New York-New York-120 Broadway Lease - Broadpine Realty Holding Co. Inc. and theglobe.com Inc.
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BROADPINE REALTY HOLDING COMPANY, INC.
LANDLORD
AND
theglobe.com, inc. f/k/a WebGenesis, Inc.
TENANT
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L E A S E
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Premises: Entire 22nd Floor
120 Broadway
New York, New York
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<PAGE>
TABLE OF CONTENTS
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Article Page
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1. DEFINITIONS; DEMISE OF PREMISES.....................................1
2. COMMENCEMENT OF TERM................................................3
3. RENT................................................................6
4. USE.................................................................7
5. ALTERATIONS; LIENS; TENANT'S PROPERTY...............................8
6. REPAIRS AND MAINTENANCE.............................................13
7. COMPLIANCE WITH LAW.................................................14
8. INSURANCE...........................................................16
9. DAMAGE OR CASUALTY..................................................18
10. ASSIGNMENT AND SUBLETTING...........................................20
11. NON-LIABILITY; INDEMNIFICATION......................................27
12. CONDEMNATION........................................................29
13. ACCESS; BUILDING NAME...............................................30
14. BANKRUPTCY..........................................................31
15. DEFAULTS, REMEDIES, DAMAGES.........................................32
16. CURING TENANT'S DEFAULTS; REIMBURSEMENT.............................35
17. QUIET ENJOYMENT.....................................................36
18. BUILDING SERVICES...................................................36
19. TAXES; OPERATING EXPENSES...........................................38
20. ELECTRICITY.........................................................48
21. BROKER..............................................................53
22. SUBORDINATION.......................................................53
23. ESTOPPEL CERTIFICATE................................................55
24. LEGAL PROCEEDINGS...................................................55
25. SURRENDER...........................................................56
26. RULES AND REGULATIONS...............................................57
27. PERSONS BOUND.......................................................57
28. NOTICES.............................................................58
29. PARTNERSHIP TENANT..................................................58
30. NO WAIVER; ENTIRE AGREEMENT.........................................59
31. MISCELLANEOUS.......................................................60
32. INABILITY TO PERFORM; SEVERABILITY..................................63
33. SECURITY............................................................63
34. RENEWAL OPTION......................................................65
35. FIRST OFFER RIGHTS..................................................66
36. EXPANSION OPTION....................................................67
EXHIBIT "A" - Floor Plans A-1
EXHIBIT "B" - Commencement Date Agreement B-1
EXHIBIT "C" - Landlord's Work C-1
EXHIBIT "D" - Description of Land D-1
EXHIBIT "E" - Cleaning Specifications E-1
EXHIBIT "F" - Rules and Regulations F-1
EXHIBIT "G" - Form of Letter of Credit G-1
EXHIBIT "H" - Request for Taxpayer Identification Number H-1
EXHIBIT "I" - Approved Contractors I-1
EXHIBIT "J" - Building Holidays J-1
EXHIBIT "K" - First 30th Floor Offer Space K-1
EXHIBIT "L" - 15th Floor Space L-1
EXHIBIT "M" - 12th Floor Space M-1
EXHIBIT "N"" - Second 30th Floor Offer Space N-1
EXHIBIT "O" - 30th /31st Floor Offer Space O-1
EXHIBIT "P" - 21st Floor Offer Space P-1
<PAGE>
INDENTURE OF LEASE made as of this 12th day of January, 1999, between
BROADPINE REALTY HOLDING COMPANY, INC., a New York corporation having an
office c/o J.P. Morgan Investment Management Inc., 522 Fifth Avenue, New
York, New York 10036 (hereinafter referred to as "Landlord"), and
theglobe.com, inc. f/k/a WebGenesis, Inc., a Delaware corporation having an
office at 31 West 21st Street, New York, New York 10010 (hereinafter
referred to as "Tenant").
W I T N E S S E T H :
ARTICLE 1
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DEFINITIONS; DEMISE OF PREMISES
Section 1.01. For the purposes of this Lease (including all of the
schedules, riders and exhibits, if any, annexed to this Lease), the terms
set forth below shall have the definitions which immediately follow such
terms, and such definitions are hereby incorporated into this Lease
wherever used:
ALTERATIONS - The term "Alterations" shall mean and include all
installations, changes, alterations, restorations, renovations,
decorations, replacements, additions, improvements and betterments made in
or to the Demised Premises or the Building, and shall include Tenant's
Initial Work. Alterations shall not include Tenant's personal property,
equipment, furniture, furnishings, and trade fixtures if and for so long as
the same shall not be affixed (other than by wiring) to, or incorporated
into, the Demised Premises.
AUTHORIZED USE - The "Authorized Use" shall be for executive,
administrative and general business offices, but subject to the provisions
of this Lease and the certificate of occupancy for the Building.
BASE OPERATING YEAR - The "Base Operating Year" shall mean the calendar
year 1999.
BASE TAX AMOUNT - The "Base Tax Amount" shall mean the amount of Taxes with
respect to calendar year 1999. The Base Tax Amount shall be determined by
averaging the Taxes with respect to (i) the fiscal year commencing July 1,
1998, and ending June 30, 1999, and (ii) the fiscal year commencing July 1,
1999, and ending June 30, 2000. By way of example only, if the Taxes for
the 1998/99 fiscal year were $100,000, and the Taxes for the 1999/00 fiscal
year were $120,000, the Base Tax Amount would be equal to $110,000.
BUILDING - The "Building" shall mean and include the structure and other
improvements constructed or as may in the future be constructed on the
Land, known by the address "120 Broadway", New York, New York.
BUILDING SYSTEMS - The term "Building Systems" shall mean and include such
heating, ventilating and air-conditioning systems, and such elevators,
water, sewerage, toilet, plumbing, sprinkler, electric, wiring and
mechanical systems, now or hereafter installed in the Building, and the
fixtures, equipment and appurtenances thereof, and all other mechanical
devices, fixtures, equipment, appurtenances and systems installed by
Landlord in the Building and serving the tenants of the Building generally
(as opposed to systems used exclusively to service a particular tenant of
the Building).
COMMENCEMENT DATE - The "Commencement Date" shall mean the date set forth
in Subsection 2.01A below.
COMPARABLE BUILDINGS - The term "Comparable Buildings" shall mean
first-class office buildings, similar to the Building, in downtown
Manhattan.
DEMISED PREMISES - The "Demised Premises" shall mean the entire rentable
portion of the 22nd floor in the Building which is shown on the hatched
portion of the plan annexed hereto as Exhibit "A" and made a part hereof.
DESIGNATED BROKER - The "Designated Broker" shall mean Silverstein
Properties Inc. and Julien J. Studley, Inc., collectively.
EXPIRATION DATE - The "Expiration Date" shall mean the date set forth in
Subsection 2.01B below.
FIRST OFFER SPACE - The "First Offer Space" shall mean the space set forth
in Article 35.
INCLUDE AND INCLUDING - The terms "include" and "including" shall each be
construed as if followed by the phrase "without being limited to".
INSURANCE BOARDS - The term "Insurance Boards" shall mean and include the
National Board of Fire Underwriters, the New York Board of Fire
Underwriters, and any other body having similar jurisdiction, and the New
York Fire Insurance Exchange, and any other body establishing insurance
premium rates.
LAND - The "Land" shall mean the real property described in Exhibit "D"
annexed hereto.
LEGAL REQUIREMENTS - The term "Legal Requirements" shall mean and include
all laws, orders, ordinances, directions, notices, rules and regulations of
the federal government and of any state, county, city, borough and
municipality, and of any division, agency, subdivision, bureau, office,
commission, board, authority and department thereof, and of any public
officer or official and of any quasi-governmental officials and authorities
having or asserting jurisdiction over the Land, Building and/or the Demised
Premises.
MINIMUM RENT - The "Minimum Rent" shall be: (i) during the period beginning
on the Commencement Date and continuing through and including the day
immediately preceding the fifth (5th) anniversary of the Commencement Date,
ONE MILLION THREE HUNDRED SIXTY-ONE THOUSAND FIVE HUNDRED SEVENTY-NINE
($1,361,579.00) and 00/100 DOLLARS per annum, to be paid by Tenant in equal
monthly installments of $113,464.92; (ii) during the period beginning on
the fifth (5th) anniversary of the Commencement Date and continuing through
and including the day immediately preceding the tenth(10th) anniversary of
the Commencement Date, ONE MILLION FOUR HUNDRED FIFTY-FIVE THOUSAND FOUR
HUNDRED EIGHTY-ONE ($1,455,481.00) and 00/100 DOLLARS per annum, to be paid
by Tenant in equal monthly installments of $121,290.08; and (iii) during
the period beginning on the tenth (10th) anniversary of the Commencement
Date and continuing through and including the Expiration Date, ONE MILLION
SIX HUNDRED NINETY THOUSAND TWO HUNDRED THIRTY-SIX ($1,690,236.00) and
00/100 DOLLARS per annum, to be paid by Tenant in equal monthly
installments of $140,853.00.
MORTGAGE - The term "Mortgage" shall mean any existing or future mortgage
and/or security deed affecting the Land and/or the Building, alone or with
other property, as the same may from time to time be amended, modified,
renewed, consolidated, substituted, spread, added to, extended and/or
replaced.
MORTGAGEE - The term "Mortgagee" shall mean the mortgagee under, and/or the
holder of, any Mortgage.
OVERLANDLORD - The term "Overlandlord" shall mean the landlord under any
Underlying Lease, including the lease referred to in Subsection 22.01(b)
below.
PERSONS WITHIN TENANT'S CONTROL - The term "Persons Within Tenant's
Control" shall mean and include Tenant, all of Tenant's subtenants and
assignees, and all of their respective principals, officers, agents,
contractors, servants, employees, licensees, guests and invitees.
PERSONS WITHIN LANDLORD'S CONTROL - The term "Persons Within Landlord's
Control" shall mean and include Landlord, and Landlord's principals,
officers, agents, contractors, servants, employees and guests, but shall
not include any tenants in or other occupants of the Building.
RECURRING ADDITIONAL RENT - The term "Recurring Additional Rent" shall mean
all additional rent payable by Tenant pursuant to Article 19 of this Lease.
REPAIRS - The term "Repairs" shall mean and include repairs, restorations
and replacements.
SECURITY DEPOSIT AMOUNT - The "Security Deposit Amount" shall mean $
1,500,000.00, subject, however, to the provisions of Section 33.02B.
SQUARE FEET OF RENTABLE AREA - The term "Square Feet of Rentable Area" in
the Demised Premises shall be deemed to be the equivalent of 46, 951 square
feet, as agreed to by the parties following Tenant's inspection of (or
opportunity to inspect) the Demised Premises. This definition shall not be
construed as any kind of representation by Landlord as to the size of the
Demised Premises or the Building.
TENANT'S INITIAL FIRST OFFER SPACE WORK - The term "Tenant's Initial First
Offer Space Work" shall mean such work (if any) as shall be performed by
Tenant or Persons Within Tenant's Control to prepare any First Offer Space
for Tenant's initial occupancy thereof.
TENANT'S INITIAL WORK - The term "Tenant's Initial Work" shall mean such
work (if any) as shall be performed by Tenant or Persons Within Tenant's
Control to prepare the Demised Premises for Tenant's initial occupancy
thereof.
TENANT'S PROPORTIONATE SHARE - The term "Tenant's Proportionate Share"
shall mean 2.72 %, so long as Landlord continues to own the portion of the
Building currently owned by Landlord. If a portion(s) of the Building (but
not the entire Building) shall be sold, transferred or conveyed, Tenant's
Proportionate Share shall be changed to that percentage which shall be
equal to a fraction, the numerator of which shall be the Square Feet of
Rentable Area, and the denominator of which shall be the aggregate rentable
square feet of office space in that portion of the Building owned by
Landlord at such time (and from time to time), as reasonably determined by
Landlord's architect.
TERM - The "Term" shall mean fifteen (15) years, unless sooner terminated
as provided in this Lease or by law.
UNDERLYING LEASE - The term "Underlying Lease" shall mean any present or
future ground or overriding or underlying lease and/or grant affecting the
Land, the Building and/or the Demised Premises, as the same may from time
to time be amended, modified, renewed, extended and/or replaced.
Section 1.02. Landlord hereby leases to Tenant, and Tenant hereby
hires from Landlord, the Demised Premises, together with the right to use,
in common with others, such portions of the lobbies, elevators and other
public portions of the Building as may be necessary for access to the
Demised Premises, for the Term, and for the Minimum Rent and additional
rent herein reserved, and subject to all of the covenants, agreements,
terms, conditions, limitations, reservations and provisions hereinafter set
forth.
ARTICLE 2
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COMMENCEMENT OF TERM
Section 2.01.
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A. The Term of this Lease shall commence on the date hereof (the
"Commencement Date").
B. The term of this Lease shall expire at 11:59 p.m. of the last
day of the calendar month in which the day immediately preceding the
fifteenth (15th) anniversary of the Commencement Date shall occur (the
"Expiration Date"), or shall end on such earlier date upon which such term
may expire or be canceled or terminated pursuant to the provisions of this
Lease or by law or shall be extended pursuant to and in accordance with the
terms and conditions contained in Article 34 hereof.
C. Promptly following the Commencement Date, Landlord and Tenant
shall execute and exchange an amendment to this Lease (in the form annexed
hereto as Exhibit "B," and pertaining to the matters set forth therein)
setting forth the actual dates of the Commencement Date and the Expiration
Date, and the date that Tenant's obligation to pay Minimum Rent shall
commence in accordance with Section 3.01 of this Lease, but the failure to
so execute or exchange said supplementary agreement shall not in any way
reduce Tenant's obligations or Landlord's rights under this Lease.
Section 2.02.
