tenant are
parties, a schedule or "make up" of any insurance rate for the Building or
Demised Premises issued by the New York Fire Insurance Exchange, or other body
establishing fire insurance rates for the Building, shall be conclusive evidence
of the facts therein stated and of the
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several items and charges in the insurance rates then applicable to the Building
or Demised Premises.
Section 9.03. (a) Tenant covenants to provide on or before the
Commencement Date and to keep in force during the term hereof, the
following insurance coverage:
(i) For the benefit of Landlord, Tenant and any mortgagee, a
commercial policy of liability insurance protecting and indemnifying
Landlord, Tenant and any mortgagee against any and all claims for
personal injury, death or property damage occurring upon, in or about
the Demised Premises, and the public portions of the Building in
connection with any act of Tenant, its employees, agents, contractors,
customers, invitees and visitors including, without limitation,
personal injury, death or property damage resulting from any work
performed by or on behalf of Tenant, with coverage of not less than
$5,000,000.00 combined single limit for personal injury, death and
property damage arising out of one occurrence or accident.
(ii) Fire and extended coverage in an amount adequate to
cover the cost of replacement of all personal property, fixtures,
furnishings and equipment, including Tenant's work (as referred to in
Section 5.01), located in the Demised Premises.
(b) All such insurance shall (i) be effected under valid and
enforceable policies, (ii) be issued by insurers of recognized
responsibility authorized to do business in the State of New York, (iii)
contain a provision whereby the insurer agrees not to cancel the insurance
without thirty (30) days' prior written notice to Landlord, and (iv)
contain a provision that no act or omission of Tenant shall result in
forfeiture of the insurance as against Landlord.
On or before the Commencement Date, Tenant shall deliver to Landlord
duplicate originals of the aforesaid policies or certificates evidencing the
aforesaid insurance coverage, and renewal policies or certificates shall be
delivered to Landlord at least thirty (30) days prior to the expiration date of
each policy with proof of payment of the premiums thereof.
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Section 9.04 Landlord shall maintain fire and extended coverage
insurance covering the Building in an amount required by the mortgagee, and
shall also maintain liability insurance.
Section 9.05. Landlord and Tenant shall each secure an appropriate
clause in, or an endorsement upon, each fire or extended coverage policy
obtained by it and covering the Building, the Demised Premises or the personal
property, fixtures and equipment located therein or thereon, pursuant to which
the respective insurance companies waive subrogation or permit the insured,
prior to any loss, to agree with a third party to waive any claim it might have
against said third party. The waiver of subrogation or permission for waiver of
any claim herein before referred to shall extend to the agents of each party and
its employees and, in the case of Tenant, shall also extend to all other persons
and entities occupying or using the Demised Premises in accordance with the
terms of this lease. If and to the extent that such waiver or permission can be
obtained only upon payment of an additional charge, then, the party benefitting
from the waiver or permission shall pay such charge upon demand, or shall be
deemed to have agreed that the party obtaining the insurance coverage in
question shall be free of any further obligations under the provisions hereof
relating to such waiver or permission.
Subject to the foregoing provisions of this Section 9.05, and insofar
as may be permitted by the terms of the insurance policies carried by it, (i)
each party hereby releases the other with respect to any claim (including a
claim for negligence) which it might otherwise have against the other party for
loss, damages or destruction with respect to its property by fire or other
casualty (including rental value or business interruption, as the case may be)
occurring during the term of this Lease covered by insurance and (ii) Tenant
releases other tenants but only to the extent that the policies of such other
tenants permit a similar waiver for the benefit of Tenant and such other tenant
gives such a waiver.
ARTICLE 10
Damage by Fire or Other Cause
Section 10.01. If the Demised Premises shall be damaged by fire or
other casualty, the damage shall be repaired by and at the expense of Landlord
and the minimum rent and additional rent pursuant to the provisions of Article
22 until such repairs shall be made, shall be apportioned according to the part
of the Demised Premises which is usable and accessable by Tenant. Landlord
shall have no responsibility to repair any damage to Tenant's work (as referred
to in Section 5.01), the same being the responsibility of Tenant. No penalty
shall accrue for delays
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which may arise by reason of adjustment of insurance by Landlord, unavoidable
delays (as hereinafter defined), or any other cause beyond Landlord's reasonable
control. Tenant shall give notice to Landlord promptly upon learning thereof in
case of fire or other damage to the Demised Premises. If the Demised Premises
are totally or substantially damaged or are rendered wholly or substantially
unusable by fire or any such other casualty, or if the Building shall be so
damaged that Landlord shall decide to demolish it or to rebuild it (whether or
not the Demised Premises shall have been damaged), Landlord at its election may
terminate this Lease by written notice to Tenant, within ninety (90) days after
such fire or other casualty, and thereupon the term of this Lease shall expire
by lapse of time upon the third (3rd) day after such notice is given, and Tenant
shall vacate and surrender the Demised Premises to Landlord. However, if more
than twenty-five (25%) percent of the rentable square feet of the Demised
Premises shall be damaged during the last year of the term hereof, either
Landlord or Tenant, at its election, may terminate this Lease by written notice
to the other within sixty (60) days after such fire or other casualty, and
thereupon the term of this Lease shall expire upon the third (3/rd/) day after
such notice is given and Tenant shall vacate and surrender the Demised Premises
to Landlord. Tenant shall not be liable under this Lease for anything accruing
after the date of such expiration. Notwithstanding the foregoing, if Landlord
does not substantially complete such repairs within six (6) months from the date
of such casualty (as such period may be extended pursuant to Article 34), then
Tenant may elect to terminate this Lease by notice to Landlord within ten (10)
days following the expiration of such time period, and thereupon the term of
this Lease shall expire on the thirtieth (30/th/) day after such notice is given
and Tenant shall vacate and surrender the Demised Premises to Landlord, unless
within such thirty (30) day period, Landlord substantially completes such
repairs, in which event this Lease shall remain in full force and effect. Tenant
hereby waives the provisions of Section 227 of the Real Property Law, and the
provisions of this Article shall govern and control in lieu thereof.
Section 10.02. No damages of compensation shall be payable by Landlord
nor shall Tenant make any claim for inconvenience, loss of business or annoyance
arising from any repair or restoration of any portion of the Demised Premises or
of the Building. Landlord shall use its best efforts to commence and effect
such repairs promptly and in such manner as not to unreasonably interfere with
Tenant's occupancy.
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ARTICLE 11
Assignment, Subletting, Mortgaging
Section 11.01. Tenant will not, by operation of law or otherwise,
assign, mortgage or encumber this Lease, or sublet or permit the Demised
Premises or any part thereof to be occupied or used by others for desk space,
mailing privileges or otherwise, without Landlord's prior written consent in
each instance, which consent shall not be unreasonably withheld or delayed
subject to the provisions of Section 11.07. If this Lease be assigned, or if
the Demised Premises or any part thereof be underlet or occupied by anybody
other than Tenant, Landlord, may, after default by Tenant, collect rent from the
assignee, undertenant or occupant, and apply the net amount collected to the
rent herein reserved, but no assignment, underletting, occupancy or collection
shall be deemed a waiver of the provisions hereof, the acceptance of the
assignee, undertenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Landlord to any assignment, subletting, mortgage or
encumbrance shall not in any manner be construed to relieve Tenant from
obtaining Landlord's express consent to any other or further assignment,
subletting, mortgage or encumbrance. In no event shall any permitted sublessee
assign or encumber its sublease or further sublet all or any portion of its
sublet space, or otherwise suffer or permit the sublet space or any part thereof
to be used or occupied by others, without Landlord's prior written consent in
each instance, which consent shall not be unreasonably withheld or delayed
subject to the provisions of Section 11.07.
