New York-New York-11 West 42nd Street Lease - 11 West 42 LP and Martha Stewart Living Omnimedia LLC
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11 WEST 42 LIMITED PARTNERSHIP,
Landlord
And
MARTHA STEWART LIVING OMNIMEDIA, LLC,
Tenant
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AMENDED AND RESTATED LEASE
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Premises: A Portion of the Eighth and Twenty-Fourth
Floors of 11 West 42nd Street
New York, New York
Dated: March 31st, 1998
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TABLE OF CONTENTS
Article 1 Basic Lease Provisions........................................... 1
Article 2 Premises, Term, Rent............................................ 5
Article 3 Use And Occupancy................................................ 6
Article 4 Condition of the Premises....................................... 7
Article 5 Alterations..................................................... 8
Article 6 Floor Load...................................................... 11
Article 7 Repairs.......................................................... 11
Article 8 Increases In Taxes And Operating Expenses....................... 13
Article 9 Requirements of Law............................................. 18
Article 10 Subordination................................................... 20
Article 11 Services........................................................ 21
Article 12 Insurance, Property Loss Or Damage; Reimbursement................ 24
Article 13 Destruction - Fire Or Other Cause............................... 26
Article 14 Eminent Domain................................................. 28
Article 15 Assignment, Subletting, Mortgage, Etc........................... 29
Article 16 Electricity..................................................... 37
Article 17 Access To Premises.............................................. 38
Article 18 Default......................................................... 40
Article 19 Remedies And Damages............................................ 41
Article 20 Fees And Expenses............................................... 44
Article 21 No Representations By Landlord, Landlord's Approval............. 44
Article 22 End Of Term..................................................... 45
Article 23 Quiet Enjoyment................................................ 46
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Article 24 No Waiver; No Counterclaim...................................... 46
Article 25 Waiver Of Trial By Jury......................................... 47
Article 26 Inability To Perform............................................ 47
Article 27 Notices......................................................... 47
Article 28 Rules And Regulations........................................... 48
Article 29 Partnership Tenant.............................................. 48
Article 30 Vault Space.................................................... 50
Article 31 Broker.......................................................... 50
Article 32 Indemnity....................................................... 51
Article 33 Adjacent Excavation; Shoring................................... 52
Article 34 Miscellaneous................................................... 52
Article 35 Tax Status Of Beneficial Owners................................. 55
Article 36 Security Deposit................................................ 55
Article 37 Right Of First Offer............................................ 57
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EXHIBITS
A - Floor Plans
B - Definitions
C - Description of Landlord's Work
D - Heating, Ventilation and Air Conditioning
Specifications
E - Cleaning Specifications
F - Rules and Regulations
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AMENDED AND RESTATED LEASE
AMENDED AND RESTATED LEASE, made as of the 31st day of March, 1998
between 11 WEST 42 LIMITED PARTNERSHIP (the "Landlord"), a New York limited
partnership, having an office c/o Tishman Speyer Properties, L.P., 520 Madison
Avenue, New York, New York 10022, and MARTHA STEWART LIVING OMNIMEDIA, LLC, a
New York limited liability company (the "Tenant"), having an office at 11 West
42nd Street, New York, New York.
Landlord and Tenant hereby covenant and agree as follows:
ARTICLE 1
BASIC LEASE PROVISIONS
PREMISES A portion of the eighth (8th) floor of the Building (the
"8th Floor Premises"), a portion of the twenty-fourth
(24th) floor of the Building (the "24th Floor Premises")
and another portion of the twenty-fourth (24th) floor of
the Building (the "Storage Space"), as particularly shown
on Exhibits A-1 and A-2.
BUILDING The building, fixtures, equipment and other improvements
and appurtenances now located or hereafter erected,
located or placed upon the land known as 11 West 42nd
Street in the City of New York, County of New York and
State of New York.
REAL PROPERTY The Building, together with the plot of land upon which it
stands.
COMMENCEMENT DATE (a) As to the 8th Floor premises:
April 21, 1997.
(b) As to the 24th Floor Premises and the Storage Space:
2/1/99
The date Landlord delivers possession of the 24th Floor
Premises and the Storage Space to Tenant.
RENT COMMENCEMENT (a) As to the 8th Floor Premises:
DATE
January 1, 1998.
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(b) As to the 24th Floor Premises and the Storage Space:
182 days after the Commencement Date in respect of the
24th Floor Premises and the Storage Space.
EXPIRATION DATE April 30, 2010.
TERM The period commencing on the Commencement Date in respect
of the 8th Floor Premises and ending on the Expiration
Date.
PERMITTED USES (a) As to the 8th Floor Premises and the 24th Floor
Premises:
Executive and general offices for the transaction of
Tenant's business.
(b) The Storage Space:
Dead storage.
BASE TAX YEAR (a) As to the 8th Floor Premises:
The real estate tax fiscal year commencing on July 1, 1996
and ending on June 30, 1997.
(b) As to the 24th Floor Premises:
The real estate tax fiscal year commencing July 1, 1998
and ending on June 30, 1999.
BASE EXPENSE YEAR (a) As to the 8th Floor Premises:
Calendar year 1997.
(b) As to the 24th Floor Premises:
Calendar year 1998.
TENANT'S
PROPORTIONATE (a) As to the 8th Floor Space
SHARE
2.56 percent.
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(b) As to the 24th Floor Premises:
.911 percent in respect of Taxes
1.0018 percent in respect of Operating Expenses
AGREED AREA OF
BUILDING 840,049 rentable square feet.
AGREED AREA OF
PREMISES (a) As to the 8th Floor Premises:
21,500 rentable square feet.
(b) As to the 24th Floor Premises:
7,656 rentable square feet.
(c) As to the Storage Space:
760 rentable square feet.
FIXED RENT (a) As to the 8th Floor Premises:
(i) $473,000 per annum ($39,416.67 per month) for the
period commencing on the Rent Commencement Date and ending
on the day preceding the fifth anniversary of the Rent
Commencement Date, both dates inclusive; (ii) $516,000 per
annum ($43,000 per month) for the period commencing on the
fifth anniversary of the Rent Commencement Date and ending
on the day preceding the tenth anniversary of the Rent
Commencement Date, both dates inclusive; (iii) $559,000
per annum ($46,583.33 per month) for the period commencing
on the tenth anniversary of the Rent Commencement Date and
ending on the Expiration Date, both dates inclusive.
(b) As to the 24th Floor Premises:
(i) $290,928 per annum ($24,244 per month) for the period
commencing on the Rent Commencement Date and ending on the
day preceding the fifth anniversary of the Rent
Commencement Date, both dates inclusive; (ii) $321,552 per
annum ($26,796 per month) for the period commencing on the
fifth anniversary of the Rent Commencement Date and ending
on the day preceding
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the tenth anniversary of the Rent Commencement Date, both
dates inclusive; (iii) 352,176 per annum ($29,348 per
month) for the period commencing on the tenth anniversary
of the Rent Commencement Date and ending on the Expiration
Date, both dates inclusive.
(c) As to the Storage Space:
$11,400 per annum ($950 per month) for the period
commencing on the Commencement Date and ending on the
Expiration Date, both dates inclusive.
ADDITIONAL RENT All sums other than Fixed Rent payable by Tenant to
Landlord under this Lease, including Tenant's Tax Payment,
Tenant's Operating Payment, late charges, overtime or
excess service charges and other costs related to Tenant's
failure to perform any of its obligations under this
Lease.
RENT Fixed Rent and Additional Rent, collectively.
INTEREST RATE The lesser of (i) four percent per annum above the then
current Base Rate charged by Citibank, N.A. or its
successor, or (ii) the maximum rate permitted by
applicable law.
SECURITY DEPOSIT (i) $473,000 for the period commencing on the Commencement
Date and ending on the day preceding the fifth anniversary
of the Commencement Date; (ii) $402,050 for the period
commencing on the sixth anniversary of the Commencement
Date and ending on the day preceding the eighth
anniversary of the Commencement Date; (iii) $331,100 for
the period commencing on the eighth anniversary of the
Commencement Date and ending on the day preceding the
ninth anniversary of the Commencement Date; (iv) $260,150
for the period commencing on the ninth anniversary of the
Commencement Date and ending on the day preceding the
tenth anniversary of the Commencement Date; and (v)
$189,200 for the period commencing on the tenth
anniversary of the Commencement Date and thereafter.
BROKER Cushman & Wakefield, Inc.
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LANDLORD'S AGENT Tishman Speyer Properties, L.P. or any other person
designated at any time and from time to time by Landlord
and their successors and assigns.
LANDLORD'S $15,312.
CONTRIBUTION:
ALL CAPITALIZED TERMS USED IN THE LEASE TEXT WITHOUT DEFINITION ARE DEFINED IN
EXHIBIT B.
ARTICLE 2
PREMISES, TERM, RENT
SECTION 2.1 LEASE OF PREMISES. Subject to the terms of this Lease,
Landlord leases to Tenant and Tenant leases from Landlord the Premises for the
Term. In addition, Landlord grants to Tenant the right to use, on a
non-exclusive basis and in common with other tenants, the lobby area and other
Building common elements and common facilities.
SECTION 2.2 PAYMENT OF RENT. Tenant shall pay to Landlord, without
notice or demand, and without any set-off, counterclaim, abatement or deduction
whatsoever, except as may be expressly set forth in this Lease, in lawful money
of the United States by wire transfer of funds to Landlord's account, as
designated by Landlord, or by check drawn upon a bank approved by Landlord, (i)
Fixed Rent in equal monthly installments, in advance, on the first (1st) day of
each calendar month during the Term, commencing on the applicable Rent
Commencement Date, and (ii) Additional Rent, at the times and in the manner set
forth in this Lease.
SECTION 2.3 CREDIT. Notwithstanding anything to the contrary contained
in Section 2.2, in lieu of Landlord painting a portion of the 8th Floor
Premises, Tenant shall be entitled to a credit against the Fixed Rent payable
thereunder in respect of the 8th Floor Premises, provided that no Event of
Default has occurred hereunder, of Twenty-Nine Thousand Three Hundred and
Sixty-Two and 50/100 Dollars ($29,362.50) to be applied against the first
monthly installment of Rent accruing hereunder in respect of the 8th Floor
Premises commencing on the Rent Commencement Date in respect thereof.
SECTION 2.4 FIRST MONTH'S RENT. If a Rent Commencement Date in respect
of a portion of the Premises shall occur on a date other than the first day of
any calendar month, Tenant shall pay to Landlord, on such Rent Commencement
Date, a sum equal to the Fixed Rent applicable to such portion of the Premises
for such month multiplied by a fraction, the numerator of which shall be the
number of calendar days in the period from such Rent Commencement Date to the
last day of the month in which such Rent Commencement Date shall occur, both
dates inclusive, and the denominator of which shall be the number of calendar
days in such month.
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SECTION 2.5 INTEREST. If Tenant shall fail to pay any installment or
other payment of Rent when due, interest shall accrue on such installment or
payment as a late charge, from the date such installment or payment became due,
at a rate equal to the Interest Rate.
SECTION 2.6 PRIOR LEASE. This Lease amends, restates and replaces in
its entirety the Lease made as of February 6, 1997, and any amendments or
modifications thereof, and any consents or approvals made by Landlord with
respect thereto (the "Prior Lease"), between Landlord and Tenant from and after
the date of execution and delivery of this Lease, whereupon, after such date,
all of the rights and obligations of Landlord and Tenant with respect to the 8th
Floor Premises, the 24th Floor Premises and the Storage Space shall be governed
and controlled by the provisions of this Lease, except that nothing herein
contained shall be deemed to constitute a release or discharge of Tenant with
respect to any obligation or liability accrued or incurred under the Prior
Lease, and outstanding and unsatisfied on the date of execution and delivery of
this Lease.
ARTICLE 3
USE AND OCCUPANCY
SECTION 3.1 (a) PERMITTED USES. Tenant (together with its wholly owned
subsidiaries and affiliates provided such use is incidental to Tenant's
business) shall use and occupy the Premises for the Permitted Uses and for no
other purpose. Tenant shall not use or occupy or permit the use or occupancy of
any part of the Premises in a manner constituting a Prohibited Use. If Tenant
utilizes the Premises for a purpose which constitutes a Prohibited Use or
violates any Requirement, or which causes the Building to be in violation of any
Requirement, then Tenant shall promptly discontinue such use upon notice of such
violation. Tenant's failure to promptly (and, in all events, within 10 days)
discontinue such use shall be a material default hereunder and Landlord shall
have the right, without Tenant having any further period in which to cure, (i)
to terminate this Lease immediately, and (ii) to exercise any and all rights and
remedies available to Landlord at law or in equity.
(B) LICENSES AND PERMITS. Tenant, at its expense, shall
procure and at all times maintain and comply with the terms and conditions of
all licenses and permits required for the lawful conduct of the Permitted Uses
in the Premises. Landlord represents that the Certificate of Occupancy issued
for the Building permits the use of the Premises (other than the Storage Space)
as offices.
SECTION 3.2 DELIVERY OF PREMISES. Tenant currently occupies the 8th
Floor Premises on the date hereof. Landlord shall not be liable for failure to
give possession of the remainder of the Premises on the Commencement Date
applicable thereto and such failure shall not impair the validity of this Lease
or extend the Term. The provisions of this Article are intended to constitute
"an express provision to the contrary" within the meaning of Section 223-a of
the New York Real Property Law or any successor law or ordinance.
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ARTICLE 4
CONDITION OF THE PREMISES
SECTION 4.1 CONDITION. Tenant currently occupies the 8th Floor Premises
on the date hereof. Tenant has inspected the Premises and agrees (i) to accept
possession of each portion of the Premises in the condition existing on the
Commencement Date in respect thereof "as is", (ii) that neither Landlord nor
Landlord's agents have made any representations or warranties with respect to
the Premises or the Building except as expressly set forth herein, and (iii)
except as expressly set forth in Section 5.9 in respect of Landlord's Work,
Landlord has no obligation to perform any work, supply any materials, incur any
expense or make any alterations or improvements to the Premises to prepare the
Premises for Tenant's occupancy. Any work to be performed in connection with
Tenant's initial occupancy shall be referred to hereinafter as the "Initial
Installations". Tenant's occupancy of any part of the Premises shall be
conclusive evidence, as against Tenant, that Tenant accepts possession of such
part of the Premises in its then current condition and at the time such
possession was taken, the Premises and the Building are in a good and
satisfactory condition as required by this Lease.
SECTION 4.2 LANDLORD'S CONTRIBUTION. (a) Landlord agrees to pay to
Tenant an amount not to exceed Landlord's Contribution toward the cost of the
Initial Installations in respect of the 24th Floor Premises, provided that as of
the date on which Landlord is required to make payment thereof pursuant to
Section 4.2(b): (i) this Lease is in full force and effect, and (ii) no Event of
Default then exists. Tenant shall pay all costs of the Initial Installations in
excess of Landlord's Contribution. Landlord's Contribution shall be payable
solely on account of labor directly related to such Initial Installations and
materials delivered to the 24th Floor Premises in connection with such Initial
Installations, except that Tenant may apply up to 5% of Landlord's Contribution
to pay "soft costs", architectural, consulting, engineering and legal fees, and
furniture and equipment (exclusive of computer equipment) acquired for use in
the 24th Floor Premises, incurred in connection with such Initial Installations.
Tenant shall not be entitled to receive any portion of Landlord's Contribution
not actually expended by Tenant in the performance of such Initial Installations
in accordance with this Section 4.2, nor shall Tenant have any right to apply
any unexpended portion of Landlord's Contribution as a credit against Rent or
any other obligation of Tenant hereunder. Upon the completion of such Initial
Installations and satisfaction of the conditions set forth in Section 4.2, or
upon the occurrence of the date which is twelve months after the Commencement
Date in respect of the 24th Floor Premises, whichever first occurs, any amount
of Landlord's Contribution which has not been previously disbursed shall be
retained by Landlord.
(b) Landlord shall pay Landlord's Contribution in respect of
the 24th Floor Premises to Tenant following commencement of Tenant's business
operations at the 24th Floor Premises and the final completion of the Initial
Installation in respect of the 24th Floor Premises, within 30 days after
submission by Tenant to Landlord of a written requisition therefor, signed by
the chief financial officer of tenant and accompanied by (i) copies of paid
invoices covering all of such Initial Installations, (ii) a written
certification from Tenant's architect stating that (A) such Initial
Installations described on such invoices have been
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completed in accordance with the plans and specifications approved by Landlord,
(B) such work has been paid in full by Tenant and (C) all contractors,
subcontractors and material suppliers have delivered to Tenant waivers of lien
with respect to such work (copies of which shall be included with such
architect's certification), (iii) proof of the satisfactory completion of all
required inspections and the issuance of any required approvals and sign-offs by
Governmental Authorities with respect thereto, (iv) final "as built" plans and
specifications for such Initial Installations as required pursuant to Section
5.1(c) and (v) such other documents and information as Landlord may reasonably
request, including in connection with title drawdowns and endorsements. The
right to receive Landlord's Contribution is for the exclusive benefit of Tenant,
and in no event shall such right be assigned to or be enforceable by or for the
benefit of any third party, including any contractor, subcontractor,
materialman, laborer, architect, engineer, attorney or any other Person.
ARTICLE 5
ALTERATIONS
SECTION 5.1 TENANT'S ALTERATIONS. (a) Tenant shall not make any
alterations, additions or other physical changes in or about the Premises
(collectively, "Alterations") (other than decorative Alterations such as
painting, wall coverings and floor coverings) without Landlord's prior written
consent, which may be withheld in Landlord's sole discretion. Landlord shall not
unreasonably withhold its consent to Alterations so long as the Alterations (i)
are non-structural and do not affect the Building Systems, (ii) are performed
only by contractors or mechanics approved by Landlord to perform such
Alterations, (iii) affect only the Premises, (iv) do not affect the certificate
of occupancy issued for the Building or the Premises, and (v) do not adversely
affect any service required to be furnished by Landlord to Tenant or to any
other tenant of the Building.
(b) Prior to making any Alterations, Tenant, at its expense,
shall (i) submit to Landlord for its written approval, detailed plans and
specifications (including layout, architectural, mechanical and structural
drawings) of each proposed Alteration, and with respect to any Alteration
affecting any Building System, Tenant shall submit proof that the Alteration has
been designed by, or reviewed and approved by, Landlord's engineer for the
relevant Building System, (ii) obtain all permits, approvals and certificates
required by any Governmental Authorities, (iii) furnish to Landlord duplicate
original policies or certificates of worker's compensation (covering all persons
to be employed by Tenant, and Tenant's contractors and subcontractors in
connection with such Alteration) and comprehensive public liability (including
property damage coverage) insurance and Builder's Risk coverage (issued on a
completed value basis) all in such form, with such companies, for such periods
and in such amounts as Landlord may reasonably require, naming Landlord,
Landlord's managing agent, and their respective employees and agents, any Lessor
and any Mortgagee as additional insureds and (iv) furnish to Landlord such other
evidence of Tenant's ability to complete and to fully pay for such Alterations
as is reasonably satisfactory to Landlord. Upon Tenant's request, Landlord shall
reasonably cooperate with Tenant in obtaining any permits, approvals or
certificates required to
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be obtained by Tenant in connection with any permitted Alteration (if the
provisions of the applicable Requirement require that Landlord join in such
application), provided Landlord shall incur no cost, expense or liability in
connection therewith.
(c) Upon completion of any Alterations, Tenant, at its
expense, shall promptly obtain certificates of final approval of such
Alterations required by any Governmental Authority and shall furnish Landlord
with copies thereof, together with "as built" plans and specifications for such
Alterations.
SECTION 5.2 MANNER AND QUALITY OF ALTERATIONS. All Alterations shall be
performed (i) in a good and workmanlike manner and free from defects, (ii) in
accordance with the plans and specifications, and by contractors approved by
Landlord, (iii) under the supervision of a licensed architect reasonably
satisfactory to Landlord, and (iv) in compliance with all Requirements, the
terms of this Lease, all procedures and regulations then prescribed by Landlord
for coordinating all work performed in the Building and the Rules and
Regulations. All materials and equipment to be used in the Premises shall be
first quality at least equal to the standards for the Building then established
by Landlord, and no such materials or equipment (other than Tenant's Property)
shall be subject to any lien or other encumbrance.
SECTION 5.3 TENANT'S PROPERTY. Tenant's Property shall be and remain
the property of Tenant and Tenant may, at any time on or before the Expiration
Date, remove the same. On or prior to the Expiration Date, Tenant shall, unless
otherwise directed by Landlord, at Tenant's expense, remove any Specialty
Alterations. Tenant shall repair and restore, in a good and workmanlike manner,
any damage to the Premises or the Building caused by Tenant's removal of any
Specialty Alterations and/or Tenant's Property, and upon default thereof, Tenant
shall reimburse Landlord, on demand, for Landlord's cost of repairing such
damage. Any Specialty Alterations or Tenant's Property not so removed shall be
deemed abandoned and Landlord may remove and dispose of same, and repair any
damage caused thereby, at Tenant's cost and without accountability to Tenant.
This Section 5.3 shall survive the expiration or earlier termination of this
Lease. Notwithstanding the foregoing, Tenant shall not be required to remove any
Alterations (other than Specialty Alterations) approved by Landlord unless
Landlord conditions its approval on the removal of same.
SECTION 5.4 MECHANIC'S LIENS. Tenant, at its expense, shall discharge
any lien or charge filed against the Premises or the Real Property for work
claimed to have been done for, or materials claimed to have been furnished to,
Tenant, within 10 days after Tenant's receipt of notice thereof by payment,
filing the bond required by law or otherwise in accordance with law.
SECTION 5.5 LABOR RELATIONS. Tenant shall not employ, or permit the
employment of, any contractor, mechanic or laborer, or permit any materials to
be delivered to or used in the Building, if, in Landlord's sole judgment, such
employment, delivery or use will interfere or cause any conflict with other
contractors, mechanics or laborers engaged in the construction, maintenance or
operation of the Building by Landlord, Tenant or others, or the use and
enjoyment of other Building tenants or occupants. In the event of such
interference or conflict,
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upon Landlord's request, Tenant shall cause all contractors, mechanics or
laborers causing such interference or conflict to leave the Building
immediately.
SECTION 5.6 TENANT'S COSTS. Tenant shall pay promptly to Landlord, upon
demand, all costs actually incurred by Landlord in connection with Tenant's
Alterations (including the Initial Installations), such as costs incurred in
connection with (i) Landlord's review of the Alterations (including review of
requests therefor) and (ii) the provision of Building trade personnel required
by trade union policy or otherwise, to operate elevators or other equipment,
during the performance of any Alterations.