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A. Landlord agrees to deliver and Tenant agrees to accept possession
of the Demised Premises in "as is" and "where is" condition on the
Commencement Date, and Landlord shall not be obligated to perform any work
whatsoever to prepare the Demised Premises for Tenant, except as specified
in Exhibit "C" which is annexed hereto and made a part hereof ("Landlord's
Work"). The parties hereby agree and acknowledge that, under good
construction practices, the performance of Landlord's Work should be
coordinated with the performance of Tenant's Initial Work and, accordingly,
Landlord's Work will not be performed and completed by Landlord prior to
the Commencement Date. Tenant agrees to make the Demised Premises available
to Landlord at all reasonable times so that Landlord may perform Landlord's
Work, which Landlord agrees to perform in a manner so as not to
unreasonably interfere with the performance of Tenant's Initial Work. All
materials, work, labor, fixtures and installations required for completion
of the Demised Premises and the operation of Tenant's business thereat,
other than Landlord's Work, shall (subject to the provisions of Article 5
below) be promptly furnished and performed by Tenant, at Tenant's own cost
and expense. Within fifteen (15) days following Landlord's approval of
Tenant's Plans for Tenant's Initial Work, Landlord shall deliver to Tenant
a Department of Environmental Protection ACP-5 Form (an "ACP-5") with
respect to the Demised Premises.
B. Notwithstanding anything to the contrary contained in this Lease,
in the event that Landlord shall not have substantially completed the
performance of Landlord's Work on or before the date which is one hundred
twenty (120) days after Landlord's approval of Tenant's Plans for Tenant's
Initial Work outlining designated areas for the installation of the A/C
Units (the "Landlord Completion Date"), and provided that such failure to
substantially complete the performance of Landlord's Work shall not have
been caused by or be attributable to (x) any of the events set forth in
Section 32.01 or (y) any act or omission on the part of Tenant or of
Persons Within Tenant's Control, then, as Tenant's sole remedy in
connection therewith (subject, however, to the provisions of this Section
2.02B), Tenant shall be entitled to an abatement of Minimum Rent and of
Tenant Electricity (as hereinafter defined) allocable to the Demised
Premises for each day beyond the Landlord Completion Date that Landlord
shall fail to substantially complete the performance of Landlord's Work in
the Demised Premises.
Section 2.03. Except as expressly provided to the contrary in Section
2.02 B above, if Landlord shall be unable to give possession of the Demised
Premises on the Commencement Date by reason of the fact that the Demised
Premises are not ready for occupancy, or by reason of the failure of a
prior tenant or occupant thereof to vacate the same or deliver possession
thereof to Landlord, or for any other reason, Landlord shall not be
subjected to any liability for the failure to give possession on said date.
No such failure to give possession on such specific date shall affect the
validity of this Lease or the obligations of Tenant hereunder or be deemed
to extend the Term, but the rent reserved and covenanted to be paid
hereunder shall not commence until possession of the Demised Premises shall
be given or shall be made available for occupancy by Tenant, except that if
such failure to give possession has been caused by any act or omission on
the part of Tenant or of any Person Within Tenant's Control, there shall be
no abatement of rent. If repairs, improvements or decorations of the
Demised Premises, if any, as may be expressly provided in this Lease to be
made by Landlord, are not completed on or before such date, Landlord shall
not be subject to any liability for any delay in such completion. Landlord
hereby represents that the Demised Premises are not currently leased to, or
occupied by, any tenant or occupant. Notwithstanding anything to the
contrary contained herein, in the event that Tenant shall be unable to
occupy the Demised Premises for the conduct of Tenant's business by the
expiration of the Free Rent Period (as hereinafter defined) solely as a
result of Tenant's inability to complete Tenant's Initial Work, and if such
failure to timely complete Tenant's Initial Work is attributable solely to
the negligence or willful misconduct of Landlord (a "Landlord Caused Work
Delay") and, without limiting the foregoing, shall not be caused by or be
attributable to (x) any of the events set forth in Section 32.01 or (y) any
act or omission on the part of Tenant or of Persons Within Tenant's
Control, then, as Tenant's sole remedy in connection therewith, Tenant
shall be entitled to an extension of the Free Rent Period allocable to the
Demised Premises for each day beyond the expiration of the Free Rent Period
that Tenant shall have been unable to occupy the Demised Premises for the
conduct of Tenant's business therein due solely to such Landlord Caused
Work Delay.
Section 2.04. Except as expressly provided in this Article 2, the
parties hereto agree that this Article 2 constitutes an express provision
as to the time at which Landlord shall deliver possession of the Demised
Premises to Tenant, and Tenant hereby waives any rights to rescind this
Lease which Tenant might otherwise have pursuant to Section 223-a of the
Real Property Law of the State of New York, or pursuant to any other law of
like import now or hereafter in force.
Section 2.05.
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A. Subject to the terms and conditions hereinafter set forth,
Landlord agrees to provide a construction allowance ("Landlord's
Contribution") to reimburse Tenant for the cost expended by Tenant to
perform Tenant's Initial Work, in an aggregate amount not to exceed ONE
MILLION SIX HUNDRED FORTY THREE THOUSAND TWO HUNDRED EIGHTY FIVE
($1,643,285.00) DOLLARS. Landlord shall fund the portion of Landlord's
Contribution then being requisitioned in the manner set forth in
Subsections 2.05B and 2.05C below, but only at such time as all of the
following conditions shall have been satisfied or waived by Landlord, in
Landlord's sole and absolute discretion:
(i) Tenant shall not be in default in any of its monetary
obligations hereunder or in default (after notice and the expiration of any
applicable cure period provided in this Lease) with respect to any of the
material terms, covenants or conditions to be performed or observed by
Tenant under this Lease.
(ii) Tenant shall have obtained, and at all times during the
construction period shall maintain, all necessary and appropriate permits,
licenses, authorizations and approvals from all governmental authorities
having or asserting jurisdiction in connection with such construction, and
shall have delivered true copies thereof to Landlord; and
(iii) Tenant shall have delivered to Landlord, for approval
by Landlord: (x) a completed requisition for payment (in form issued by the
American Institute of Architects), certified and sworn to by Tenant's
architect stating or accompanied by: (1) the amount being requested, (2)
receipted invoices for all labor and materials performed as part of
Tenant's Initial Work (to the extent such invoices were not previously
provided to Landlord), (3) to the best of such architect's knowledge, the
amount of Landlord's Contribution theretofore paid to Tenant, (4) the cost
of labor and materials theretofore performed and incorporated in the
Demised Premises and the estimated aggregate cost of the entire Tenant's
Initial Work to be performed, and (5) that the work completed to date has
been performed substantially in accordance with the plans and
specifications approved by Landlord and in compliance with all Legal
Requirements; and (y) waivers of lien from all contractors, subcontractors
and materialmen who shall have furnished materials or supplies or performed
work or services in connection with Tenant's Initial Work, which is the
subject of such requisition.
B. Within thirty (30) days after Tenant shall have complied with
all of the conditions set forth in the foregoing Subsection 2.05A, Landlord
shall pay to Tenant an amount equal to that portion of Landlord's
Contribution which shall equal, on a percentage basis, that portion of
Tenant's Initial Work then completed in accordance with the provisions
hereof, as certified by Tenant's architect, less all amounts of Landlord's
Contribution previously disbursed; provided, however, that (x) Landlord
shall not be required to make more than one (1) payment per calendar month,
and (y) the disbursements hereunder shall be subject to a retention of ten
(10%) percent until Tenant's Initial Work shall have been completed
(excluding "punch-list" and other minor work) and approved.
C. Provided that Tenant shall not then be in default in any of
its monetary obligations hereunder or in default (after notice and the
expiration of any applicable cure period provided in this Lease) with
respect to any of the material terms, covenants or conditions to be
performed or observed by Tenant under this Lease, then, within thirty (30)
days following the last to occur of: (i) Tenant's request for payment of
the final installment of Landlord's Contribution, (ii) completion of
Tenant's Initial Work in accordance with the provisions of Article 5 below,
(iii) the certification of Tenant's architect that Tenant's Initial Work
has been completed to the satisfaction of Tenant's architect, substantially
in accordance with the plans and specifications approved by Landlord and in
compliance with all Legal Requirements, (iv) delivery by Tenant to Landlord
of waivers of lien from all contractors, subcontractors and materialmen who
shall have furnished materials or supplies or performed work or services in
connection with Tenant's Initial Work, (v) delivery by Tenant to Landlord
of true copies of final approvals of Tenant's Initial Work by all
governmental authorities having or asserting jurisdiction (including the
New York City Department of Buildings), and (vi) delivery by Tenant to
Landlord of "as built" drawings with respect to Tenant's Initial Work (if
and to the extent that the same shall have been prepared), the balance of
Landlord's Contribution which has not been previously disbursed (but, in
the aggregate, not in excess of the total cost of Tenant's Initial Work),
shall be disbursed to Tenant. Tenant expressly agrees that Landlord's
obligation to pay the final installment of Landlord's Contribution shall be
conditioned upon Tenant's timely compliance with the requirements set forth
in clauses (i) - (vi) of this Subsection 2.05(C), and that Tenant's right
to receive any portion of Landlord's Contribution which shall not have been
requested by Tenant within eighteen (18) months following completion of
Tenant's Initial Work shall be deemed to have been irrevocably waived by
Tenant.
D. Landlord's obligation to pay Landlord's Contribution shall
only apply to that part of Tenant's Initial Work consisting of the
installation of walls, partitions, fixtures, improvements and appurtenances
permanently attached to or built into the Demised Premises, including the
following: mechanical systems, flooring, ceilings, duct work, electrical
wiring, plumbing, millwork and supplemental air-conditioning systems (if
any), decorating, affixed carpeting and other floor coverings, (but shall
not include business and trade fixtures, machinery, equipment or other
articles of personal property), design fees, consulting, permit and similar
fees, architectural fees, engineering fees, legal fees, construction and/or
project management fees, and moving expenses (with such fees and expenses
being referred to herein as "soft costs"); provided, however, in no event
shall Landlord be required to pay more than ten (10%) percent (i.e.,
$164,328.50) of Landlord's Contribution for any such "soft costs" incurred
in connection with the performance of Tenant's Initial Work.
Section 2.06. Upon execution of this Lease by Tenant, Tenant shall
execute and deliver to Landlord a Request for Taxpayer Identification
Number and Certification in the form annexed hereto as Exhibit "H".
ARTICLE 3
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RENT
Section 3.01. Tenant covenants and agrees that, during the entire
Term, Tenant shall pay to Landlord the Minimum Rent at the annual rate set
forth in Section 1.01, in equal monthly installments, in advance, on the
first day of each calendar month during the Term, at the office of Landlord
or such other place as Landlord may designate, without any abatement,
reduction, setoff, counterclaim, defense or deduction whatsoever; it being
agreed, however, that if Tenant shall not then be in default (after notice
and the expiration of any applicable cure period provided in this Lease) of
any of Tenant's obligations under this Lease, Landlord hereby conditionally
excuses Tenant's obligation to pay Minimum Rent for the first three (3)
full calendar months of the Term (the "Free Rent Period"). Upon the
execution of this Lease, Tenant shall pay to Landlord the installment of
Minimum Rent due hereunder for the fourth (4th) full calendar month of the
Term. In the event that Tenant's obligation to pay Minimum Rent shall
commence on a date which shall be other than the first day of a calendar
month, the same shall be prorated at the rental rate applicable during the
first year of the Term, and shall be paid by Tenant to Landlord together
with the first full monthly installment of Minimum Rent as shall become due
hereunder.
Section 3.02. All costs, charges, expenses and payments (including the
payments required to be made by Tenant pursuant to Article 19 below) which
Tenant assumes, agrees or shall be obligated to pay to Landlord or others
pursuant to this Lease (other than Minimum Rent) shall be deemed additional
rent, and, in the event that Tenant shall fail to timely pay the same,
Landlord shall have all of the rights and remedies with respect thereto as
are provided for herein or by applicable law in the case of non-payment of
rent.
Section 3.03. Tenant covenants to pay the Minimum Rent and additional
rent as in this Lease provided, when due and without notice or demand, in
lawful money of the United States which shall be legal tender in payment of
all debts and dues, public and private, at the time of payment. If any
installment of Minimum Rent or any additional rent shall not be paid within
five (5) days after such installment of Minimum Rent or additional rent
shall have first become due, Tenant shall also pay to Landlord (i) an
administrative late charge in the amount of $250.00, and (ii) interest
thereon from the due date until such installment of Minimum Rent or
additional rent is fully paid at the "Interest Rate" (defined in Article 16
below). Such administrative late charge and interest charge shall be due
and payable as additional rent with the next monthly installment of Minimum
Rent provided that Landlord has given Tenant written notice of same. If any
check delivered to Landlord in full or partial payment of any amounts due
to Landlord pursuant to the terms of this Lease shall not be honored by
reason of insufficient or uncollected funds or for any other reason, then
(x) Tenant shall pay to Landlord a service charge on account thereof in the
amount of $250.00, which service charge shall be due and payable as
additional rent with the next monthly installment of Minimum Rent provided
that Landlord has given Tenant written notice of same, and (y) all
subsequent payments of any amounts due to Landlord pursuant to the terms of
this Lease for the next twelve (12) months shall, if Landlord so requests,
be made by certified check, official bank or teller's check, or money
order. Upon default in payment by Tenant of any of the aforementioned
charges, Landlord shall have all the rights and remedies provided for upon
default of the Minimum Rent. The foregoing obligations on the part of the
Tenant shall not preclude the simultaneous or subsequent exercise by
Landlord of any and all other rights or remedies provided for in this Lease
or now or hereafter existing at law or in equity or by statute or
otherwise. No payment by Tenant or receipt by Landlord of a lesser amount
than the Minimum Rent or additional rent herein stipulated shall be deemed
to be other than on account of the earliest stipulated Minimum Rent or
additional rent (unless Landlord, in Landlord's sole and absolute
discretion, shall otherwise and in writing so elect), nor shall any
endorsement or statement on any check or in any letter accompanying any
check or payment, as Minimum 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 Minimum Rent
and additional rent or pursue any other remedy provided in this Lease, at
law or in equity.
Section 3.04. If all or any part of the Minimum Rent or additional
rent shall at any time become uncollectible, reduced or required to be
refunded by virtue of any Legal Requirements (including rent control or
stabilization laws), except if and to the extent the same shall be as a
result of the ICIP Program, the LMEP or the Lower Manhattan Plan (each as
hereinafter defined), then for the period prescribed by said Legal
Requirements, Tenant shall pay to Landlord the maximum amounts permitted
pursuant to said Legal Requirements, and Tenant shall execute and deliver
such agreement(s) and take such other steps as Landlord may reasonably
request and as may be legally permissible to permit Landlord to collect the
maximum rent which, from time to time during the continuance of such legal
rent restriction, may be legally permissible (and not in excess of the
amounts then reserved therefor under this Lease). Upon the expiration or
other legal termination of the applicable period of time during which such
amounts shall be uncollectible, reduced or refunded: (a) the Minimum Rent
and additional rent shall become and shall thereafter be payable in
accordance with the amounts reserved herein for the periods following such
expiration or termination, and (b) Tenant shall pay to Landlord as
additional rent, within fifteen (15) days after demand, all uncollected,
reduced or refunded amounts that would have been payable for the aforesaid
period absent such Legal Requirements. The provisions of the immediately
preceding sentence shall survive the expiration or sooner termination of
this Lease.