Section 11.02. If Tenant shall at any time or times during the term of
this Lease desire to assign this Lease or sublet all or part of the Demised
Premises, Tenant shall give notice thereof to Landlord, which notice shall be
accompanied by (a) a conformed or photostatic copy of the proposed assignment or
sublease, the effective or commencement date of which shall be not less than
thirty (30) nor more than 180 days after the giving of such notice, (b) a
statement setting forth in reasonable detail the identity of the proposed
assignee or subtenant, the nature of its business and its proposed use of the
Demised Premises, and (c) current financial information with respect to the
proposed assignee or subtenant, including, without limitation, its most recent
financial report. Such notice shall be deemed an offer from Tenant to Landlord
whereby Landlord (or Landlord's designee) may, at its option, (i) sublease such
space (hereinafter called the "Leaseback Space") from Tenant upon the terms and
conditions hereinafter set forth (if the proposed transaction is a sublease of
all or part of the Demised Premises), (ii) terminate this Lease (if the proposed
transaction is an assignment or a sublease (whether by one sublease or a series
of related or unrelated subleases) of all or substantially all of the
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Demised Premises, or (iii) terminate this Lease with respect to the Leaseback
Space (if the proposed transaction is a sublease of part of the Demised
Premises). Said options may be exercised by Landlord by notice to Tenant at any
time within twenty (20) days after such notice has been given by Tenant to
Landlord; and during such twenty (20) day period Tenant shall not assign this
Lease nor sublet such space to any person.
Section 11.03. If Landlord exercises its option to terminate this
Lease in the case where Tenant desires either to assign this Lease or sublet
(whether by one sublease or a series of related or unrelated subleases) all or
substantially all of the Demised Premises, then this Lease shall end and expire
on the date that such assignment or sublet was to be effective or commence, as
the case may be, and the minimum rent and additional rent shall be paid and
apportioned to such date.
Section 11.04. If Landlord exercises its option to terminate this
Lease in part in any case there Tenant desires to sublet part of the Demised
Premises, then (a) this Lease shall end and expire with respect to such part of
the Demised Premises on the date that the proposed sublease was to commence; and
(b) from and after such date the minimum rent and additional rent shall be
adjusted, based upon the proportion that the rentable area of the Demised
Premises remaining bears to the total rentable area of the Demised Premises; and
(c) Landlord shall pay the costs incurred by Landlord in physically separating
such part of the Demised Premises from the balance of the Demised Premises and
in complying with any laws and requirements of any public authorities relating
to such separation.
Section 11.05. If Landlord exercises its option to sublet the
Leaseback Space, such sublease to Landlord or its designee (as subtenant) shall
be at the lower of (i) the rental rate per rentable square foot of minimum rent
and additional rent then payable pursuant to this Lease or (iii) the rentals set
forth in the proposed sublease, and shall be for the same term as that of the
proposed subletting, and such sublease:
(a) shall be expressly subject to all of the covenants,
agreements, terms, provisions and conditions of this Lease except such as
are irrelevant or inapplicable, and except as otherwise expressly set forth
to the contrary in this Section;
(b) Such sublease shall be upon the same terms and conditions as
those contained in the proposed sublease, except such as are irrelevant or
inapplicable and except as otherwise expressly set forth to the contrary in
this Section;
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(c) Such sublease shall give the sublesee the unqualified and
unrestricted right, without Tenant's permission, to assign such sublease or
any interest therein and/or to sublet the Leaseback Space and to make any
and all changes, alterations, and improvements in the space covered by such
sublease at no cost or liability to Tenant and if the proposed sublease
will result in all or substantially all of the Demised Premises being
sublet, grant Landlord or its designee the option to extend the term of
such sublease for the balance of the term of this Lease less one (1) day;
(d) Such sublease shall provide that any assignee or further
subtenant, of Landlord or its designee, may, at the election of Landlord,
be permitted to make alterations, decorations and installations in the
Leaseback Space or any part thereof and shall also provide in substance
that any such alterations, decorations and installations in the Leaseback
Space therein made by any assignee or subtenant of Landlord or its designee
may be removed, in whole or in part, by such assignee or subtenant, at its
option, prior to or upon the expiration or other termination of such
sublease provided that such assignee or subtenant, at its expense, shall
repair any damage and injury to that portion of the Leaseback Space so
sublet caused by such removal and restore to the condition such space was
in at the beginning of the sublease term for other than customary office
installations; and
(e) Such sublease shall also provide that (i) the parties to
such sublease expressly negate any intention that any estate created under
such sublease be merged with any other estate held by either of said
parties, (ii) any assignment or subletting by Landlord or its designee (as
the subtenant) may be for any purpose or purposes that Landlord, in
Landlord's reasonable discretion, shall deem suitable or appropriate, (iii)
Landlord, at Tenant's expense, may make such alterations as may be required
or deemed necessary by Landlord to physically separate the Leaseback Space
from the balance of the Demised Premises and to comply with any laws and
requirements of public authorities relating to such separation, and (iv)
that at the expiration of the term of such sublease, Tenant will accept the
space covered by such sublease in its then existing condition, subject to
the obligations of the sublessee to make such repairs thereto as may be
necessary to restore the premises demised by such sublease to a comparable
condition as such space was in at the beginning of the sublease term.
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Section 11.06. (a) If Landlord exercises its option to sublet the
Leaseback Space, Landlord shall indemnify and save Tenant harmless from all
obligations under this Lease as to the Leaseback Space during the period of time
it is so sublet to Landlord.
(b) Performance by Landlord, or its designee, under a sublease of
the Leaseback Space shall be deemed performance by Tenant of any similar
obligation under this Lease and any default under any such sublease shall
not give rise to a default under a similar obligation contained in this
Lease, nor shall Tenant be liable for any default under this Lease or
deemed to be in default hereunder if such default is occasioned by or
arises from any act or omission of any occupant holding under or pursuant
to any such sublease.
(c) Tenant shall have no obligation, at the expiration or earlier
termination of the term of this Lease, to remove any alteration,
installation or improvement made in the Leaseback Space by Landlord or by
any occupant thereof.
Section 11.07. In the event Landlord does not exercise an option
provided to it pursuant to Section 11.02 and provided that Tenant is not in
default in any of Tenant's obligations under this Lease, Landlord's consent
(which must be in writing and in form reasonably satisfactory to Landlord) to
the proposed assignment or sublease shall not be unreasonably withheld or
delayed, provided and upon condition that:
(a) Tenant shall have complied with the provisions of Section
11.02 and Landlord shall not have exercised any of its options under said
Section 11.02 within the time permitted therefor;
(b) In Landlord's judgment, the proposed assignee or subtenant is
engaged in a business and the Demised Premises, or the relevant part
thereof, will be used in a manner which (i) is limited to the use expressly
permitted under Sections 4.01 and 4.02 of this Lease, and (ii) is in
keeping with the then standards of the Building;
(c) The proposed assignee or subtenant is a reputable person of
good character and with sufficient financial worth considering the
responsibility involved, and Landlord has been furnished with reasonable
proof thereof;
(d) Neither (i) the proposed assignee or sublessee nor (ii) any
person which, directly or indirectly, controls, is controlled by
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or is under common control with, the proposed assignee or sublessee, is
then an occupant of any part of the Building other than the Demised
Premises;
(e) The proposed assignee or sublessee is not a person with whom
Landlord is currently negotiating to lease space in the Building;
(f) The proposed sublease shall be in form reasonably
satisfactory to Landlord and shall comply with the provisions of this
Article;
(g) At any one time there shall not be more than four (4)
unrelated subtenants (including Landlord or its designee) in the Demised
Premises;
(h) Tenant shall reimburse Landlord on demand for any reasonable
costs that may be incurred by Landlord in connection with said assignment
or sublease, including, without limitation, the reasonable costs incurred
in making investigations as to the acceptability of the proposed assignee
or subtenant, and reasonable legal costs incurred in connection with the
granting of any requested consent;
(i) Tenant shall not have (i) advertised in any way the
availability of the Demised Premises without prior notice to Landlord, or
(ii) listed the Demised Premises at a rental rate less than the minimum
rent or additional rent at which Landlord is then offering to lease other
space in the Building; and
(j) The proposed subtenant or assignee shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity and shall be
subject to the service of process in and the jurisdiction of the courts of
New York State.