SECTION 5.7 TENANT'S EQUIPMENT. Tenant shall not move any heavy
machinery, heavy equipment, freight, bulky matter or fixtures (collectively,
"Equipment") into or out of the Building without Landlord's prior consent and
payment to Landlord of any costs incurred by Landlord in connection therewith.
If such Equipment requires special handling, Tenant agrees (i) to employ only
persons holding a Master Rigger's License to perform such work, (ii) all work
performed in connection therewith shall comply with all applicable Requirements
and (iii) such work shall be done only during hours designated by Landlord.
Tenant shall indemnify and hold Landlord harmless from and against all damages
sustained by persons or property and all monies paid out by Landlord in
settlement of any claims or judgments (including all expenses and attorneys'
fees incurred in connection therewith) and all costs incurred in repairing any
damage to the Building or appurtenances. The agreements set forth in this
Section 5.7 shall survive the expiration or earlier termination of this Lease.
SECTION 5.8 LEGAL COMPLIANCE. The approval of plans or specifications
or consent by Landlord to the making of any Alterations does not constitute
Landlord's agreement or representation that such plans and specifications or any
Alterations comply with any Requirements and/or with the certificate of
occupancy issued for the Building. Landlord shall have no liability to Tenant or
any other party in connection with Landlord's approval of any plans and
specifications or consent to the making of any Alterations.
SECTION 5.9 LANDLORD'S WORK. (a) Landlord shall perform the work
described in Exhibit C hereto in respect of the 8th Floor Premises
(collectively, "Landlord's Work").
(b) Tenant agrees to provide Landlord and its agents,
contractors, subcontractors and employees access to the Premises at all times to
perform Landlord's Work and Tenant and Landlord agree to cooperate and cause
their agents, contractors and subcontractors to cooperate so as to minimize to
the extent practicable any interference with the performance of Landlord's Work
and Tenant's Alterations.
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ARTICLE 6
FLOOR LOAD
SECTION 6.1 FLOOR LOAD. Tenant shall not place a load upon any floor of
the Premises that exceeds 50 pounds per square foot "live load". Landlord
reserves the right to reasonably prescribe the weight and position of all
Equipment which Tenant wishes to place within the Premises.
ARTICLE 7
REPAIRS
SECTION 7.1 LANDLORD'S REPAIR AND MAINTENANCE. Landlord shall operate,
maintain and, except as provided in Section 7.2 hereof, make all necessary
repairs (both structural and nonstructural) to (i) the Building Systems up to
the point of connection to the Premises, and (ii) the public portions of the
Building, both exterior and interior, in conformance with standards applicable
to first-class renovated office buildings of comparable age and quality in the
vicinity of the Building.
SECTION 7.2 TENANT'S REPAIR AND MAINTENANCE. Tenant shall promptly, at
its expense and in compliance with Article 5 of this Lease, (i) make all
nonstructural repairs to the Premises and the fixtures, equipment and
appurtenances therein as and when needed to preserve the Premises in good
working order and condition, except for reasonable wear and tear and damage for
which Tenant is not responsible, and (ii) replace scratched or damaged doors,
signs and glass (other than exterior windows) in and about the Premises. Without
limiting the foregoing, all damage to the Premises or to any other part of the
Building, or to any fixtures, equipment, sprinkler system and/or appurtenances
thereof, whether requiring structural or nonstructural repairs, caused by or
resulting from any act, omission, neglect or improper conduct of, or Alterations
made by, or the moving of Tenant's fixtures, furniture or equipment into or out
of the Premises by Tenant, Tenant's agents, employees, invitees or licensees,
and all damage to any portion of the Building's Systems existing in the
Premises, shall be repaired at Tenant's expense. Such repairs shall be made by
(a) Tenant, if the required repairs are nonstructural in nature and do not
affect any Building System and/or if any damaged portion of the sprinkler system
is contained within the Premises, or (b) Landlord, if the required repairs are
structural in nature, involve exterior window glass or affect any Building
System or any portion of the sprinkler system not contained within the Premises.
All Tenant repairs shall be of a quality at least equal to the original work or
construction but utilizing new construction materials and shall be made in
accordance with this Lease. Tenant shall give Landlord prompt notice of any
defective condition of which Tenant is aware in any Building System located in,
servicing or passing through the Premises. If Tenant fails after 10 days' notice
(or such shorter period as may be required in an emergency) to proceed with due
diligence to make any repairs required to be made by Tenant, Landlord may make
such repairs and all expenses incurred by Landlord on account thereof, plus
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interest thereon at the Interest Rate, shall be paid by Tenant within 10 days
after Landlord delivers to Tenant an invoice therefor.
SECTION 7.3 VERMIN. Tenant shall, at its expense, cause the Premises to
be exterminated, from time to time as Landlord may reasonably direct or whenever
there is evidence of infestation to Landlord's reasonable satisfaction, by
licensed exterminators approved by Landlord.
SECTION 7.4 INTERRUPTIONS DUE TO REPAIRS. Landlord reserves the right
to make all changes, alterations, additions, improvements, repairs or
replacements to the Building, including the Building Systems which provide
services to Tenant, as Landlord deems necessary or desirable, provided that in
no event shall the level of any building service decrease in any material
respect from the level required of Landlord in this Lease as a result thereof
(other than temporary changes in the level of such services during the
performance of any such work by Landlord). Landlord shall use reasonable efforts
to minimize interference with Tenant's use and occupancy of the Premises in the
making of any repairs, alterations, additions or improvements, provided that
Landlord shall have no obligation to employ contractors or labor at "overtime"
or other premium pay rates or to incur any other "overtime" costs or additional
expenses whatsoever. There shall be no allowance to Tenant for a diminution of
rental value, no constructive eviction of Tenant and no liability on the part of
Landlord by reason of inconvenience, annoyance or injury to business arising
from Landlord, Tenant or others making, or failing to make, any repairs,
alterations, additions or improvements in or to any portion of the Building or
the Premises, or in or to fixtures, appurtenances or equipment therein.
ARTICLE 8
INCREASES IN TAXES AND OPERATING EXPENSES
SECTION 8.1 DEFINITIONS. For the purposes of this Article 8, the
following terms shall have the meanings set forth below:
(a) "TAXES" shall mean (i) all real estate taxes, assessments,
sewer and water rents, rates and charges and other governmental levies,
impositions or charges, whether general, special, ordinary, extraordinary,
foreseen or unforeseen, which may be assessed, levied or imposed upon all or any
part of the Real Property, and (ii) all expenses (including reasonable
attorneys' fees and disbursements and experts' and other witnesses' fees)
incurred in contesting any of the foregoing or the Assessed Valuation of all or
any part of the Real Property. Taxes shall not include (x) interest or penalties
incurred by Landlord as a result of Landlord's late payment of Taxes, except for
interest payable in connection with the installment payment of assessments
pursuant to the next sentence or (y) franchise or net income taxes imposed upon
Landlord. If Landlord elects to pay any assessment in annual installments, then
for the purposes of this Article 8, (i) such assessment shall be deemed to have
been so divided and to be payable in the maximum number of installments
permitted by law, and (ii) there shall be deemed included in Taxes for each
Comparison Year the installments of such assessment becoming
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payable during such Comparison Year, together with interest payable during such
Comparison Year on such installments and on all installments thereafter becoming
due as provided by law, all as if such assessment had been so divided. If at any
time the methods of taxation prevailing on the date hereof shall be altered so
that in lieu of or as an addition to the whole or any part of Taxes, there shall
be assessed, levied or imposed (1) a tax, assessment, levy, imposition or charge
based on the income or rents received from the Real Property whether or not
wholly or partially as a capital levy or otherwise, (2) a tax, assessment, levy,
imposition or charge measured by or based in whole or in part upon all or any
part of the Real Property and imposed upon Landlord, (3) a license fee measured
by the rents, or (4) any other tax, assessment, levy, imposition, charge or
license fee however described or imposed, then all such taxes, assessments,
levies, impositions, charges or license fees or the part thereof so measured or
based shall be deemed to be Taxes, provided that any tax, assessment, levy,
imposition or charge imposed on income from the Real Property shall be
calculated as if the Real Property were the only asset of Landlord.
(b) "ASSESSED VALUATION" shall mean the amount for which the
Real Property is assessed pursuant to applicable provisions of the City Charter
and of the Administrative Code of the City of New York for the purpose of
imposition of Taxes.
(c) "TAX YEAR" shall mean the twelve month period from July 1
through June 30 (or such other period as hereinafter may be duly adopted by the
City of New York as its fiscal year for real estate lax purposes).
(d) "BASE TAXES" shall mean an amount equal to the Taxes
payable on account of the Base Tax Year in respect of (x) the 8th Floor
Premises, (y) the 24th Floor Premises, and (z) the Storage Space, as the case
may be.
(e) "TENANT'S PROJECTED SHARE OF TAXES" shall mean Tenant's
Tax Payment, if any, for the prior Comparison Year, plus an amount equal to
Landlord's estimate of the amount of increase in Tenant's Tax Payment projected
for the current Comparison Year, divided by 12 and payable monthly as Additional
Rent.
(f) "COMPARISON YEAR" shall mean (a) with respect to Taxes,
any Tax Year commencing subsequent to the first day of a Base Tax Year, and (b)
with respect to Operating Expenses, any calendar year commencing subsequent to
the first day of a Base Expense Year.
(g) "OPERATING EXPENSES" shall mean the aggregate of all costs
and expenses (and taxes, if any, thereon) paid or incurred by or on behalf of
Landlord (whether directly or through independent contractors) in connection
with the ownership, operation, repair and maintenance of the Building and the
Real Property, such as: (i) insurance premiums, (ii) the cost of electricity,
gas, oil, steam, water, air conditioning and other fuel and utilities, (iii)
attorneys' fees and disbursements and auditing, management and other
professional fees and expenses, and (iv) any capital improvement as described in
items (1) or (2) below which shall be installed by Landlord in the Building.
Such improvements shall be amortized on a straight-line basis over such period
as Landlord shall reasonably determine (with interest accruing on the
unamortized portion thereof at the Base Rate in effect at the time such
improvements are substantially completed per annum), and the amount included in
Operating Expenses in any Comparison Year
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(until such improvement has been fully amortized) shall be equal to the annual
amortized amount. A capital improvement shall be included in Operating Expenses
only if it either (1) results in a reduction in Operating Expenses (as for
example, a labor-saving improvement), provided, the amount included in Operating
Expenses in any Comparison Year shall not exceed an amount equal to the savings
resulting from the installation and operation of such improvement, and/or (2) is
made during any Comparison Year in compliance with Requirements. Operating
Expenses shall not include any Excluded Expenses. If during all or part of any
Base Expense Year or any Comparison Year, Landlord shall not furnish any
particular item(s) of work or service (which would otherwise constitute an
Operating Expense) to any leasable portions of the Building for any reason,
then, for purposes of computing Operating Expenses for any Base Expense Year or
any Comparison Year, as the case may be, the amount included in Operating
Expenses for such period shall be increased by an amount equal to the costs and
expenses that would have been reasonably incurred by Landlord during such period
if Landlord had furnished such item(s) of work or service to such portion of the
Building. in determining the amount of Operating Expenses for any Base Expense
Year or any Comparison Year, if less than 95 percent of the Building rentable
area shall have been occupied by tenant(s) at any time during any such Base
Expense Year or Comparison Year, Operating Expenses shall be determined for such
Base Expense Year or Comparison Year to be an amount equal to the like expenses
which would normally be expected to be incurred had such occupancy been 95
percent throughout such Base Expense Year or Comparison Year.
(h) "BASE OPERATING EXPENSES" shall mean the Operating
Expenses for the Base Expense Year in respect of (x) the 8th Floor Premises and
(y) the 24th Floor Premises, as the case may be.
(i) "STATEMENT" shall mean a statement containing a comparison
of (1) the Taxes payable for the Base Tax Year for each portion of the Premises
and the Taxes payable for any Comparison Year, or (2) the Base Operating
Expenses for each portion of the Premises and the Operating Expenses payable for
any Comparison Year.
SECTION 8.2 (a) TENANT'S TAX PAYMENT. If the Taxes payable for any
Comparison Year exceed the Base Taxes applicable to any portion of the Premises,
Tenant shall pay to Landlord Tenant's Proportionate Share in respect of such
portion of the Premises of such excess ("Tenant's Tax Payment"). On or about the
start of each Comparison Year, Landlord shall furnish to Tenant a Statement of
the Taxes. Tenant shall pay Tenant's Tax Payment to Landlord, in monthly
installments, on the first day of each month during each Comparison Year, an
amount equal to one twelfth of Tenant's Tax Payment due for each Comparison
Year. If there is any increase or decrease in Taxes payable for any Comparison
Year, whether levied during or after such Comparison Year, Landlord may furnish
a revised Statement for such Comparison Year, Tenant's Tax Payment for such
Comparison Year shall be adjusted and, within 15 business days after Tenant's
receipt of such revised Statement (a) with respect to any increase in Taxes
payable for such Comparison Year, Tenant shall pay such increase in Tenant's Tax
Payment to Landlord, or (b) with respect to any decrease in Taxes payable for
such Comparison Year, Landlord shall credit such decrease in Tenant's Tax
Payment against the next installment of Rent payable by Tenant. If, during the
Term, Landlord elects to collect Tenant's Tax Payments, in full or in
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installments on any date or dates other than as presently required, then
following Landlord's notice to Tenant, Tenant's Tax Payments shall be
correspondingly revised.
(b) If the applicable real estate tax fiscal year is changed,
Taxes for such fiscal year shall be apportioned on the basis of the number of
days in such fiscal year included in the particular Comparison Year for the
purpose of making the computations under this Section.
(c) Only Landlord shall be eligible to institute proceedings
to reduce the Assessed Valuation of the Real Property and the filings of any
such proceeding by Tenant without Landlord's prior written consent shall
constitute an Event of Default. If the Taxes payable for a Base Tax Year are
reduced, the applicable Base Taxes shall be correspondingly revised, the
Additional Rent previously paid or payable on account of Tenant's Tax Payment
hereunder for all Comparison Years shall be recomputed on the basis of such
reduction, and Tenant shall pay to Landlord within 15 business days after being
billed therefor, any deficiency between the amount of such Additional Rent
previously computed and paid by Tenant to Landlord, and the amount due as a
result of such recomputations. If the Taxes payable for a Base Tax Year are
increased then Landlord shall either pay to Tenant, or at Landlord's election,
credit against subsequent payments of Rent due, the amount by which such
Additional Rent previously paid on account of Tenant's Tax Payment exceeds the
amount actually due as a result of such recomputations. If Landlord receives a
refund of Taxes for any Comparison Year, Landlord shall, at its election, either
pay to Tenant, or credit against subsequent payments of Rent due hereunder, an
amount equal to Tenant's Proportionate Share of the refund, net of any expenses
incurred by Landlord in achieving such refund, which amount shall not exceed
Tenant's Tax Payment paid for such Comparison Year. Landlord shall not be
obligated to file any application or institute any proceeding seeking a
reduction in Taxes or the Assessed Valuation.
(d) Tenant shall be obligated to make Tenant's Tax Payment
regardless of whether Tenant may be exempt from the payment of any taxes by
reason of Tenant's diplomatic or other tax exempt status.
(e) If the Expiration Date shall occur on a date other than
June 30, any Additional Rent payable by Tenant to Landlord under this Section
8.2 for the Comparison Year in which such Expiration Date occurs shall be
apportioned on the basis of the number of days in the period from June 30 to the
Expiration Date shall bear to the total number of days in such Comparison Year.
In the event of the expiration or earlier termination of this Lease, any
Additional Rent under this Section 8.2 shall be paid or adjusted within 30 days
after submission of the Statement. In no event shall Fixed Rent ever be reduced
by operation of this Section 8.2 and the rights and obligations of Landlord and
Tenant under the provisions of this Section 8.2 with respect to any Additional
Rent shall survive the expiration or earlier termination of this Lease.
(f) Tenant shall be responsible for any applicable occupancy
or rent tax now in effect or hereafter enacted and, if payable by Landlord,
Tenant shall promptly pay such amounts to Landlord, upon Landlord's demand, as
Additional Rent.
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SECTION 8.3 TENANT'S OPERATING PAYMENT. (a) If the Operating Expenses
payable for any Comparison Year exceed the Base Operating Expenses applicable to
any portion of the Premises, Tenant shall pay to Landlord Tenant's Proportionate
Share in respect of such portion of the Premises of such excess ("Tenant's
Operating Payment"). For each Comparison Year, Landlord shall furnish to Tenant
a written statement setting forth Landlord's good faith reasonable estimate of
Tenant's Operating Payment for such Comparison Year, based upon such year's
budget. Tenant shall pay to Landlord on the first day of each month during such
Comparison Year an amount equal to one-twelfth of Landlord's estimate of
Tenant's Operating Payment for such Comparison Year. If, however, Landlord shall
furnish any such estimate for a Comparison Year subsequent to the commencement
thereof, then (a) until the first day of the month following the month in which
such estimate is furnished to Tenant, Tenant shall pay to Landlord on the first
day of each month an amount equal to the monthly sum payable by Tenant to
Landlord under this Section 8.3 during the last month of the preceding
Comparison Year, (b) promptly after such estimate is furnished to Tenant or
together therewith, Landlord shall give notice to Tenant stating whether the
installments of Tenant's Operating Payment previously made for such Comparison
Year were greater or less than the installments of Tenant's Operating Payment to
be made for such Comparison Year in accordance with such estimate, and (i) if
there shall be a deficiency, Tenant shall pay the amount thereof within 15
business days after demand therefor, or (ii) if there shall have been an
overpayment, Landlord shall credit the amount thereof against subsequent
payments of Rent due hereunder, and (c) on the first day of the month following
the month in which such estimate is furnished to Tenant, and on the first day of
each month thereafter throughout the remainder of such Comparison Year, Tenant
shall pay to Landlord an amount equal to one-twelfth of Tenant's Operating
Payment shown on such estimate.
(b) On or before May 1st of each Comparison Year, Landlord
shall furnish to Tenant a Statement for the immediately preceding Comparison
Year. Each such Statement shall be accompanied by a computation of Operating
Expenses for the Building prepared by Landlord's managing agent. If the
Statement shall show that the sums paid by Tenant under Section 8.3(a) exceeded
the actual amount of Tenant's Operating Payment for such Comparison Year,
Landlord shall credit the amount of such excess against subsequent payments of
Rent due hereunder. If the Statement for such Comparison Year shall show that
the sums so paid by Tenant were less than Tenant's Operating Payment for such
Comparison Year, Tenant shall pay the amount of such deficiency within 15
business days after Tenant's receipt of the Statement.
(c) If the Expiration Date shall occur on a date other than
December 31, any Additional Rent under this Section 8.3 for the Comparison Year
in which such Expiration Date shall occur shall be apportioned on the basis of
the number of days in the period from January 1 to the Expiration Date. Upon the
expiration or earlier termination of this Lease, any Additional Rent under this
Article 8 shall be paid or adjusted within 30 days after submission of the
Statement. In no event shall Fixed Rent ever be reduced by operation of this
Section 8.3 and the rights and obligations of Landlord and Tenant under the
provisions of this Section 8.3 with respect to any Additional Rent shall survive
the expiration or earlier termination of this Lease.
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SECTION 8.4 FORMULA. The computations of Additional Rent under this
Article 8 are intended to constitute a formula for an agreed rental adjustment
and may or may not constitute an actual reimbursement to Landlord for Taxes,
costs and expenses paid by Landlord with respect to the Building.
SECTION 8.5 NON-WAIVER; DISPUTES. (a) Landlord's failure to render any
Statement on a timely basis with respect to any Comparison Year shall not
prejudice Landlord's right to thereafter render a Statement with respect to such
Comparison Year or any subsequent Comparison Year, nor shall the rendering of a
Statement prejudice Landlord's right to thereafter render a corrected Statement
for that Comparison Year.
(b) Each Statement sent to Tenant shall be conclusively
binding upon Tenant unless Tenant shall (i) within 30 days after such Statement
is sent, pay to Landlord the amount set forth in such Statement, without
prejudice to Tenant's right to dispute such Statement, and (ii) within 90 days
after such Statement is sent, send a written notice to Landlord objecting to
such Statement and specifying the reasons that such Statement is claimed to be
incorrect. If the parties are unable to resolve any dispute as to the
correctness of such Statement within 30 days following such notice of objection,
either party may refer the issues raised to an independent firm of certified
public accountants selected by Landlord and reasonably acceptable to Tenant, and
the decision of such accountants shall be conclusively binding upon Landlord and
Tenant. In connection therewith, Tenant and such accountants shall execute and
deliver to Landlord a confidentiality agreement, in form and substance
reasonably satisfactory to Landlord, whereby such parties agree not to disclose
to any third party any of the information obtained in connection with such
review. The fees and expenses relating to such procedure shall be borne by the
unsuccessful party (and if both parties are partially unsuccessful, the
accountants shall apportion the fees and expenses between the parties based on
the degree of success of each party).
ARTICLE 9
REQUIREMENTS OF LAW
SECTION 9.1 (a) TENANT'S COMPLIANCE. Tenant, at its expense and in
accordance with Article 5 of this Lease, shall comply (or cause to be complied
with) all Requirements applicable to the Premises, regardless of whether imposed
by their terms upon Landlord or Tenant. Tenant shall make all repairs and
alterations, whether structural or nonstructural, ordinary or extraordinary,
arising as a result of (i) the specific manner and nature of use or occupancy by
Tenant, or (ii) Alterations made by Tenant in the Premises. If Tenant obtains
knowledge of any failure to comply with any Requirements applicable to the
Premises, Tenant shall give Landlord prompt written notice thereof.
(b) HAZARDOUS MATERIALS. Tenant shall be responsible, at its
expense, for all matters directly or indirectly based on, or arising or
resulting from the actual or alleged presence of Hazardous Materials on the
Premises or in the Building which is caused or permitted by Tenant. Tenant shall
provide to Landlord copies of all communications received by Tenant with
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respect to any Requirements relating to Hazardous Materials, and/or any claims
made in connection therewith. Landlord or its agents may perform environmental
inspections of the Premises at any time.