Section 3.05. If Landlord shall direct Tenant to pay Minimum Rent or
additional rent to a "lockbox" or other depository whereby checks issued in
payment of Minimum Rent or additional rent (or both, as the case may be)
are initially cashed or deposited by a person or entity other than Landlord
(albeit on Landlord's authority), then, for any and all purposes under this
Lease: (i) Landlord shall not be deemed to have accepted such payment until
ten (10) days after the date on which Landlord shall have actually received
such funds (although for purposes of determining whether a default shall
exist under this Lease, Tenant shall be deemed to have paid Minimum Rent or
additional rent on the date such Minimum Rent and/or additional rent shall
have been delivered to such lockbox), and (ii) Landlord shall be deemed to
have accepted such payment if (and only if) within said ten (10) day
period, Landlord shall not have refunded (or attempted to refund) such
payment to Tenant. Nothing contained in the immediately preceding sentence
shall be construed to place Tenant in default of Tenant's obligation to pay
rent if and for so long as Tenant shall timely pay the rent required
pursuant to this Lease in the manner designated by Landlord.
ARTICLE 4
---------
USE
Section 4.01. Tenant shall use and occupy the Demised Premises for the
Authorized Use (as defined in Section 1.01), and for no other purpose.
Section 4.02. Without in any way limiting the restrictions on use
contained in Section 4.01, Tenant specifically agrees that Tenant shall not
permit any part of the Demised Premises to be used for banking or lending
purposes of any kind; or for a safe deposit business or the sale of
travelers checks and/or foreign exchange; or as a kitchen, restaurant or
cafeteria (except, subject to Tenant's compliance with the certificate of
occupancy affecting the Demised Premises and with all other provisions of
this Lease, and as an incident to Tenant's use of the Demised Premises for
the Authorized Use, Tenant shall be permitted to use a dwyer pantry for the
use of its staff); or for manufacturing, storage, shipping or receiving; or
for retail securities brokerage purposes; or for any purpose that would
violate restrictive covenants with any tenant of the Building, of which
shall exist on the date hereof and of which Tenant shall have written
notice; or for any retail sales or as a store; or for the sale of any food
or beverage; or as a news and cigar stand (or anything similar thereto); or
for any sale of merchandise with delivery at or from the Demised Premises;
or for the production of samples or workroom; or for any purpose other than
the Authorized Use. Landlord represents that there are no restrictive
covenants with any tenant of the Building which would prohibit Tenant's use
of the Demised Premises for the Authorized Use and any incidental use
expressly permitted under this Lease. In addition, the Demised Premises may
not be used by (i) an agency, department or bureau of the United States
Government, any state or municipality within the United States, or any
foreign government, or any political subdivision of any of them, (ii) any
charitable, religious, union or other not-for-profit organization, or (iii)
any tax exempt entity within the meaning of Section 168(h)(2) of the
Internal Revenue Code of 1986, as amended, or any successor or substitute
statute, or rule or regulation applicable thereto (as same may be amended).
Section 4.03. Tenant expressly acknowledges that irreparable injury
will result to Landlord in the event of a breach of any of the covenants
made by Tenant in this Article 4, and it is agreed that, in the event of
such breach, Landlord shall be entitled, in addition to any other remedies
available, to an injunction to restrain the violation thereof. Breach of
any of Tenant's covenants under this Article (after notice and the
expiration of the applicable cure period provided in this Lease) shall also
constitute an Event of Default pursuant and subject to the provisions of
Article 15 hereof.
ARTICLE 5
---------
ALTERATIONS; LIENS; TENANT'S PROPERTY
Section 5.01.
------------
A. Except as expressly provided to the contrary in this Section
5.01, Tenant shall make no Alterations in or to the Demised Premises,
including removal or installation of partitions, doors, electrical
installations, plumbing installations, water coolers, heating, ventilating
and air conditioning or cooling systems, units or parts thereof or other
apparatus of like or other nature, whether structural or non-structural,
without Landlord's prior written consent (which consent Landlord agrees not
to unreasonably withhold or unduly delay with respect to non-structural
Alterations ("Minor Non-Structural Alterations") that are made entirely
within the Demised Premises and which do not (i) affect the structure of
the Building or any Building Systems outside (or serving parts of the
Building outside) the Demised Premises, or (ii) violate, create a condition
which violates, or require Landlord to perform any work or incur any
expense to ensure compliance with, any Legal Requirements (it being agreed
that, in all other instances, Landlord may withhold its consent in
Landlord's sole and absolute discretion), and then only by contractors or
mechanics as set forth in Subsection 5.01D below or approved in writing by
Landlord (which approval Landlord agrees not to unreasonably withhold or
unduly delay with respect to contractors or mechanics performing Minor
Non-Structural Alterations). Notwithstanding anything to the contrary
contained in this Section 5.01, Tenant shall have the right, on not less
than three (3) Business Days prior written notice to Landlord, but without
being required to obtain Landlord's consent, to perform Alterations in or
to the Demised Premises which do not require the issuance of a building
permit or any other governmental authorization and which are purely
decorative in nature (i.e., painting and the installation or removal of
carpeting or wall coverings; collectively, "Decorative Alterations"),
provided that: (x) such Decorative Alterations are made entirely, and
visible only, within the Demised Premises, (y) Tenant shall comply with all
applicable Legal Requirements and all of the other applicable requirements
governing Alterations set forth in this Lease, and (z) such Decorative
Alterations shall be performed only by Approved Contractors (as hereinafter
defined).
B. It shall be Tenant's responsibility and obligation to ensure
that all Alterations: (i) shall be made at Tenant's own cost and expense
and at such times and in such manner as Landlord may from time to time
reasonably designate (including reasonable rules governing Alterations as
Landlord may from time to time make as provided under the provisions of
Article 26 below, which rules shall not be enforced against Tenant in a
discriminatory manner), (ii) shall comply with all Legal Requirements
(including NYC Local Laws No. 5 of 1973, No. 16 of 1984 and No. 58 of 1988,
each as amended from time to time, and all Legal Requirements then in
effect relating to asbestos and to access for the handicapped or disabled)
and all orders, rules and regulations of Insurance Boards, (iii) shall be
made promptly and in a good and workmanlike manner using prime quality
materials, and (iv) shall not affect the appearance of the Building outside
of the Demised Premises or be visible from the exterior of the Building, it
being Landlord's intention to keep the exterior appearance of the Building
reasonably uniform (and, in pursuance thereof, Landlord shall have the
right to approve the appearance of all such Alterations described in this
subclause (iv), including ceiling heights, blinds, lighting, signs and
other decorations). In order to ensure, maintain and control the quality
and standards of materials and workmanship in and the effective security of
the Building, including the Demised Premises, Tenant acknowledges that it
is reasonable to require Tenant, and Tenant hereby covenants and agrees, to
use only contractors as set forth in Subsection 5.01D below or contractors
first approved in writing by Landlord (which approval Landlord agrees not
to unreasonably withhold or unduly delay with respect to contractors or
mechanics performing Minor Non-Structural Alterations as described in
Subsection 5.01A above). Landlord expressly reserves the right to exclude
from the Building any person, firm or corporation attempting to perform any
work or act as construction contractor or manager without Landlord's prior
written consent.
C. Within ten (10) days after being billed therefor, Tenant shall
reimburse Landlord, as additional rent, for any reasonable out-of-pocket
expenses incurred by Landlord and payable to unaffiliated third parties in
connection with any Alterations performed by Tenant.
D. A list of currently approved contractors and mechanics is
annexed hereto as Exhibit "I" and made a part hereof ("Approved
Contractors"). The contractors and mechanics identified on said list shall
be deemed approved only for the performance of Tenant's Initial Work and
not for any other future Alterations. Following the completion of Tenant's
Initial Work, Landlord shall have the unfettered right to revise said list
in any manner that Landlord deems appropriate. Landlord shall provide
Tenant with any such revised list upon written request therefor by Tenant,
and those contractors and mechanics on such list shall, subject to the
provisions of this Subsection 5.01D, be deemed Approved Contractors
hereunder.
E. The provisions of this Article 5 shall apply to Tenant's
Initial Work, as well as to all future Alterations.
Section 5.02.
------------
A. Prior to commencing the performance of any Alterations (other
than Decorative Alterations), Tenant shall furnish to Landlord:
(i) Plans and specifications (to be prepared by a licensed
architect or engineer engaged by Tenant, at the sole cost and expense of
Tenant), in sufficient detail to be accepted for filing by the New York
City Building Department (or any successor or other governmental agency
serving a similar function), of such proposed Alterations, and Tenant shall
not commence the performance thereof unless and until Landlord has given
written consent to said plans and specifications (which consent shall not
be unreasonably withheld or delayed with respect to plans and
specifications for Minor Non-Structural Alterations);
(ii) A certificate evidencing that Tenant (or Tenant's
contractors) has (have) procured and paid for worker's compensation
insurance covering all persons employed in connection with the work who
might assert claims for death or bodily injury against Overlandlord,
Landlord, Tenant, the Land and/or the Building;
(iii) Such additional personal injury and property damage
insurance (over and above the insurance required to be carried by Tenant
pursuant to the provisions of Section 8.03 below), and builder's risk, fire
and other casualty insurance as Landlord may reasonably require in
connection with the work to be done for Tenant;
(iv) Except with respect to Tenant's Initial Work, if the
work to be undertaken is of such a nature that it requires the approval of
the Overlandlord or any Mortgagee, such approval shall be obtained at
Tenant's own cost and expense; and if the work requires expenditures by
Tenant in excess of an amount equal to three (3) monthly installments of
the then prevailing Minimum Rent, a surety company performance bond in form
and substance satisfactory to Landlord (procured at Tenant's own cost and
expense), issued by a surety company acceptable to Landlord, or other
security satisfactory to Landlord, in an amount equal to at least 110% of
the estimated cost of such Alterations, guaranteeing to Landlord,
Overlandlord and any Mortgagee the completion thereof and payment therefor
within a reasonable time, free and clear of all liens, encumbrances,
chattel mortgages, security interests, conditional bills of sale and other
charges, and substantially in accordance with the plans and specifications
approved by Landlord;
(v) Such permits, authorizations or consents as may be
required by any applicable Legal Requirements, all of which shall be
obtained at Tenant's cost and expense, provided, however, that no plans,
specifications or applications shall be filed by Tenant with any
governmental authority without Tenant first obtaining Landlord's written
consent thereto (which consent may not be withheld or delayed to the extent
Landlord has already approved such plans and specifications). Landlord
agrees that Landlord shall reasonably cooperate with Tenant in connection
with obtaining any such permits, authorizations, or consents, including the
signing by Landlord of any such applications or other documents which shall
be necessary and are customarily signed by building owners on behalf of
their tenants provided that Landlord shall not be required to incur any
expense thereby; and
(vi) A written letter of authorization, in form satisfactory
to Landlord, signed by all architects, engineers, surveyors and designers
to become involved in such Alterations, which shall confirm that any of
their respective drawings or plans are to be removed from any filing with
governmental authorities on the request of Landlord.
B. In the event that Landlord shall submit the plans and
specifications referred to in clause (i) of Subsection 5.02A above to
Landlord's unaffiliated third-party architects and/or engineers for review,
Tenant shall reimburse Landlord as additional rent for Landlord's actual
and reasonable out -of-pocket expenses of such review within ten (10) days
after delivery to Tenant of the invoices showing the amount of such
expense.
C. Tenant shall keep accurate and complete cost records of all
Alterations performed by Tenant or by Persons Within Tenant's Control, and
shall furnish to Landlord true copies thereof and/or of all contracts
entered into and work orders issued by Tenant in connection therewith
within thirty (30) days following Landlord's request therefor. Landlord's
review of, and/or any failure by Landlord to object to, any such contract
or work order shall not: (i) be construed as an approval by Landlord of
such contract or work order or the contents thereof except as expressly
provided in Subsection 5.02D below, (ii) impose any liability on Landlord
in connection therewith, or (iii) relieve Tenant of any obligation of
Tenant with respect to such Alterations or the Demised Premises as
otherwise set forth in this Lease.
D. I. In connection with Tenant's Initial Work and Tenant's
Initial First Offer Space Work only, if Landlord shall fail to notify
Tenant that Landlord has consented in writing or not consented in writing
to any of Tenant's plans, specifications, or applications (or portions
thereof) for Tenant's Initial Work or Tenant's Initial First Offer Space
Work as provided in Subsection 5.02A(i) above within eight (8) Business
Days after Landlord's receipt of a written notice (a "Tenant's Initial Work
Notice" or a "Tenant's Initial First Offer Space Work Notice", as the case
may be), delivered by Tenant, Landlord shall be deemed to have granted such
consent if such Tenant's Initial Work Notice or Tenant's Initial First
Offer Space Work Notice, as the case may be, shall specify the precise
nature of Tenant's Initial Work or Tenant's Initial First Offer Space Work,
as the case may be, and shall include the plans, specifications, or
applications (or portions thereof) for Tenant's Initial Work or Tenant's
Initial First Offer Space Work, as the case may be, and shall bear the
following legend typed in bold, capital letters at the top: "IF LANDLORD
SHALL FAIL TO NOTIFY TENANT THAT LANDLORD HAS CONSENTED OR NOT CONSENTED TO
THE PROPOSED [TENANT'S INITIAL WORK (OR TENANT'S INITIAL FIRST OFFER SPACE
WORK) /PLANS, SPECIFICATIONS, APPLICATIONS (OR PORTIONS THEREOF)] SPECIFIED
HEREIN WITHIN EIGHT (8) BUSINESS DAYS FOLLOWING LANDLORD'S RECEIPT OF THIS
NOTICE, LANDLORD SHALL BE DEEMED TO HAVE CONSENTED TO SUCH PROPOSED
[TENANT'S INITIAL WORK (OR TENANT'S INITIAL FIRST OFFER SPACE WORK) /PLANS,
SPECIFICATIONS, OR APPLICATIONS (OR PORTIONS THEREOF)] IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02D.I. OF THE LEASE."