Except for any subletting by Tenant to Landlord or its designee
pursuant to the provisions of this Article, each subletting pursuant to this
Article shall be subject to all of the covenants, agreements, terms, provisions
and conditions contained in this Lease. Notwithstanding any such subletting to
Landlord or any such subletting to any other subtenant and/or acceptance of rent
or additional rent by Landlord from any subtenant, Tenant shall and will remain
fully liable for the payment for the minimum rent and additional rent due and to
become due hereunder and for the performance of all the covenants, agreements,
terms, provisions and conditions
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contained in this Lease on the part of Tenant to be performed and all acts and
omissions of any licensee or subtenant or anyone claiming under or through any
subtenant which shall be in violation of any of the obligations of this Lease,
and any such violation shall be deemed to be a violation by Tenant. Tenant
further agrees that notwithstanding any such subletting, no other person
claiming through or under Tenant (except as provided in Section 11.05) shall or
will be made except upon compliance with and subject to the provisions of this
Article. If Landlord shall decline to give its consent to any proposed
assignment or sublease (provided landlord has not unreasonably withheld or
delayed its consent), or if Landlord shall exercise its option under Section
11.02, Tenant shall indemnify, defend and hold harmless Landlord against and
from any and all loss, liability, damages, costs and expenses (including
reasonable counsel fees) resulting from any claims that may be made against
Landlord by the proposed assignee or sublessee or by any brokers or other
persons claiming a commission or similar compensation in connection with the
proposed assignment or sublease. Notwithstanding the foregoing, Tenant, without
Landlord's consent, may allow a portion of the Demised Premises to be occupied
by a wholly owned subsidiary or an affiliate or related entity controlled by or
under common control with Tenant, provided such occupancy shall not create any
landlord and tenant relationship or privity as between Landlord and any such
occupant and Tenant shall give Landlord prior reasonable notice of such proposed
occupancy. Such occupancies shall not be counted towards the total allowed under
Section 11.07(g), and Landlord has no rights of termination or recapture with
respect to such occupancies.
Section 11.08. In the event that (a) Landlord fails to exercise its
options under Section 11.02 and consents to a proposed assignment or sublease,
and (b) Tenant fails to execute and deliver the assignment or sublease to which
Landlord consented within ninety (90) days after the giving of such consent,
then, Tenant shall again comply with all of the provisions and conditions of
Section 11.02 before assigning this Lease or subletting all or part of the
Demised Premises.
Section 11.09. With respect to each and every sublease or subletting
authorized by Landlord under the provisions of this Lease, it is further agreed:
(a) No subletting shall be for a term ending later than one day
prior to the expiration date of this Lease;
(b) No sublease shall be valid, and no subtenant shall take
possession of the Premises or any part thereof, until an executed
counterpart of such sublease has been delivered to Landlord;
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(c) Each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which this Lease is or
shall be subordinate, and that in the event of termination, re-entry or
dispossess by Landlord under this Lease Landlord may, at its option, take
over all of the right, title and interest of Tenant, as sublessor, under
such sublease, and such subtenant shall, at Landlord's option, attorn to
Landlord pursuant to the then executory provisions of such sublease, except
that Landlord shall not (i) be liable for any previous act or omission of
Tenant under such sublease, (ii) be subject to any offset, not expressly
provided in such sublease, which thereto accrued to such subtenant against
Tenant, or (iii) be bound by any previous modification of such sublease or
by any previous prepayment of more than one month's rent.
Section 11.10. If Landlord gives its consent to any assignment of this
Lease or to any sublease, Tenant shall, in consideration therefor, pay to
Landlord, as additional rent:
(a) in the case of an assignment of this Lease or an assignment
by any sublease, an amount equal to one-half of all sums and other
considerations paid to Tenant from the assignee for such assignment or paid
to Tenant by any sublessee or other person claiming through or under Tenant
for such assignment (including, but not limited to sums paid for the sale
of Tenant's or sublessee's fixtures, leasehold improvements, less, in case
of a sale thereof, the then net unamortized or undepreciated cost thereof
determined on the basis of Tenant's or sublessee's federal income tax
returns). The sums payable to Landlord under this Section 11.10(a) shall be
paid to Landlord as and when paid by such assignee to Tenant; and
(b) in the case of a sublease, an amount equal to one-half of the
rents and charges and other consideration payable under the sublease to
Tenant by the subtenant or paid to Tenant by any such sublessee or other
person claiming through or under Tenant in connection with such subletting
which is in excess of all rent accruing during the term of the sublease in
respect of the subleased space (at the rate per square foot payable by
Tenant hereunder or such sublessee) pursuant to the terms of this Lease
(including, but not limited to, sums paid for the sale or rental of
Tenant's fixtures, leasehold improvements, less, in the case of the sale
thereof, the then net unamortized or undepreciated cost thereof determined
on the basis of Tenant's or sublessee's federal income tax returns). The
sums
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payable to Landlord under this Section 11.10(b) shall be paid to Landlord
as and when paid by such subtenant to Tenant.
(c) For the purposes of computing the sums payable by Tenant to
Landlord under subparagraphs (a) and (b) hereof, there shall be first
excluded from the consideration payable to Tenant by any assignee or
sublessee any transfer taxes, rent concession, reasonable attorneys' fees,
reasonable brokerage commissions, advertising costs and fix-up costs paid
by Tenant with respect to such assignment or subletting, but only to the
extent any such sums are allocable to the period of this Lease (in the case
of any assignment), or the term of any sublease.
Section 11.11. If Tenant or any subtenant is a corporation,
partnership, limited liability company or other entity, the provisions of
Section 11.01 shall apply to a transfer (by one or more transfers) of a majority
of the stock, partnership, membership or other ownership interests or transfer
of all or substantially all of the assets of Tenant or such subtenant, as the
case may be, as if such transfer of a majority of the stock, partnership,
membership or other ownership interests or all or substantially all of the
assets of Tenant or such subtenant were an assignment of this Lease; but said
provisions and the provisions of Sections 11.02 and 11.10 shall not apply to
transactions with a corporation, partnership, limited liability company or
other entity into or with which Tenant or such subtenant is merged or
consolidated, or to which all or substantially all of the assets of Tenant are
transferred, or to any corporation, partnership, limited liability company or
other entity which controls or is controlled by Tenant or such subtenant or is
under common control with Tenant or such subtenant, provided that in any of such
events (i) the successor to Tenant or such subtenant has a net worth computed in
accordance with generally accepted accounting principles at least equal to the
greater of (1) the net worth of Tenant or such subtenant immediately prior to
such merger, consolidation or transfer, or (2) the net worth of Tenant herein
named on the date of this Lease or the net worth of such subtenant on the date
of such sublease, and (ii) proof satisfactory to Landlord of such net worth
shall have been delivered to Landlord at least ten (10) days prior to the
effective date of any such transaction. Notwithstanding the foregoing, without
Landlord's consent, subject to the provisions of Section 11.11 Tenant may assign
this Lease, or subject to the provision of the last paragraph of Section 11.07
and Section 11.09 Tenant may sublet a part of the Demised Premises, to a
controlled subsidiary or controlled affiliate of Tenant or of the Guarantor, or
to the Guarantor of this Lease, provided a duly executed counterpart of such
assignment together with the assumption by the assignee or duly executed
counterpart of such sublease, as the case may be, is delivered to Landlord at
least ten (10) days prior to its effective date. Such subleases shall not be
counted towards the total allowed under Section 11.07(g) and Landlord has no
rights of
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termination or recapture with respect to the subleases or assignments permitted
in this Section 11.11.
Section 11.12. Any assignment or transfer, whether made with
Landlord's consent pursuant to Section 11.06 or without Landlord's consent
pursuant to Section 11.10, shall be made only if, and shall not be effective
until, the assignee shall execute, acknowledge and deliver to Landlord an
agreement in form and substance reasonably satisfactory to Landlord whereby the
assignee shall assume the obligations of this Lease on the part of Tenant to be
performed or observed and whereby the assignee shall agree that the provisions
in this Article 11 shall, notwithstanding such assignment or transfer, continue
to be binding upon it in respect of all future assignments and transfers. The
original named Tenant covenants that, notwithstanding any assignment or
transfer, whether or not in violation of the provisions of this Lease, and
notwithstanding the acceptance of minimum rent and/or additional rent by
Landlord from an assignee, transferee, or any other party, the original named
Tenant shall remain fully liable for the payment of the minimum rent and
additional rent and for the other obligations of this Lease on the part of
Tenant to be performed or observed.