(c) LANDLORD'S COMPLIANCE. Landlord shall comply with (or
cause to be complied with) all Requirements applicable to the Building which are
not the obligation of Tenant, to the extent that non-compliance would materially
impair Tenant's use and occupancy of the Premises and Tenant's ability to
conduct its business in the Premises for office use; and the Cost thereof shall
be included in Operating Expenses pursuant to Section 8.1(g) of this Lease.
(d) LANDLORD'S INSURANCE. Tenant shall not cause or permit any
action or condition that would (i) invalidate or conflict with Landlord's
insurance policies, (ii) violate applicable rules, regulations and guidelines of
the Fire Department, Fire Insurance Rating Organization or any other authority
having jurisdiction over the Building, or (iii) cause an increase in the rate of
fire insurance then on the Building over that in similar type buildings. If the
fire insurance rates increase as a result of Tenant's failure to comply with the
provisions of this Article, Tenant shall promptly cure such failure and shall
reimburse Landlord, as Additional Rent, for the increased fire insurance
premiums paid by Landlord because of such failure by Tenant. In any action or
proceeding which Landlord and Tenant are parties, a schedule or "make up" of
rates for the Building or the Premises issued by the appropriate Fire Insurance
Rating Organization, or other body fixing such fire insurance rates, shall be
conclusive evidence of the fire insurance rates then applicable to the Building.
SECTION 9.2 FIRE ALARM SYSTEM; SPRINKLERS. Tenant shall install a
fire-alarm and life-safety system in the Premises in accordance with this Lease,
the Rules and Regulations and all Requirements, if and to the extent such system
has not been installed in any portion of the Premises prior to the Commencement
Date in respect thereof. If the Fire Insurance Rating Organization or any
Governmental Authority or any of Landlord's insurers requires or recommends any
modifications and/or Alterations be made or any additional equipment be supplied
in connection with the sprinkler system or fire alarm and life-safety system
serving the Building or the Premises by reason of Tenant's business, or the
location of the partitions, trade fixtures, or other contents of the Premises,
Landlord (to the extent outside of the Premises) or Tenant (to the extent within
the Premises) shall make such modifications and/or Alterations, and supply such
additional equipment, in either case at Tenant's expense.
SECTION 9.3 LIMITATIONS ON RENT. If at any time during the Term by
reason of any Requirement, the Rent is not fully collectible, Tenant shall take
such other steps (without additional expense to Tenant) as Landlord may request,
and as may be legally permissible, to permit Landlord to collect the maximum
rents which may during the continuance of such restriction be legally
permissible (but not in excess of the Rent reserved under this Lease). Upon the
termination of such restriction during the Term, Tenant shall pay to Landlord,
in addition to the Rent for the period following such termination of the
restriction, if legally permissible, the portion of Rent which would have been
paid pursuant to this Lease but for such legal restriction less the Rent paid by
Tenant to Landlord while such restriction was in effect, together with interest
thereon at the Base Rate.
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ARTICLE 10
SUBORDINATION
SECTION 10.1 SUBORDINATION AND ATTORNMENT. (a) This Lease is subject
and subordinate to all Mortgages and Superior Leases, and, at the request of any
Mortgagee or Lessor, Tenant shall attorn to such Mortgagee or Lessor, its
successors in interest or any purchaser in a foreclosure sale.
(b) If a Lessor or Mortgagee or any other person or entity
shall succeed to the rights of Landlord under this Lease, whether through
possession or foreclosure action or delivery of a new lease or deed, then at the
request of the party succeeding to Landlord's rights and upon such successor
landlord's written agreement to accept Tenant's attornment and to recognize
Tenant's interest under this Lease, Tenant shall be deemed to have attorned to
and recognized such successor landlord as the Landlord under this Lease. The
provisions of this Article are self-operative requiring no further instruments
to give effect thereto; provided, however, that Tenant shall promptly execute
and deliver any instrument that such successor landlord may reasonably request
(i) evidencing such attornment, (ii) setting forth the terms and conditions of
Tenant's tenancy, and (iii) containing such other terms and conditions as may be
required by such Mortgagee or Lessor, provided such terms and conditions do not
materially increase Tenant's obligations or materially and adversely affect the
rights of Tenant under this Lease. Upon such attornment this Lease shall
continue in full force and effect as a direct lease between such successor
landlord and Tenant upon all of the terms, conditions and covenants set forth in
this Lease except that such successor landlord shall not:
(i) be liable for any act or omission of Landlord
(except to the extent such act or omission continues beyond the date when such
successor landlord succeeds to Landlord's interest and Tenant gives notice of
such act or omission);
(ii) be subject to any defense, counterclaim, set-off
or offsets which Tenant may have against Landlord;
(iii) be bound by any prepayment of more than one
month's Rent to any prior landlord;
(iv) be bound by any obligation to make any payment
to Tenant which was required to be made prior to the time such successor
landlord succeeded to Landlord's interest;
(v) be bound by any obligation to perform any work or
to make improvements to the Premises except for (x) repairs and maintenance
pursuant to the provisions of this Lease, and (y) repairs to the Premises as a
result of damage by fire or other casualty or a partial condemnation pursuant to
the provisions of this Lease, but only to the extent that such repairs can
reasonably be made from the net proceeds of any insurance or awards,
respectively, actually made available to such successor landlord; or
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(vi) be bound by any modification, amendment or
renewal of this Lease made without successor landlord's consent.
SECTION 10.2 MORTGAGE AND/OR SUPERIOR LEASE DEFAULTS. Tenant shall not
cause a default under any Superior Lease or Mortgage, or omit to do anything
that Tenant is obligated to do under the terms of this Lease so as to cause
Landlord to be in default thereunder. Any Mortgagee may elect that this Lease
shall have priority over the Mortgage that it holds and, upon notification to
Tenant by such Mortgagee, this Lease shall be deemed to have priority over such
Mortgage, regardless of the date of this Lease. In connection with the financing
of the Real Property, the Building or the interest of the lessee under any
Superior Lease, Tenant shall consent to any reasonable modifications of this
Lease requested by any lending institution provided such modifications do not
materially increase the obligations, or materially and adversely affect the
rights, of Tenant under this Lease.
SECTION 10.3 TENANT'S TERMINATION RIGHT. As long as any Superior Lease
or Mortgage shall exist, Tenant shall not seek to terminate this Lease by reason
of any act or omission of Landlord (i) until Tenant shall have given written
notice of such act or omission to all Lessors and/or Mortgagees, and (ii) until
a reasonable period of time shall have elapsed following the giving of notice of
such default and the expiration of any applicable notice or grace periods,
during which period such Lessors and/or Mortgagees shall have the right, but not
the obligation, to remedy such act or omission and thereafter diligently proceed
to so remedy such act or obligation. If any Lessor or Mortgagee elects to remedy
such act or omission of Landlord, Tenant shall not seek to terminate this Lease
so long as such Lessor or Mortgagee is proceeding with reasonable diligence to
effect such remedy.
SECTION 10.4 PROVISIONS. The provisions of this Article shall (i) inure
to the benefit of Landlord, any future owner of the Building or the Real
Property, Lessor or Mortgagee and any sublessor thereof and (ii) apply
notwithstanding that, as a matter of law, this Lease may terminate upon the
termination of any such Superior Lease or Mortgage.
SECTION 10.5 NON-DISTURBANCE AGREEMENTS. Landlord hereby agrees to use
reasonable efforts to obtain for Tenant a subordination, non-disturbance and
attornment agreement (a "SNDA") from all existing Mortgagees and Lessors, in the
standard form customarily employed by such Mortgagee and/or Lessor in respect of
the 24th Floor Premises. Landlord represents that, as of the date hereof, there
are no existing Superior Leases and the only existing Mortgagee is Citicorp Real
Estate, Inc.
ARTICLE 11
SERVICES
SECTION 11.1 ELEVATORS. Landlord, at its expense, shall provide
passenger elevator service to the Premises at all times, and at least one
freight elevator serving the Premises available upon Tenant's prior request, on
a non-exclusive "first come, first served" basis with
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other Building tenants, on all Business Days from 8:00 a.m. to 11:45 a.m. and
from 1:00 p.m. to 4:45 p.m.
SECTION 11.2 HEATING, VENTILATION AND AIR CONDITIONING. (a) Landlord
shall furnish to the Premises heating, ventilation and air-conditioning ("HVAC")
for the comfortable occupancy of the Premises, in accordance with the standards
set forth in Exhibit D on all Business Days from 8:00 a.m. to 6:00 p.m.
Landlord, at its expense, shall repair and maintain the HVAC System in good
working order, provided repairs required as a result of the negligence or
willful misconduct of Tenant, its agents or employees, shall be performed at
Tenant's expense. Landlord shall have free access to all air-cooling, fan,
ventilating and machine rooms and electrical closets and all other mechanical
installations of Landlord (collectively, "Electrical Installations"), and Tenant
shall not construct partitions or other obstructions which may interfere with
Landlord's access thereto or the moving of Landlord's equipment to and from the
Electrical Installations. Neither Tenant, nor its agents, employees or
contractors shall at any time enter the Electrical Installations or tamper with,
adjust, or otherwise affect such Electrical Installations.
(b) Landlord shall not be responsible if the normal operation
of the Building system providing HVAC to the Premises (the "HVAC System") shall
fail to provide cooled or heated air, as the case may be, at reasonable
temperatures, pressures, degrees of humidity, volumes or velocities to any parts
of the Premises (i) by reason of any machinery or equipment installed by or on
behalf of Tenant or any person claiming through or under Tenant, which shall
have an electrical load in excess of the average electrical load and human
occupancy factors for the HVAC System as designed, as the case may be, or (ii)
because of any rearrangement of partitioning or other Alterations (including the
Initial Installations) made or performed by or on behalf of Tenant or any person
claiming through or under Tenant. Tenant shall cause to be kept closed all of
the operable windows in the Premises and shall lower the blinds when necessary
because of the sun's position whenever the HVAC System is in operation or when
and as reasonably required by any Requirement or any applicable Governmental
Authority. Tenant at all times shall cooperate fully with Landlord and shall
abide by the rules and regulations which Landlord may reasonably prescribe for
the proper functioning and protection of the HVAC System.
SECTION 11.3 OVERTIME FREIGHT ELEVATORS AND HVAC. The Rent does not
reflect or include any charge to Tenant for the furnishing of any elevator
service (other than the one passenger elevator to be available at all times) or
HVAC to the Premises during any periods other than for the hours and days set
forth in Section 11.2 hereof ("Overtime Periods"). Landlord shall not be
required to furnish any such services during Overtime Periods unless Landlord
has received notice from Tenant requesting such services prior to 2:00 p.m. on
the day upon which such services are requested, or by 2:00 p.m. on the last
preceding Business Day, if such Overtime Periods are to occur on a day other
than a Business Day, but Landlord shall use reasonable efforts (without
obligation to incur any additional cost) to arrange such service on such shorter
notice as Tenant shall provide. If Landlord furnishes freight elevator service
to the Premises during Overtime Periods, Tenant shall pay to Landlord Landlord's
then established rates for such service in the Building. If Landlord shall
furnish HVAC to the Premises during Overtime
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Periods, Tenant shall pay to Landlord Landlord's then established rates for such
service in the Building.
SECTION 11.4 CLEANING. Landlord shall cause the Premises (excluding any
portions thereof used for the storage, preparation, service or consumption of
food or beverages) to be cleaned, substantially in accordance with the standards
set forth in Exhibit E. Any areas of the Premises requiring additional cleaning
such as areas used for preparation or consumption of food, shall be done, at
Tenant's expense, by Landlord's contractor whose rates shall be competitive with
rates of other such contractors in the vicinity of the Building. Landlord and
its cleaning contractor and their respective employees shall have access to the
Premises at all times except between 8:00 A.M. and 5:30 P.M. on Business Days.
SECTION 11.5 WATER. Landlord, at Landlord's expense, shall provide to
the Premises hot and cold water for drinking, cleaning and lavatory purposes. If
Tenant requires or uses water for any additional purposes, Landlord may install
a water meter. Tenant shall pay for the cost of such installation, maintenance,
repairs and replacements thereto, and for water consumed as shown on the meter.
Tenant shall also pay a reasonable charge for any required pumping or heating
thereof, and any sewer rent, tax and/or charge now or hereafter assessed or
imposed upon the Premises or the Real Property pursuant to any Requirement.
SECTION 11.6 SERVICE INTERRUPTIONS. Landlord reserves the right to
suspend any service when necessary, by reason of Unavoidable Delays, accidents
or emergencies, or for repairs, alterations or improvements which, in Landlord's
reasonable judgment, are desirable or necessary to be made, until such
Unavoidable Delay, accident or emergency shall cease or such repairs,
alterations or improvements are completed. Landlord shall not be liable for any
such interruption, curtailment or failure to supply services provided Landlord
shall use reasonable efforts to restore such service, remedy such situation and
minimize any interference with Tenant's business. The exercise of any such right
or the occurrence of any such failure by Landlord shall not constitute an actual
or constructive eviction, in whole or in part, entitle Tenant to any
compensation, abatement or diminution of Rent, relieve Tenant from any of its
obligations under this Lease, or impose any liability upon Landlord or its
agents by reason of inconvenience to Tenant, or interruption of Tenant's
business, or otherwise.
SECTION 11.7 REFUSE AND RUBBISH REMOVAL. Landlord shall provide refuse
and rubbish removal services at the Premises for ordinary office refuse and
rubbish pursuant to regulations reasonably established by Landlord. Tenant shall
pay to Landlord, within 10 business days of receipt of an invoice therefor, the
cost of such removal to the extent that the same exceeds the refuse and rubbish
customarily generated by executive and general office tenants. In addition, if
Tenant shall dispose of its refuse and rubbish in the public areas of the
Building, Tenant shall be liable for the cost of such removal. Tenant shall
cause its employees, agents, contractors and business visitors to observe such
additional rules and regulations regarding rubbish removal and/or recycling as
Landlord may, from time to time, reasonably impose.
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ARTICLE 12
INSURANCE, PROPERTY LOSS OR DAMAGE; REIMBURSEMENT
SECTION 12.1 TENANT'S INSURANCE. (a) Tenant, at its expense, shall
obtain and keep in full force and effect during the Term:
(i) a policy of commercial general liability
insurance on an occurrence basis against claims for personal injury, death
and/or property damage occurring in or about the Premises or the Building, under
which Tenant is named as the insured and Landlord, Landlord's managing agent and
any Lessors and any Mortgagees whose names shall have been furnished to Tenant
are named as additional insureds, which insurance shall provide primary coverage
without contribution from any other insurance carried by or for the benefit of
Landlord, Landlord's managing agent or any Lessors or Mortgagees named as
additional insureds, and Tenant agrees to obtain blanket broad-form contractual
liability coverage to insure its indemnity obligations set forth in Article 35
hereof. The minimum limits of liability shall be a combined single limit with
respect to each occurrence in an amount of not less than $5,000,000 per
location, provided, however, that Landlord shall retain the right to require
Tenant to increase such coverage to that amount of insurance which in Landlord's
reasonable judgment is then being customarily required by landlords for similar
office space in first-class renovated buildings in the City of New York. The
deductible or self insured retention for such policy shall in no event exceed
$10,000 at any time. If the aggregate limit applying to the Premises is reduced
by the payment of a claim or establishment of a reserve, Tenant shall
immediately arrange to have the aggregate limit restored by endorsement to the
existing policy or the purchase of an additional insurance policy unless, in
Landlord's reasonable judgment, Tenant maintains sufficient excess liability
insurance to satisfy the liability requirements of this Lease without the
reinstatement of the aggregate limit;
(ii) insurance against loss or damage by fire, and
such other risks and hazards as are insurable under then available standard
forms of "all risk" insurance policies with extended coverage, insuring Tenant's
Property, and all Specialty Alterations for the full insurable value thereof or
replacement cost value thereof, having a deductible amount, if any, as
reasonably determined by Landlord;
(iii) during the performance of any Alteration, until
completion thereof, Builder's risk insurance on an "all risk" basis and on a
completed value form including a Permission to Complete and Occupy endorsement,
for full replacement value covering the interest of Landlord and Tenant (and
their respective contractors and subcontractors), any Mortgagee and any Lessor
in all work incorporated in the Building and all materials and equipment in or
about the Premises;
(iv) workers' Compensation Insurance, as required by
law;
(v) disability Benefits Policy Insurance;
(vi) business Interruption Insurance; and
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(vii) such other insurance in such amounts as
Landlord, any Mortgagee and/or any Lessor may reasonably require from time to
time.
(b) All insurance required to be carried by Tenant pursuant to
the terms of this Lease (i) shall contain a provision that (x) no act or
omission of Tenant shall affect or limit the obligation of the insurance company
to pay the amount of any loss sustained, (y) the policy shall be noncancellable
and/or no material change in coverage shall be made thereto unless Landlord,
Lessors and Mortgagees shall have received 30 days' prior written notice of the
same, and (z) Tenant shall be solely responsible for the payment of all premiums
under such policies and Landlord, Lessors and Mortgagees shall have no
obligation for the payment thereof, and (ii) shall be effected under valid and
enforceable policies issued by reputable and independent insurers permitted to
do business in the state in which the Building is located, and rated in Best's
Insurance Guide, or any successor thereto (or if there be none, an organization
having a national reputation) as having a "Best's Rating" of "A" and a
"Financial Size Category" of at least "VIII" or, if such ratings are not then in
effect, the equivalent thereof.
(c) On or prior to the date hereof, Tenant shall deliver to
Landlord appropriate policies of insurance, including evidence of waivers of
subrogation required to be carried by each party pursuant to this Article 12.
Evidence of each renewal or replacement of a policy shall be delivered by Tenant
to Landlord at least 5 days prior to the expiration of such policy. In lieu of
the policy of insurance required to be delivered to Landlord pursuant to this
Article (the "Policy"), Tenant may deliver to Landlord a certification from
Tenant's insurance company (in the form currently designated "Acord 27" or the
equivalent rather than on the form currently designated "Acord 25-S" or the
equivalent) which shall be binding on Tenant's insurance company, and which
shall expressly provide that such certification (i) conveys to Landlord and any
other named insured and/or additional insureds thereunder (the "Insured
Parties") all the rights and privileges afforded under the Policy, (ii) contains
an unconditional obligation of the insurance company to give all Insured Parties
advance notice of termination of the Policy, and (iii) contains an unconditional
obligation of the insurance company to advise all Insured Parties at least 30
days in advance of any change to the Policy that would affect the interest of
any of the Insured Parties.
SECTION 12.2 WAIVER OF SUBROGATION. Landlord and Tenant shall each
procure an appropriate clause or endorsement in any fire or extended coverage
insurance covering the Premises, the Building and personal property, fixtures
and equipment located therein, wherein the insurance companies shall waive
subrogation or consent to a waiver of right of recovery and agree not to make
any claim against or seek to recover from, the other for any loss or damage to
its property or the property of others resulting from fire or other hazards
covered by such fire and extended coverage insurance. If either party shall be
unable to obtain the inclusion of such clause even with the payment of an
additional premium, then such party shall attempt to name the other party as a
loss payee under the policy. If the payment of an additional premium is required
for either (i) the inclusion of, or consent to, a waiver of subrogation, or (ii)
for naming any party a loss payee, each party shall advise the other, in
writing, of the amount of any such additional premiums and the other party may
pay such additional premium. If such other party shall not elect to pay such
additional premium or if it shall not be possible to have the other party
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named as a loss payee, even with the payment of an additional premium, then the
first party shall not be required to obtain such waiver of subrogation or
consent to waiver provision and such party shall so notify the first party and
the first party's agreement to name the other party as an additional insured
shall be satisfied. Tenant acknowledges that Landlord shall not carry insurance
on, and shall not be responsible for, (i) damage to any Specialty Alterations,
(ii) Tenant's Property, and (iii) any loss suffered by Tenant due to
interruption of Tenant's business.
ARTICLE 13
DESTRUCTION - FIRE OR OTHER CAUSE
SECTION 13.1 RESTORATION. If the Premises are damaged by fire or other
casualty, or if the Building is damaged such that Tenant is deprived of
reasonable access to the Premises, Tenant shall give prompt notice to Landlord,
and the damage shall be repaired by Landlord, at its expense, to substantially
the condition of the Premises prior to the damage, but Landlord shall have no
obligation to repair or restore (i) Tenant's Property or (ii) any Specialty
Alterations. Until such time as the restoration of the Premises is substantially
completed, Rent shall be reduced in the proportion by which the area of the part
of the Premises which is neither usable (or accessible) nor used by Tenant bears
to the total area of the Premises.
SECTION 13.2 LANDLORD'S TERMINATION RIGHT. Notwithstanding anything to
the contrary contained in Section 13.1, if the Premises are totally damaged or
are rendered wholly untenantable, or if the Building shall be so damaged that,
in Landlord's opinion, substantial alteration, demolition, or reconstruction of
the Building shall be required (whether or not the Premises shall have been
damaged or rendered untenantable), then in either of such events, Landlord may,
not later than 60 days following the date of the damage, give Tenant a written
notice terminating this Lease. If this Lease is so terminated, (i) the Term
shall expire upon the 10th day after such notice is given, (ii) Tenant shall
vacate the Premises and surrender the same to Landlord, (iii) Tenant's liability
for Rent shall cease as of the date of the damage, and (iv) any prepaid Rent for
any period after the date of the damage shall be refunded by Landlord to Tenant.
SECTION 13.3 TENANT'S TERMINATION RIGHT. If the Premises are totally
damaged and are rendered wholly untenantable thereby, or if the Building shall
be so damaged that Tenant is deprived of reasonable access to the Premises, and
if Landlord elects to restore the Premises, Landlord shall, within 60 days
following the date of the damage, cause a contractor or architect selected by
Landlord to give notice ("Restoration Notice") to Tenant of the date by which
such contractor or architect estimates the restoration of the Premises shall be
substantially completed. If the Restoration Notice estimates that the
restoration shall not be substantially completed on or before a date
("Landlord's Restoration Date") which shall be 18 months following the date of
such damage, then Tenant shall have the right to terminate this Lease by giving
written notice ("Termination Notice") to Landlord not later than 10 days
following Tenant's receipt of the Restoration Notice. If Tenant delivers to
Landlord a Termination Notice, this Lease shall be deemed to have terminated as
of the date of the giving of the Termination Notice as if such date were the
Expiration Date, and Rent shall be apportioned and shall be paid or refunded, as
the
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case may be, up to and including the date of such damage. If Tenant shall not
have given the Termination Notice pursuant to this Section l3.3, and Landlord
shall fail to substantially complete the restoration of the Premises on or
before Landlord's Restoration Date, subject to Unavoidable Delays (which may not
exceed an additional three months in the aggregate), then Tenant shall have the
right to terminate this Lease by delivery to Landlord of a Termination Notice
not later than 10 days following such date.