II. In connection with Tenant's Initial Work and Tenant's Initial
First Offer Space Work only, if Landlord shall fail to notify Tenant that
Landlord has consented in writing or not consented in writing to any of
Tenant's revisions to Tenant's plans, specifications, or applications (or
portions thereof) for Tenant's Initial Work or Tenant's Initial First Offer
Space Work, as the case may be, as provided in Subsection 5.02A(i) above
within five (5) Business Days after Landlord's receipt of a written notice
(a "Tenant's Initial Work Revisions Notice" or a "Tenant's Initial First
Offer Space Work Revisions Notice", as the case may be) delivered by
Tenant, Landlord shall be deemed to have granted such consent if such
Tenant's Initial Work Revisions Notice or Tenant's Initial First Offer
Space Work Revisions Notice, as the case may be, shall include the
revisions to the plans, specifications, or applications (or portions
thereof) for Tenant's Initial Work or Tenant's Initial First Offer Space
Work, as the case may be, and shall bear the following legend typed in
bold, capital letters at the top: "IF LANDLORD SHALL FAIL TO NOTIFY TENANT
THAT LANDLORD HAS CONSENTED OR NOT CONSENTED TO THE REVISIONS TO THE
PROPOSED [TENANT'S INITIAL WORK (OR TENANT'S INITIAL FIRST OFFER SPACE
WORK) /PLANS, SPECIFICATIONS, OR APPLICATIONS (OR PORTIONS THEREOF)]
SPECIFIED HEREIN WITHIN FIVE (5) BUSINESS DAYS FOLLOWING LANDLORD'S RECEIPT
OF THIS NOTICE, LANDLORD SHALL BE DEEMED TO HAVE CONSENTED TO SUCH
REVISIONS TO THE PROPOSED [TENANT'S INITIAL WORK (OR TENANT'S INITIAL FIRST
OFFER SPACE WORK) /PLANS, SPECIFICATIONS, OR APPLICATIONS (OR PORTIONS
THEREOF)] IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02D.II. OF THE
LEASE."
Notwithstanding anything to the contrary contained herein, Landlord's
written notice to Tenant of Landlord's non-approval of any of Tenant's
initial or revised plans, specifications, or applications (or portions
thereof) for Tenant's Initial Work or Tenant's Initial First Offer Space
Work, as the case may be, as provided in Section 5.02A(i) above shall
specify the reason(s) such consent was withheld by Landlord.
Section 5.03.
------------
A. Except for furniture, fixtures, and customary office equipment
which is the subject of a lease or installment sales contract and does not
constitute an Alteration, in no event shall any material or equipment be
incorporated in or to the Demised Premises in connection with any
Alteration which is subject to any lien, encumbrance, chattel mortgage,
security interest, charge of any kind whatsoever, or is subject to any
conditional sale or other similar or dissimilar title retention agreement.
B. Tenant shall not create or permit to be created any lien,
encumbrance or charge (levied on account of any taxes or any mechanic's,
laborer's or materialman's lien, conditional sale, title retention
agreement or otherwise) which might be or become a lien, encumbrance or
charge upon the Land or Building or any part thereof or the income
therefrom, and Tenant shall not suffer any other matter or thing whereby
the estate, rights and interest of Landlord in the Land or Building or any
part thereof might be impaired. Tenant shall take all steps necessary under
local laws to prevent the imposition of such a lien, encumbrance or charge
on the Land or Building.
C. If any lien, encumbrance or charge referred to in this Section
5.03 (other than any lien, encumbrance or charge resulting solely and
directly from work performed by Landlord) shall at any time be filed
against the Land or Building or any part thereof, then Tenant, within
thirty (30) days after Tenant receives actual notice of the filing thereof
from any source and at Tenant's own cost and expense, shall cause the same
to be discharged of record or bonded, and Tenant shall indemnify Landlord
against and defend and hold Landlord harmless from all costs, expenses,
liabilities, losses, fines and penalties, including reasonable attorneys'
fees and disbursements, resulting therefrom. If Tenant shall fail to cause
such lien to be discharged or bonded within the aforesaid period, then, in
addition to any other right or remedy, Landlord may, but shall not be
obligated to, discharge the same either by paying the amount claimed to be
due or by procuring the discharge of such lien by deposit or by bonding
proceedings, and in any such event Landlord shall be entitled, if Landlord
so elects, to compel the prosecution of an action for the foreclosure of
such lien by the lienor and to pay the amount of the judgment in favor of
the lienor with interest, costs and allowances. Any amount so paid by
Landlord and all costs and expenses incurred by Landlord in connection
therewith, together with interest thereon at the Interest Rate, shall
constitute additional rent payable by Tenant under this Lease, which
additional rent shall be paid by Tenant to Landlord on demand within ten
(10) days following delivery of a bill therefor to Tenant.
D. Except as otherwise expressly provided herein, nothing
contained in this Lease shall be deemed or construed in any way as
constituting the consent or request of Landlord, express or implied by
inference or otherwise, to any contractor, subcontractor, laborer or
materialman for the performance of any labor or the furnishing of labor or
materials for the specific improvement, alteration to or repair of the
Demised Premises or any part thereof, nor as giving Tenant any right, power
or authority to contract for or permit the rendering of any services or the
furnishing of any materials that would give rise to the filing of any lien
against the Land, Building, Demised Premises or any part thereof. Notice is
hereby given that Landlord shall not be liable for any work performed or to
be performed at the Demised Premises for Tenant or any subtenant, or for
any materials furnished or to be furnished at the Demised Premises for
Tenant or any subtenant upon credit, and that no mechanic's or other lien
for such work or materials shall attach to or affect the estate or interest
of Landlord in and to the Land, Building or Demised Premises. Landlord
shall have the right to post and keep posted on the Demised Premises any
notices which Landlord may be required to post for the protection of
Landlord, the Land, Building and/or the Demised Premises from any lien.
E. Tenant shall have no power to do any act or make any contract
which may create or be the foundation for any lien, mortgage or other
encumbrance upon the reversion or other estate of Landlord or of any
interest of Landlord in the Demised Premises.
Section 5.04. Tenant shall not at any time, either directly or
indirectly, use any contractors or labor or materials in the Demised
Premises if the use of such contractors or labor or materials would create
any work stoppage, picketing, labor disruption or any other difficulty with
other contractors or labor engaged by Tenant or Landlord or others in the
construction, maintenance or operation of the Building or any part thereof.
Tenant shall immediately stop any work or other activity if Landlord shall
notify Tenant that continuing such work or activity would violate the
provisions of the immediately preceding sentence.
Section 5.05. Landlord shall not be liable for any failure or
diminution of any Building Systems or services, or for any damage to
Tenant's property or the property of any other person, caused by
Alterations made by Tenant or by Persons Within Tenant's Control,
notwithstanding Landlord's consent thereto or to the plans and
specifications therefor. Landlord's consent to any such plans or
specifications shall not be deemed a representation of any kind that the
same conform to the applicable Legal Requirements. Tenant shall promptly
correct any faulty or improper Alteration made by Tenant or by Persons
Within Tenant's Control, and shall repair any and all damage caused
thereby. Upon Tenant's failure to promptly make such corrections and
repairs, Landlord may make such corrections and repairs and charge Tenant
for the cost thereof. Such charge shall be deemed additional rent, and
shall be paid by Tenant to Landlord within ten (10) days after written
notice to Tenant of the amount thereof.
Section 5.06.
------------
A. All movable property, furniture, furnishings and trade
fixtures furnished by or at the expense of Tenant, other than those affixed
to the Demised Premises so that they cannot be removed without damage and
other than those replacing an item theretofore furnished and paid for by
Landlord or for which Tenant has received a credit or allowance, shall
remain the property of Tenant, and may be removed by Tenant from time to
time prior to the expiration of the Term. Tenant shall notify Landlord in
writing not less than sixty (60) days prior to the expiration of the Term
specifying any such items of property which Tenant does not wish to remove.
If within thirty (30) days after the service of such notice Landlord shall
request Tenant to remove any of said items, Tenant shall, at Tenant's
expense, remove said items prior to the expiration of the Term. Without
limiting the generality of the provisions of this Subsection 5.06A, Tenant
expressly agrees that, at Landlord's request, Tenant shall, at Tenant's own
cost and expense and prior to the expiration of the Term, remove any and
all vaults located or installed in the Demised Premises.
B. All Alterations made by either party, including all paneling,
decorations, partitions, railings, mezzanine floors, galleries and the
like, which are affixed to the Demised Premises, shall become the property
of Landlord and shall be surrendered with the Demised Premises at the end
of the Term; provided, however, that Landlord may elect to require Tenant
to remove, prior to the expiration or earlier termination of the Term, at
Tenant's expense, "Specialty Alterations" (as such term is defined below).
Notwithstanding the foregoing, if, simultaneously with Tenant's submission
to Landlord for Landlord's approval of plans and specifications of an
Alteration, Tenant shall deliver a written request (the "Fixtures Request")
that Landlord notify Tenant whether a proposed Alteration constitutes a
"Specialty Alteration", and, if so, whether Tenant must remove such
Specialty Alteration upon the expiration or earlier termination of the
Term, Landlord shall so notify Tenant at the time Landlord shall give its
approval of such plans and specifications. The Fixtures Request shall
specify the Specialty Alteration that Tenant is requesting not to remove
and shall bear the following legend typed in bold, capital letters at the
top: "IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.06 OF THE LEASE,
TENANT REQUESTS THAT LANDLORD NOTIFY TENANT WHETHER THE ALTERATION
DESCRIBED HEREIN CONSTITUTES A "SPECIALTY ALTERATION", AND, IF SO, WHETHER
TENANT SHALL BE REQUIRED TO REMOVE SUCH SPECIALTY ALTERATION UPON THE
EXPIRATION OR EARLIER TERMINATION OF THE TERM." In the event that Landlord
shall so notify Tenant that Tenant shall be required to remove any such
Specialty Alterations from the Demised Premises on or prior to the
Expiration Date, such Specialty Alterations shall not become the property
of Landlord on the Expiration Date. For the purposes hereof, the term
"Specialty Alterations" shall mean and include any Alteration that is not
an ordinary office installation, as reasonably determined by Landlord. By
way of example only, a kitchen, cafeteria, private lavatory, raised floor,
vault, safe, internal stairway or slab cut would each be deemed to be a
Specialty Alteration (it being understood and agreed that the foregoing is
merely a list of non-exclusive examples of Specialty Alterations, and does
not constitute, nor shall it be construed as, Landlord's consent to the
installation thereof). Notwithstanding anything to the contrary contained
herein, Landlord shall not require Tenant to remove any A/C Units installed
in the Demised Premises as part of Landlord's Work.
C. In any case where Tenant removes any property or Alterations
in accordance with Subsections A and B above, or otherwise, Tenant shall
immediately repair all damage caused by said removal and shall restore the
Demised Premises to good order and condition (normal wear and tear
excepted) at Tenant's expense, and if Tenant fails to do so, Landlord may
do so at Tenant's cost and Tenant shall reimburse Landlord therefor upon
demand.
D. Upon failure of Tenant to remove any property or Alterations
in accordance with Subsections A and B above on or prior to the Expiration
Date, Landlord may, at Tenant's expense: (i) remove all such property and
Alterations which Landlord may require Tenant to remove pursuant to
Subsections A and B above, (ii) cause the same to be placed in storage, and
(iii) repair any damage caused by said removal and restore the Demised
Premises to good order and condition. Tenant shall, upon demand and as
additional rent, reimburse Landlord for all of the aforesaid expenses.
E. Notwithstanding anything to the contrary contained in this
Section 5.06, any items of property or Alterations not removed by Tenant
may, at the election of Landlord, be deemed to have been abandoned by
Tenant, and Landlord may retain and dispose of said items without any
liability to Tenant and without accounting to Tenant for the proceeds
thereof; provided, however, that if Landlord shall sell or dispose of such
items of Tenant's Property or Alterations abandoned by Tenant, Landlord
shall offset the proceeds thereof, if any, less any costs and expenses
incurred by Landlord in connection with such sale or disposal, against any
sums due and owing by Tenant to Landlord under this Lease.
F. The provisions of this Section 5.06 shall survive the
expiration or sooner termination of the Term, whereupon any and all
monetary obligations of Tenant pursuant thereto shall be deemed damages
recoverable by Landlord.
Section 5.07. If Tenant shall fail to comply with any provision of
this Article 5 (beyond notice and the expiration of any applicable cure
period provided in this Lease), Landlord, in addition to any other remedy
herein provided, may require Tenant to immediately cease all work being
performed in the Building by or on behalf of Tenant, and Landlord may deny
access to the Demised Premises to any person performing work or supplying
materials in the Demised Premises.
ARTICLE 6
---------
REPAIRS AND MAINTENANCE
Section 6.01. Tenant shall take good care of the Demised Premises and
the fixtures, glass, appurtenances and equipment therein (including, all
horizontal portions of the Building Systems that are located within the
Demised Premises (except for the perimeter heating units), and expressly
including any sprinkler loop and distribution pipes and heads, any
ventilation and air-conditioning equipment and any private bathrooms in or
appurtenant to the Demised Premises, all of which Landlord represents are
in good working order and condition as of the date hereof), and, at
Tenant's sole cost and expense, shall make all Repairs as and when needed
to preserve them in good working order and condition, whether or not such
Repairs are ordinary or extraordinary, or foreseen or unforeseen at this
time, and whether or not such Repairs pertain to improvements in the
Demised Premises furnished or installed by Landlord, but excluding Repairs
to the rough floor, the rough ceiling, exterior walls, including exterior
windows, or load-bearing columns, unless required under the provisions of
following sentence. All damage or injury to the Demised Premises, or to the
Building or the Building Systems outside of the Demised Premises, caused by
or arising from the negligence of Tenant, or of Persons Within Tenant's
Control, including those which are structural, extraordinary and
unforeseen, shall be promptly repaired, restored or replaced by Tenant, at
Tenant's own cost and expense. All Repairs shall be in quality and class
equal to or better than the original work or installations, and shall be
performed in good and workmanlike manner, using Building standard or higher
quality materials.