Section 11.13. The joint and several liability of Tenant and any
immediate or remote successor in interest of Tenant and the due performance of
the obligations of this Lease on Tenant's part to be performed or observed shall
not be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord extending the time of, or modifying any of the
obligations of, this Lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this Lease.
Section 11.14. The listing of any name ot her than that of Tenant,
whether on the doors of the Demised Premises, or the Building directory, if any,
or otherwise, shall not operate to vest any right or interest in this Lease or
in the Demised Premises, nor shall it be deemed to be the consent of Landlord to
any assignment or transfer of this Lease, to any sublease of the Demised
Premises, or to the use or occupancy thereof by others. Landlord at its cost,
shall provide Tenant up to thirty (30) listings in the main lobby for Tenant and
permitted occupants and subtenants.
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ARTICLE 12
Liability and Indemnity by Landlord and Tenant
Section 12.01. Each party shall indemnify the other against and save
the other harmless from any liability to and claim by or on behalf of any
person, firm, governmental authority, corporation or entity for personal injury,
death or property damage, arising:
(a) (i) with respect to Tenant, from its use of the Demised
Premises, or from any work whatsoever done or omitted to be done by Tenant,
its employees, agents, contractors, customers, invitees or visitors, or
from any accident thereat, and (ii) with respect to Landlord, from any work
whatsoever done or omitted to be done in the Building by Landlord, its
agents, contractors or employees; and
(b) from any breach or default by either party of and under any
of the terms, covenants and conditions of this Lease on such party's part
to be performed.
Each party also shall indemnify the other against and save the other
harmless from all costs, reasonable counsel fees, expenses and penalties
incurred by the other in connection with any such liability or claim other than
such liability or claim incurred as a result of such party's negligence or
willful misconduct.
If any action or proceeding shall be brought against either party in
connection with any such liability or claim, the other party (the "Indemnitor")
, on notice from the party against whom such action or proceeding was commenced
(the "Indemitee"), shall defend such action or proceeding, at the Indemnitor's
expense, by counsel reasonably satisfactory to the Indemnitee, or by the
attorney for the Indemnitor's insurance carrier whose insurance policy covers
the liability or claim.
Section 12.02. Landlord shall not be liable for any damage to property
of Tenant or of others entrusted to employees of the Building, nor for the loss
of or damage to any property of Tenant by theft or otherwise, except if due to
the negligence or willful act of Landlord, its agents, contractors or employees.
Landlord and its agents shall not be liable for any injury or damage to persons
or property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, rain or snow or leaks from any part of the Building or from
the pipes, appliances or plumbing works or from the roof, street or sub-surface
or from any other place or by dampness or by any other cause of whatsoever
nature, except if due to the negligence or willful act of Landlord, its agents,
contractors or employees; nor shall Landlord be liable for
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any such damage caused by other tenants or persons in the Building or caused by
operations in construction of any public or quasi-public work. If, at any time
any windows of the Demised Premises are permanently closed, darkened or bricked
up by reason of the requirements of law or temporarily closed or darkened by
reason of repairs, alterations or maintenance by Landlord, Landlord shall not be
liable for any damage Tenant may sustain thereby and Tenant shall not be
entitled to any compensation therefor nor abatement of rent nor shall the same
release Tenant from its obligations hereunder nor constitute an eviction.
Tenant shall give immediate notice to Landlord upon its discovery of
accidents in the Demised Premises.
Section 12.03. (a) If in this Lease it is provided that Landlord's
consent or approval as to any matter will not be unreasonably withheld, and
it is established by a court or body having final jurisdiction thereover
that Landlord has been unreasonable, the only effect of such finding shall
be that Landlord shall be deemed to have given its consent or approval; but
Landlord shall not be liable to Tenant in any respect for money damages by
reason of withholding its consent.
(b) In the event of any dispute under Section 11.07 relating to
the reasonableness of the withholding of a consent or approval by Landlord,
Tenant shall have the right to submit such dispute to binding arbitration
under the Expedited Procedures provisions (Rules 53 through 57 and, to the
extent applicable, Section 19, in the current edition) of the Commercial
Arbitration rules of the American Arbitration Association ("AAA") provided,
however, that with respect to any such arbitration: (i) the list of
arbitrators referred to in Rule 54 shall be returned within five (5)
business days from the date of mailing, (ii) the parties shall notify the
AAA, by telephone, within four (4) business days of any objections to the
arbitrator appointed and will have no right to object if the arbitrator so
appointed was on the list submitted by the AAA and was not objected to in
accordance with Rule 54, (iii) the Notice of Hearing referred to in Rule 55
shall be four (4) business days in advance of the hearing, and (iv) the
hearing shall be held within seven (7) business days after the appointment
of the arbitrator. The sole issue to be submitted to the arbitrator, which
shall be included as part of his oath shall be the reasonableness of
Landlord's determination to withhold consent or approval under the
provisions of this Lease. The decision of the arbitrator shall be final and
conclusive and the arbitrator shall not have any right or power to
consider, determine or resolve any other issue or dispute between the
parties, or
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to alter, modify or amend any of the provisions of this Lease. The part
subject to an adverse arbitral determination shall be responsible for all
reasonable costs and fees of such arbitration.
ARTICLE 13
Moving of Heavy Equipment
Tenant shall not move any safe, heavy equipment or bulky matter in or
out of the Building without Landlord's written consent, which shall not be
unreasonably withheld. If the movement of such items requires special handling,
Tenant agrees to employ only persons holding a Master Rigger's License to do
said work and all such work shall be done in full compliance with the
Administrative Code of the City of New York and other municipal requirements.
All such movements shall be made during hours which will least interfere with
the normal operations of the Building, and all damage caused by such movement
shall be promptly repaired by Tenant at Tenant's expense.
ARTICLE 14
Condemnation
Section 14.01. In the event that the whole or more than ten (10%)
percent of the Demised Premises shall be condemned or taken in any manner for
any public or quasi-public use, this Lease and the term and estate hereby
granted shall forthwith cease and terminate as of the date of vesting of title.
In the event that ten (10%) percent or less of the Demised Premises shall be so
condemned or taken, then, effective as of the date of vesting of title, the
minimum rent and additional rent hereunder for such part shall be equitably
abated and this Lease shall continue as to such part not so taken. In the event
that only a part of the Building shall be so condemned or taken, then (a) if
substantial structural alteration or reconstruction of the Building shall, in
the opinion of Landlord, be necessary or appropriate as a result of such
condemnation or taking (whether or not the Demised Premises be affected),
Landlord may, at its option, terminate this Lease and the term and estate hereby
granted as of the date of such vesting of title by notifying Tenant in writing
of such termination within sixty (60) days following the date on which Landlord
shall have received notice of the vesting of title, or (b) if Landlord does not
elect to terminate this
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Lease, as aforesaid, this Lease shall be and remain unaffected by such
condemnation or taking, except that the minimum rent and additional rent shall
be abated to the extent, if any, hereinbefore provided. In the event that only a
part of the Demised Premises shall be so condemned or taken and this Lease and
the term and estate hereby granted are not terminated as hereinbefore provided,
Landlord, out of the portion of the award allocated for such purpose, will
restore with reasonable diligence the remaining structural portions of the
Demised Premises as nearly as practicable to the same condition as it was in
prior to such condemnation or taking.
Section 14.02. In the event of termination in any of the cases
hereinabove provided, this Lease and the term and estate hereby granted shall
expire as of the date of such termination with the same effect as if that were
the Expiration Date and the rent hereunder shall be apportioned as of such date.
Section 14.03. In the event of any condemnation or taking hereinabove
mentioned of all or a part of the Building, Landlord shall be entitled to
receive the entire award in the condemnation proceeding, including any award
made for the value of the estate vested by this Lease in Tenant, and Tenant
hereby expressly assigns to Landlord any and all right, title and interest of
Tenant now or hereafter arising in or to any such award or any part thereof, and
Tenant shall be entitled to receive no part of such award. Notwithstanding the
foregoing, Tenant may make a separate claim for Tenant's moveable trade fixtures
and moving expenses, provided the same shall not affect or reduce Landlord's
award.