SECTION 13.4 FINAL 18 MONTHS. Notwithstanding anything set forth to the
contrary in this Article 13, in the event that any damage rendering the Premises
wholly untenantable occurs during the final 18 months of the Term, either
Landlord or Tenant may terminate this Lease by notice to the other party within
30 days after the occurrence of such damage and this Lease shall expire on the
30th day after the date of such notice. For purposes of this Section 13.4, the
Premises shall be deemed wholly untenantable if due to such damage, Tenant shall
be precluded from using more than 50 percent of the Premises for the conduct of
its business and Tenant's inability to so use the Premises is reasonably
expected to continue until at least the earlier of the (i) Expiration Date and
(ii) the 90th day after the date when such damage occurs.
SECTION 13.5 WAIVER OF REAL PROPERTY LAW SECTION 227. This Article 13
constitutes an express agreement governing any case of damage or destruction of
the Premises or the Building by fire or other casualty, and Section 227 of the
Real Property Law of the State of New York, which provides for such contingency
in the absence of an express agreement, and any other law of like nature and
purpose now or hereafter in force, shall have no application in any such case.
SECTION 13.6 LANDLORD'S LIABILITY. Any Building employee to whom any
property shall be entrusted by or on behalf of Tenant shall be deemed to be
acting as Tenant's agent with respect to such property and neither Landlord nor
its agents shall be liable for any damage to property of Tenant or of others
entrusted to employees of the Building, or for the loss of or damage to any
property of Tenant by theft or otherwise. None of Landlord, its agents, any
Mortgagee or Lessor shall be liable for any injury or damage to persons or
property or interruption of Tenant's business resulting from fire or other
casualty, any damage caused by other tenants or persons in the Building or by
construction of any private, public or quasi-public work, or any latent defect
in the Premises or in the Building (except that Landlord shall be required to
repair the same to the extent provided in Article 5). No penalty shall accrue
for delays which may arise by reason of adjustment of fire insurance on the part
of Landlord or Tenant, or for delay on account of "labor troubles" or any other
cause beyond Landlord's control arising from any repair or restoration of any
portion of the Premises or of the Building provided that Landlord shall perform
any such repair or restoration expeditiously and in a manner as to minimize
unreasonable interference with Tenant's business. None of the foregoing shall
affect any right of Landlord to the indemnity from Tenant to which Landlord may
be entitled under Article 32 in order to recoup for payments made to compensate
for losses of third parties.
SECTION 13.7 WINDOWS. If at any time any windows of the Premises are
temporarily closed, darkened or covered over by reason of repairs, maintenance,
alterations or improvements to the Building, or any of such windows are
permanently closed, darkened or covered over due to any Requirement, Landlord
shall not be liable for any damage Tenant may sustain and Tenant
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shall not be entitled to any compensation or abatement of any Rent, nor shall
the same release Tenant from its obligations hereunder or constitute an actual
or constructive eviction.
ARTICLE 14
EMINENT DOMAIN
SECTION 14.1 (a) TOTAL TAKING. If all or substantially all of the Real
Property, the Building or the Premises shall be acquired or condemned for any
public or quasi-public purpose, this Lease shall terminate and the Term shall
end as of the date of the vesting of title, with the same effect as if such date
were the Expiration Date, and Rent shall be prorated and adjusted as of such
date.
(b) PARTIAL TAKING. If only a part of the Real Property, the
Building or the Premises shall be acquired or condemned then, except as
hereinafter provided in this Article, this Lease and the Term shall continue in
full force and effect, provided that from and after the date of the vesting of
title, the Rent and Tenant's Proportionate Share shall be modified to reflect
the reduction of the Premises and/or the Building as a result of such
acquisition or condemnation.
(c) LANDLORD'S TERMINATION RIGHT. Whether or not the Premises
are affected, Landlord may give to Tenant a notice of termination of this Lease
within 60 days following the date upon which Landlord receives notice that (i)
all or a portion of the Real Property or the Building (provided that Landlord
elects to terminate leases (including this Lease) affecting at least 25% of the
rentable area of the Building) or (ii) all or a portion of the Premises has been
acquired or condemned.
(d) TENANT'S TERMINATION RIGHT. If the part of the Real
Property so acquired or condemned contains more than 15 percent of the total
area of the Premises immediately prior to such acquisition or condemnation, or
if, by reason of such acquisition or condemnation, Tenant no longer has
reasonable means of access to the Premises, Tenant may terminate this Lease by
notice to Landlord given within 30 days following the date upon which Tenant
received notice of such acquisition or condemnation. If Tenant so notifies
Landlord, this Lease shall terminate and the Term shall end and expire upon date
set forth in the notice, which date shall not be more than 30 days following the
giving of such notice. If a part of the Premises shall be so acquired or
condemned and this Lease and the Term shall not be terminated in accordance with
this Section 14.1, Landlord, at Landlord's expense, shall restore that part of
the Premises not so acquired or condemned to a self-contained rental unit
substantially equivalent (with respect to character, quality, appearance and
services) to that which existed immediately prior to such acquisition or
condemnation, excluding Tenant's Property and/or Specialty Alterations.
(e) APPORTIONMENT OF RENT. Upon any termination of this Lease
pursuant to the provisions of this Article 14, Rent shall be apportioned as of,
and shall be paid or refunded up to and including, the date of such termination.
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SECTION 14.2 AWARDS. Upon any acquisition or condemnation of all or any
part of the Real Property, Landlord shall receive the entire award for any such
acquisition or condemnation, and Tenant shall have no claim against Landlord or
the condemning authority for the value of any unexpired portion of the Term,
Tenant's Alterations or improvements; and Tenant hereby assigns to Landlord all
of its right in and to such award. Nothing contained in this Article 14 shall be
deemed to prevent Tenant from making a separate claim in any condemnation
proceedings for the then value of any Tenant's Property or Specialty Alteration
included in such taking and for any moving expenses, provided any such award is
in addition to, and does not result in a reduction of, the award made to
Landlord.
SECTION 14.3 TEMPORARY TAKING. If the whole or any part of the Premises
is acquired or condemned temporarily during the Term for any public or
quasi-public use or purpose, Tenant shall give prompt notice to Landlord and the
Term shall not be reduced or affected in any way and Tenant shall continue to
pay all Rent payable by Tenant without reduction or abatement, and Tenant shall
be entitled to receive any award or payment for such use, which shall be
received, held and applied by Tenant as a trust fund for payment of the Rent
falling due.
ARTICLE 15
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC.
SECTION 15.1 (a) NO ASSIGNMENT OR SUBLETTING. Except as expressly set
forth herein, Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, shall not assign,
mortgage, pledge, encumber, or otherwise transfer this Lease, whether by
operation of law or otherwise, and shall not sublet (or underlet), or permit, or
suffer the Premises or any part thereof to be used or occupied by others
(whether for desk space, mailing privileges or otherwise), without Landlord's
prior written consent in each instance. Any assignment, sublease, mortgage,
pledge, encumbrance or transfer in contravention of the provisions of this
Article 15 shall be void.
(b) COLLECTION OF RENT. If, without Landlord's consent, this
Lease is assigned, or any part of the Premises is sublet or occupied by anybody
other than Tenant or this Lease or the Premises or Tenant's Property is
encumbered (by operation of law or otherwise), Landlord may, after default by
Tenant, collect rent from the assignee, subtenant or occupant, and apply the net
amount collected to the Rent herein reserved. No assignment, subletting,
occupancy or collection shall be deemed a waiver of the provisions of this
Article 15, the acceptance of the assignee, subtenant or occupant as tenant, or
the release of Tenant from the performance of Tenant's covenants hereunder.
Tenant shall remain fully liable for the obligations under this Lease.
(c) FURTHER ASSIGNMENT/SUBLETTING. Landlord's consent to any
assignment or subletting shall not relieve Tenant from obtaining Landlord's
express written consent to any further assignment or subletting. In no event
shall any permitted subtenant assign or encumber its sublease or further sublet
any portion of its sublet space, or otherwise suffer or permit any
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portion of the sublet space to be used or occupied by others, without Landlord's
prior written consent in each instance.
SECTION 15.2 TENANT'S NOTICE. If Tenant desires to assign this Lease or
sublet all or any portion of the Premises, Tenant shall give notice thereof to
Landlord, which shall be accompanied by (a) with respect to an assignment of
this Lease, the date Tenant desires the assignment to be effective, and (b) with
respect to a sublet of all or a part of the Premises, (i) the material business
terms on which Tenant would sublet such premises, and (ii) a description of the
portion of the Premises to be sublet. Such notice shall be deemed an offer from
Tenant to Landlord whereby Landlord (or Landlord's designee) shall be granted
the right, at Landlord's option, (1) to terminate this Lease with respect to
such space as Tenant proposes to sublease (the "Partial Space"), upon the terms
and conditions hereinafter set forth, or (2) if the proposed transaction is an
assignment of this Lease or a subletting of 50% or more of the rentable square
footage of the Premises, to terminate this Lease with respect to the entire
Premises. Such option may be exercised by notice from Landlord to Tenant within
45 days after Landlord's receipt of Tenant's notice.
SECTION 15.3 LANDLORD'S TERMINATION. If Landlord exercises its option
to terminate all or a portion of this Lease pursuant to Section 15.2, (i) this
Lease shall end and expire with respect to all or a portion of the Premises, as
the case may be, on the date that such assignment or sublease was to commence,
(ii) Tenant's Rent shall be apportioned, paid or refunded as of such date, (iii)
Tenant, upon Landlord's request, shall enter into an amendment of this Lease
ratifying and confirming such total or partial termination, and setting forth
any appropriate modifications to the terms and provisions hereof, and (iv)
Landlord shall be free to lease the Premises (or any part thereof) to Tenant's
prospective assignee or subtenant.
SECTION 15.4 (a) LANDLORD'S LEASEBACK. If Landlord receives a notice
from Tenant as described in Section 15.2, Landlord or its designee may, at its
option, in lieu of exercising the options described in 15.2, sublease from
Tenant the space described in Tenant's notice (or, if the space described in
Tenant's notice constitutes 50 percent or more of the rentable square footage
contained in the Premises, Landlord may sublease from Tenant the entire
Premises) (such space being hereafter referred to as the "Leaseback Space"). If
Landlord exercises its option to sublet the Leaseback Space, such sublease to
Landlord or its designee (as subtenant) shall be at a rental rate equal to the
product of the lesser of (A) the rent per rentable square foot (including Fixed
Rent and Additional Rent) then payable pursuant to this Lease, and (B) the rent
per rentable square foot set forth in the proposed sublease, multiplied by the
rentable square foot area of the Leaseback Space; shall be for the same term as
that of the proposed subletting; and shall:
(i) be expressly subject to all of the covenants,
terms and conditions of this Lease except such as are irrelevant or
inapplicable, and except as expressly set forth in this Article 15 to
the contrary;
(ii) be upon the same terms and conditions as those
contained in the proposed sublease, except such as are irrelevant or
inapplicable and except as expressly set forth in this Article 15 to
the contrary;
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(iii) give the subtenant the unqualified and
unrestricted right, without Tenant's consent, to assign such sublease
or any interest therein and/or to sublet all or any portion of the
space covered by such sublease and to make alterations and improvements
in the space covered by such sublease, and if the proposed sublease
will result in all or substantially all of the 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 day;
(iv) provide that any assignee or further subtenant
of Landlord or its designee, may, at Landlord's option, be permitted to
make alterations and decorations in such space and that any or all of
such alterations, decorations and installations may be removed 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 shall, at its expense, repair any damage caused by such
removal; and
(v) provide that (A) the parties to such sublease
expressly negate any intention that the sublease estate be merged with
any other estate held by either of such parties, (B) any assignment or
sublease by Landlord or its designee (as the subtenant) may be for any
purpose or purposes that Landlord, in its sole discretion, shall deem
appropriate, (C) Tenant shall, at its sole cost and expense, at all
times provide and permit reasonably appropriate means of ingress to and
egress from such space so sublet by Tenant to Landlord or its designee,
(D) Landlord may, at Tenant's expense, make such alterations as may be
required or deemed necessary by Landlord to physically separate the
Leaseback Space from the balance of the Premises and to comply with any
Requirements or insurance requirements relating to such separation, and
(E) that at the expiration of the term of such sublease. Tenant will
accept the Leaseback Space in its then existing condition, subject to
the obligations of the subtenant to make such repairs as may be
necessary to preserve such premises in good order and condition.
(b) OBLIGATIONS RE: LEASEBACK SPACE. If Landlord exercises its
option to sublet the Leaseback Space:
(i) Landlord shall indemnify, defend and hold
harmless Tenant from all obligations under this Lease as to the
Leaseback Space during the period it is so sublet to Landlord, except
as to any obligation arising out of or resulting from the negligence or
willful misconduct of Tenant, or any of its agents, contractors or
employees;
(ii) 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 Tenant shall not 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 the subtenant pursuant to such sublease; or
(iii) Tenant shall have no obligation, at the
expiration or earlier termination of the Term, to remove any
alteration, installation or improvement made in the Leaseback Space by
Landlord (or Landlord's designee); and
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(iv) Any consent required of Tenant, as Landlord
under the sublease, shall be deemed granted if consent with respect
thereto is granted by Landlord under this Lease, and any failure of
Landlord (or its designee) to comply with the provisions of the
sublease other than with respect to the payment of Rent shall not
constitute a default thereunder or hereunder if Landlord shall have
consented to such non-compliance.
SECTION 15.5 CONSENT BY LANDLORD. If Landlord does not exercise any of
Landlord's options provided under Section 15.2, and provided that no Event of
Default then exists, Landlord's consent to the proposed assignment or sublease
shall not be unreasonably withheld or delayed. Such consent shall be granted or
declined, as the case may be, within 30 days after Landlord's receipt of (a) a
true and complete statement reasonably detailing the identity of the proposed
assignee or subtenant, the nature of its business and its proposed use of the
Premises, (b) current financial information with respect to the proposed
assignee or subtenant, including its most recent financial statements, and (c)
any other information Landlord may reasonably request, provided that:
(i) in Landlord's reasonable judgment, the proposed
assignee or subtenant is engaged in a business or activity, and the
Premises will be used in a manner, which (a) is in keeping with the
then standards of the Building, (b) limits the use of the Premises to
general and executive offices, and (c) does not violate any
restrictions set forth in this Lease, and/or any negative covenant as
to use of the Premises required by any other lease in the Building of
which Tenant has been advised;
(ii) the proposed assignee or subtenant is a
reputable person or entity of good character with sufficient financial
means to perform all of its obligations under the Lease or sublease, as
the case may be, and Landlord has been furnished with reasonable proof
thereof;
(iii) if Landlord has, or reasonably expects to have
within six months thereafter, comparable space available in the
Building, neither the proposed assignee or subtenant nor any person
which, directly or indirectly, controls, is controlled by, or is under
common control with, the proposed assignee or subtenant is then an
occupant of the Building;
(iv) the proposed assignee or subtenant is not a
person or entity (or affiliate of a person or entity) with whom
Landlord or Landlord's agent is then or has been within the prior six
months negotiating in connection with the rental of space in the
Building;
(v) the form of the proposed sublease or instrument
of assignment shall be reasonably satisfactory to Landlord and shall
comply with the provisions of this Article 15;
(vi) there shall be not more than two subtenants of
the Premises;
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(vii) The amount of the aggregate rent to be paid by
the proposed subtenant is not less than the then current market rent
per rentable square foot for the Premises determined as though the
Premises were vacant (taking into account that the proposed transaction
is a sublease, the length of the proposed term of sublease, any rent
concessions granted to sublessee, and the cost of any alterations being
performed for the sublessee), and the rental and other terms and
conditions of the sublease are the same as those contained in the
proposed sublease furnished to Landlord pursuant to Section 15.2;
(viii) Tenant shall, upon demand, reimburse Landlord
for all expenses incurred by Landlord in connection with such
assignment or sublease, including any investigations as to the
acceptability of the proposed assignee or subtenant, reviewing any
plans and specifications for Alterations proposed to be made in
connection therewith, and all legal costs reasonably incurred in
connection with the granting of any requested consent;
(ix) Tenant shall not (A) publicize the availability
of the Premises without Landlord's prior approval, or (B) list the
Premises to be sublet or assigned with a broker, agent or otherwise at
a rental rate less than the fixed rent and additional rent at which
Landlord is then offering to lease other space in the Building; and
(x) the proposed subtenant or assignee shall not be
entitled, directly or indirectly, to diplomatic or sovereign immunity,
regardless of whether the proposed assignee or subtenant agrees to
waive such diplomatic or sovereign immunity, and shall be subject to
the service of process in, and the jurisdiction of the courts of, the
City and State of New York.
SECTION 15.6 BINDING ON TENANT; INDEMNIFICATION OF LANDLORD. Each
sublease pursuant to this Article 15 shall be subject to all of the covenants,
terms and conditions of this Lease. Notwithstanding any such sublease to any
subtenant and/or acceptance of Rent by Landlord from any subtenant, Tenant shall
remain fully liable for the payment of all Rent due and to become due hereunder
and for the performance of all the covenants, terms and conditions contained in
this Lease on Tenant's part to be observed and performed; and all acts and
omissions of any licensee or subtenant or anyone claiming under or through any
subtenant which shall violate any obligations of this Lease shall be deemed to
be a violation by Tenant. Tenant shall indemnify, defend, protect and hold
harmless Landlord from and against any and all losses, liabilities, damages and
expenses (including reasonable attorneys' fees and disbursements) resulting from
any claims that may be made against Landlord by the proposed assignee or
subtenant or by any brokers or other persons claiming a commission or similar
compensation in connection with the proposed assignment or sublease irrespective
of whether Landlord shall give or decline to give its consent to any proposed
assignment or sublease, or if Landlord shall exercise any of its options under
this Article 15.
SECTION 15.7 TENANT'S FAILURE TO COMPLETE. If Landlord consents to a
proposed assignment or sublease and Tenant fails to execute and deliver to
Landlord such assignment or sublease within 90 days after the giving of such
consent, then Tenant shall again comply with all
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of the provisions and conditions of Section 15.2 and 15.4 hereof before
assigning this Lease or subletting all or part of the Premises.
SECTION 15.8 SUBLEASE RESTRICTIONS. With respect to each and every
sublease and/or assignment authorized by Landlord under the provisions of this
Lease, it is further agreed that:
(i) the form of the proposed assignment or sublease
shall be reasonably satisfactory to Landlord and shall comply with the
provisions of this Article;
(ii) no sublease shall be delivered, and no subtenant
shall take possession of any part of the Premises, until an executed
counterpart of such sublease has been delivered to Landlord and
approved in writing by landlord (or deemed approved pursuant to Section
15.5 hereof);
(iii) no sublease shall be delivered, and no
subtenant shall take possession of any part of the Premises, until an
executed counterpart of such sublease has been delivered to Landlord
and approved in writing by Landlord (or deemed approved pursuant to
Section 15.5 hereof);
(iv) if an Event of Default shall occur at any time
prior to the effective date of such assignment or subletting, then
Landlord's consent thereto, if previously granted, shall be immediately
deemed revoked without further notice to Tenant, and if such assignment
or subletting would have been permitted without Landlord's consent
pursuant to Section 15.10, such permission shall be void and without
force and effect, and in either case, any such assignment or subletting
shall constitute a further Event of Default hereunder; and
(v) each sublease shall be subject and subordinate to
this Lease and to the matters to which this Lease is or shall be
subordinate, it being the intention of Landlord and Tenant that Tenant
shall assume and be liable to Landlord for any and all acts and
omissions of all subtenants and anyone claiming under or through any
subtenants which, if performed or omitted by Tenant, would be a default
under this Lease; and Tenant and each subtenant shall be deemed to have
agreed that upon the occurrence and during the continuation of an Event
of Default hereunder, Tenant has hereby assigned to Landlord, and
Landlord may, at its option, accept such assignment of, all right,
title in interest of Tenant as sublandlord under such sublease,
together with all modifications, extensions and renewal thereof then in
effect 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 be (A) liable for any previous act or
omission of Tenant under such sublease, (B) subject to any
counterclaim, offset or defense not expressly provided in such
sublease, which theretofore accrued to such subtenant against Tenant,
(C) bound by any previous modification of such sublease or by any
prepayment of more than one month's Rent, (D) bound to return such
subtenant's security deposit, if any, except to the extent such deposit
shall come into Landlord's actual possession and such subtenant shall
be entitled to such return under the terms of such sublease, or (E)
obligated to make any payment to or on behalf of such subtenant or to
perform any work
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in the subleased space or the Building or in any way to prepare the
sublease space for occupancy beyond Landlord's obligations under this
Lease. The provisions of this Article 15 shall be self-operative and no
further instrument shall be required to give effect to this provision.
The subtenant shall execute and deliver to Landlord any instruments
Landlord may reasonably request to evidence and confirm such
subordination and attornment.
SECTION 15.9 PROFITS. If Tenant shall enter into any assignment or
sublease permitted and/or consented to by Landlord, Tenant shall, within 60 days
of Landlord's consent to such assignment or sublease, deliver to Landlord a
complete list of Tenant's reasonable third-party brokerage fees, legal fees and
architectural fees paid or to be paid in connection with such transaction,
together with a list of all of Tenant's Property to be transferred to such
assignee or sublessee. Tenant shall deliver to Landlord evidence of the payment
of such fees promptly after the same are paid. In consideration of such
assignment or subletting Tenant shall pay to Landlord:
(a) In the case of an assignment, on the effective
date of the assignment, an amount equal to 50 percent of all sums and other
considerations paid to Tenant by the assignee for or by reason of such
assignment (including sums paid for Tenant's Property, less, in the case of a
sale thereof, the then fair market value thereof, as reasonably determined by
Landlord) after first deducting Tenant's reasonable third-party brokerage fees,
legal fees and architectural fees in connection with such transaction; or
(b) in the case of a sublease, 50 percent of any
consideration payable under the sublease to Tenant by the subtenant which
exceeds on a per square foot basis the Fixed Rent and Additional Rent accruing
during the term of the sublease in respect of the subleased space (together with
any sums paid for the sale or rental of Tenant's property, less, in the case of
the sale thereof, the then fair market value thereof, as reasonably determined
by Landlord) after first deducting Tenant's reasonable third-party brokerage
fees, legal fees and architectural fees in connection with such transaction. The
sums payable under this clause shall be paid by Tenant to Landlord as and when
paid by the subtenant to Tenant.