Section 6.02. Landlord, at Landlord's expense, shall make or cause to
be made all Repairs, structural and otherwise, necessary to keep in good
order and repair the exterior of the Building and the public portions of
the Building, and such portions of the Building Systems that serve the
Demised Premises, in each case other than those required to be made by
Tenant as provided in Section 6.01, Article 7 or any other provision of
this Lease. There shall be no allowance to Tenant for a diminution of
rental value or interruption of business, and no liability on the part of
Landlord, by reason of inconvenience, annoyance or injury to business
arising from Landlord, Tenant or others making any Repairs or Alterations
in or to any portion of the Building or Building Systems or the Demised
Premises. Landlord shall promptly proceed until completion with the
performance of the foregoing Repairs and Alterations, and shall use
commercially reasonable efforts to minimize interference with Tenant's
business operations at the Demised Premises in performing any such Repairs
or Alterations; provided, however, that Landlord shall have no obligation
to employ contractors or labor at overtime or premium rates or to incur any
other overtime costs or expenses in connection with the performance of such
Repairs and Alterations. Landlord shall operate and maintain the Building
in accordance with the standards customarily followed in the operation and
maintenance of Comparable Buildings.
Section 6.03. If any Insurance Boards or Legal Requirements shall
require or recommend installation of fire extinguishers or of a "sprinkler
system" or any other fire protection devices, or any changes,
modifications, alterations or additions thereto for any reason,
attributable to Tenant's manner of use of the Demised Premises (as
distinguished from Tenant's mere use of the Demised Premises for the
Authorized Use), or if any such installation or equipment becomes necessary
to prevent the imposition of a penalty or charge against the full allowance
for a sprinkler or fire extinguishing system in the fire insurance rate as
fixed by Insurance Boards, or by any fire insurance company, and provided
that the necessity for the same shall be attributable to Tenant's manner of
use of the Demised Premises (as distinguished from Tenant's mere use of the
Demised Premises for the Authorized Use), then Tenant, at Tenant's expense,
shall promptly make such installation within the Demised Premises and
supply such changes, modifications, alterations, additions or other
equipment. In the event that (i) Tenant shall fail to perform the work
required pursuant to the preceding sentence, and/or (ii) if due to the
nature of such work, Landlord requires that such work be performed by
Landlord, Landlord shall make any such installation (including sprinklers,
stair pressurizers, water towers), or any such change, modification,
alteration or additions outside of the Demised Premises (such as, without
limitation, in the common area), and Tenant shall reimburse Landlord, as
additional rent, an amount equal to Tenant's Proportionate Share of the
reasonable cost thereof. Such reimbursement shall be made by Tenant within
thirty (30) days after written notice to Tenant of such amount.
Section 6.04. In any case where Tenant shall be required to make
Repairs or perform any work pursuant to this Article and such Repairs or
work shall affect the Building Systems or areas outside of the Demised
Premises, Landlord may, in Landlord's discretion, elect to make such
Repairs or to perform such work for and on behalf of Tenant, but at
Tenant's reasonable and actual cost and expense, provided that Landlord
shall competitively bid such work. In such event, Tenant shall reimburse
Landlord as additional rent for the reasonable and actual cost of such
Repairs and/or work within thirty (30) days after Landlord shall furnish a
statement to Tenant of the amount thereof.
Section 6.05. Tenant shall maintain the Demised Premises and the areas
appurtenant thereto (including any permitted signs or cameras) in a clean
and orderly condition that is consistent with the use and appearance of the
Building. If Tenant shall fail to so maintain the Demised Premises or
appurtenant areas to the satisfaction of Landlord, then Landlord shall have
the right, on ten (10) days written notice to Tenant (except in an
emergency, in which case no notice shall be required) and at Tenant's sole
cost and expense, to enter into the Demised Premises and such appurtenant
areas for the express purpose of rectifying the condition thereof and
restoring the Demised Premises and such appurtenant areas to the condition
and appearance required hereunder; provided, however, that Landlord shall
not store in the Demised Premises any materials used in connection with the
making of any Repairs.
ARTICLE 7
---------
COMPLIANCE WITH LAW
Section 7.01.
------------
A. Tenant shall not do, and shall not permit Persons Within
Tenant's Control to do, any act or thing in or upon the Demised Premises or
the Building which will invalidate or be in conflict with the certificate
of occupancy for the Demised Premises or the Building, or violate any Legal
Requirements. Tenant shall, at Tenant's cost and expense, comply with all
Legal Requirements (including Local Laws No. 5 of 1973, No. 16 of 1984 and
No. 58 of 1988, each as modified and supplemented from time to time under
the Administrative Code as applicable to the Demised Premises, and, subject
to the provisions of Section 11.06 below, all Legal Requirements relating
to asbestos) which shall with respect to the Demised Premises or with
respect to any abatement of nuisance (including the removal, containment,
transportation and disposal of asbestos, subject to the provisions of said
Section 11.06), impose any violation, order or duty upon Landlord or Tenant
arising from, or in connection with, the Demised Premises, Tenant's manner
of use of the Demised Premises (as distinguished from Tenant's mere use of
the Demised Premises for the Authorized Use), or any installations made by
or on behalf of Tenant therein, or required by reason of a breach of any of
Tenant's covenants or agreements hereunder, whether or not such Legal
Requirements shall now be in effect or hereafter enacted or issued, and
whether or not any work required shall be ordinary or extraordinary or
foreseen or unforeseen at the date hereof.
B. Notwithstanding anything to the contrary contained in this
Lease, Tenant shall be responsible for the cost of all present and future
compliance with The Americans with Disabilities Act of 1990, Public Law
101-336, 42 U.S.C. ss. 12101 et seq. (herein called the "Disabilities Act")
in respect of the Demised Premises, except that Tenant shall not hereby be
under any obligation to comply with the Disabilities Act to the extent that
the same shall require Tenant to make any structural alterations within the
Demised Premises (i.e., alterations to the slab, support columns and
facade) or to make any modifications to Building Systems located within the
Demised Premises, unless the necessity for such structural alteration or
modification to Building Systems located within the Demised Premises arises
from (i) Tenant's manner of use of the Demised Premises (as distinguished
from Tenant's mere use of the Demised Premises for the Authorized Use),
(ii) the manner of conduct of Tenant's business at the Building, (iii)
Tenant's installations, equipment or other property therein or the
operation thereof, (iv) any cause or condition created by or at the
instance of Tenant (as distinguished from Tenant's mere use of the Demised
Premises for the Authorized Use), or (v) the breach of any of Tenant's
obligations under this Lease. In addition, Tenant shall be responsible for
the cost of all present and future compliance with the Disabilities Act
with respect to areas of the Land and Building outside the Demised
Premises, but only if and to the extent that compliance with the
requirements for such present and future compliance arises from (I)
Tenant's manner of use of the Demises Premises (as distinguished from
Tenant's mere use of the Demised Premises for the Authorized Use), (II) the
manner of conduct of Tenant's business at the Building, (III) Tenant's
installations, equipment or other property therein or the operation
thereof, (IV) any cause or condition created by or at the instance of
Tenant (as distinguished from Tenant's mere use of the Demised Premises for
the Authorized Use), or (V) the breach of any of Tenant's obligations under
this Lease. Tenant expressly acknowledges and agrees that, for the purposes
of this Subsection 7.01B as well as all other provisions of this Lease, the
elevator lobbies, but not the elevators, and all bathrooms on the 22nd
floor shall be deemed to be part of the Demised Premises.
C. Tenant shall not cause or permit any Hazardous Materials
(hereinafter defined) to be used, stored, transported, released, handled,
produced or installed in, on or from the Demised Premises or the Building;
provided, however, that the foregoing prohibition shall not apply to
standard office supplies in reasonable quantities for routine office use,
if and to the extent permitted by applicable Legal Requirements. The term
"Hazardous Materials", as used herein, shall mean any flammables,
explosives, radioactive materials, hazardous wastes, hazardous and toxic
substances or related materials, asbestos or any material containing
asbestos, or any other substance or material included in the definition of
"hazardous substances", "hazardous wastes", "hazard materials", "toxic
substances", "contaminants" or any other pollutant, or otherwise regulated
by any federal, state or local environmental law, ordinance, rule or
regulation, including the Comprehensive Environmental Response Compensation
and Liability Act of 1980, as amended, the Hazardous Materials
Transportation Act, as amended, and the Resource Conservation and Recovery
Act, as amended, and in the regulations adopted and publications
promulgated pursuant to each of the foregoing Acts. In the event of a
violation of any of the foregoing provisions of this Subsection 7.01C,
Landlord may, without notice and without regard to any grace or cure period
contained elsewhere in this Lease, take all remedial action deemed
necessary by Landlord to correct such condition, and Tenant shall reimburse
Landlord for the cost thereof, upon demand, as additional rent.
Section 7.02. If Tenant shall receive notice of any violation of any
Legal Requirements applicable to the Demised Premises, Tenant shall give
prompt notice thereof to Landlord.
Section 7.03. Tenant shall also be obligated to comply with any Legal
Requirements requiring any structural Alteration of the Demised Premises,
but only if such Alteration shall be required by reason of (i) a condition
which has been created by, or at the instance of, Tenant or Persons Within
Tenant's Control, (ii) the manner of use to which Tenant or Persons Within
Tenant's Control puts the Demised Premises (as distinguished from Tenant's
mere use of the Demised Premises for the Authorized Use), (iii) the manner
of conduct of Tenant's business, (iv) Tenant's installations, equipment or
other property therein or the operation thereof, or (v) a breach of any of
Tenant's covenants and agreements hereunder.
Section 7.04. If any governmental license or permit shall be required
for the proper and lawful conduct of Tenant's business and if the failure
to secure such license or permit would, in any way, affect Landlord or the
Building, then Tenant, at Tenant's expense, shall promptly procure and
thereafter maintain, submit for inspection by Landlord, and at all times
comply with the terms and conditions of, each such license or permit.
Section 7.05. If an excavation shall be made upon the land adjacent to
or under the Building, or shall be authorized or contemplated to be made,
Tenant shall afford to the person causing or authorized to cause such
excavation license to enter upon the Demised Premises, at reasonable times
and upon reasonable notice to Tenant, for the purpose of doing such work as
said person shall deem necessary or desirable to preserve the Building from
injury or damage and to support the same by proper foundations without any
claim for damages or indemnity against Landlord, or diminution or abatement
of rent.
Section 7.06. Tenant shall not clean, or permit, suffer or allow to be
cleaned, any windows in the Demised Premises from the outside in violation
of Section 202 of the Labor Law or any other Legal Requirements.
ARTICLE 8
---------
INSURANCE
Section 8.01. Tenant shall not do or permit to be done any act or
thing in or upon the Demised Premises which will invalidate or be in
conflict with the terms of the New York State standard form of fire
insurance with extended coverage, or with rental, liability, boiler,
sprinkler, water damage, war risk or other insurance policies covering the
Building and the fixtures and property therein (hereinafter referred to as
"Building Insurance"); and Tenant, at Tenant's own expense, shall comply
with all rules, orders, regulations and requirements of all Insurance
Boards, and shall not do or permit anything to be done in or upon the
Demised Premises or bring or keep anything therein or use the Demised
Premises in a manner which increases the rate of premium for any of the
Building Insurance or any property or equipment located therein over the
rate in effect at the commencement of the Term. Landlord agrees that, for
purposes of this Section 8.01, Tenant's use of the Demised Premises for
executive and administrative office use, shall not, in and of itself, be
deemed to invalidate or be in conflict with or cause an increase in the
rate of premium for any of the Building Insurance.
Section 8.02.
------------
A. If, by reason of Tenant's default under this Lease, the rate
of premium for Building Insurance or other insurance on the property and
equipment of Landlord or any other tenant or subtenant in the Building
shall be higher than it otherwise would be, Tenant shall reimburse Landlord
and/or such other tenants or subtenants in the Building for that part of
the insurance premiums thereafter paid by Landlord or by the other tenants
or subtenants in the Building which shall have been charged because of such
default by Tenant. Tenant shall make said reimbursement on the first day of
the month following such payment by Landlord or such other tenants or
subtenants.
B. In any action or proceeding wherein Landlord and Tenant are
parties, a schedule or "make-up" of any insurance rate for the Building or
Demised Premises issued by any Insurance Board establishing insurance
premium rates for the Building shall be prima facie evidence of the facts
therein stated and of the several items and charges in the insurance
premium rates then applicable to the Building.
Section 8.03.
------------
A. Tenant shall, at Tenant's own cost and expense, obtain,
maintain and keep in force during the entire Term, for the benefit of
Landlord, Overlandlord and Tenant, in the manner set forth in Section 8.03
below, the following insurance coverages: (i) commercial general liability
insurance (including premises operation, bodily injury, personal injury,
death, independent contractors' liability, owner's protective liability,
products and completed operations liability, broad form contractual
liability and broad form property damage coverages) in a combined single
limit amount of not less than $3,000,000, against all claims, demands or
actions with respect to damage, injury or death made by or on behalf of any
person or entity, arising from or relating to the conduct and operation of
Tenant's business in, on or about the Demised Premises (which shall include
Tenant's signs, if any), or arising from or related to any act or omission
of Tenant or of Persons Within Tenant's Control; (ii) during the course of
construction of any Tenant's Alterations and until completion thereof,
Builder's Risk insurance on an "all risk" basis (including collapse) on a
completed value (non-reporting) form for full replacement value covering
the interests of Landlord and Tenant (and their respective contractors and
subcontractors) in all work incorporated into the Building by or on behalf
of Tenant and all materials and equipment located in or about the Demised
Premises; (iii) Workers' Compensation Insurance, as required by law; and
(iv) if Tenant shall install or maintain one or more boilers or other
pressure vessels to serve the Demised Premises or Tenant's operations
thereat, Tenant shall, at Tenant's own cost and expense, obtain, maintain
and keep in force, for the benefit of Landlord, Overlandlord and Tenant,
appropriate insurance coverage thereof in an amount not less than
$1,000,000 (it being understood and agreed, however, that the foregoing
shall not be deemed a consent by Landlord to the installation and/or
maintenance of any boilers or other pressure vessels in the Demised
Premises, which installation and/or maintenance shall at all times be
subject to the prior written consent of Landlord). All such insurance shall
contain only such "deductibles" or "retentions" as Landlord shall
reasonably approve. In addition, prior to any entry upon the Demised
Premises by Tenant or by any Person Within Tenant's Control, Tenant shall
deliver or cause to be delivered to Landlord certificates evidencing that
all insurance required hereunder is in full force and effect. Whenever, in
Landlord's reasonable judgment, good business practice and changing
conditions indicate a need for additional or different types of insurance
coverage, taking into account the insurance coverage then being required by
landlords of Comparable Buildings, Tenant shall, upon Landlord's request,
promptly obtain such insurance coverage, at Tenant's expense.