ARTICLE 15
Entry, Right to Change Public Portions of the Building
Section 15.01. Tenant shall permit Landlord to erect, use and maintain
pipes and conduits in and through the walls, within the ceiling or below the
floors of the Demised Premises. Landlord, or its agents or designee shall have
the right, on prior written notice (except no notice in an emergency), to enter
the Demised Premises for the purpose of making such repairs or alterations as
Landlord shall desire, shall be required or shall have the right to make under
the provisions of this Lease; and shall also have the right to enter the Demised
Premises for the purpose of inspecting them or exhibiting them to prospective
purchasers or lessees of the entire Building or to prospective mortgagees or to
prospective assignees of any such mortgagees. Landlord shall, during the
progress of any work in the Demised Premises, be allowed to take all material
into and upon the Demised Premises that may be required for the repairs or
alterations above mentioned without the same
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constituting an eviction of Tenant in whole or in part and the rent reserved
shall in no wise abate, except as otherwise provided in this Lease, while said
repairs or alterations are being made. However, Landlord shall use reasonable
efforts to make such repairs or alterations in a manner to minimize its
interference with the normal conduct of Tenant's business, provided Landlord
shall not be required to employ overtime or premium labor.
Section 15.02. During the twelve (12) months prior to the expiration
of the term of this Lease, Landlord may exhibit the Demised Premises to
prospective tenants.
Section 15.03. Landlord shall have the right at any time without
thereby creating an actual or constructive eviction or incurring any liability
to Tenant therefor, to change the arrangement or location of such of the
following as are not contained within the Demised Premises: entrances,
passageways, doors and doorways, corridors, elevators, stairs, toilets, and
other like public service portions of the Building; and to put so-called "solar
film" or other energy-saving installations on the inside and outside of the
windows. All parts (except surfaces facing the interior of the Demised
Premises) of all walls, windows and doors bounding the Demised Premises
(including exterior Building walls, exterior core corridor walls, exterior doors
and entrances), all space in or adjacent to the Demised Premises used for
shafts, stacks, stairways, chutes, pipes, conduits, ducts, fan rooms, heating,
air cooling, plumbing and other mechanical facilities, service closets and other
Building facilities are not part of the Demised Premises and Landlord shall have
the use thereof, as well as access thereto through the Demised Premises for the
purposes of operation, maintenance, alteration and repair. However, Landlord
shall use reasonable efforts to make such repairs or alterations in a manner to
minimize its interference with the normal conduct of Tenant's business, provided
Landlord shall not be required to employ overtime or premium labor.
Section 15.04. Landlord shall have the right at any time to name the
Building as it desires and to change any and all such names at any time
thereafter.
ARTICLE 16
Conditional Limitations, Etc.
Section 16.01. If at any time during the term of this Lease:
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(a) Tenant or the guarantor of this Lease shall file a petition
in bankruptcy or insolvency or for reorganization or arrangement or for the
appointment of a receiver of all or a portion of Tenant's or such
guarantor's property, or
(b) Any petition of the kind referred to in subdivision (a) of
this Section shall be filed against Tenant or such guarantor and such
petition shall not be vacated, discharged or withdrawn within ninety (90)
days, or
(c) Tenant or such guarantor shall be adjudicated a bankrupt by
any court, or
(d) Tenant or such guarantor shall make an assignment for the
benefit of creditors, or
(e) a permanent receiver shall be appointed for the property of
Tenant or such guarantor by order of a court of competent jurisdiction by
reason of the insolvency of Tenant or such guarantor (except where such
receiver shall be appointed in an involuntary proceeding, if he shall not
be withdrawn within ninety (90) days after the date of his appointment),
then Landlord, at Landlord's option, may terminate this Lease on five (5) days'
notice to Tenant, and upon such termination, Tenant shall quit and surrender the
Demised Premises to Landlord.
Section 16.02 (a) If Tenant assumes this Lease and proposes to assign
the same pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. (S)
101 et seq. (the "Bankruptcy Code") to any person or entity who shall have
made a bona fide offer to accept an assignment of this Lease on terms
acceptable to Tenant, then notice of such proposed assignment, setting
forth (i) the name and address of such person, (ii) all of the terms and
conditions of such offer, and (iii) the adequate assurance to be provided
Landlord to assure such person's future performance under the Lease,
including, without limitation, the assurance referred to in section
365(b)(1) of the Bankruptcy Code, shall be given to Landlord by Tenant not
later than twenty (20) days after receipt by Tenant but in no event later
than ten (10) days prior to the date that Tenant shall make application to
a court of competent jurisdiction for authority and approval to enter into
such assignment and assumption, and Landlord shall thereupon have the prior
right and option, to be exercised by notice to Tenant given at any time
prior to the effective date of such proposed assignment, to accept
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an assignment of this Lease upon the same terms and conditions and for the
same consideration, if any, as the bona fide offer made by such person,
less any brokerage commissions which may be payable out of the
consideration to be paid by such person for the assignment of this Lease.
(b) If this Lease is assigned to any person or entity pursuant to
the provisions of the Bankruptcy Code, any and all monies or other
considerations payable or otherwise delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant
or of the estate of Tenant within the meaning of the Bankruptcy Code. Any
and all monies or other considerations constituting Landlord's Property
under the preceding sentence not paid or delivered to Landlord shall be
held in trust for the benefit of Landlord and shall be promptly paid to
Landlord.
(c) Any person or entity to which this Lease is assigned pursuant
to the provisions of the Bankruptcy Code, shall be deemed without further
act or deed to have assumed all of the obligations arising under this Lease
on and after the date of such assignment. Any such assignee shall upon
demand execute and deliver to Landlord an instrument confirming such
assumption.
(d) Nothing contained in this Section shall, in any way,
constitute a waiver of the provisions of this Lease relating to assignment.
Tenant shall not, by virtue of this Section, have any further rights
relating to assignment other than those granted in the Bankruptcy Code.
(e) Notwithstanding anything in this Lease to the contrary, all
amounts payable by Tenant to or on behalf of Landlord under this Lease,
whether or not expressly denominated as rent, shall constitute rent for the
purposes of Section 502(b)(6) of the Bankruptcy Code.
(f) The term "Tenant" as used in this Section includes any
trustee, debtor in possession, receiver, custodian or other similar
officer.
Section 16.03. If this Lease shall terminate pursuant to the
provisions of Section 16.01:
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(a) Landlord shall be entitled to recover from Tenant arrears in
minimum rent and additional rent and, in addition thereto as liquidated
damages, an amount equal to the difference between the minimum rent and
additional rent for the unexpired portion of the term of this Lease which
had been in force immediately prior to the termination effected under
Section 16.01 of this Article and the fair and the reasonable rental value
of the Demised Premises, on the date of termination, for the same period,
both discounted at the rate of eight (8%) percent per annum to the date of
termination; or
(b) Landlord shall be entitled to recover from Tenant arrears in
minimum rent and additional rent and, in addition thereto as liquidated
damages, an amount equal to the maximum allowed by statute or rule of law
in effect at the time when and governing the proceedings in which such
damages are to be proved, whether or not such amount be greater or less
than the amount referred to in subdivision (a) of this Section.
Section 16.04. (a) If Tenant shall fail to make any payment of any
minimum rent or additional rent when the same becomes due and payable, or
if the Demised Premises become deserted, or if Tenant shall fail to cancel
or discharge any mechanic's lien or other lien within the time period as
provided in Section 17.02, and if any of the foregoing defaults shall
continue for a period of seven (7) days after notice thereof by Landlord,
or
(b) If Tenant shall be in default in the performance of any of
the other terms, covenants and conditions of this Lease and such default
shall not have been remedied within thirty (30) days after notice by
Landlord to Tenant specifying such default and requiring it to be remedied;
or where such default reasonably cannot be remedied within such period of
thirty (30) days, if Tenant shall not have commenced the remedying thereof
within such period of time and shall not be proceeding with due diligence
to remedy it,
then Landlord, at Landlord's election, may terminate this Lease on five (5)
days' notice to Tenant, and upon such termination Tenant shall quit and
surrender the Demised Premises to Landlord.