SECTION 15.10 (a) TRANSFERS. If Tenant is a corporation, the transfer
(by one or more transfers) of a majority of the stock of Tenant shall be deemed
a voluntary assignment of this Lease; provided, however, the provisions of this
Article 15 shall not apply to the transfer of shares of stock of Tenant if and
so long as Tenant is publicly traded on a nationally recognized stock exchange.
For purposes of this Section 15.10 the term "transfers" shall be deemed to
include the issuance of new stock which results in a majority of the stock of
Tenant being held by a person or entity which does not hold a majority of the
stock of Tenant on the date hereof. If Tenant is a limited liability company,
trust, or any other legal entity, the transfer (by one or more transfers) of a
majority of the beneficial ownership interests in such entity, however
characterized, shall be deemed a voluntary assignment of this Lease. The
provisions of Section 15.1 shall not apply to transactions with a corporation
into or with which Tenant is merged or consolidated or to which substantially
all of Tenant's assets are transferred so long as (i) such transfer was made for
a legitimate independent business purpose and not for the principal
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purpose of transferring this Lease, (ii) the successor to Tenant 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 immediately prior to such
merger, consolidation or transfer, and (2) the net worth of the original Tenant
on the date of this Lease, and (iii) proof satisfactory to Landlord of such net
worth is delivered to Landlord at least 10 days prior to the effective date of
any such transaction. Tenant may also, upon prior notice to but without the
consent of Landlord, permit any corporation or other business entity which
controls, is controlled by, or is under common control with the original Tenant
(a "Related Corporation") to sublet all or part of the Premises for any
Permitted Use. Such sublease shall not be deemed to vest in any such Related
Corporation any right or interest in this Lease or the Premises nor shall it
relieve, release, impair or discharge any of Tenant's obligations hereunder. For
the purposes hereof, "control" shall be deemed to mean ownership of not less
than 50 percent of all of the voting stock of such corporation or not less than
50 percent of all of the legal and equitable interest in any other business
entity if Tenant is not a corporation. Notwithstanding the foregoing, Tenant
shall have no right to make an assignment of this Lease or sublease all or any
portion of the Premises without Landlord's consent pursuant to this Section
15.10 if Tenant is not the initial Tenant herein named or a person or entity who
acquired Tenant's interest in this Lease in a transaction approved by Landlord.
(b) MISCELLANEOUS. The limitations set forth in this
Section 15.9 shall apply to subtenant(s), assignee(s) and guarantors of this
Lease, if any, and any transfer by any such entity in violation of this Section
15.9 shall be a transfer in violation of Section 15.1.
(c) MODIFICATIONS, ETC. Any modification, amendment
or extension of a sublease and/or any other agreement by which a landlord of a
building other than the Building agrees to assume the obligations of Tenant
under this Lease shall be deemed a sublease for the purposes of Section 15.1
hereof.
SECTION 15.11 ASSUMPTION OF OBLIGATIONS. Any assignment or transfer,
whether made with Landlord's consent or without Landlord's consent, if and to
the extent permitted hereunder, shall not be effective unless and until the
assignee executes, acknowledges and delivers to Landlord an agreement in form
and substance satisfactory to Landlord whereby the assignee (i) assumes Tenant's
obligations under this Lease and (ii) agrees that, notwithstanding such
assignment or transfer, the provisions of Section 15.1 hereof shall be binding
upon it in respect of all future assignments and transfers.
SECTION 15.12 TENANT'S LIABILITY. The joint and several liability of
Tenant and any successors-in-interest of Tenant and the due performance of
Tenant's obligations under this Lease shall not be discharged, released or
impaired by any agreement or stipulation made by Landlord, or any grantee or
assignee of Landlord, extending the time, or modifying any of the terms and
provisions of this Lease, or by any waiver or failure of Landlord, or any
grantee or assignee of Landlord, to enforce any of the terms and provisions of
this Lease.
SECTION 15.13 LISTINGS. The listing of any name other than that of
Tenant, on the doors of the Premises, the Building directory, or otherwise,
shall not vest any right or interest in this Lease or in the Premises, nor shall
it be deemed to constitute Landlord's consent to any
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assignment or transfer of this Lease or to any sublease of Premises or to the
use or occupancy thereof by others. Any such listing shall constitute a
privilege revocable in Landlord's discretion by notice to Tenant.
SECTION 15.14 LEASE DISAFFIRMANCE OR REJECTION. If at any time after an
assignment by Tenant named herein, this Lease is disaffirmed or rejected in any
proceeding of the types described in Section 18.1(vii) hereof or any similar
proceeding, or upon a termination of this Lease due to any such proceeding,
Tenant named herein, upon request of Landlord given after such disaffirmance,
rejection or termination (and actual notice thereof to Landlord in the event of
a disaffirmance or rejection or in the event of termination other than by act of
Landlord), shall (a) pay to Landlord all Rent and other charges due and owing by
the assignee to Landlord under this Lease to and including the date of such
disaffirmance, rejection or termination, and (b) as "tenant," enter into a new
lease of the Premises with Landlord for a term commencing on the effective date
of such disaffirmance, rejection or termination and ending on the Expiration
Date, unless sooner terminated in accordance therewith, at the same Rent and
upon the then executory terms, covenants and conditions contained in this Lease,
except that (i) the rights of Tenant named herein under the new lease shall be
subject to the possessory rights of the assignee under this Lease and the
possessory rights of any persons claiming through or under such assignee or by
virtue of any statute or of any order of any court, (ii) such new lease shall
require all defaults existing under this Lease to be cured by Tenant named
herein with due diligence, and (iii) such new lease shall require Tenant named
herein to pay all Rent which, had this Lease not been so disaffirmed, rejected
or terminated, would have become due under the provisions of this Lease after
the date of such disaffirmance, rejection or termination with respect to any
period prior thereto. If Tenant named herein defaults in its obligations to
enter into such new lease for a period of 10 days after Landlord's request,
then, in addition to all other rights and remedies by reason of default, either
at law or in equity, Landlord shall have the same rights and remedies against
Tenant named herein as if it had entered into such new lease and such new lease
had thereafter been terminated as of the commencement date thereof by reason of
Tenant's default thereunder.
SECTION 15.15 ARBITRATION. Notwithstanding any of the foregoing to the
contrary, Tenant may dispute the reasonableness of the withholding by Landlord
of its consent to a proposed assignment or sublease by arbitration of the issue
in the City in which the Building is located in accordance with the rules and
regulations for commercial matters then prevailing of the American Arbitration
Association or its successor (the "AAA") pursuant to a submission effected
within 10 Business Days after written notice of the withholding of consent has
been given by Landlord to Tenant. Provided the rules and regulations of the AAA
so permit, (a) the AAA shall, within two Business Days after such submission or
application, select a single arbitrator having at least 10 years' experience in
leasing of commercial properties similar to the Building, (b) the arbitration
shall commence two Business Days thereafter and shall be limited to a total of
seven hours on the date of commencement until completion, with each party having
no more than a total of two hours to present its case and to cross-examine or
interrogate persons supplying information or documentation on behalf of the
other party, and (c) the arbitrator shall make a determination within three
Business Days after the conclusion of the presentation of Landlord's and
Tenant's cases, which determination shall be limited to a decision upon whether
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Landlord's withholding of its consent was reasonable. The arbitrator's
determination shall be final and binding upon the parties, whether or not a
judgment shall be entered in any court. All actions necessary to implement such
decision shall be undertaken as soon as possible, but in no event later than 10
Business Days after the rendering of such decision. The arbitrator's
determination may be entered in any court having jurisdiction thereof. All fees
payable to the AAA for services rendered in connection with the resolution of
the dispute shall be paid by the unsuccessful party.
ARTICLE 16
ELECTRICITY
SECTION 16.1 SUBMETERED ELECTRICITY. Landlord shall redistribute or
furnish electricity to or for the use of Tenant in the Premises for the
operation of the lighting fixtures and the electrical receptacles installed in
the Premises. Tenant shall pay to Landlord, on demand, from time to time, but no
more frequently than monthly, for its consumption of electricity at the
Premises, based upon Landlord's then applicable rate for submetered electricity,
plus Landlord's charge in an amount equal to five (5%) percent of such amount
for Landlord's costs of maintaining, repairing and reading such meter or
submeter. Where more than one meter measures the electricity to Tenant, the
electricity rendered through each meter shall be computed and billed separately
in accordance with the provisions set forth above. Bills for such amounts shall
be rendered to Tenant at such times as Landlord may elect. The rate to be paid
by Tenant for submetered electricity shall include any taxes or other charges in
connection therewith. If any tax is imposed upon Landlord's receipts from the
sale or resale of electricity to Tenant, Tenant's pro rata share of such tax
shall be paid by Tenant if and to the extent permitted by law.
SECTION 16.2 EXCESS ELECTRICITY. Tenant shall at all times comply with
the rules and regulations of the utility supplying electricity to the Building.
Tenant shall not use any electrical equipment which, in Landlord's judgment,
would exceed the capacity of the electrical equipment serving the Premises or
interfere with the electrical service to other Building tenants. If Landlord
determines that Tenant's electrical requirements necessitate installation of any
additional equipment, or if Tenant requests that such additional equipment be
installed, Landlord shall, at Tenant's expense, install such additional
equipment provided that Landlord, in its judgment, considering the potential
needs of present and future Building tenants and of the Building itself,
determines that (i) such installation is practicable, (ii) such additional
feeders or risers are necessary and permissible under applicable laws and
insurance regulations, and (iii) the installation of such feeders of risers will
not cause permanent damage or injury to the Building or the Premises, cause or
create a dangerous or hazardous condition, entail excessive or unreasonable
alterations, interfere with or disturb or limit electrical usage by other
tenants or occupants of the Building or exceed the limits of the switchgear. Any
costs incurred by Landlord in connection therewith shall be paid by Tenant
within 10 days after the rendition of a bill therefor. Tenant shall not make or
perform, or permit the making or performance of, any Alterations to wiring
installations or other electrical facilities in or serving the Premises or any
additions to the office equipment or other appliances in the Premises which
utilize electrical
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energy (other than ordinary small office equipment) without the prior consent of
Landlord, in each instance, and in compliance with this Lease.
SECTION 16.3 SERVICE DISRUPTION. Landlord shall not be liable in any
way to Tenant for any failure, defect or interruption of, or change in the
supply, character and/or quantity of electric service furnished to the Premises
for any reason except if attributable to the gross negligence or willful
misconduct of Landlord, nor shall such failure, defect, interruption or change
constitute an actual or constructive eviction, in whole or part, or entitle
Tenant to any abatement or diminution in rent, or relieve Tenant from any of its
Lease obligations, whether electricity is provided by public or private utility
or by any electricity generation system owned and operated by Landlord.
SECTION 16.4 DISCONTINUANCE OF SERVICE. Landlord reserves the right to
discontinue furnishing electricity to Tenant in the Premises. If Landlord
exercises such right, or is compelled to discontinue furnishing electricity to
Tenant, this Lease shall continue in full force and effect and shall be
unaffected thereby. If Landlord so discontinues furnishing electricity, Tenant
shall arrange to obtain electricity directly from any utility company serving
the Premises to the extent that the same is available, suitable and safe for
such purposes. All equipment which may be required to obtain electricity of
substantially the same quantity, quality and character shall be installed by
Landlord at the sole cost and expense of (i) Landlord, if Landlord voluntarily
discontinues such service, and (ii) Tenant, if Landlord is compelled to
discontinue such service by the public utility or pursuant to governmental
regulation or law or if such discontinuance arises out of the acts of omissions
or Tenant. Landlord shall not voluntarily discontinue furnishing electricity to
Tenant until Tenant is able to receive electricity directly from the public
utility or other company servicing the Building unless the public utility or
other company is not prepared to furnish electricity to the Premises on the date
required as a result of Tenant's delay or negligence in arranging for service or
Tenant's refusal to provide the utility company with a deposit or other security
requested by the utility company or Tenant's refusal to take other actions
requested by the utility company.
ARTICLE 17
ACCESS TO PREMISES
SECTION 17.1 LANDLORD'S ACCESS. (a) Tenant shall permit Landlord,
Landlord's agents and public utility service providers servicing the Building to
erect, use and maintain concealed ducts, pipes and conduits in and through the
Premises provided such use does not cause the usable area of the Premises to be
reduced beyond a de minimis amount. All work performed under this Section 17.1
shall be performed with reasonable diligence and in a manner so as to minimize
disturbance of Tenant's business and otherwise in accordance with Section 7.4 of
this Lease. Landlord shall promptly repair any damage to the Premises or
Tenant's Property caused by any work performed pursuant to this Article.
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(b) Landlord and Landlord's agents shall have the right to
enter the Premises at all reasonable times, upon reasonable notice (which notice
may be oral) except in the case of emergency, to examine the Premises, to show
it to prospective purchasers, Mortgagees, Lessors or lessees of the Building and
their respective agents and representatives or to others, and to make such
repairs, alterations or additions to the Premises or the Building (i) as
Landlord may deem necessary or desirable, (ii) which Landlord may elect to
perform following Tenant's failure to perform, or (iii) to comply with any
Requirements, and Landlord shall be allowed to take all material into the
Premises that may be required for the performance of such work without the same
constituting an actual or constructive eviction of Tenant in whole or in part
and without any abatement of Rent.
(c) All parts (except surfaces facing the interior of the
Premises) of all walls, windows and doors bounding the Premises (including
exterior Building walls, exterior core corridor walls, and doors and entrances
other than doors and entrances solely connecting areas within the Premises), all
balconies, terraces and roofs adjacent to the Premises, all space in or adjacent
to the Premises used for shafts, stacks, stairways, mail chutes, conduits and
other mechanical facilities, Building Systems and Building facilities are not
part of the Premises, and Landlord shall have the use thereof and access thereto
through the Premises for the purposes of Building operation, maintenance,
alteration and repair.
SECTION 17.2 FINAL 12 MONTHS. If, during the last 12 months of the
Term, Tenant removes all or substantially all of Tenant's Property from the
Premises, Landlord may, upon prior notice (which notice may be oral) and at
reasonable hours, renovate and/or redecorate the Premises, without abatement of
any Rent or incurring any liability to Tenant. Such acts shall not be deemed an
actual or constructive eviction and shall have no effect upon this Lease.
SECTION 17.3 ALTERATIONS TO BUILDING. Landlord has the right to (i)
change the name, number or designation by which the Building is commonly known,
and (ii) alter the Building to change the arrangement or location of entrances
or passageways, doors and doorways, and corridors, elevators, stairs, toilets,
or other public parts of the Building without any such acts constituting an
actual or constructive eviction and without incurring any liability to Tenant,
so long as such changes do not deprive Tenant of access to the Premises. All
parts (except surfaces facing the interior of the Premises) of all walls,
windows and doors bounding the Premises (including exterior Building walls,
exterior core corridor walls, exterior doors and entrances other than doors and
entrances solely servicing the Premises), all terraces and roofs adjacent to the
Premises, all space in or adjacent to the Premises used for shafts, stacks,
stairways and other mechanical facilities, Building Systems and Building
facilities are not part of the Premises, and Landlord shall have the use thereof
and access thereto through the Premises for the purposes of Building operation,
maintenance, alteration and repair.
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ARTICLE 18
DEFAULT
SECTION 18.1 TENANT'S DEFAULTS. Each of the following events shall be
an "Event of Default" hereunder:
(i) Failure by Tenant to pay when due any installment
of Fixed Rent; or
(ii) Failure by Tenant to observe or perform any
other term, covenant or condition of this Lease to be observed or
performed by Tenant and if such failure continues for more than 10 days
after notice by Landlord to Tenant of such default, or if such default
is of such a nature that it cannot be completely remedied within 10
days, failure by Tenant to commence to remedy such failure within said
10 days, and thereafter diligently prosecute to completion all steps
necessary to remedy such default; or
(iii) Tenant defaults in the observance or
performance of any term, covenant or condition on Tenant's part to be
observed or performed under any other lease with Landlord or Landlord's
predecessor-in-interest for space in the Building and such default
shall continue beyond any grace period set forth in such other lease
for the remedying of such default; or
(iv) Tenant's interest in this Lease shall devolve
upon or pass to any person, whether by operation of law or otherwise,
except as expressly permitted under Article 15 hereof, or
(v) Tenant generally does not, or is unable to, or
admits in writing its inability to, pay its debts as they become due;
or
(vi) Tenant files a voluntary petition in bankruptcy
or insolvency, or is adjudicated a bankrupt or insolvent, or files any
petition or answer seeking any reorganization, liquidation, dissolution
or similar relief under any present or future federal bankruptcy act or
any other present or future applicable federal, state or other statute
or law, or makes an assignment for the benefit of creditors or seeks or
consents to or acquiesces in the appointment of any trustee, receiver,
liquidator or other similar official for Tenant or for all or any part
of Tenant's property; or
(vii) if, within 60 days after the commencement of
any proceeding against Tenant, whether by the filing of a petition or
otherwise, seeking bankruptcy, insolvency, reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief
under the present or any future federal bankruptcy act or any other
present or future applicable federal, state or other statute or law,
such proceeding shall not have been dismissed, or if, within 60 days
after the appointment of any trustee, receiver, liquidator or other
similar official for Tenant or for all or any part of Tenant's
property, without the consent or acquiescence of Tenant, as the case
may be, such appointment shall not have been vacated or otherwise
discharged, or if any lien,
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execution or attachment or other similar filing shall be made or issued
against Tenant or any of Tenant's property pursuant to which the
Premises shall be taken or occupied or attempted to be taken or
occupied by someone other than Tenant.
Upon the occurrence of any one or more of such Events of Default, Landlord may,
at its sole option, give to Tenant three days' notice of cancellation of this
Lease, in which event this Lease and the Term shall come to an end and expire
(whether or not the Term shall have commenced) upon the expiration of such three
day period with the same force and effect as if the date of expiration of such
three days were the Expiration Date stated herein; and Tenant shall then quit
and surrender the Premises to Landlord, but Tenant shall remain liable for
damages as provided in Article 19 hereof.
SECTION 18.2 TENANT'S LIABILITY. If, at any time, (a) Tenant shall be
comprised of two or more persons, (b) Tenant's obligations under this Lease
shall have been guaranteed by any person other than Tenant, or (c) Tenant's
interest in this Lease shall have been assigned, the word "Tenant," as used in
Section 18.1 (v), (vi) and (vii), shall be deemed to mean any one or more of the
persons primarily or secondarily liable for Tenant's obligations under this
Lease. Any monies received by Landlord from or on behalf of Tenant during the
pendency of any proceeding of the types referred to in this Article shall be
deemed paid as compensation for the use and occupancy of the Premises and the
acceptance of any such compensation by Landlord shall not be deemed an
acceptance of Rent or a waiver on the part of Landlord of any rights under this
Lease.
ARTICLE 19
REMEDIES AND DAMAGES
SECTION 19.1 (a) LANDLORD'S REMEDIES. If any Event of Default occurs,
and this Lease and the Term expire and come to an end as provided in Article 18:
(i) SURRENDER OF POSSESSION. Tenant shall quit and
surrender the Premises to Landlord, and Landlord and its agents may immediately,
or at any time after such Event of Default, re-enter the Premises or any part
thereof, without notice, either by summary proceedings, or by any other
applicable action or proceeding, or by force or otherwise in accordance with
applicable legal proceedings (without being liable to indictment, prosecution or
damages therefor), and may repossess the Premises and dispossess Tenant and any
other persons from the Premises and remove any and all of their property and
effects from the Premises.
(ii) LANDLORD'S RELETTING. Landlord, at Landlord's
option, may relet all or any part of the Premises from time to time, either in
the name of Landlord or otherwise, to such tenant or tenants, for any term
ending before, on or after the Expiration Date, at such rental and upon such
other conditions (which may include concessions and free rent periods) as
Landlord, in its sole discretion, may determine. Landlord shall have no
obligation to and shall not be liable for refusal or failure to relet or, in the
event of any such reletting, for refusal or failure to collect any rent due upon
any such reletting; and no such refusal or
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failure shall relieve Tenant of, or otherwise affect, any liability under this
Lease. Landlord, at Landlord's option, may make such alterations, decorations
and other physical changes in and to the Premises as Landlord, in its sole
discretion, considers advisable or necessary in connection with such reletting
or proposed reletting, without relieving Tenant of any liability under this
Lease or otherwise affecting any such liability.
(b) TENANT'S WAIVER. Tenant, on its own behalf and on
behalf of all persons claiming through or under Tenant, including all creditors,
hereby waives all rights which Tenant and all such persons might otherwise have
under any Requirement (i) to the service of any notice of intention to re-enter
or to institute legal proceedings, (ii) to redeem, or to re-enter or repossess
the Premises, or (iii) to restore the operation of this Lease, after (A) Tenant
shall have been dispossessed by judgment or by warrant of any court or judge,
(B) any re-entry by Landlord, or (C) any expiration or early termination of the
term of this Lease, whether such dispossess, re-entry, expiration or termination
shall be by operation of law or pursuant to the provisions of this Lease. The
words "re-enter," "re-entry" and "re-entered" as used in this Lease shall not be
deemed to be restricted to their technical legal meanings.
(c) TENANT'S BREACH. Upon the breach or threatened
breach by Tenant, or any persons claiming through or under Tenant, of any term,
covenant or condition of this Lease, Landlord shall have the right to enjoin
such breach and to invoke any other remedy allowed by law or in equity as if
re-entry, summary proceedings and other special remedies were not provided in
this Lease for such breach. The rights to invoke the remedies set forth above
are cumulative and shall not preclude Landlord from invoking any other remedy
allowed at law or in equity.