B. Tenant, at Tenant's own cost and expense, shall maintain
insurance protecting and indemnifying Landlord, the managing agent of the
Building, Tenant and Overlandlord against any and all damage to or loss of
Tenant's Alterations, equipment, furnishings, furniture, fixtures and
contents in the Demised Premises or the Building (including all portions of
the Building Systems that are located within the Demised Premises, and
expressly including any sprinkler loop and distribution pipes and heads,
any ventilation and air-conditioning equipment and any private bathrooms in
or appurtenant to the Demised Premises), and all claims and liabilities
relating thereto.
C. Landlord, Overlandlord and the managing agent of the Building
shall be named as insureds in said policies and shall be protected against
all liability occasioned by an occurrence insured against. All said
policies of insurance shall be: (i) written as "occurrence" policies, (ii)
written as primary policy coverage and not contributing with or in excess
of any coverage which Landlord, Overlandlord or the managing agent of the
Building may carry, (iii) written in form and substance reasonably
satisfactory to Landlord, and (iv) issued by insurance companies then rated
not less than A:XII in Best's insurance reports, and which are licensed to
do business in the State of New York. Tenant shall, prior to the
Commencement Date, deliver to Landlord the policies of insurance or
certificates thereof, together with evidence of payment of premiums
thereon, and shall thereafter furnish to Landlord, at least thirty (30)
days prior to the expiration of any such policies and any renewal thereof,
a new policy or certificate in lieu thereof, with evidence of the payment
of premiums thereon. Each of said policies shall also contain a provision
whereby the insurer agrees not to cancel, diminish or materially modify
said insurance policy(ies) without having given Landlord, Overlandlord and
the managing agent of the Building at least thirty (30) days prior written
notice thereof, by certified mail, return receipt requested.
D. Tenant shall pay all premiums and charges for all of said
policies, and, if Tenant shall fail to make any payment when due or carry
any such policy, Landlord may, but shall not be obligated to, make such
payment or carry such policy, and the amount paid by Landlord, with
interest thereon at the Interest Rate, shall be repaid to Landlord by
Tenant within ten (10) days after Landlord's demand therefor, and all such
amounts so repayable, together with such interest, shall be deemed to
constitute additional rent hereunder. Payment by Landlord of any such
premium, or the carrying by Landlord of any such policy, shall not be
deemed to waive or release the default of Tenant with respect thereto.
E. Notwithstanding and without regard to the limits of insurance
specified in this Section 8.03, Tenant agrees to defend, protect, indemnify
and hold harmless Landlord, Overlandlord and the managing agent of the
Building, and the agents, partners, shareholders, directors, officers and
employees of Landlord, Overlandlord and the managing agent of the Building,
from and against all claims, damage, loss, liability, cost and expense
(including engineer's, architects' and attorneys' fees and disbursements)
resulting from any of the risks referred to in Section 8.03A. The foregoing
obligation of Tenant shall be and remain in full force and effect whether
or not Tenant has placed and maintained the insurance specified in this
Section 8.03, and whether or not proceeds from such insurance (such
insurance having been placed and maintained) actually are collectible from
one or more of the aforesaid insurance companies; provided, however, that
Tenant shall be relieved of its obligation of indemnity herein pro tanto of
the amount actually recovered by Landlord from one or more of said
insurance companies by reason of injury, damage or loss sustained on the
Demised Premises. If any action or proceeding shall be brought against
Landlord or any of the other indemnified parties in connection with any
matter which is the subject of the foregoing indemnity, Tenant, upon notice
from Landlord, shall resist and defend such action or proceeding at
Tenant's expense by counsel reasonably satisfactory to Landlord, without
any disclaimer of liability in connection therewith. In any legal
proceeding between Landlord and Tenant pursuant to this Lease, the losing
party shall reimburse the prevailing party for out-of-pocket payments for
court costs and reasonable attorneys' fees and disbursements in
instituting, prosecuting, or defending any proceeding actually paid by the
prevailing party in connection with such proceeding.
F. Landlord shall carry insurance in at least the minimum amounts
as may be required by any Mortgagee, insuring the Building against loss,
damage, or destruction by fire or other casualty. If and to the extent that
there shall be no Mortgagee, Landlord shall carry insurance in amounts as
customarily carried by landlords of Comparable Buildings.
Section 8.04.
------------
A. Landlord shall cause each policy carried by Landlord insuring
the Building against loss, damage, or destruction by fire or other
casualty, and Tenant shall cause each insurance policy carried by Tenant
and insuring the Demised Premises and Tenant's Alterations, leasehold
improvements, equipment, furnishings, fixtures and contents against loss,
damage, or destruction by fire or other casualty, to be written in a manner
so as to provide that the insurance company waives all rights of recovery
by way of subrogation against Landlord or Tenant in connection with any
loss or damage covered by any such policy. Neither party shall be liable to
the other for the amount of such loss or damage which is in excess of the
applicable deductible, if any, caused by fire or any of the risks
enumerated in its policies, provided that such waiver was obtainable at the
time of such loss or damage. However, if such waiver cannot be obtained, or
shall be obtainable only by the payment of an additional premium charge
above that which is charged by companies carrying such insurance without
such waiver of subrogation, then the party undertaking to obtain such
waiver shall notify the other party of such fact, and such other party
shall have a period of ten (10) days after the giving of such notice to
agree in writing to pay such additional premium if such policy is
obtainable at additional cost (in the case of Tenant, pro rata in
proportion of Tenant's rentable area to the total rentable area covered by
such insurance); and if such other party does not so agree or the waiver
shall not be obtainable, then the provisions of this Section 8.04 shall be
null and void as to the risks covered by such policy for so long as either
such waiver cannot be obtained or the party in whose favor a waiver of
subrogation is desired shall refuse to pay the additional premium. If the
release of either Landlord or Tenant, as set forth in the second sentence
of this Section 8.04, shall contravene any law with respect to exculpatory
agreements, the liability of the party in question shall be deemed not
released, but no action or rights shall be sought or enforced against such
party unless and until all rights and remedies against the other's insurer
are exhausted and the other party shall be unable to collect such insurance
proceeds.
B. The waiver of subrogation referred to in Subsection 8.04A
above shall extend to the agents and employees of each party, but only if
and to the extent that such waiver can be obtained without additional
charge (unless such party shall pay such charge). Nothing contained in this
Section 8.04 shall be deemed to relieve either party from any duty imposed
elsewhere in this Lease to repair, restore and rebuild.
Section 8.05. In the event of any permitted sublease or occupancy (by
a person other than Tenant) of all or a portion of the Demised Premises,
all of the covenants and obligations on the part of Tenant set forth in
this Article 8 shall bind and be fully applicable to the subtenant or
occupant (as if such subtenant or occupant were Tenant hereunder) for the
benefit of Landlord.
ARTICLE 9
---------
DAMAGE OR CASUALTY
Section 9.01. If the Demised Premises or any part thereof shall be
damaged by fire or other insured casualty and Tenant shall give prompt
written notice thereof to Landlord, then Landlord shall, subject to the
provisions of Sections 9.02 and 9.03, proceed with commercially reasonable
diligence to repair or cause to be repaired such damage at Landlord's
expense, but in no event greater than the scope of Landlord's construction
of the Demised Premises on the commencement of the Term. If the Demised
Premises, or any part thereof, other than a de minimis part, shall be
rendered untenantable , or if Tenant shall be denied access to the Demised
Premises (it being agreed that Tenant shall be deemed to have been denied
access to the Demised Premises if there is no elevator service to the
Demised Premises) as a result of fire or other insured casualty by reason
of such damage and such damage shall not be due to the gross negligence or
willful misconduct of Tenant or of Persons Within Tenant's Control, then
the Minimum Rent hereunder, or an amount thereof apportioned according to
the area of the Demised Premises so rendered untenantable (if less than the
entire Demised Premises shall be so rendered untenantable), shall be abated
for the period from the date of such damage to the earlier of (i) the
ninetieth (90th) day following the date when the damage shall have been
repaired as aforesaid and possession of the Demised Premises (or said
portion thereof) delivered to Tenant or (ii) the date Tenant shall first
reoccupy the Demised Premises for the purpose of the regular conduct of
Tenant's business operations therein. Tenant covenants and agrees to
cooperate in all reasonable respects with Landlord, Overlandlord and any
Mortgagee in their efforts to collect insurance proceeds (including rent
insurance proceeds) payable to such parties. Landlord shall not be liable
for any delay which may arise by reason of adjustment of insurance on the
part of Landlord and/or Tenant, or any cause beyond the control of Landlord
or contractors employed by Landlord.
Section 9.02. Other than as set forth in Section 9.01 above, Landlord
shall not be liable for any inconvenience or annoyance to Tenant or injury
to the business of Tenant resulting in any way from damage from fire or
other casualty or the repair thereof except if and to the extent such
inconvenience, annoyance, or injury is caused by the gross negligence or
willful misconduct of Landlord (and is not otherwise subject to the
provisions of Section 8.04 above). Tenant understands that Landlord, in
reliance upon the provisions set forth in Section 8.03, will not carry
insurance of any kind on Tenant's furnishings, furniture, contents,
fixtures, equipment, Alterations and leasehold improvements (including all
portions of the Building Systems that are located within the Demised
Premises, and expressly including any sprinkler loop and distribution pipes
and heads, any ventilation and air-conditioning equipment and any private
bathrooms in or appurtenant to the Demised Premises), and that Landlord
shall not be obligated to repair any damage thereto or replace the same.
Section 9.03.
------------
A. Notwithstanding anything to the contrary contained in Sections
9.01 and 9.02 above, in the event that:
(i) the Building shall be also damaged by such fire or other
casualty so that substantial alteration or reconstruction of the Building
shall, in Landlord's sole and unfettered opinion, be required (whether or
not the Demised Premises shall have been damaged by such fire or other
casualty and without regard to the structural integrity of the Building and
provided that, if the Demised Premises shall not have been damaged,
Landlord shall terminate all other leases for space in the same elevator
bank as the Demised Premises (excluding space occupied by Landlord or any
affiliate of Landlord)), or
(ii) the Demised Premises are totally or substantially
damaged or are rendered wholly or substantially untenantable, or
(iii) there is any damage to the Demised Premises within the
last two (2) years of the Term, and the cost of repair exceeds an amount
equal to three (3) monthly installments of Minimum Rent,
then Landlord may, in Landlord's sole and absolute discretion, terminate
this Lease and the term and estate hereby granted, by notifying Tenant in
writing of such termination within ninety (90) days after the date of such
damage. In the event that such a notice of termination shall be given, then
this Lease and the term and estate hereby granted shall expire as of the
date of termination stated in said notice with the same effect as if that
were the date hereinbefore set for the expiration of the Term, and the
Minimum Rent and additional rent hereunder shall be apportioned as of such
date.
B. If the Demised Premises shall be damaged or shall be rendered
untenantable as a result of fire or other casualty during the Term hereof,
then, within sixty (60) days following the date on which Tenant shall have
given notice to Landlord (such sixty (60) day period being hereinafter
referred to as the "Estimate Procurement Period"), in accordance with the
provisions of Section 9.01, of such damage or untenantability, and provided
further that such notice shall state in bold, capital letters at the top:
"IN ACCORDANCE WITH THE PROVISIONS OF SUBSECTION 9.03B OF THE LEASE, TENANT
REQUESTS THAT LANDLORD NOTIFY TENANT AS TO LANDLORD'S CONTRACTOR'S ESTIMATE
AS TO TIME REQUIRED TO REPAIR THE DEMISED PREMISES . TENANT MAY TERMINATE
THE LEASE IF LANDLORD FAILS TO RESPOND TO THIS NOTICE WITHIN SIXTY (60)
DAYS.", then Landlord shall deliver to Tenant an estimate prepared by a
contractor selected by Landlord setting forth such contractor's estimate as
to the time reasonably required to repair such damage (the "Contractor's
Estimate"). If (i) Landlord fails to deliver the Contractor's Estimate
during the Estimate Procurement Period; or (ii) the period to repair set
forth in such Contractor's Estimate shall exceed two hundred seventy (270)
days; or (iii) Landlord fails to complete such repairs within two hundred
seventy (270) days from the date of the fire or other casualty, which
period, however, shall be extended by the number of days, if any, as shall
equal the aggregate number of days that Landlord may have been delayed in
making such repairs and restoration by reason of labor trouble,
governmental controls, act of God, adjustment of insurance loss or any
other cause beyond Landlord's reasonable control, but in no event more than
three hundred sixty five (365) days from the date of the fire or other
casualty (the "Casualty Repair Period"), then, in any of the above cases,
Tenant may elect to terminate this Lease by notice (the "Casualty
Termination Notice") to Landlord given not later than: (x) thirty (30) days
following the expiration of the Estimate Procurement Period with respect to
clause (i) of this Subsection 9.03C; (y) sixty (60) days following delivery
to Tenant of the Contractor's Estimate with respect to clause (ii) of this
Subsection 9.03C; and (z) ten (10) days following the expiration of the
Casualty Repair Period with respect to clause (iii) of this Subsection
9.03C (time being of the essence with respect to such thirty (30) day and
ten (10) day periods). In the event that Landlord shall have failed to
complete such repairs within the Casualty Repair Period and Tenant shall
have elected to terminate this Lease pursuant to the provisions of clause
(iii) of this Subsection 9.03C, then, notwithstanding Tenant's delivery of
the Casualty Termination Notice, if Landlord shall have substantially
completed the repairs or restoration to the Demised Premises, and Landlord
shall tender to Tenant possession of the Demised Premises within five (5)
Business Days following Landlord's receipt of the Casualty Termination
Notice, then Tenant's Casualty Termination Notice shall be null and void
and of no force and effect.