Section 16.05. If this Lease shall terminate as provided in this
Article or if Tenant shall be in default in the payment of minimum rent or
additional rent when the same become due and payable, and such default shall
continue for a period of seven (7) days after notice by Landlord to Tenant,
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(a) Landlord may re-enter and resume possession of the Demised
Premises and remove all persons and property therefrom either by summary
dispossess proceedings or by a suitable action or proceeding, at law or in
equity, or by force or otherwise, without being liable for any damages
therefor, and
(b) Landlord may re-let the whole or any part of the Demised
Premises for a period equal to, greater or less than the remainder of the
then term of this Lease, at such rental and upon such terms and conditions
as Landlord shall deem reasonable to any tenant it may deem suitable and
for any use and purpose it may deem appropriate. Landlord shall not be
liable in any respect for failure to re-let the Demised Premises or, in the
event of such re-letting, for failure to collect the rent thereunder and
any sums received by Landlord on a re-letting in excess of the rent
reserved in this Lease shall belong to Landlord.
Section 16.06. If this Lease shall terminate as provided in this
Article or by summary proceedings (except as to any termination under Section
16.01), Landlord shall be entitled to recover from Tenant as damages, in
addition to arrears in minimum rent and additional rent,
(a) an amount equal to (i) all expenses incurred by Landlord in
recovering possession of the Demised Premises and in connection with the
reletting of the Demised Premises, including, without limitation, the cost
of repairing, renovating or remodeling the Demised Premises, (ii) the cost
of performing any work required to be done by Tenant under this Lease,
(iii) the cost of placing the Demised Premises in the same condition as
that in which Tenant is required to surrender them to Landlord under this
Lease, and (iv) all brokers' commissions and legal fees incurred by
Landlord in reletting the Demised Premises, which amounts set forth in this
subdivision (a) shall be due and payable by Tenant to Landlord at such time
or times as they shall have been incurred; and
(b) an amount equal to the deficiency between the minimum rent
and additional rent which would have become due and payable had this Lease
not terminated and the net amount, if any, of rent collected by Landlord on
re-letting the Demised Premises. The amounts specified in this subdivision
shall be due and payable by Tenant on the several days on which such
minimum rent and additional rent would have become due and payable had this
Lease not terminated. Tenant consents that Landlord shall be entitled to
institute
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separate suits or actions or proceedings for the recovery of such amount or
amounts, and Tenant hereby waives the right to enforce or assert the rule
against splitting a cause of action as a defense thereto.
Landlord, at its election, which shall be exercised by the
service of a notice on Tenant, at any time after such termination of this Lease,
may collect from Tenant and Tenant shall pay, in lieu of the sums becoming due,
under the provisions of subdivision (b) of this Section, an amount equal to the
difference between the minimum rent and additional rent which would have become
due and payable had this Lease not terminated (from the date of the service of
such notice to the end of the term of this Lease which had been in force
immediately prior to any termination effected under this Article) and the then
fair and reasonable rental value of the Demised Premises for the same period,
both discounted to the date of the service of such notice at the rate of eight
(8%) percent per annum.
Section 16.07. Tenant, for itself and for all persons claiming through
or under it, hereby waives any and all rights which are or may be conferred upon
Tenant by any present or future law to redeem the Demised Premises after a
warrant to dispossess shall have been issued or after judgment in an action of
ejectment shall have been made and entered.
Section 16.08. The words "re-enter" and "re-entry", as used in this
Article, are not restricted to their technical legal meanings.
Section 16.09. Landlord shall not be required to give any notice of
its intention to re-enter, except as otherwise provided in this Lease.
Section 16.10. In any action or proceeding brought by Landlord against
Tenant, predicated on a default in the payment of minimum rent or additional
rent, Tenant shall not have the right to and shall not interpose any set-off or
counterclaim of any kind whatsoever, other than a claim which would be legally
barred for failure to raise as a counterclaim in such action or proceeding. If
Tenant has any claim, Tenant shall be entitled only to bring an independent
action therefor; and if such independent action is brought by Tenant, Tenant
shall not be entitled to and shall not consolidate it with any pending action or
proceeding brought by Landlord against Tenant for a default in the payment of
minimum rent or additional rent.
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ARTICLE 17
Mechanic's Liens
Section 17.01. If, subject to and notwithstanding Landlord's consent
as required under this Lease, Tenant shall cause any changes, alterations,
additions, improvements, installations or repairs to be made to or at the
Demised Premises or shall cause any labor to be performed or material to be
furnished in connection therewith, neither Landlord nor the Demised Premises,
under any circumstances, shall be liable (except for Landlord's payment
obligations pursuant to Article 38) for the payment of any expense incurred or
for the value of any work done or material furnished, and all such changes,
alterations, additions, improvements, installations and repairs and labor and
material shall be made, furnished and performed upon Tenant's credit alone and
at Tenant's expense, and Tenant shall be solely and wholly responsible to
contractors, laborers, and materialmen furnishing and performing such labor and
material. Nothing contained in this Lease shall be deemed or construed in any
way as constituting the consent or request of Landlord, express or implied, to
any contractor, laborer or materialman to furnish or to perform any such labor
or material.
Section 17.02. If, because of any act or omission (or alleged act or
omission) of Tenant any mechanic's or other lien, charge or order for the
payment of money shall be filed against the Demised Premises or the Building or
Landlord's estate as tenant under any ground or underlying lease (whether or not
such lien, charge or order is valid or enforceable as such), for work claimed to
have been for, or materials furnished to, Tenant, Tenant, at Tenant's expense,
shall cause it to be cancelled or discharged of record by bonding or otherwise
within twenty (20) days after such filing, and Tenant shall indemnify Landlord
against and save Landlord harmless from and shall pay all reasonable costs,
expenses, losses, fines and penalties, including, without limitation, reasonable
attorneys' fees, resulting therefrom.
ARTICLE 18
Landlord's and Tenant's Right to Perform Obligations
Section 18.01. If Tenant shall default in the performance of any of
the terms or covenants and conditions of this Lease, Landlord, without being
under any obligation to do so and without hereby waiving such default, may
remedy such default for the account and at the expense of Tenant. Any payment
made or
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expense incurred by Landlord for such purpose (including, but not limited to,
reasonable attorneys' fees) with interest at the maximum legal rate, shall be
deemed to be additional rent hereunder and shall be paid by Tenant to Landlord
on demand, or at Landlord's election, added to any subsequent installment or
installments of minimum rent.
Section 18.02. If Landlord shall fail to perform any repair or
maintenance obligation required to be performed by Landlord in the Demised
Premises pursuant to the provisions of this Lease, then Tenant shall give
Landlord written notice (the "Repair Notice") stating the repair or maintenance
obligation which affects the Demised Premises. If Landlord fails to remedy the
condition set forth in the Repair Notice within thirty (30) days after it was
given, then to the extent such repair or maintenance may be performed by Tenant
solely within the Demised Premises, Tenant may perform the same. Landlord shall
reimburse Tenant for the reasonable, actual costs and expenses of performing the
same, within twenty (20) after receipt from Tenant of paid receipts therefor,
together with waivers of liens with respect thereto.
ARTICLE 19
Covenant of Quiet Enjoyment
Landlord covenants that upon Tenant paying the minimum rent and
additional rent and observing and performing all the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed, Tenant
and all persons claiming through or under Tenant may peaceably and quietly enjoy
the Demised Premises, subject nevertheless to the terms and conditions of this
Lease, and provided, however, that no eviction of Tenant by reason of the
foreclosure of any mortgage now or hereafter affecting the Demised Premises,
whether such termination is by operation of law, by agreement or otherwise,
shall be construed as a breach of this covenant nor shall any action be brought
against Landlord by reason thereof.