SECTION 19.2 (a) LANDLORD'S DAMAGES. If this Lease and the Term expire
and come to an end as provided in Article 18, or by or under any summary
proceeding or any other action or proceeding, or if Landlord shall re-enter the
Premises as provided in Section 19.1, then, in any of such events:
(i) Tenant shall pay to Landlord all Fixed Rent, all
sums payable pursuant to Article 8 of this Lease (including Tenant's Tax Payment
and Tenant's Operating Payment) and all other items of Rent payable under this
Lease by Tenant to Landlord up to the Expiration Date or to the date of re-entry
upon the Premises by Landlord, as the case may be;
(ii) Landlord shall be entitled to retain all monies,
if any, paid by Tenant to Landlord, whether as advance Rent, Security Deposit or
otherwise, which monies, to the extent not otherwise applied to amounts due and
owing to Landlord, shall be credited by Landlord against any damages payable by
Tenant to Landlord;
(iii) Tenant shall pay to Landlord, in monthly
installments, on the days specified in this Lease for payment of installments of
Fixed Rent, any Deficiency; it being understood that Landlord shall be entitled
to recover from Tenant each month, the Deficiency as the same shall arise, and
no suit to collect the amount of the Deficiency for any month shall
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prejudice Landlord's right to collect the Deficiency for any subsequent month by
a similar proceeding; and
(iv) whether or not Landlord shall have collected any
monthly Deficiency, Tenant shall pay to Landlord, on demand, in lieu of any
further Deficiency and as liquidated and agreed final damages, a sum equal to
the amount by which the Rent for the period which otherwise would have
constituted the unexpired portion of the Term (assuming the Additional Rent
during such period to be the same as was payable for the year immediately
preceding such termination or re-entry), increased in each succeeding year by
four percent (on a compounded basis) exceeds the then fair and reasonable rental
value of the Premises, for the same period (with both amounts being discounted
to present value at a rate of interest equal to two percent below the then Base
Rate) less the aggregate amount of Deficiencies theretofore collected by
Landlord pursuant to the provisions of Section 19.2(a)(iii) for the same period.
If, before presentation of proof of such liquidated damages to any court,
commission or tribunal, the Premises, or any part thereof, shall have been relet
by Landlord for the period which otherwise would have constituted the unexpired
portion of the Term, or any part thereof, the amount of rent reserved upon such
reletting shall be deemed, prima facie, to be the fair and reasonable rental
value for the part or the whole of the Premises so relet during the term of the
reletting.
(b) RELETTING. If the Premises, or any part thereof, shall be
relet together with other space in the Building, the rents collected or reserved
under any such reletting and the expenses of any such reletting shall be
suitably apportioned for the purposes of this Section 19.2. Tenant shall not be
entitled to any rents collected or payable under any reletting, whether or not
such rents exceed the Fixed Rent reserved in this Lease. Nothing contained in
Articles 18 or 19 shall be deemed to limit or preclude the recovery by Landlord
from Tenant of the maximum amount allowed to be obtained as damages by any
Requirement, or of any sums or damages to which Landlord may be entitled in
addition to the damages set forth in this Section 19.2.
SECTION 19.3 DEFAULT INTEREST; OTHER RIGHTS OF LANDLORD. Any Rent or
damages payable under this Lease and not paid when due shall bear interest at
the Interest Rate from the due date until paid, and the interest shall be deemed
Additional Rent. If Tenant fails to pay any Additional Rent when due, Landlord,
in addition to any other right or remedy, shall have the same rights and
remedies as in the case of a default by Tenant in the payment of Fixed Rent. If
Tenant is in arrears in the payment of Rent, Tenant waives Tenant's rights, if
any, to designate the items against which any payments made by Tenant are to be
credited, and Landlord may apply any payments made by Tenant to any items
Landlord sees fit, regardless of any request by Tenant. Landlord reserves the
right, without liability to Tenant and without constituting any claim of
constructive eviction, to suspend furnishing or rendering to Tenant any
property, material, labor, utility or other service, whenever Landlord is
obligated to furnish or render the same at the expense of Tenant, in the event
that (but only for so long as) Tenant is in arrears in paying Landlord for such
items for more than five (5) days after notice from Landlord to Tenant demanding
the payment of such arrears.
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ARTICLE 20
FEES AND EXPENSES
If (a) Tenant (i) defaults under this Lease, or (ii) does or
permits to be done anything which would cause Landlord to be in default under
any Superior Lease or Mortgage, or (iii) fails to comply with its obligations
under this Lease and in the judgment of Landlord such default or failure would
affect the preservation of property or the safety of any tenant, occupant or
other person is threatened, Landlord may perform such obligation for the account
of Tenant and make any expenditure and incur any expense for the account of
Tenant to remedy such condition. All amounts expended or incurred by Landlord in
connection with the foregoing with interest thereon at the Interest Rate,
including reasonable attorneys' fees and disbursements incurred in instituting,
prosecuting or defending any action or proceeding or recovering possession shall
be paid by Tenant to Landlord within 10 days after rendition of a bill herefor
to Tenant.
ARTICLE 21
NO REPRESENTATIONS BY LANDLORD; LANDLORD'S APPROVAL
SECTION 21.1 NO REPRESENTATIONS. Except as expressly set forth herein,
Landlord and Landlord's agents have made no warranties, representations,
statements or promises with respect to the Building, the Real Property or the
Premises and no rights, easements or licenses are acquired by Tenant by
implication or otherwise. This Lease contains the entire agreement between the
parties and all understandings and agreements previously made between Landlord
and Tenant are merged in this Lease, which alone fully and completely expresses
their agreement. Landlord and Tenant enter into this Lease after full
investigation, with neither party relying upon any statement or representation
made by the other not embodied in this Lease.
SECTION 21.2 WRITTEN APPROVAL. All references in this Lease to the
consent or approval of Landlord mean the written consent or approval of
Landlord, duly executed by Landlord.
SECTION 21.3 NO MONEY DAMAGES. Wherever in this Lease Landlord's
consent or approval is required, if Landlord refuses to grant such consent or
approval, whether or not Landlord expressly agreed that such consent or approval
would not be unreasonably withheld, Tenant shall not make, and Tenant hereby
waives, any claim for money damages (including any claim by way of set-off,
counterclaim or defense) based upon Tenant's claim or assertion that Landlord
unreasonably withheld or delayed its consent or approval. Tenant's sole remedy
shall be an action or proceeding to enforce such provision, by specific
performance, injunction or declaratory judgment.
SECTION 21.4 VIBRATIONS. Tenant recognizes and acknowledges that the
operation of the Building equipment may cause vibration or noise which may be
transmitted throughout the
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Premises. Landlord shall have no obligation to endeavor to reduce such vibration
or noise beyond that which is prevalent in the Building.
ARTICLE 22
END OF TERM
SECTION 22.1 EXPIRATION. Upon the expiration or other termination of
this Lease, Tenant shall quit and surrender to Landlord the Premises, vacant,
broom clean and in good order and condition, ordinary wear and tear and damage
for which Tenant is not responsible under the terms of this Lease excepted, and
Tenant shall remove all of Tenant's Property and Tenant's Alterations as may be
required pursuant to Article 5 of this Lease. The foregoing obligation shall
survive the expiration or sooner termination of the Term. If the last day of the
Term or any renewal thereof falls on Saturday or Sunday, this Lease shall expire
on the immediately preceding Business Day.
SECTION 22.2 HOLDOVER RENT. Landlord and Tenant recognize that the
damage to Landlord resulting from any failure by Tenant to timely surrender
possession of the Premises may be substantial, may exceed the amount of the Rent
theretofore payable hereunder, and will be impossible to accurately measure.
Tenant therefore agrees that if possession of the Premises is not surrendered to
Landlord within 24 hours after the Expiration Date or sooner termination of the
Term, in addition to any other rights or remedies Landlord may have hereunder or
at law, Tenant shall pay to Landlord for each month (or any portion thereof)
during which Tenant holds over in the Premises after the Expiration Date or
sooner termination of this Lease, a sum equal to two times the Rent payable
under this Lease for the last full calendar month of the Term. Nothing herein
contained shall be deemed to permit Tenant to retain possession of the Premises
after the Expiration Date or sooner termination of this Lease and no acceptance
by Landlord of payments from Tenant after the Expiration Date or sooner
termination of the Term shall be deemed to be other than on account of the
amount to be paid by Tenant in accordance with the provisions of this Article
22. Tenant's obligations under this Article shall survive the expiration or
earlier termination of this Lease.
SECTION 22.3 WAIVER OF STAY. Tenant expressly waives, for itself and
for any person claiming through or under Tenant, any rights which Tenant or any
such person may have under the provisions of Section 2201 of the New York Civil
Practice Law and Rules and of any successor law of like import then in force, in
connection with any holdover summary proceedings which Landlord may institute to
enforce the foregoing provisions of this Article 22.
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ARTICLE 23
QUIET ENJOYMENT
Provided this Lease is in full force and effect and no Event
of Default then exists, Tenant may peaceably and quietly enjoy the Premises
without hindrance by Landlord or any person lawfully claiming through or under
Landlord, subject to the terms and conditions of this Lease and to all Superior
Leases and Mortgages.
ARTICLE 24
NO WAIVER; NO COUNTERCLAIM
SECTION 24.1 NO MODIFICATIONS OR RELEASE. No act or thing done by
Landlord or Landlord's agents or employees during the Term shall be deemed an
acceptance of a surrender of the Premises, and no provision of this Lease shall
be deemed to have been waived by Landlord, unless such waiver is in writing and
is signed by Landlord, and any such waiver shall be effective only for the
specific purpose and in the specific instance in which given. If Tenant at any
time desires to have Landlord sublet the Premises for Tenant's account, Landlord
or Landlord's agents are authorized to receive Tenant's keys to the Premises for
such purpose without releasing Tenant from any of the obligations under this
Lease, and Tenant hereby relieves Landlord of any liability for loss of or
damage to any of Tenant's effects in connection with such subletting.
SECTION 24.2 NO WAIVER. The failure of either party to seek redress for
violation of, or to insist upon the strict performance of, any covenant or
condition of this Lease, or any of the Rules and Regulations, shall not be
construed as a waiver or relinquishment for the future performance of such
obligations of the Lease or the Rules and Regulations, or of the right to
exercise such election but the same shall continue and remain in full force and
effect with respect to any subsequent breach, act or omission. The receipt by
Landlord of any Rent payable pursuant to this Lease or any other sums with
knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly Fixed Rent or Additional Rent herein stipulated shall be
deemed to be other than a payment on account of the earliest stipulated Fixed
Rent or Additional Rent, or as Landlord may elect to apply same, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as Fixed Rent or Additional Rent be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such Fixed Rent or Additional Rent or pursue any
other remedy provided in this Lease. The existence of a right of renewal or
extension of this Lease, or the exercise of such right, shall not limit
Landlord's right to terminate this Lease in accordance with the terms hereof, or
create any option for further extension or renewal of this Lease.
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ARTICLE 25
WAIVER OF TRIAL BY JURY
LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY
MATTERS IN ANY WAY ARISING OUT OF OR CONNECTED WITH THIS LEASE, THE RELATIONSHIP
OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES, OR THE
ENFORCEMENT OF ANY REMEDY UNDER ANY STATUTE, EMERGENCY OR OTHERWISE. If Landlord
commences any summary proceeding against Tenant, Tenant will not interpose any
counterclaim of whatever nature or description in any such proceeding (unless
failure to impose such counterclaim would preclude Tenant from asserting in a
separate action the claim which is the subject of such counterclaim), and will
not seek to consolidate such proceeding with any other action which may have
been or will be brought in any other court by Tenant.
ARTICLE 26
INABILITY TO PERFORM
This Lease and the obligation of Tenant to pay Rent and to
perform all of the other covenants and agreements of Tenant hereunder shall not
be affected, impaired or excused by any Unavoidable Delays. Landlord shall use
diligent efforts to promptly notify Tenant of any Unavoidable Delay which
prevents Landlord from fulfilling any of its obligations under this Lease.
ARTICLE 27
NOTICES
Except as otherwise expressly provided in this Lease,
consents, notices, demands, requests or other communications given under this
Lease shall be in writing and shall be deemed sufficiently given or rendered if
delivered by hand (provided a signed receipt is obtained) or if sent by
registered or certified mail (return receipt requested) or by a nationally
recognized overnight delivery service making receipted deliveries, addressed as
follows:
if to Tenant, (a) at Tenant's address set forth on the first
page of this Lease, Attn: David Steward, or (c) at any place where
Tenant or any agent or employee of Tenant may be found if mailed
subsequent to Tenant's vacating, deserting, abandoning or surrendering
the Premises, or
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if to Landlord, at Landlord's address set forth on the first
page of this Lease, Attn: Chief Financial Officer, and with copies to
(v) Tishman Speyer Properties L.P., 11 West 42nd Street, New York, New
York 10036, Attn: Property Manager - 11 West 42nd Street/520 Madison
Avenue, (w) Tishman Speyer Properties L.P., 520 Madison Avenue, New
York, New York 10022, Attn: General Counsel, and (x) any Mortgagee or
Lessor which shall have requested copies of notices, by notice given to
Tenant in accordance with the provisions of this Article 27 at the
address designated by such Mortgagee or Lessor, or to such other
address(es) as either Landlord or Tenant or any Mortgagee or Lessor may
designate as its new address(es) for such purpose by notice given to
the other in accordance with the provisions of this Article 27.
Any such consent, notice, demand, request or other communication shall be deemed
to have been given on the date of receipted delivery or refusal to accept
delivery or three Business Days after it shall have been mailed as provided in
this Article 27.
ARTICLE 28
RULES AND REGULATIONS
Tenant and Tenant's contractors, employees, agents, visitors
and licensees shall observe and comply with the Rules and Regulations, as
supplemented or amended from time to time, provided, that in case of any
conflict or inconsistency between the provisions of this Lease and any of the
Rules and Regulations as originally promulgated or as supplemented or amended
from time to time, the provisions of this Lease shall control. Landlord reserves
the right, from time to time, to adopt additional Rules and Regulations and to
amend the Rules and Regulations then in effect. If Tenant disputes the
reasonableness of any Rule or Regulation hereafter adopted by Landlord, the
dispute shall be resolved by arbitration in accordance with the provisions of
Section 15.15 hereof, provided, however, that during the pendency of any such
arbitration, Tenant shall comply with such Rule or Regulation. Tenant's right to
dispute the reasonableness of any additional Rule or Regulation shall be deemed
waived unless Tenant shall notify Landlord of such dispute within five days
after delivery to Tenant of a notice of the adoption of any such additional Rule
or Regulation. Nothing contained in this Lease shall impose upon Landlord any
obligation to enforce the Rules and Regulations or terms, covenants or
conditions in any other lease against any other Building tenant, and Landlord
shall not be liable to Tenant for violation of the same by any other tenant, its
employees, agents, visitors or licensees, except that Landlord shall not enforce
any Rule or Regulation against Tenant in a discriminatory fashion.
ARTICLE 29
PARTNERSHIP TENANT
SECTION 29.1 PARTNERSHIP TENANT. If Tenant, or a permitted assignee of
this Lease pursuant to Article 15 hereof, is a partnership, or is comprised of
two or more persons,
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individually or as co-partners of a partnership (any such partnership and such
persons are referred to in this Article as "Partnership Tenant"), the following
shall apply: (a) the liability of each of the general partners comprising
Partnership Tenant shall be joint and several; (b) each of the parties
comprising Partnership Tenant hereby consents in advance to, and agrees to be
bound by, any written instrument which may hereafter be executed by Partnership
Tenant or any of the parties comprising Partnership Tenant, which shall modify,
extend or discharge this Lease, in whole or in part, or surrender all or any
part of the Premises to Landlord; (c) any bills, statements, notices, demands,
requests or other communications given or rendered to Partnership Tenant or to
any of such parties shall be binding upon Partnership Tenant and all such
parties; (d) if Partnership Tenant shall admit new general partners, all of such
new general partners shall, by their admission to Partnership Tenant, be deemed
to have assumed joint and several liability for the performance of all of the
terms, covenants and conditions of this Lease on Tenant's part to be observed
and performed; (e) Partnership Tenant shall give prompt notice to Landlord of
the admission of any such new general partners, and upon demand of Landlord,
shall cause each such new partner to execute and deliver to Landlord an
agreement in form and substance satisfactory to Landlord, wherein each such new
partner shall assume joint and several liability for the performance of all the
terms, covenants and conditions of this Lease on Tenant's part to be observed
and performed (but neither Landlord's failure to request any such agreement nor
the failure of any such new partner to execute or deliver any such agreement to
Landlord shall vitiate the provisions of Section 29.1(d)); and (f) no change in
the partners of Partnership Tenant resulting from the admission of a new
partner, or the death, retirement or withdrawal of a partner shall release
Partnership Tenant or any partner or former partner from their obligations under
this Lease.
SECTION 29.2 CHANGE OF PARTNERS. If Tenant is a partnership, (i) the
admission of new partners, the withdrawal (in the ordinary course of business),
retirement, death, incompetency or bankruptcy of any partner, or the
reallocation of partnership interests among the general partners of Tenant (the
"Partners") shall not constitute an assignment of this Lease provided that
Partners holding in the aggregate not less than 80% of the partnership interests
in Tenant remain as Partners during any consecutive 12-month period (i.e., the
transfer, by any of the foregoing means, of more than 20% of the partnership
interests in Tenant in any consecutive 12-month period shall constitute an
assignment of this Lease subject to the provisions of Article 15), and (ii) the
reorganization of Tenant into a professional corporation or the reorganization
of Tenant from a professional corporation into a partnership, shall not
constitute an assignment of this Lease, provided that immediately following such
reorganization the partners or shareholders, as the case may be, of Tenant shall
be the same as those existing immediately prior to such reorganization and
subject to the provisions of the remainder of this Section. If Tenant shall
become a professional corporation, each individual shareholder,
shareholder-employee, new individual shareholder and new shareholder-employee of
any professional corporation which is a shareholder in Tenant shall have the
same personal liability (if any) as such individual or shareholder-employee
would have under this Lease if Tenant were a partnership and such individual or
shareholder-employee were a Partner or admitted as a new Partner. If any
individual Partner in Tenant is or becomes a shareholder-employee of a
professional corporation, such individual shall have the same personal liability
under this Lease as such individual would have if he and not the professional
corporation were a Partner of Tenant.
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ARTICLE 30
VAULT SPACE
Notwithstanding anything contained in this Lease or indicated
on any sketch, blueprint or plan, no vaults, vault space or other space outside
the boundaries of the Real Property are included in the Premises. Landlord makes
no representation as to the location of the boundaries of the Real Property. All
vaults and vault space and all other space outside the boundaries of the Real
Property which Tenant may be permitted to use or occupy are to be used or
occupied under a revocable license. If any such license shall be revoked, or if
the amount of such space shall be diminished as required by any Governmental
Authority or by any public utility company, such revocation, diminution or
requisition shall not (i) constitute an actual or constructive eviction, in
whole or in part, (ii) entitle Tenant to any abatement or diminution of Rent,
(iii) relieve Tenant from any of its obligations under this Lease, or (iv)
impose any liability upon Landlord. Any fee, tax or charge imposed by any
Governmental Authority for any such vaults, vault space or other space occupied
by Tenant shall be paid by Tenant.
ARTICLE 31
BROKER
SECTION 31.1 BROKER REPRESENTATIONS. Landlord has retained Landlord's
Agent as leasing agent in connection with this Lease and Landlord will be solely
responsible for any fee that may be payable to Landlord's Agent. Landlord agrees
to pay a commission to Broker pursuant to a separate agreement. Each of Landlord
and Tenant represents and warrants to the other that it has not dealt with any
broker in connection with this Lease other than the Broker and that to the best
of its knowledge and belief, no other broker, finder or like entity procured or
negotiated this Lease or is entitled to any fee or commission in connection
herewith. The execution and delivery of this Lease by each party shall be
conclusive evidence that each party has relied upon the foregoing
representations and warranties.
SECTION 31.2 BROKER INDEMNITY. Each of Landlord and Tenant shall
indemnify, defend and hold the other party harmless from and against any and all
costs expenses, claims and liabilities (including reasonable attorneys' fees and
disbursements) which the indemnified party may incur by reason of any claim of
or liability to any broker, finder or like agent (other than Broker) arising out
of any dealings claimed to have occurred between the indemnifying party and the
claimant in connection with this Lease, and/or the above representation being
false. The provisions of this Article 31 shall survive the expiration or earlier
termination of this Lease.
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ARTICLE 32
INDEMNITY
SECTION 32.1 (a) TENANT'S INDEMNITY. Tenant shall not do or permit to
be done any act or thing upon the Premises which may subject Landlord to any
liability or responsibility for injury, damage to persons or property or to any
liability by reason of any violation of law or of any Requirement, and shall
exercise such control over the Premises as to fully protect Landlord against any
such liability. Tenant shall indemnify, defend, protect and hold harmless each
and all of the Indemnitees from and against any and all Losses (as defined in
subsection (c) hereof), resulting from any claims (i) against Indemnitees
arising from any act, omission or negligence of (A) Tenant, its contractors,
licensees, agents, servants, employees, invitees or visitors or (B) both
Landlord and Tenant, provided, however, that Tenant's liability hereunder with
respect to matters finally determined to have arisen out of the negligence of
Landlord shall be limited to the amount of insurance coverage carried by Tenant
pursuant to Article 12 of this Lease, (ii) against the Indemnitees arising from
any accident, injury or damage whatsoever caused to any person or to the
property of any person and occurring during or (if Tenant shall continue to use
and occupy the Premises) after the expiration of the Term, in or about the
Premises, and (iii) against the Indemnitees resulting from any breach, violation
or nonperformance of any covenant, condition or agreement of this Lease on the
part of Tenant to be fulfilled, kept, observed and performed.
(b) LANDLORD'S INDEMNITY. Landlord shall indemnify, defend and
hold harmless Tenant from and against all claims against Tenant arising from any
accident, injury or damage whatsoever caused to any person or the property of
any person in or about the common or public areas of the Building (specifically
excluding the Premises).
(c) INDEMNITY INCLUSIONS. For purposes of this Article 32, the
term "Losses" means any and all losses, liabilities, damages, fines, suits,
demands, costs and expenses of any kind or nature (including reasonable
attorneys' fees and disbursements) incurred in connection with any claim or
proceeding to which a particular indemnity and hold harmless agreement applies
and the defense thereof.