Section 9.04. Except as may be provided in Section 8.04, nothing
herein contained shall relieve Tenant from any liability to Landlord or to
Landlord's insurers in connection with any damage to the Demised Premises
or the Building by fire or other casualty if Tenant shall be legally liable
in such respect.
Section 9.05. Tenant shall throughout the Term provide fire wardens
and searchers as required under NYC Local Law No. 5 of 1973, as heretofore
and/or hereafter amended.
Section 9.06. Tenant shall give Landlord notice of the occurrence of
any fire, casualty or other accident in the Demised Premises promptly after
Tenant becomes aware thereof.
Section 9.07. This Lease shall be considered an express agreement
governing any case of damage to or destruction of the Building or any part
thereof by fire or other casualty, and Section 227 of the Real Property Law
of the State of New York (providing for such a contingency in the absence
of express agreement), and any other law of like import now or hereafter in
force, shall have no application in such case.
ARTICLE 10
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ASSIGNMENT AND SUBLETTING
Section 10.01.
-------------
A. As a material inducement to Landlord to enter into this Lease,
Tenant covenants and agrees, for Tenant and Tenant's heirs, distributees,
executors, administrators, legal representatives, successors and assigns,
that neither this Lease nor the term and estate hereby granted, nor any
part hereof or thereof, will be assigned, mortgaged, pledged, encumbered or
otherwise transferred, by operation of law or otherwise, and that neither
the Demised Premises, nor any part thereof, will be sublet or occupied by
anyone other than Tenant, or for any purpose other than as hereinbefore set
forth, without the prior written consent of Landlord (which consent, unless
expressly provided to the contrary in this Article 10, shall not be
unreasonably withheld or conditioned or unduly delayed; provided that the
criteria and/or conditions set forth in Section 10.03 and, in the case of
an assignment, Section 10.4 and, in the case of a sublease, Section 10.05,
shall be satisfied) in every case.
B. The direct or indirect transfer of fifty (50%) percent or more
(aggregating all multiple and/or prior transfers) of: (i) the shares of a
corporate tenant, or (ii) the shares of any corporation of which Tenant is
an immediate or remote subsidiary, or (iii) the beneficial or legal
interests of a tenant that is a business entity other than a corporation,
in each case including transfers by operation of law, and including a
related or unrelated series of transactions, shall be deemed an assignment
of this Lease for the purposes of this Article 10. For the purposes hereof,
"shares" of a corporate tenant or other corporation shall be deemed to
include: (x) the issued and outstanding shares of any class of the voting
stock of a corporation, and/or (y) the issued and outstanding shares of any
class of convertible non-voting stock, debentures or securities of a
corporation. Issuance of new corporate shares of a corporation or
partnership interests by a partnership, and/or the issuance of a new class
of voting stock or convertible non-voting stock or debentures or securities
of a corporation which results in a transfer of control of that
corporation, or the execution of an agreement affecting the power to vote
fifty (50%) percent or more of the issued and outstanding shares of any
class of stock or securities of a corporation, shall each be deemed to be a
"transfer" for the purposes hereof. In implementation of the foregoing
provisions (but subject to the provisions of Subsection 10.02C below), if
Tenant shall be a corporation, then, unless the stock of Tenant is publicly
traded, within ten (10) days following Landlord's written request therefor,
Tenant shall furnish to Landlord a statement verified by a principal
officer of Tenant setting forth the details of the then present ownership
and all prior transfers of the issued and outstanding stock of the
corporation, and such other information relating to such stock ownership
and transfer of stock or securities as Landlord may reasonably request in
such notice.
Section 10.02.
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A. Tenant may assign or sublet all or part of the Demised
Premises to a corporation or other business entity which controls, is
controlled by or is under common control with, Tenant (herein referred to
as a "Related Corporation"), without being required to obtain Landlord's
prior written consent thereto, provided that: (i) Tenant shall not then be
in default in any of its monetary obligations hereunder or in default
(after notice and the expiration of the applicable cure period) with
respect to any of Tenant's material obligations under this Lease, (ii) not
less than fifteen (15) days prior to such subletting, Tenant shall notify
Landlord of such intended sublet and shall furnish Landlord with the name
of such Related Corporation, together with a certification of Tenant, and
such other proof as Landlord may reasonably request, that such subtenant is
a Related Corporation of Tenant, (iii) in the reasonable judgment of
Landlord, the proposed subtenant is of a character which is in keeping with
the standards of Landlord for the Building, (iv) for the entire term of
such sublease, the subtenant thereunder shall continue to be a Related
Corporation of Tenant and (v) in the case of an assignment, the Related
Corporation shall have assets, capitalization and a net worth, as
determined in accordance with generally accepted accounting principles and
certified to Landlord by an independent certified public accountant, at
least equal to the assets, capitalization and net worth, similarly
determined, of Tenant as of the date of this Lease. In connection with the
information to be provided to Landlord pursuant to this Subsection 10.02A,
Landlord shall have the right, at any reasonable time and from time to
time, to examine such books and records of Tenant as may be necessary to
establish that such subtenant remains a Related Corporation of Tenant. Such
assignment or subletting shall not be deemed to vest in any such Related
Corporation any right or interest in this Lease, nor shall it relieve,
release, impair or discharge any of Tenant's obligations hereunder. For the
purposes of this Article 10, the term "control" shall be deemed to mean
ownership of more than fifty (50%) percent of all of the voting stock of
such corporation, or more than fifty (50%) percent of all of the legal and
equitable interest in any other business entity.
B. Upon not less than twenty (20) days prior written notice to
Landlord, and subject to Tenant's compliance with all of the requirements
set forth in this Subsection 10.02B, Tenant may assign or sublet all or
part of Tenant's entire interest in this Lease and the leasehold estate
hereby created to a "Successor Corporation" of Tenant (as hereinafter
defined) without being required to obtain Landlord's prior consent thereto,
provided that: (i) Tenant shall not then be in default in any of its
monetary obligations hereunder or in default (after notice and the
expiration of the applicable cure period) with respect to any of Tenant's
material obligations under this Lease, and (ii) the proposed assignee shall
not be entitled, directly or indirectly, to diplomatic or sovereign
immunity, and shall be subject to the service of process in, and the
jurisdiction of the courts of, the State of New York. The term "Successor
Corporation" shall mean any of the following: (x) a corporation into which
or with which Tenant shall be merged or consolidated, in accordance with
applicable statutory provisions for the merger or consolidation of
corporations, provided that (whether by operation of law or by effective
provisions contained in the instruments of merger or consolidation) the
liabilities of the corporations participating in such merger or
consolidation are assumed by the corporation surviving such merger or
consolidation; or (y) a corporation or other entity acquiring this Lease
and the term hereof and the estate hereby granted, the goodwill and all or
substantially all of the other property of Tenant and/or assets of Tenant,
or all or substantially all of the stock of Tenant, and assuming all or
substantially all of the liabilities of Tenant; or (z) any corporate
successor to a Successor Corporation becoming such by either of the methods
described in clauses (x) and (y) above; provided that, in each case: (1)
such merger or consolidation, or such acquisition and assumption, as the
case may be, shall be made for a valid business purpose other than (and not
principally for) the purpose of transferring the leasehold estate created
hereby, (2) immediately after giving effect to any such merger or
consolidation, or such acquisition and assumption, as the case may be, the
corporation surviving such merger or created by such consolidation or
acquiring such assets and assuming such liabilities, as the case may be,
shall have assets, capitalization and a net worth, as determined in
accordance with generally accepted accounting principles and certified to
Landlord by an independent certified public accountant, at least equal to
the lesser of (I) the assets, capitalization and net worth, similarly
determined, of Tenant (a) as of the date of this Lease or (b) immediately
prior to such merger or consolidation or such acquisition and assumption,
whichever shall be greater and (II) Sixty Million and 00/100
($60,000,000.00) Dollars, and (3) proof reasonably satisfactory to Landlord
of such business purpose, assets, capitalization and net worth shall have
been delivered to Landlord at least ten (10) days prior to the effective
date of any such transaction. The acquisition by Tenant of all or
substantially all of the assets, together with the assumption of all or
substantially all of the obligations and liabilities of any corporation or
other business entity, shall be deemed to be a merger for the purposes of
this Article 10.
C. The transfer of the outstanding capital stock of any corporate
tenant shall not be deemed an assignment of this Lease (and Tenant shall
not be required to furnish Landlord with the information described in the
last sentence of Subsection 10.01B above) if such transfer shall be
effected by the sale of such stock through the "over-the-counter-market" or
through any recognized stock exchange, unless such stock shall be sold,
transferred or otherwise conveyed by persons deemed "insiders" within the
meaning of the Securities Exchange Act of 1934, as amended.
Section 10.03.
-------------
A. Except with respect to assignments or sublets described in
Section 10.02 above, if Tenant shall desire to assign this Lease or to
sublet all or any portion of the Demised Premises, Tenant shall submit to
Landlord a written request (a "First Assignment/Sublet Request") for
Landlord's consent to such assignment or subletting, which First
Assignment/Sublet Request shall contain or be accompanied by the following
information: (i) the name and address of the proposed assignee or
subtenant; (ii) a statement of all of the proposed material and economic
terms of the proposed sublet or assignment; (iii) the nature and character
of the business of the proposed assignee or subtenant and its proposed use
of the Demised Premises; and (iv) banking, financial and other credit
information with respect to the proposed assignee or subtenant reasonably
sufficient to enable Landlord to determine the financial responsibility of
the proposed assignee or subtenant. If Tenant shall have complied with the
foregoing provisions of this Subsection 10.3A, then Landlord shall not
unreasonably withhold or condition or unduly delay, consent to the proposed
assignment of this Lease or a proposed subletting of all or any portion of
the Demised Premises, provided that Tenant shall not then be in default
(after notice of such default shall have theretofore been given to Tenant)
in any of its monetary obligations hereunder or in default (after notice
and the expiration of any applicable cure period provided in this Lease)
with respect to any of Tenant's material obligations under this Lease, and
provided further that the following additional conditions (which shall be
in addition to, and not in lieu of, the other terms, conditions and
requirements set forth elsewhere in this Article 10) shall be satisfied:
(i) The proposed assignee or subtenant shall not be: (a) a
school of any kind, or an employment or placement agency or governmental or
quasi-governmental agency, or a real estate brokerage office or medical
office or executive recruitment office, or any bank or an entity that
intends to use the Demised Premises as retail establishment of any kind, or
(b) entitled, directly or indirectly, to diplomatic or sovereign immunity,
and the proposed assignee or subtenant shall be subject to service of
process in, and the jurisdiction of the courts of, the State of New York;
(ii) The subletting or assignment shall be, in the
reasonable judgment of Landlord, to a reputable person or entity, whose
occupancy will be in keeping with the dignity and character of the then use
and occupancy of the Building, and whose occupancy will not be more
hazardous than that of Tenant herein or impose any additional material
burden upon Landlord in the operation of the Building;
(iii) The proposed assignee or subtenant shall have, in the
reasonable judgment of Landlord, sufficient financial worth to perform the
obligations of Tenant under this Lease;
(iv) No space shall be or have been advertised or promoted
to the general public at a lower rental rate than that being asked by
Landlord at the time for similar space in the Building (but Tenant may
sublet the Demised Premises or list the Demised Premises for subletting
with a real estate brokerage firm at a lower rental rate than that being
asked by Landlord at the time for similar space in the Building); and
(v) The proposed assignee or subtenant (whether as named or
the intended user) shall not be (I) a tenant, subtenant, occupant or
assignee of any premises in the Building, or (II) a party who is not a
tenant, subtenant, occupant or assignee of any premises in the Building and
who dealt or negotiated with Landlord or Landlord's agent (directly or
through a broker) with respect to the leasing of any space in the Building
during the nine (9) months immediately preceding Tenant's request for
Landlord's consent, except that if Landlord shall not then have available
for lease (or shall not reasonably anticipate to become available for lease
within four (4) months following Tenant's request for Landlord's consent)
"Relatively Equivalent Space" (as hereinafter defined), then the foregoing
nine (9) month prohibition shall be deemed waived by Landlord. For purposes
hereof, the term "Relatively Equivalent Space" shall mean premises at the
Building having a rentable square footage equivalent to that of the portion
of the Demised Premises that Tenant then desires to sublet or assign, plus
or minus twenty (20%) percent of such rentable square footage.
B. Landlord shall, within thirty (30) days after Landlord's
receipt of the relevant First Assignment/Sublet Request, notify Tenant of
Landlord's intention to consent or not to consent to such proposed sublease
or assignment, subject, however, to the provisions of Section 10.04 and
Section 10.5 below. If Landlord shall fail to respond to Tenant within such
thirty (30) day period, Tenant may issue a Second Assignment/Sublet Request
in accordance with the provisions of this Section 10.3B; provided that,
when such First Assignment/Sublet Notice shall have been delivered to
Landlord, it shall have borne the following legend typed in bold, capital
letters at the top: "IF LANDLORD SHALL FAIL TO NOTIFY TENANT WHETHER
LANDLORD CONSENTS TO OR REJECTS THE PROPOSED ASSIGNMENT OR SUBLETTING OF
ALL OR A PORTION OF THE DEMISED PREMISES WITHIN THIRTY (30) DAYS FOLLOWING
LANDLORD'S RECEIPT OF THIS NOTICE, SUCH FAILURE SHALL ENTITLE TENANT TO
ISSUE A SECOND ASSIGNMENT/SUBLET REQUEST, AND IF LANDLORD SHALL NOT CONSENT
TO OR REJECT THE PROPOSED ASSIGNMENT OR SUBLETTING WITHIN FIVE (5) BUSINESS
DAYS OF RECEIPT OF SUCH SECOND ASSIGNMENT/SUBLET REQUEST, LANDLORD SHALL BE
DEEMED TO HAVE CONSENTED TO SUCH PROPOSED ASSIGNMENT OR SUBLETTING IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 10.03B OF THE LEASE." If Landlord
shall fail to notify Tenant of Landlord's intention to consent or not to
consent to such proposed assignment or subletting within five (5) Business
Days after Landlord's receipt of a separate written notice (a "Second
Assignment/Sublet Request") delivered by Tenant of the existence of such
failure, then Landlord shall be deemed to have consented to such proposed
assignment or subletting; provided that the Second Assignment/Sublet
Request shall specify Landlord's failure to respond to the First
Assignment/Sublet Request and shall bear the following legend typed in
bold, capital letters at the top: "IF LANDLORD SHALL FAIL TO NOTIFY TENANT
THAT LANDLORD HAS CONSENTED OR NOT CONSENTED TO THE PROPOSED ASSIGNMENT OR
SUBLETTING WITHIN FIVE (5) BUSINESS DAYS FOLLOWING LANDLORD'S RECEIPT OF
THIS NOTICE, LANDLORD SHALL BE DEEMED TO HAVE CONSENTED TO SUCH PROPOSED
ASSIGNMENT OR SUBLETTING IN ACCORDANCE WITH THE PROVISIONS OF SECTION
10.03B OF THE LEASE." If Landlord shall consent (or shall be deemed to have
consented) to the proposed assignment or sublet, then contemporaneously
with the effective date of such assignment or sublease, Tenant shall
deliver to Landlord a fully executed and acknowledged duplicate original or
photocopy of the assignment and assumption agreement or sublease agreement,
as well as a copy of any brokerage agreement entered into by Tenant in
connection with such assignment or sublease. No permitted or consented to
assignment or subletting shall be effective or valid for any purpose
whatsoever unless and until a duplicate original or photocopy of the
assignment and assumption agreement or sublease agreement shall have been
delivered to Landlord.