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ARTICLE 20
Excavation
In the event that construction is to be commenced or an excavation is
made or authorized for building or other purposes upon land adjacent to the
Building, Tenant shall, if necessary, afford to the person or persons causing or
authorized to commence construction or cause such excavation or to engage in
such other purpose, license to enter upon the Demised Premises for the purpose
of doing such work as shall reasonably be necessary to protect or preserve the
Building, from injury or damage and to support the Building and any new
structure to be built by proper foundations, pinning and/or underpinning, or
otherwise. However, Landlord shall cause reasonable efforts to be made to have
such work performed in a manner to minimize any interference with the normal
conduct of Tenant's business, provided overtime or premium labor shall not be
required to be employed to perform such work.
ARTICLE 21
Services and Equipment
Section 21.01. Landlord shall, at its cost and expense:
(a) Provide operatorless passenger elevator service Mondays
through Fridays from 8:00 A.M. to 6:00 P.M., holidays excepted. A passenger
elevator will be available at all other times. A freight elevator shall be
available Mondays through Fridays, holidays excepted, only from 8:00 to
6:00 P.M. The freight elevator shall be available on a "first come, first
served" basis during the said days and hours and on a reservation "first
come, first served" basis other than on said days and hours at Landlord's
customary charges therefor.
(b) Maintain and repair the Building standard heating,
ventilating and air conditioning system servicing the Demised Premises (the
"HVAC System") installed by Landlord, except for those repairs which are
the obligation of Tenant pursuant to Article 6 of this Lease. The HVAC
System will be operated by Landlord as and when required by law, or for the
comfortable occupancy of the Demised Premises (as determined by Landlord)
throughout the year on Mondays through Fridays, holidays excepted, from
8:00 A.M. to 6:00 P.M.; provided that
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Tenant shall draw and close the draperies or blinds for the windows of the
Demised Premises whenever the HVAC system is in operation and the position
of the sun so requires and shall, at all times, cooperate fully with
Landlord and abide by all of the Rules and Regulations which Landlord may
prescribe for the proper functioning of the HVAC System. Landlord agrees to
operate the HVAC System servicing the Demised Premises in accordance with
their design criteria unless energy and/or water conservation programs,
guidelines or laws and/or requirements of public authorities, shall provide
for any reduction in operations below said design criteria in which case
such equipment shall be operated so as to provide reduced service in
accordance therewith. Tenant expressly acknowledges that some or all
windows are or may be hermetically sealed and will not open and Landlord
makes no representation as to the habitability of the Demised Premises at
any time the HVAC System is not in operation. Tenant hereby expressly
waives any claims against Landlord arising out of the cessation of
operation of the HVAC System, or the suitability of the Demised Premises
when the same is not in operation, whether due to normal scheduling or the
reasons set forth in Section 21.03. Said system is designed to be capable
of manufacturing, within tolerances normal in first-class office buildings,
inside space conditions averaging 78 degrees Fahrenheit dry bulb and 50%
relative humidity when outside conditions are 95 degrees Fahrenheit dry
bulb and 75 degrees Fahrenheit wet bulb, and a temperature of not lower
than an average of 68 degrees Fahrenheit when outside temperature is 50
degrees Fahrenheit or lower. Landlord will not be responsible for the
failure of the HVAC System if such failure results from the occupancy of
the Demised Premises by more than an average of one (1) person for each one
hundred (100) square feet in any separate room or area, and upon a combined
lighting and standard electrical load not to exceed three (3) watts per
usable square foot (excluding the Building HVAC), or if Tenant shall
install and operate machines, incandescent lighting and appliances the
total connected electrical load in excess of the Building's electrical
specifications, as determined by Landlord's consulting engineers. If Tenant
shall occupy the Demised Premises at an occupancy rate of greater than that
for which the HVAC System was designed, or if the total connected
electrical load is in excess of the Building's electrical specifications,
as determined by Landlord's consulting engineers, or if Tenant's partitions
shall be arranged in such a way as to interfere with the normal operation
of the HVAC System, Landlord may elect to make changes to the HVAC System
or the ducts through which it operates required by reason thereof, and the
cost thereof shall be reimbursed by Tenant to Landlord, as additional rent,
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within twenty (20) days after presentation of a bill therefor. Landlord,
throughout the term, shall have free access to all mechanical installations
of Landlord, including but not limited to air-cooling, fan, ventilating and
machine rooms and electrical closets, and Tenant shall not construct
partitions or other obstructions that may interfere with Landlord's free
access thereto, or interfere with the moving of Landlord's equipment to and
from the enclosures containing said installations. Neither Tenant nor any
person or entity within Tenant's control shall at any time enter the said
enclosures or tamper with, adjust, touch or otherwise in any manner affect
said mechanical installations, except as set forth herein with respect to
the thermostatic controls within the Demised Premises.
(c) Provide Building standard cleaning services in Tenant's
office space and public portions of the Building, except no services shall
be performed Saturdays, Sundays and holidays, in accordance with Schedule
"D" annexed hereto and made part hereof. If, however, any additional
cleaning of the Demised Premises is to be done by Tenant, it shall be done
at Tenant's sole expense, in a manner reasonably satisfactory to Landlord
and no one other than persons approved by Landlord shall be permitted to
enter the Demised Premises or the Building for such purpose. Tenant, at its
own cost, may utilize its own employees or outside contractors to perform
additional cleaning services in the Demised Premises, provided such
employees or outside contractors do not cause any labor disruption or
dispute or violate Landlord's union contracts affecting the Building.
However, such use of outside contractors shall be subject to the right of
Landlord to match the costs chargeable by such outside contractors, in
which event Landlord shall perform such services at such cost, to be paid
by Tenant within twenty (20) days after being billed therefor. Tenant shall
pay to Landlord the cost of removal of any of Tenant's refuse and rubbish
from the Demised Premises and the Building (i) to the extent that the same,
in any one day, exceeds the average daily amount of refuse and rubbish
usually attendant upon the use of such Demised Premises as offices, as
described and included in Landlord's cleaning contract for the Building or
recommended by Landlord's cleaning contractor, and (ii) related to or
deriving from the preparation or consumption of food or drink, excluding
food or drink for normal business use. Bills for the same shall be rendered
by Landlord to Tenant at such time as Landlord may elect and shall be due
and payable as additional rent within twenty (20) days after the time
rendered. Tenant, at Tenant's expense, shall cause the Demised Premises to
be exterminated from time to time to the satisfaction of
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Landlord and additionally shall cause all portions of the Demised Premises
used for the storage, preparation, service or consumption of food or
beverages to be cleaned daily in a manner reasonably satisfactory to
Landlord, and to be treated against infestation by vermin, rodents or
roaches, whenever there is evidence of any infestation. Tenant shall not
permit any person to enter the Demised Premises or the Building for the
purpose of providing such extermination services, unless such persons have
been approved by Landlord. If so requested by Landlord, Tenant shall store
any refuse generated by the consumption of food or beverages on the Demised
Premises in a cold box or similar facility.
(d) Furnish hot and cold water for lavatory and drinking
purposes. If Tenant requires, uses or consumes water for any other
purposes, Landlord may install a meter or meters or other means to measure
Tenant's water consumption, and Tenant shall reimburse Landlord for the
cost of the meter or meters and the installation thereof, and shall pay for
the maintenance of said meter equipment and/or pay Landlord's cost of other
means of measuring such water consumption by Tenant. Tenant shall pay to
Landlord on demand the cost of all water consumed as measured by said meter
or meters or as otherwise measured, including sewer rents.
(e) If Tenant shall require and request any of the foregoing
services at times other than above provided, and if such request is made at
least twenty-four (24) hours prior to the time when such additional
services are required, Landlord will provide them and Tenant shall pay to
Landlord promptly thereafter the charges therefor at the then Building
standard rate charged to other tenants in the Building.
Section 21.02. Holidays shall be deemed to mean all federal holidays,
state holidays and Building Service Employees Union Contract holidays.
Section 21.03. Landlord reserves the right to interrupt, curtail or
suspend the services required to be furnished by Landlord under this Lease when
necessary by reason of accident, emergency, mechanical breakdown or when
required by any law, order or regulation of any Federal, State, County or
Municipal authority, or for any other cause beyond the control of Landlord.