SECTION 32.2 DEFENSE AND SETTLEMENT. If any claim, action or proceeding
is made or brought against any Indemnitee, then upon demand by Indemnitee,
Tenant, at its sole cost and expense, shall resist or defend such claim, action
or proceeding in the Indemnitee's name (if necessary), by attorneys approved by
the Indemnitee, which approval shall not be unreasonably withheld. Attorneys for
Tenant's insurer shall hereby be deemed approved for purposes of this Section
32.2. Notwithstanding the foregoing, an Indemnitee may retain its own attorneys
to participate or assist in defending any claim, action or proceeding involving
potential liability of $5,000,000 or more, provided that Tenant shall control
the defense and Tenant shall pay the reasonable fees and disbursements of such
attorneys. Notwithstanding anything herein contained to the contrary, Tenant may
direct the Indemnitee to settle any claim, suit or other proceeding provided
that (i) such settlement shall involve no obligation on the part of the
Indemnitee other than the payment of money, (ii) any payments to be made
pursuant to such settlement shall be paid in full exclusively by Tenant at the
time such settlement is reached, (iii) such settlement
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shall not require the Indemnitee to admit any liability, and (iv) the Indemnitee
shall have received an unconditional release from the other parties to such
claim, suit or other proceeding. The provisions of this Article 32 shall survive
the expiration or earlier termination of this Lease.
ARTICLE 33
ADJACENT EXCAVATION; SHORING
If an excavation shall be made, or shall be authorized to be
made, upon land adjacent to the Real Property, Tenant shall, upon notice, afford
to the person causing or authorized to cause such excavation license to enter
upon the Premises for the purpose of doing such work as such person shall deem
necessary to preserve the wall or the Building from injury or damage and to
support the same by proper foundations. In connection with such license, Tenant
shall have no right to claim any damages or indemnity against Landlord, or
diminution or abatement of Rent provided that Tenant shall continue to have
access to the Premises.
ARTICLE 34
MISCELLANEOUS
SECTION 34.1 DELIVERY. This Lease shall not be binding upon Landlord or
Tenant unless and until Landlord and Tenant shall have executed and delivered a
fully executed copy of this Lease to each other.
SECTION 34.2 TRANSFER OF REAL PROPERTY. Landlord's obligations under
this Lease shall not be binding upon the Landlord named herein after the sale,
conveyance, assignment or transfer (collectively a "Transfer") by such Landlord
(or upon any subsequent landlord after the Transfer by such subsequent landlord)
of its interest in the Building or the Real Property, as the case may be, and in
the event of any such Transfer, Landlord (and any such subsequent Landlord)
shall be entirely freed and relieved of all covenants and obligations of
Landlord hereunder, and the transferee of Landlord's interest (or that of such
subsequent Landlord) in the Building or the Real Property, as the case may be,
shall be deemed to have assumed all obligations under this Lease.
SECTION 34.3 LIMITATION ON LIABILITY. The liability of Landlord for
Landlord's obligations under this Lease shall be limited to Landlord's interest
in the Real Property and Tenant shall not took to any other property or assets
of Landlord or the property or assets of any partner, shareholder, director,
officer, principal, employee or agent, directly and indirectly, of Landlord
(collectively, the "Parties") in seeking either to enforce Landlord's
obligations under this Lease or to satisfy a judgment for Landlord's failure to
perform such obligations; and none of the Parties shall be personally liable for
the performance of Landlord's obligations under this Lease.
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SECTION 34.4 RENT. Notwithstanding anything to the contrary contained
in this Lease, all amounts payable by Tenant to or on behalf of Landlord under
this Lease, whether or not expressly denominated Fixed Rent, Tenant's Tax
Payment, Tenant's Operating Payment, Additional Rent or Rent, shall constitute
rent for the purposes of Section 502(b)(6) of the United States Bankruptcy Code.
SECTION 34.5 ENTIRE DOCUMENT. This Lease (including any Schedules and
Exhibits referred to herein and all supplementary agreements provided for
herein) contains the entire agreement between the parties and all prior
negotiations and agreements are merged into this Lease. All of the Schedules and
Exhibits attached hereto are incorporated in and made a part of this Lease,
provided that in the event of any inconsistency between the terms and provisions
of this Lease and the terms and provisions of the Schedules and Exhibits hereto,
the terms and provisions of this Lease shall control. Wherever appropriate in
this Lease, personal pronouns shall be deemed to include the other genders and
the singular to include the plural. All Article and Section references set forth
herein shall, unless the context otherwise requires, be deemed references to the
Articles and Sections of this Lease.
SECTION 34.6 GOVERNING LAW. This Lease shall be governed in all
respects by the laws of the State of New York.
SECTION 34.7 UNENFORCEABILITY. If any provision of this Lease, or its
application to any person or circumstance, shall ever be held to be invalid or
unenforceable, then in each such event the remainder of this Lease or the
application of such provision to any other person or any other circumstance
(other than those as to which it shall be invalid or unenforceable) shall not be
thereby affected, and each provision hereof shall remain valid and enforceable
to the fullest extent permitted by law.
SECTION 34.8 (a) LEASE DISPUTES. Except as expressly provided to the
contrary in this Lease, Tenant agrees that all disputes arising, directly or
indirectly, out of or relating to this Lease, and all actions to enforce this
Lease, shall be dealt with and adjudicated in the state courts of the State of
New York or the federal courts sitting in New York City and for that purpose
hereby expressly and irrevocably submits itself to the jurisdiction of such
courts. Tenant agrees that so far as is permitted under applicable law, this
consent to personal jurisdiction shall be self-operative and no further
instrument or action, other than service of process in one of the manners
specified in this Lease, or as otherwise permitted by law, shall be necessary in
order to confer jurisdiction upon it in any such court.
(b) To the extent that Tenant has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property,
Tenant hereby irrevocably waives such immunity in respect of its obligations
under this Lease. Tenant represents that it is not entitled to any such immunity
on the date hereof.
SECTION 34.9 LANDLORD'S AGENT. Unless Landlord shall render written
notice to Tenant to the contrary, Tishman Speyer Properties, L.P. is authorized
to act as Landlord's agent in connection with the performance of this Lease, and
Tenant shall direct all correspondence and
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requests to, and shall be entitled to rely upon correspondence received from,
Tishman Speyer Properties, L.P., as agent for the Landlord in accordance with
Article 27. Tenant acknowledges that Tishman Speyer Properties, L.P. is acting
solely as agent for Landlord in connection with the foregoing; and neither
Tishman Speyer Properties, L.P. nor any of its direct or indirect partners,
officers, shareholders, directors, employees, principals, agents or
representatives shall have any liability to Tenant in connection with the
performance of this Lease, and Tenant waives any and all claims against any and
all of such parties arising out of, or in any way connected with, this Lease,
the Building or the Real Property.
SECTION 34.10 ESTOPPEL. Within seven days following request from
Landlord, any Mortgagee or any Lessor, Tenant shall deliver to Landlord a
written statement executed and acknowledged by Tenant, in form satisfactory to
Landlord, (i) stating that this Lease is then in full force and effect and has
not been modified (or if modified, setting forth all modifications), (ii)
setting forth the date to which the Fixed Rent and any Additional Rent have been
paid, together with the amount of monthly Fixed Rent then payable, (iii) stating
whether or not, to the best of Tenant's knowledge, Landlord is in default under
this Lease, and, if Landlord is in default, setting forth the specific nature of
all such defaults, (iv) stating the amount of the security deposit, if any,
under this Lease, (v) stating whether there are any subleases affecting the
Premises, (vi) stating the address of Tenant to which all notices and
communication under the Lease shall be sent, the Commencement Date and the
Expiration Date, and (vii) responding to any other matters reasonably requested
by Landlord, such Mortgagee or such Lessor. Tenant acknowledges that any
statement delivered pursuant to this Section 34.10 may be relied upon by any
purchaser or owner of the Real Property or the Building, or all or any portion
of Landlord's interest in the Real Property or the Building or any Superior
Lease, or by any Mortgagee, or assignee thereof of any Mortgagee of a Mortgage,
or by any Lessor, or assignor thereof.
SECTION 34.11 CERTAIN INTERPRETATIONAL RULES. For purposes of this
Lease, the phrase "including" shall mean "including without limitation" and,
whenever the circumstances or the context requires, the singular shall be
construed as the plural, the masculine shall be construed as the feminine and/or
the neuter and vice versa. This Lease shall be interpreted and enforced without
the aid of any canon, custom or rule of law requiring or suggesting construction
against the party drafting or causing the drafting of the provision in question.
SECTION 34.12 CAPTIONS. The captions in this Lease are inserted only as
a matter of convenience and for reference and in no way define, limit or
describe the scope of this Lease or the intent of any provision thereof.
SECTION 34.13 PARTIES BOUND. The terms, covenants, conditions and
agreements contained in this Lease shall bind and inure to the benefit of
Landlord and Tenant and, except as otherwise provided in this Lease, to their
respective legal representatives, successors, and assigns.
SECTION 34.14 DIRECTORY. The lobby shall contain a computerized
directory wherein the Building's tenants shall be listed with a capacity for up
to 50 listings per floor for Tenant and others permitted to occupy the Premises
hereunder, provided Tenant shall be entitled to such
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proportion of such listings as Tenant's Area is to the rentable square foot area
of such floor. From time to time, but not more frequently than once every three
(3) months, Landlord shall reprogram the computerized directory to reflect such
changes in the listings therein as Tenant shall request.
SECTION 34.15 COUNTERPARTS. This Lease may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument.
ARTICLE 35
TAX STATUS OF BENEFICIAL OWNERS
Tenant recognizes and acknowledges that Landlord and/or
certain beneficial owners of Landlord may from time to time qualify as real
estate investment trusts pursuant to Sections 856 et seq. of the Code or as
entities described in Section 511(a)(2) of the Code, and that avoiding the loss
of such status, the receipt of any income derived under any provision of this
Lease that does not constitute "rents from real property" (in the case of real
estate investment trusts) or that constitutes "unrelated business taxable
income" (in the case of entities described in Section 511 (a)(2) of the Code),
and the imposition of penalty or similar taxes (each an "Adverse Event") is of
material concern to Landlord and/or such beneficial owners. In the event that
this Lease or any document contemplated hereby could, in the opinion of counsel
to Landlord, result in or cause an Adverse Event, Tenant agrees to cooperate
with Landlord in negotiating an amendment or modification thereof and shall at
the request of Landlord execute and deliver such documents reasonably required
to effect such amendment or modification. Any amendment or modification pursuant
to this Article 35 shall be structured so that the economic results to Landlord
and Tenant shall be substantially similar to those set forth in this Lease
without regard to such amendment or modification. Landlord shall have the right
to waive receipt of any amount payable to Landlord hereunder and such waiver
shall constitute an amendment or modification of this Lease with respect to such
payment.
ARTICLE 36
SECURITY DEPOSIT
SECTION 36.1 SECURITY DEPOSIT. Tenant shall deposit with Landlord upon
the execution of this Lease the Security Deposit in cash as security for the
faithful performance and observance by Tenant of the terms, covenants and
conditions of this Lease, including the surrender of possession of the Premises
to Landlord as herein provided.
SECTION 36.2 LETTER OF CREDIT. In lieu of a cash deposit, Tenant may
deliver to Landlord a clean, irrevocable, non-documentary and unconditional
letter of credit (the "Letter of Credit") issued by and drawable upon any
commercial bank which is a member of the New York
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Clearing House Association or other bank satisfactory to Landlord (hereinafter
referred to as the ("Issuing Bank") with offices for banking purposes in the
City of New York, which shall have outstanding unsecured, uninsured and
unguaranteed indebtedness, or shall have issued a letter of credit or other
credit facility that constitutes the primary security for any outstanding
indebtedness (which is otherwise uninsured and unguaranteed), that is then
rated, without regard to qualification of such rating by symbols such as "+" or
"-" or numerical notation, "Aa" or better by Moody's Investors Service and "AA"
or better by Standard & Poor's Rating Service, and has combined capital, surplus
and undivided profits of not less than $500,000,000, which Letter of Credit
shall name Landlord as beneficiary, be in the amount of the Security Deposit,
have a term of not less than one year, permit multiple drawings, be fully
transferable by Landlord without the payment of any fees or charges by Landlord,
and otherwise be in form and content satisfactory to Landlord. If upon any
transfer, any fees or charges shall be so imposed, then such fees or charges
shall be payable solely by Tenant and the Letter of Credit shall so specify. The
Letter of Credit shall provide that it shall be deemed automatically renewed,
without amendment, for consecutive periods of one year each thereafter during
the term of this Lease, unless the Issuing Bank sends notice (the "Non-Renewal
Notice") to Landlord by certified mail, return receipt requested, not less than
45 days next preceding the then expiration date of the Letter of Credit that it
elects not to have such Letter of Credit renewed. Landlord shall have the right,
exercisable within 45 days of its receipt of the Non-Renewal Notice, to draw the
full amount of the Letter of Credit, by sight draft on the Issuing Bank, and
shall hold the proceeds of the Letter of Credit pursuant to the terms of this
Article as a cash security pursuant to this Article 36.
SECTION 36.3 APPLICATION OF SECURITY. If Tenant defaults in respect of
any of the terms, covenants or conditions of this Lease, including, the payment
of Rent, Landlord may apply or retain the whole or any part of the cash security
so deposited or may notify the Issuing Bank and thereupon receive all or a
portion of the monies represented by the Letter of Credit and use, apply, or
retain the whole or any part of such proceeds, as the case may be, to the extent
required for the payment of any Fixed Rent or any other sum as to which Tenant
is in default including (i) any sum which Landlord may expend or may be required
to expend by reason of Tenant's default, and/or (ii) any damages or deficiency
in the relenting of the Premises, whether such damages or deficiency accrue or
accrues before or after summary proceedings or other reentry by Landlord. If
Landlord applies or retains any part of the cash security or proceeds of the
Letter of Credit, as the case may be, Tenant, upon demand, shall deposit with
Landlord the amount so applied or retained so that Landlord shall have the full
Security Deposit on hand at all times during the Term. If Tenant shall fully and
faithfully comply with all of the terms, covenants and conditions of this Lease,
the cash security or Letter of Credit, as the case may be, shall be returned to
Tenant after the Expiration Date and after delivery of possession of the
Premises to Landlord in the manner required by this Lease. Tenant expressly
agrees that Tenant shall have no right to apply any portion of the Security
Deposit against any of Tenant's obligations to pay Rent hereunder and, if Tenant
shall seek to so apply such Security Deposit, Tenant shall pay liquidated
damages to Landlord in a sum equal to two times the amount of any such unpaid
Rent.
SECTION 36.4 TRANSFER. Upon a sale of the Real Property or the Building
or a leasing of the Building, or any financing of Landlord's interest therein,
Landlord shall have the right to
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transfer the cash security to the vendee, lessee or lender and with respect to
the Letter of Credit, and within five days after notice of such sale, leasing or
financing, Tenant, at its sole cost, shall arrange for the transfer of the
Letter of Credit to the new landlord or the lender, as designated by Landlord in
the foregoing notice or have the Letter of Credit reissued in the name of the
new landlord or the lender and Landlord shall thereupon be released by Tenant
from all liability for the return of such security. Tenant shall look solely to
the new landlord or lender for the return of such cash security or Letter of
Credit and the provisions hereof shall apply to every transfer or assignment
made of the security to a new landlord. Tenant shall not assign or encumber or
attempt to assign or encumber the monies or Letter of Credit deposited on as
security and that neither Landlord nor its successors or assigns shall be bound
by any such assignment, encumbrance, attempted assignment or attempted
encumbrance.
ARTICLE 37
RIGHT OF FIRST OFFER
SECTION 37.1 OFFERED SPACE. Tenant shall have the one-time right (with
respect to each available space), at its sole option, to lease the entirety (but
not any portion) of the remaining space on the eighth (8th) floor of the
Building (the "Offered Space"), if such space shall become vacant and available
for lease during the Term, on the terms and conditions hereinafter set forth;
provided that no Event of Default exists on the date of the giving of the
Acceptance Notice or on the Offered Space Commencement Date (as hereinafter
defined).
SECTION 37.2 NOTICE. Whenever Landlord anticipates that the Offered
Space is to become vacant and available for Lease, Landlord shall notify Tenant
(the "Availability Notice") of such future availability, which Availability
Notice shall set forth the Interim Rent (as hereinafter defined) and the
approximate date on which Landlord anticipates that the Offered Space shall
become vacant and available for lease. Tenant shall exercise the right of first
offer by written notice (the "Acceptance Notice") given to Landlord not more
than twenty (20) days following the giving of the Availability Notice. Time is
of the essence for the giving of the Acceptance Notice. If Tenant fails to give
the Acceptance Notice on or before such date, Tenant's option to lease the
Offered Space contained in the Availability Notice shall terminate and Landlord
shall be free to lease the Offered Space or any part thereof to any third party
at any rental rate and upon any terms determined by Landlord and Landlord shall
be under no further obligation to offer to Tenant the Offered Space contained in
the Availability Notice to Tenant.
SECTION 37.3 COMMENCEMENT. If Tenant shall timely give Landlord the
Acceptance Notice as required under this Article 37 to exercise Tenant's right
to lease the Offered Space, the leasing of such Offered Space shall commence on
the date set forth in the Availability Notice (the "Offered Space Commencement
Date") and shall expire on the Expiration Date (as defined in this Lease).
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SECTION 37.4 RENT. Effective upon the Offered Space Commencement Date,
(i) the Premises shall be deemed to include the Offered Space and (ii) this
Lease shall be deemed amended as follows:
(a) the Rent payable pursuant to Article 2 hereof shall be
increased by the annual fair market rental value of the Offered Space. Any
dispute between the parties as to the annual fair market rental value shall be
resolved by arbitration in the manner provided in Section 37.8 hereof. If the
additional Rent payable has not been determined prior to the Offered Space
Commencement Date, Tenant shall pay additional Rent in an amount equal to the
annual fair market rental value for the Offered Space as reasonably determined
by Landlord (the "Interim Rent"). Upon final determination of the additional
Rent for the Offered Space, Tenant shall commence paying such additional Rent as
so determined, and within ten days after such determination Tenant shall pay any
deficiency in prior payments of additional Rent or, if the additional Rent as so
determined shall be less than the Interim Rent, Tenant shall be entitled to a
credit against the next succeeding installments of Rent in an amount equal to
the difference between each installment of Interim Rent and the additional Rent
as so determined which should have been paid for such installment until the
total amount of the over payment has been recouped.
(b) the number 21,500 as used in the definition of Tenant's
Proportionate Share in Article 1 shall be increased to account for the Offered
Space using the same methods and standards of measurement used in determining
the above number and the percentages with respect to Tenant's Tax Payment and
with respect to Tenant's Operating Payment contained in the definition of
Tenant's Proportionate Share in Article 1 hereof shall be appropriately
recalculated and increased.
SECTION 37.5 CONDITION OF OFFERED SPACE. The Offered Space shall be
leased to Tenant "as-is", in the condition in which the same shall be on the
Offered Space Commencement Date and Tenant shall not be entitled to any
abatement, reduction of rent, or construction allowance by reason of such
condition. Landlord shall not be obligated to do any work or alteration for
Tenant in the Offered Space in order to prepare the same for Tenant's occupancy.
SECTION 37.6 EXISTING TENANT. Nothing contained in this Article 37
shall prevent Landlord from permitting the tenant or its successors or assigns
currently in occupancy of the Offered Space or its successors or assigns (the
"Existing Tenant") to remain in occupancy of the Offered Space or any portion
thereof, pursuant to either (i) the exercise of any extension or renewal option
contained in any of the existing leases covering the Offered Space, (ii) any
extension or renewal of the existing leases covering the Offered Space, or any
portion thereof, which may hereafter be negotiated and agreed to by and between
Landlord and the Existing Tenant, or (iii) the terms of any agreement of lease
hereafter entered into between Landlord and the Existing Tenant. Notwithstanding
anything to the contrary contained in this Article 37, Landlord shall be under
no obligation to offer any of the Offered Space to Tenant if Landlord intends to
sell any of the Offered Space, as a condominium or otherwise.
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SECTION 37.7 POSSESSION. If Landlord is unable to give possession of
any of the Offered Space contained in the Acceptance Notice, or any portion
thereof, on the Offered Space Commencement Date because of the holding over or
retention of possession of any tenant, undertenant or occupant, Landlord shall
not be subject to any liability for failure to give possession on said date and
the validity of this Lease shall not be impaired under such circumstances, nor
shall the same be construed in any way to extend the term of this Lease or the
leasing of such Offered Space, but the rent payable in respect of the Offered
Space shall be abated until Landlord shall have given Tenant notice that such
space is available for Tenant's occupancy. The provisions of this Section 37.7
are intended to constitute "an express provision to the contrary" within the
meaning of Section 223-a of the New York Real Property Law. In the event, Tenant
does not receive vacant possession of the Offered Space on or prior to the
second anniversary of the Acceptance Notice, Tenant shall have the right to
revoke such acceptance. Time is of the essence in making any such revocation.
SECTION 37.8 ARBITRATION. If Tenant shall dispute Landlord's
determination of the annual fair market value pursuant to Section 37.4 of this
Lease, Tenant shall give notice to Landlord of such dispute within 10 days of
Tenant's receipt of Landlord's determination of the Interim Rent, and such
dispute shall be determined by a single arbitrator appointed in accordance with
the American Arbitration Association Real Estate Valuation Arbitration
Proceeding Rules. The arbitrator shall be impartial and shall have not less than
10 years' experience in the County of New York in a calling related to the
leasing of commercial office space in office buildings comparable to the
Building, and the fees of the arbitrator shall be shared by Landlord and Tenant.
Within 15 days following the appointment of the arbitrator, Landlord and Tenant
shall attend a hearing before the arbitrator at which each party shall submit a
report setting forth its determination of the fair market value of the Offered
Space, together with such information on comparable rentals and such other
evidence as such party shall deem relevant. The arbitrator shall, within 5 days
following such hearing and submission of evidence, render his or her decision by
selecting the determination of fair market value submitted by either Landlord or
Tenant which, in the judgment of the arbitrator, most nearly reflects the fair
market value of the Premises for the Renewal Term. The arbitrator shall have no
power or authority to select any fair market value other than a fair market
value submitted by Landlord or Tenant, and the decision of the arbitrator shall
be final and binding upon Landlord and Tenant.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this
Amended and Restated Lease as of the day and year first above written.