Landlord shall use due diligence to complete all required repairs or other
necessary work as quickly as possible so that Tenant's inconvenience resulting
therefrom may be for as short a period of time as circumstances will reasonably
permit. Except as otherwise provided in this Lease, Tenant shall not be
entitled to nor shall Tenant make claim for any
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diminution or abatement of minimum rent or additional rent or other
compensation, nor shall this Lease or any of the obligations of Tenant be
affected or reduced by reason of such interruption, curtailment, suspension,
work or inconvenience.
Section 21.04. Tenant shall reimburse Landlord promptly for the actual
out-of-pocket cost to Landlord of removal from the Demised Premises and the
Building of any refuse and rubbish of Tenant not covered by the Cleaning
Specifications (Schedule D) and Tenant shall pay all bills therefor when
rendered.
Section 21.05. If Tenant shall request Landlord to furnish any
services in addition to those hereinabove provided or perform any work not
required under this Lease, and Landlord agrees to furnish and/or perform the
same, Tenant shall pay to Landlord promptly thereafter the charges therefor,
which charges are deemed to be additional rent and payable as such.
Section 21.06. Landlord shall provide security in the Building lobby
and Tenant shall have access to the Demised Premises twenty-four (24) hours per
day, seven (7) days per week, subject to emergencies, police power and Article
34.
Section 21.07. Landlord represents that the Building facility
equipment is Y2K ready and the Building shall be operated and maintained as a
first-class building similar to other first-class buildings in the vicinity of
the Building.
ARTICLE 22
Escalation
Section 22.01. Taxes. Tenant shall pay to Landlord, as additional
rent, tax escalation in accordance with this Section:
(a) Definitions: For the purpose of this Section, the following
definitions shall apply:
(i) The term "Tax Base Factor" shall mean the average
of the real estate taxes for the Building Project for the
periods from July 1, 1998 to June 30, 1999, and from July 1,
1999 to June 30, 2000, as finally determined.
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(ii) The term "The Building Project" shall mean the
parcel of Land described in Schedule B of this Lease with
all improvements erected thereon.
(iii) The term "Comparative Tax Year" shall mean the
New York City real estate tax year commencing on July 1,
2000 and each subsequent New York City real estate tax year.
If the present use of July 1-June 30 New York City real
estate tax year shall hereafter be changed, then such
changed tax year shall be used with appropriate adjustment
for the transition.
(iv) The term "Real Estate Taxes" shall mean the total
of all taxes and special or other assessments and charges of
any Special Business Improvement District levied, assessed
or imposed at any time by any governmental authority: (a)
upon or against the Building Project, and (b) in connection
with the receipt of income or rents from the Building
Project to the extent that same shall be in lieu of all or a
portion of any of the aforesaid taxes or assessments, or
additions or increases thereof. Income, franchise, transfer,
inheritance, corporate, mortgage recording or capital stock
taxes of Landlord, or penalties or interest thereon, shall
be excluded from "Real Estate Taxes" for the purposes
hereof. If, due to a future change in the method of taxation
or in the taxing authority, or for any other reason, a
franchise, income, transit, profit or other tax or
governmental imposition, however designated, shall be levied
against Landlord in substitution in whole or in part for the
Real Estate Taxes, or in lieu of or addition to or increase
of Real Estate Taxes, then such franchise, income, transit,
profit or other tax or governmental imposition shall be
included within "Real Estate Taxes." Tenant acknowledges
that the Tax Escalation Payment (as hereinafter defined)
constitutes a method by which Landlord is seeking to
compensate for increases in expenses and that the Tax
Escalation Payment shall be calculated and paid by Tenant to
Landlord whether or not Real Estate Taxes have then been
paid by Landlord.
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(v) The term "the Percentage" for purposes of computing
tax escalation, shall mean 3.429%.
(b) (i) In the event that the Real Estate Taxes payable for
any Comparative Tax Year shall exceed the Tax Base Factor, Tenant
shall pay to Landlord, as additional rent for such Comparative
Tax Year, an amount for tax escalation ("Tax Escalation
Payment")equal to the Percentage of the excess. Before or after
the start of each Comparative Tax Year, Landlord shall furnish to
Tenant a statement of the Tax Escalation Payment payable for such
Comparative Tax Year, together with a copy of the tax bill.
Tenant shall make its aforesaid Tax Escalation Payment to
Landlord, in installments in the same manner and not later than
thirty (30) days prior to the last date that Real Estate Taxes
are payable by Landlord to the governmental authority. If a
statement is furnished to Tenant after the commencement of the
Comparative Tax Year in respect of which such statement is
rendered, Tenant shall, within twenty (20) days thereafter, pay
to Landlord an amount equal to those installments of the total
Tax Escalation Payment then due. If, during the term of this
Lease, Real Estate Taxes are required to be paid, in full or in
monthly or other installments, on any other date or dates than as
presently required, or if Landlord shall be required to make
monthly deposits of Real Estate Taxes to the holder of any
mortgage, then Tenant's Tax Escalation Payment(s) shall be
correspondingly adjusted so that the same are due to Landlord in
corresponding installments not later than thirty (30) days prior
to the last date on which the applicable installment of such Real
Estate Taxes shall be due and payable to the governmental
authority or such mortgagee.
(ii) If in any tax certiorari proceeding regarding Real
Estate Taxes payable for any Comparative Tax Year or in otherwise
establishing such taxes, Landlord has incurred expenses for legal
and/or consulting services rendered in applying for, negotiating
or obtaining a reduction of the assessment upon which
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the Real Estate Taxes are predicated, Tenant shall pay an amount
equal to the Percentage of such expenses.
(iii) The statements of the Tax Escalation Payment to
be furnished by Landlord as provided above shall constitute a
final determination as between Landlord and Tenant of the Tax
Escalation Payment for the periods represented thereby, except
for mathematical error in computation.
(iv) In no event shall the fixed minimum rent under
this Lease be reduced by virtue of this Section 22.01.
(v) Upon the date of any expiration or termination of
this Lease, whether the same be the date hereinabove set forth
for the expiration of the term or any prior or subsequent date, a
proportionate share of the Tax Escalation Payment for the
Comparative Tax Year during which such expiration or termination
occurs shall immediately become due and payable by Tenant to
Landlord, if it was not theretofore already billed and paid, or
due and payable by Landlord to Tenant if the amount paid by
Tenant exceeded such proportionate share. The said proportionate
share shall be based upon the length of time that this Lease
shall have been in existence during such Comparative Tax Year.
Prior to or promptly after said expiration or termination,
Landlord shall compute the Tax Escalation Payment due from or
owed to Tenant, as aforesaid and Tenant shall promptly pay
Landlord any amount unpaid. If Landlord shall receive a refund or
a tax credit of any amount of Real Estate Taxes for any
Comparative Tax Year for which Tenant has made a payment,
Landlord shall pay to Tenant within fifteen (15) days of its
receipt of such refund the Percentage of any such refund, less
the Percentage of any legal fees and other expenses provided for
in Section 22.01(b)(ii) to the extent the same have not
theretofore been paid by Tenant.
(vi) Landlord's and Tenant's obligations to make the
adjustments referred to in subdivision (v)
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above shall survive any expiration or termination of this Lease.
(vii) Any delay or failure of Landlord in billing any
Tax Escalation Payment hereinabove provided shall not
constitute a waiver of or in any way impair the continuing
obligation of Tenant to pay such Tax Escalation Payment
hereunder.
Section 22.02. Porter's Wage Rate. Tenant shall pay to the Landlord,
as additional rent, a porter's wage rate escalation in accordance with this
Section:
(a) For the purpose of this Section, the following definitions
shall apply:
(i) "Wage Rate" shall mean the minimum regular
hourly rate of wages in effect as of January 1st of each
year (whether paid by Landlord or any contractor employed by
Landlord) computed as paid over a forty hour week to Porters
in Class A office buildings pursuant to an Agreement between
Realty Advisory Board on Labor Relations, Incorporated, or
any successor thereto, and Local 32B-32J of the Building
Service Employees International Union, AFL-CIO, or any
successor thereto; and provided, however, that if there is
no such agreement in effect prescribing a wage rate for
Porters, computations and payments shall thereupon be made
upon the basis of the regular hourly wage rate actually
payable in effect as of January 1st of each year, and
provided, however, that if in any year during the term, the
regular employment of Porter |