11 WEST 42 LIMITED PARTNERSHIP,
Landlord
By: WHTS COMPANY, INC., a general partner
By: /s/
---------------------------------------
Name:
Title: Vice President
By: WEST 42 ASSOCIATES, L.P.,
a general partner
By: 11 West 42nd Realty I Corp.,
a general partner
By: /s/
---------------------------------------
Name:
Title:
By: 11 WEST 42nd Realty II Corp.,
a general partner
By: /s/
---------------------------------------
Name:
Title:
MARTHA STEWART LIVING OMNIMEDIA, LLC,
Tenant
By: /s/ Barry Pincus
---------------------------------------
Name: Barry Pincus
Title: Chief Financial Officer
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ACKNOWLEDGEMENT
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On the 31st day of March, 1998 before me personally came Barry
Pincus to me known to be the individual who executed the foregoing instrument
and, who, being duly sworn by me, did depose and say that he is the Chief
Financial Officer of Martha Stewart Living Omnimedia, LLC, and that he executed
the foregoing instrument in the name of Martha Stewart Living Omnimedia, LLC,
and that he was authorized to do so by said company.
Selene Maugeri
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires Jan. 12, 2000
-----------------------------------
Notary Public
/s/ Selene Maugeri
-----------------------------------
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EXHIBIT A-1
[Floor Plan]
<PAGE> 68
EXHIBIT A-2
[Floor Plan]
<PAGE> 69
EXHIBIT B
DEFINITIONS
BASE RATE: The annual rate of interest publicly announced from time to
time by Citibank, N.A., or its successor, in New York, New York as its "base
rate" (or such other term as may be used by Citibank, N.A., from time to time,
for the rate presently referred to as its "base rate").
BUILDING SYSTEM: The mechanical, electrical, plumbing, sanitary,
sprinkler, heating, ventilation and air conditioning, security, life-safety,
elevator and other service systems or facilities of the Building up to the point
of localized distribution to the Premises (excluding, however, supplemental
HVAC. systems of tenants (including Tenant), sprinklers and the horizontal
distribution systems within and servicing the Premises and by which mechanical,
electrical, plumbing, sanitary, heating, ventilating and air conditioning,
security, life-safety and other service systems are distributed from the base
Building risers, feeders, panelboards, etc. for provision of such services to
the Premises).
BUSINESS DAYS: All days, excluding Saturdays, Sundays and all days
observed by either the State in which the Building is located, the Federal
Government or the labor unions servicing the Building as legal holidays.
CODE: The Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder.
DEFICIENCY: The difference between (a) the Rent for the period which
otherwise would have constituted the unexpired portion of the Term (assuming the
Additional Rent for each year thereof to be the same as was payable for the year
immediately preceding such termination or re-entry), and (b) the net amount, if
any, of rents collected under any reletting effected pursuant to the provisions
of the Lease for any part of such period (after first deducting from such rents
all expenses incurred by Landlord in connection with the termination of this
Lease, Landlord's re-entry upon the Premises and such reletting, including
repossession costs, brokerage commissions, attorneys' fees and disbursements,
and alteration costs).
EXCLUDED EXPENSES: (a) Taxes; (b) franchise or income taxes imposed
upon Landlord; (c) mortgage amortization and interest; (d) leasing commissions;
(e) the cost of tenant installations and decorations incurred in connection with
preparing space for any Building tenant, including workletters and concessions;
(f) ground rent, if any; (g) management fees equal to the greater of (A) 3% of
the gross rentals collected for the Building and (B) fees charged by Landlord or
related entities for the management by any of them of other first class
properties; (h) wages, salaries and benefits paid to any persons above the grade
of Building Manager; (i) legal and accounting fees relating to (A) disputes with
tenants, prospective tenants or other occupants of the Building, (B) disputes
with purchasers, prospective purchasers, mortgagees or prospective mortgagees of
the Building or the Real Property or any part of either, or (C) negotiations of
leases, contracts of sale or mortgages; (j) costs of services provided to other
tenants of the Building on a "rent inclusion" basis which are not provided to
Tenant on such basis; (k) costs
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that are reimbursed out of insurance, warranty or condemnation proceeds, or
which are reimbursable by Tenant or other tenants other than pursuant to an
expense escalation clause; (1) costs in the nature of penalties or fines; (m)
costs for services, supplies or repairs paid to any related entity in excess of
costs that would be payable in an "arm's length" or unrelated situation; (n)
allowances, concessions or other costs and expenses of improving or decorating
any demised or demisable space in the Building; (o) appraisal, advertising and
promotional expenses in connection with leasing of the Building; (p) the costs
of installing, operating and maintaining a specialty improvement, including a
cafeteria, lodging or private dining facility, or an athletic, luncheon or
recreational club; (q) any costs or expenses (including fines, interest,
penalties and legal fees) arising out of Landlord's failure to timely pay
Operating Expenses or Taxes; (r) costs incurred in connection with the removal,
encapsulation or other treatment of asbestos or any other Hazardous Materials
existing in the Premises as of the date hereof, and (s) the cost of capital
improvements other than those expressly included in Operating Expenses pursuant
to Section 8.1 of this Lease.
GOVERNMENTAL AUTHORITY (AUTHORITIES): The United States of America, the
State and City of New York, any political subdivision and any agency,
department, commission, board, bureau or instrumentality of any of the
foregoing, now existing or hereafter created, having jurisdiction over the Real
Property or any portion thereof or the curbs, sidewalks, and areas adjacent
thereto.
HAZARDOUS MATERIALS: Any substances, materials or wastes currently
deemed or defined as "hazardous substances", "toxic substances", "contaminants",
"pollutants" or words of similar import.
HVAC SYSTEMS: The Building System[s] designed to provide heating,
ventilation and air conditioning.
INDEMNITIES: Landlord, and any direct or indirect partner, shareholder,
director, officer, principal, employee, agent or representative.
LESSOR: A lessor under a Superior Lease.
MORTGAGE(S): Any mortgage, trust, indenture or other financing document
which may now or hereafter affect the Premises, the Real Property, the Building
or any Superior Lease and the leasehold interest created thereby, and all
renewals, extensions, supplements, amendments, modifications, consolidations and
replacements thereof or thereto, substitutions therefor, and advances made
thereunder.
MORTGAGEE(S): Any mortgagee, trustee or other holder of a Mortgage.
PROHIBITED USE: Any use or occupancy of the Premises that in Landlord's
reasonable judgment would: (a) cause damage to the Building, the Premises or any
equipment, facilities or other systems therein; (b) impair the appearance of the
Premises or the Building; (c) interfere with the efficient and economical
maintenance, operation and repair of the Premises or the Building or the
equipment, facilities or systems thereof; (d) adversely affect any service
provided
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to, and/or the use and occupancy by, any Building tenant or occupants; or (e)
violate the certificate of occupancy issued for the Premises or the Building.
Prohibited Use also includes the use of any part of the Premises for: (i) a
restaurant or bar; (ii) the preparation, consumption, storage, manufacture or
sale of food, beverages, liquor, tobacco or drugs (except in connection with
vending machines and/or warming kitchens installed for the use of Tenant's
employees only); (iii) the business of photocopying, multilith or offset
printing (except photocopying in connection with Tenant's own business); (iv) a
typing or stenography business; (v) a school or classroom; (vi) lodging or
sleeping; (vii) the operation of retail (meaning a business whose primary
patronage arises from the generalized solicitation of the general public to
visit Tenant's offices in person without a prior appointment) facilities of a
savings and loan association or retail facilities of any financial, lending,
securities brokerage or investment activity; (viii) a payroll office; (ix) a
barber, beauty or manicure shop; (x) an employment agency, executive search firm
or similar enterprise; (xi) offices of any Governmental Authority, any foreign
government, the United Nations, or any agency or department of the foregoing;
(xii) subject to Section 3.3, the manufacture, retail sale, storage of
merchandise or auction of merchandise, goods or property of any kind to the
general public which could reasonably be expected to create a volume of
pedestrian traffic substantially in excess of that normally encountered in the
Premises; (xiii) the rendition of medical, dental or other therapeutic or
diagnostic services; or (xiv) any illegal purposes.
REQUIREMENTS: All present and future laws, rules, orders, ordinances,
regulations, statutes, requirements, codes and executive orders, extraordinary
and ordinary of all Governmental Authorities, including the Americans With
Disabilities Act, 42 U.S.C. Section 12,101 (et seq.), New York City Local Law 58
of 1987, and any law of like import, and all rules, regulations and government
orders with respect thereto, and any of the foregoing relating to Hazardous
Materials environmental matters, public health and safety matters, and of any
applicable fire rating bureau or other body exercising similar functions,
affecting the Real Property or the maintenance, use or occupation thereof, or
any street, avenue or sidewalk comprising a part of or in front thereof or any
vault in or under the same.
RULES AND REGULATIONS: The rules and regulations annexed to and made a
part of this Lease as Exhibit F, as they may be modified from time to time by
Landlord.
SPECIALTY ALTERATIONS: Alterations consisting of kitchens, pantries,
executive bathrooms, raised computer floors, computer installations, safe
deposit boxes, vaults, libraries or file rooms requiring reinforcement of
floors, internal staircases, conveyors, dumbwaiters, and other Alterations of a
similar character.
SUPERIOR LEASE(S): Any ground or underlying lease of the Real Property
or any part thereof heretofore or hereafter made by Landlord and all renewals,
extensions, supplements, amendments, modifications, consolidations, and
replacements thereof.
TENANT'S PROPERTY: Tenant's movable fixtures and movable partitions,
telephone and other equipment, computer systems, trade fixtures, furniture,
furnishings, and other items of personal property which are removable without
material damage to the Premises or Building.
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UNAVOIDABLE DELAYS: Landlord's inability to fulfill or delay in
fulfilling any of its obligations under this Lease expressly or impliedly to be
performed by Landlord or Landlord's inability to make or delay in making any
repairs, additions, alterations, improvements or decorations or Landlord's
inability to supply or delay in supplying any equipment or fixtures, if
Landlord's inability or delay is due to or arises by reason of strikes, labor
troubles or by accident, or by any cause whatsoever reasonably beyond Landlord's
control, including laws, governmental preemption in connection with a national
emergency, Requirements or shortages, or unavailability of labor, fuel, steam,
water, electricity or materials, or delays caused by Tenant or other tenants,
mechanical breakdown, acts of God, enemy action, civil commotion, fire or other
casualty.
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EXHIBIT C
LANDLORD'S WORK
Landlord shall be responsible, at its cost, for the following base
building work in respect to the 8th Floor Premises:
1. Demolish the portion of the 8th Floor Premises currently
licensed to the Phillips Janson Group Architects which is approximately 8,291
rentable square feet (see attached plan).
2. Repair damaged convector covers and replace all convector
grills.
3. Windows will be weatherproofed, made operable and broken
glass will be replaced.
4. Deliver ACP-5 certificate.
5. Premises shall be delivered with electric capacity of at
least six (6) watts per square foot, exclusive of HVAC, complete with service
and distribution panel boards, transformers and the appropriate submeters.
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EXHIBIT D
HVAC SPECIFICATIONS
The Building HVAC System serving the Premises is designed to
maintain average temperatures within the Premises during the hours of 8:00 a.m.
to 6:00 p.m. on Business Days of (i) not less than 68 degrees F. during the
heating season when the outdoor temperature is 5 degree F. or more and (ii) not
more than 78 degrees F. and 50% humidity + 5% during the cooling season, when
the outdoor temperatures are at 89 degrees F. dry bulb and 73 degrees F. wet
bulb, with, in the case of clauses (i) and (ii), a population load per floor of
not more than one person per 100 square feet of useable area, other than in
dining and other special use areas per floor for all purposes, and shades fully
drawn and closed, including lighting and power, and to provide at least .15 CFM
of outside ventilation per square foot of rentable area. Use of the Premises, or
any part thereof, in a manner exceeding the foregoing design conditions or
rearrangement of partitioning after the initial preparation of the Premises
which interferes with normal operation of the air-conditioning service in the
Premises may require changes in the air-conditioning system serving the
Premises.
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EXHIBIT E
CLEANING SPECIFICATIONS
GENERAL CLEANING
NIGHTLY
GENERAL OFFICES:
1. All hard surfaced flooring to be swept using approved
dustdown preparation.
2. Carpet sweep all carpets, moving only light furniture
(desks, file cabinets, etc. not to be moved).
3. Hand dust and wipe clean all furniture, fixtures and
window sills.
4. Empty all waste receptacles and remove wastepaper.
5. Wash clean all Building water fountains and coolers.
6. Sweep all private stairways.
LAVATORIES:
1. Sweep and wash all floors, using proper
disinfectants.
2. Wash and polish all mirrors, shelves, bright work and
enameled surfaces.
3. Wash and disinfect all basins, bowls and urinals.
4. Wash all toilet seats.
5. Hand dust and clean all partitions, tile walls,
dispensers and receptacles in lavatories and
restrooms.
6. Empty paper receptacles, fill receptacles from tenant
supply and remove wastepaper.
7. Fill toilet tissue holders from tenant supply.
8. Empty and clean sanitary disposal receptacles.
WEEKLY
1. Vacuum all carpeting and rugs.
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2. Dust all door louvers and other ventilating louvers
within a person's normal reach.
3. Wipe clean all brass and other bright work.
QUARTERLY
High dust premises complete including the following:
1. Dust all pictures, frames, charts, graphs and similar
wall hangings not reached in nightly cleaning.
2 Dust all vertical surfaces, such as walls,
partitions, doors, bucks and other surfaces not
reached in nightly cleaning.
3. Dust all venetian blinds.
4. Wash all windows.
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EXHIBIT F
RULES AND REGULATIONS
1. No awnings or other projections shall be attached to the
outside walls of the Building. No curtains, blinds, shades, screens or other
obstructions shall be attached to or hung in or used in connection with any
exterior window or entry door of the Premises, without the prior written consent
of Landlord.
2. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed to any part of the outside of the
Premises or Building or on the inside of the Premises if the same can be seen
from the outside of the Premises without the prior written consent of Landlord.
Lettering on doors, if and when approved by Landlord, shall be inscribed,
painted or affixed for Tenant in a size, color and style acceptable to Landlord.
3. The grills, louvers, skylights, windows and doors that
reflect or admit light and/or air into the Premises, halls, passageways or other
public places in the Building shall not be covered or obstructed by Tenant, nor
shall any bottles, parcels or other article be placed on the window sills,
radiators or convectors.
4. Landlord shall have the right to prohibit any advertising
by Tenant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as a Building for offices, and upon written notice
from Landlord, Tenant shall refrain from or discontinue such advertising.
5. The sidewalks, entrances, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by Tenant or used for any purpose other than ingress or egress to and from the
Premises and for delivery of merchandise, equipment and other personal property
in prompt and efficient manner, using elevators and passageways designated for
such delivery by Landlord.
6. Except in those areas designated by Tenant as "security
areas", all locks or bolts of any kind shall be operable by the Grand Master
Key. No locks shall be placed upon any of the doors or windows by Tenant, nor
shall any changes be made in locks or the mechanism thereof which shall make
such locks inoperable by said Grand Master Key. Tenant shall, upon the
termination of its tenancy, turn over to Landlord all keys of stores, offices
and toilet rooms, either furnished to or otherwise procured by Tenant and in the
event of the loss of any keys furnished by Landlord, Tenant shall pay to
Landlord the cost thereof.
7. Tenant shall keep the entrance door to the Premises closed
at all times.
8. All removals or the carrying in or out of any freight,
furniture, packages, boxes, crates or any other object or matter of any
description must take place during Building standard hours. Landlord reserves
the right to inspect all objects and matter to be brought into the Building and
to exclude from the Building all objects and matter which violates any of these
Rules and Regulations or the lease of which these Rules and Regulations are a
part. Landlord
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may require that any person leaving the public areas of the Building with any
package, object or matter submit a pass, listing each package, object or matter
being removed, but the establishment and enforcement of such requirement shall
not impose any responsibility on Landlord for the protection of Tenant against
the removal of property from the Premises.
9. There shall not be used in any space or in the public halls
of the Building, either by Tenant or by jobbers or any others in the moving or
delivery or receipt of safes, freight, furniture, packages, boxes, crates,
paper, office material or any other matter or thing, any hand trucks except
those equipped with rubber tires, side guards and such other safeguards as
Landlord requires.
10. None of Tenant's employees, visitors or contractors shall
be permitted to have access to the Building's roof, mechanical, electrical or
telephone rooms without permission from Landlord.
11. Tenant shall not make or permit to be made, any unseemly
or disturbing noises or disturb or interfere with occupants of this or
neighboring Buildings or premises or those having business with them.
12. Tenant shall not lay floor tile, or other similar floor
covering so that the same shall come in direct contact with the floor of the
Premises and, if such floor covering is desired to be used, an interlining of
builder's deadening felt shall be first affixed to the floor by a paste or other
material, soluble in water, the use of cement or other similar adhesive material
being expressly prohibited.
13. Neither Tenant nor any of Tenant's servants, employees,
agents, visitors or licensees shall at any time bring or keep upon the Premises
any hazardous material, inflammable, combustible or explosive fluid, chemical or
substance except such minimal quantities as are incidental to normal office
occupancy.
14. Tenant shall not use or keep, or permit to be used or
kept, any hazardous or toxic materials or any foul or noxious gas or substance
in the Premises, permit or suffer the Premises to be occupied or used in a
manner offensive or objectionable to Landlord or other occupants of the Building
by reason of noise, odors, vibrations or interfere in any way with other tenants
or those having business therein.
15. Tenant shall not cause or permit any odors of cooking or
other processes or any unusual or objectionable odors to emanate from the
Premises which would annoy other tenants or create a public or private nuisance.
16. Except as specifically provided in the Lease, Tenant shall
not do any cooking or conduct any restaurant, luncheonette or cafeteria for the
sale or service of food or beverages to its employees or to others.
17. Tenant may, at its sole cost and expense and subject to
compliance with all applicable requirements of the Lease, install and maintain
vending machines for the exclusive
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use by Tenant, its officers, employees and business guests, provided that each
machine, where necessary, shall have a waterproof pan thereunder and be
connected to a drain. Tenant shall not permit the delivery of any food or
beverage to the Premises, except by persons approved by Landlord, which approval
shall not be unreasonably withheld or delayed.
18. Tenant shall not employ any person or persons other than
the janitor of Landlord for the purpose of cleaning the Premises, unless
otherwise agreed to by Landlord in writing. Tenant shall not cause any
unnecessary labor by reason of Tenant's carelessness or indifference in the
preservation of good order and cleanliness.
19. Tenant shall store all its trash, garbage and recyclable
within its Premises. No material shall be disposed of which may result in a
violation of any law or ordinance governing such disposal. All garbage and
refuse disposal shall be made only through entry ways and elevators provided for
such purposes and at such times as Landlord shall designate. Tenant shall use
Building's hauler.
20. Tenant shall, at its expense, provide artificial light for
the employees of Landlord while doing janitor service or other cleaning, and in
making repairs or alterations in the Premises.
21. Tenant shall not mark, paint, drill into or in any way
deface any part of the Premises or the Building, except with the prior written
consent of Landlord in the case of the Premises, which consent shall not be
unreasonably withheld. No boring, cutting or stringing or wires shall be
permitted, except with prior written consent of Landlord, and as Landlord may
direct.
22. The water and wash closets and other plumbing fixtures
shall not be used for any purposes other than those for which they were
constructed and no sweepings, rubbish, rags, acids or other substances shall be
deposited therein. All damages resulting from any misuse of the fixtures shall
be borne by Tenant who or whose servants, employees, agents, visitors or
licensees shall have caused the same.
23. Tenant, before closing and leaving the Premises at any
time, shall see that all lights, water, faucets, etc. are turned off. All
entrance doors in the Premises shall be left locked by Tenant when the Premises
are not in use.
24. No bicycles, in-line roller skates, vehicles or animals of
any kind (except for seeing eye dogs) shall be brought into or kept by Tenant in
or about the Premises or the Building.
25. Canvassing, soliciting and peddling in the Building is
prohibited and Tenant shall cooperate to prevent the same.
26. The Premises shall not be used for lodging or sleeping or
for an immoral or illegal purposes.
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27. The Premises shall not be used for manufacturing, for the
storage of merchandise, or for the sale of merchandise, goods or property of any
kind at auction or otherwise, except as specifically permitted by the Lease.
28. Tenant shall not occupy or permit any portion of the
Premises as an office for a public stenographer or public typist or for the
possession, storage, manufacture of sale of narcotics, dope or tobacco in any
form or as a barber or manicure shop or as an employment bureau. Tenant shall
not engage or pay any employees on the Premises, except those actually working
for Tenant on the Premises, nor advertise for labor giving an address at the
Premises.
29. Tenant shall not accept barbering or bootblacking services
in the Premises, from any company or persons not approved by Landlord, which
approval shall not be unreasonably withheld, and at hours and under regulations
other than as reasonably fixed by Landlord.
30. The requirements of Tenant will be attended to only upon
written application at the office of the building, except in the event of any
emergency condition. Employees of Landlord or Landlord's agents shall not
perform any work or do anything outside of the regular duties, unless under
special instructions from of office of Landlord or in response to an emergency
condition.
31. Tenant shall be responsible for the delivery and pick up
of all mail from the United States Post office.
32. Landlord reserves the right to exclude from the Building
between the hours of 6 P.M. and 8 A.M. and at all hours on Saturdays, Sundays
and legal holidays all persons who do not present a pass to the Building signed
or approved by Landlord, which approval shall not be unreasonably withheld.
Tenant shall be responsible for all persons for whom a pass shall be issued at
the request of Tenant and shall be liable to Landlord for all acts of such
persons.
33. In accordance with the alteration section of the Lease,
Landlord is entitled to review and approve architectural and engineering
drawings. The review/alteration of Tenant drawings and/or specifications by
Tishman Speyer Properties and any of its representative is not intended to
verify Tenant's engineering or design requirements and/or solutions. The
review/alteration is performed to determine compatibility with the Building
Systems and lease conditions.
34. Tenant renovations are to: be performed by those
contractors and subcontractors on the Landlord's approved contractor's list,
adhere to the Building's applicable Standard Operating Procedures, be compatible
with Building Class E System and other common systems, etc.
35. Landlord may waive any one or more of these Rules and
Regulations for the benefit of any particular tenant or tenants, but no such
waiver by Landlord shall be construed as a waiver of such Rules and Regulations
in favor or any other tenant or tenants, nor prevent
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Landlord from thereafter enforcing any such Rules and Regulations against any or
all of the tenants of the Building.
36. Landlord shall not be responsible to Tenant or to any
other person for the non- observance or violation of these Rules and Regulations
by any other tenant or other person. Tenant shall be deemed to have read the
Rules and Regulations and to have agreed to abide by them as a condition to its
occupancy of the Premises.
37. These Rules and Regulations are in addition to, and shall
not be constructed to in any way modify or amend, in whole or in part, the
terms, covenants, agreements and conditions of the Lease.
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