Section 10.04. In the event of each and every permitted assignment of
Tenant's interest under this Lease, the following provisions shall apply:
(i) The assignee shall assume and agree, in a recordable
writing delivered to Landlord on or before the effective date of such
assignment, to perform all of the terms, conditions and agreements of this
Lease on the part of Tenant to be kept, performed and observed, and to
become jointly and severally liable with the assignor (and remote
assignors, if any) for the performance thereof from and after the effective
date of such assignment.
(ii) The assignee shall deliver to Landlord a letter of
credit for the Security Deposit Amount in accordance with (and that
satisfies the requirements of) Article 33 of this Lease, which letter of
credit, upon receipt and acceptance by Landlord, shall replace the letter
of credit supplied by Tenant to Landlord pursuant to said Article 33, which
letter of credit will be promptly returned to the Issuing Bank (as
hereinafter defined) for cancellation.
(iii) The terms, covenants and conditions of this Lease may
be changed, altered or modified in any manner whatsoever by Landlord and
the assignee without the consent thereto of any remote or immediate
assignor, and no such change, alteration or modification shall release the
remote or immediate assignor from the performance and observance by such
remote and immediate assignor of any of the terms, covenants and conditions
on Tenant's part to be performed under this Lease; provided, however, that
in the case of a change, alteration or modification made after the date of
an assignment of this Lease to a person or entity not a Related Corporation
or a Successor Corporation, if and to the extent that such change,
alteration or modification increases the obligations of Tenant under this
Lease, the assignor shall not be liable with respect to such increase.
Section 10.05.
-------------
A. In the event of each and every permitted subletting of all or
any part of the Demised Premises, the following provisions shall apply:
(i) No subletting shall be for a term ending later than one
(1) day prior to the Expiration Date of this Lease.
(ii) The sublease shall provide that it is subject and
subordinate to this Lease and to all matters to which this Lease is or
shall be subordinate.
(iii) The sublease and all of the subtenant's rights
thereunder shall be expressly made subject to all of the obligations of
Tenant under this Lease, and to the further condition and restriction that
the sublease shall not be assigned, encumbered or otherwise transferred, or
the subleased premises further sublet by the subtenant in whole or in part,
or any part thereof suffered or permitted by the subtenant to be used or
occupied by others, without the prior written consent of Landlord (which
consent may be granted, withheld or conditioned in Landlord's sole and
absolute discretion) in each instance, except that Tenant's direct and
immediate subtenant of all the Demised Premises may further sublet the
Demised Premises in accordance with the consent standard set forth in
Section 10.03.
B. If Landlord shall consent to a proposed subletting of all or
any portion of the Demised Premises, to a person or entity not a Related
Corporation or Successor Corporation, then the written instrument of
consent, which shall also be executed and acknowledged by Tenant and the
subtenant, shall contain a provision substantially similar to the
following:
"The sublandlord [i.e., Tenant under this Lease] and the subtenant
hereby agree that, if the subtenant shall be in default of any obligation
of the subtenant under the sublease, which default also constitutes a
default by the sublandlord under the overlease [i.e., this Lease], then the
overlandlord [i.e., Landlord under this Lease] shall be permitted to avail
itself of all of the rights and remedies available to the sublandlord in
connection therewith. Without limiting the generality of the foregoing, the
overlandlord shall be permitted (by assignment of a cause of action or
otherwise) to institute an action or proceeding against the subtenant in
the name of the sublandlord in order to enforce the sublandlord's rights
under the sublease, and shall also be permitted to take all ancillary
actions (e.g., serve default notices and demands) in the name of the
sublandlord as the overlandlord shall reasonably determine to be necessary.
The sublandlord agrees to cooperate with the overlandlord, and to execute
such documents as shall be reasonably necessary, in connection with the
implementation of the foregoing rights of the overlandlord. The sublandlord
and the subtenant expressly acknowledge and agree that the exercise by the
overlandlord of any of the foregoing rights and remedies: (i) shall not
constitute an election of remedies, (ii) shall not in any way impair the
overlandlord's entitlement to pursue other rights and remedies directly
against the sublandlord, and (iii) shall not establish any privity of
relationship between the overlandlord and the subtenant, or in any way
create a landlord/tenant relationship between the overlandlord and the
subtenant."
Section 10.06.
-------------
A. If Landlord shall consent to any assignment of this Lease or
to any sublease of all or any part of the Demised Premises (other than any
assignment or subletting permitted pursuant to Section 10.02 above), Tenant
shall, in consideration therefor, pay to Landlord, as additional rent
hereunder, the following amounts (hereinafter being referred to as
"Profit"):
(i) in the case of an assignment, fifty (50%) percent of the
excess, if any, of (x) all amounts and other consideration due or payable
to Tenant and/or its designee for or by reason of such assignment
(including all amounts due or payable for the sale or rental of Tenant's
fixtures, leasehold improvements, equipment, furniture, furnishings or
other personal property, less, in case of a sale or lease, the fair market
value or rental, as the case may be, of such equipment, furniture,
furnishings or other personal property), over (y) the amount of the
following reasonable and customary out-of-pocket expenses, but only if and
to the extent actually incurred and paid by Tenant to unrelated third
parties in connection with such assignment: (a) brokerage commissions, (b)
advertising expenses, (c) the costs incurred in connection with Alterations
made by Tenant to prepare the Demised Premises for occupancy by the
assignee, or the amount of a "contribution" or other payment made to the
assignee by Tenant in lieu thereof, and (d) reasonable attorneys' fees; and
(ii) in the case of a sublease, fifty (50%) percent of the
excess, if any, of (x) the sum of (1) all rents, additional rents and other
consideration due or payable under the sublease to Tenant by the subtenant,
and (2) all other amounts and consideration due or payable to Tenant or its
designee for or by reason of such subletting (including all amounts due or
payable for the sale or rental of Tenant's fixtures, leasehold
improvements, equipment, furniture or other personal property, less, in
case of a sale or lease, the fair market value or rental, as the case may
be, of such equipment, furniture, furnishings or other personal property),
over (y) the sum of (1) that part of the Minimum Rent and additional rent
hereunder allocable to the subleased space and accruing for the
corresponding period during the term of the sublease, and (2) the amount of
the following reasonable and customary out-of-pocket expenses, but only if
and to the extent actually incurred and paid by Tenant to unrelated third
parties in connection with such sublease: (a) brokerage commissions, (b)
advertising expenses, (c) the costs incurred in connection with Alterations
made by Tenant to prepare the Demised Premises for occupancy by the
assignee, or the amount of a "contribution" or other payment made to the
assignee by Tenant in lieu thereof, and (d) reasonable attorneys' fees.
B. Any amount(s) payable by Tenant pursuant to the provisions of
this Section 10.06 shall be paid by Tenant to Landlord as and when amounts
on account thereof are due or paid by or on behalf of any assignee(s)
and/or any sublessee(s) to Tenant or Tenant's designee, and Tenant agrees
to promptly advise Landlord thereof and furnish such information with
regard thereto as Landlord may reasonably request from time to time.
C. Tenant shall furnish to Landlord, in the January calendar
month immediately following each calendar year during any part of which any
such sublease shall be in effect, a reasonably detailed financial statement
certified as being correct by an executive financial officer (or, if Tenant
is not a corporation, a principal) of Tenant, setting forth all sums
accruing during the prior calendar year and/or realized by Tenant from such
sublease, and a computation of the Profit accruing and/or realized by
Tenant during such prior calendar year. Tenant shall remit to Landlord
together with such statement any Profit or portion thereof on account of
such calendar year not previously remitted to Landlord.
Section 10.07.
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A. Each permitted assignee or transferee of Tenant's interest in
this Lease (but not a subtenant) shall assume and be deemed to have assumed
this Lease and all of Tenant's obligations under this Lease from and after
the date of such assignment or transfer, and shall be and remain liable
jointly and severally with Tenant thereafter for the payment of all Minimum
Rent, additional rent, other charges and payments due under this Lease, and
for the full and timely performance of and compliance with all the terms,
covenants, conditions and agreements herein contained on Tenant's part to
be performed or complied with for the entire Term. No assignment, sublease
or transfer shall be effective or binding on Landlord unless and until such
assignee, subtenant or transferee of Tenant shall deliver to Landlord a
fully executed and acknowledged duplicate original of the instrument of
assignment, sublease or transfer which contains a covenant of assumption
(if not a sublease) by an assignee or transferee of all of the obligations
aforesaid, and a confirmation (including a sublease) of the covenant under
Section 10.01 prior to and preemptive of any similar rights of Tenant or
any subtenant, and shall obtain from Landlord the aforesaid written consent
prior thereto. In the event of any purported assignment, sublease or
transfer in contravention of the provisions of this Lease, Landlord may
elect to treat such purported assignee, subtenant or transferee as having
assumed this Lease jointly and severally with Tenant as and to the extent
set forth above, without in any way or to any extent binding Landlord to
consent to such purported assignment, sublease or transfer.
B. In no event shall any assignee, subtenant or other occupant of
the Demised Premises use the Demised Premises for any purpose other than
the Authorized Use.
Section 10.08. The consent by Landlord to an assignment or subletting
shall not relieve Tenant, the assignee or any subtenant from obtaining the
express consent in writing of Landlord (which consent, unless expressly
provided to the contrary in this Article 10, may be granted, withheld or
conditioned in Landlord's sole and absolute discretion) to any other or
further assignment or subletting.
Section 10.09.
-------------
A. If this Lease shall be assigned (whether or not in violation
of the provisions of this Article 10), Landlord may collect from the
assignee, and Tenant hereby authorizes and directs the assignee to pay to
Landlord, all rent (whether denominated as Minimum Rent or otherwise),
additional rent and other charges payable pursuant to the instrument of
assignment, with the net amount so collected by Landlord to be applied to
the Minimum Rent, additional rent and other charges herein provided, but no
such assignment or collection shall be deemed a waiver of the covenant by
Tenant under Section 10.01 above, nor shall the same be deemed the
acceptance by Landlord of the assignee as a tenant, or a release of Tenant
from the further performance of the covenants and agreements on the part of
Tenant to be performed as herein contained. Each and every instrument of
assignment shall contain the substance of the foregoing provision.
B. If all or any portion of the Demised Premises shall be sublet
or occupied by anyone other than Tenant (whether or not in violation of the
provisions of this Article 10), then, upon demand made by Landlord at any
time following the occurrence of an Event of Default and so long as such
Event of Default is continuing, Landlord may collect from the subtenant or
occupant, and Tenant hereby authorizes and directs such party to pay to
Landlord, all rent (whether denominated as Minimum Rent or otherwise),
additional rent and other charges payable pursuant to such instrument, with
the net amount so collected by Landlord to be applied to the Minimum Rent,
additional rent and other charges herein provided, but no such subletting,
occupancy or collection shall be deemed a waiver of the covenant by Tenant
under Section 10.01 above, nor shall the same be deemed the acceptance by
Landlord of the subtenant or occupant as a tenant, or a release of Tenant
from the further performance of the covenants and agreements on the part of
Tenant to be performed as herein contained. Each and every instrument of
sublease and/or occupancy agreement shall contain the substance of the
foregoing provision.
C. If Landlord shall for any reason or cause recover or come into
possession of the Demised Premises before the date hereinbefore fixed for
the expiration of the Term, then Landlord shall have the right (but not the
obligation) to take over any and all subleases or sublettings of the
Demised Premises or any part or parts thereof made or granted by Tenant and
to succeed to all of the rights and privileges of said subleases and
sublettings or such of them as Landlord may elect to take over and assume,
and Tenant hereby expressly assigns and transfers to Landlord such of the
subleases and sublettings as Landlord may elect to take over and assume at
the time of such recovery of possession, and Tenant shall upon request of
Landlord execute, acknowledge and deliver to Landlord such further
assignments and transfers as may be necessary and sufficient to vest in
Landlord the then existing subleases and sublettings. By its entry into a
sublease, each and every subtenant shall be deemed to have thereby agreed
that, upon said recovery of possession and if Landlord shall so elect,
Landlord may, in Landlord's sole and absolute discretion, take over the
right, title and interest of Tenant, as sublandlord, under such sublease,
in which case such subtenant shall: (i) be deemed to have waived any right
to surrender possession of the subleased space or to terminate the
sublease, (ii) be bound to Landlord for the balance of the term of such
sublease, and (iii) attorn to Landlord, as its landlord, under all of the
then executory terms, covenants and conditions of this Lease, except that
(x) rent shall be at rates of rent and additional rent under the sublease,
and (y) such subtenant shall be deemed to have expressly agreed that
Landlord shall not (1) be liable for any previous act or omission of Tenant
under such sublease, (2) be subject to any counterclaim, offset or defense,
not expressly provided in such sublease, which theretofore accrued to such
subtenant against Tenant, or (3) be bound by any previous modification of
such sublease (which was not previously consented to by Landlord), or by
any previous prepayment of more than one (1) monthly installment of rent.
The provisions of this Subsection 10.09C shall be self-operative, and no
further instrument shall be required to give effect thereto. However,
within five (5) days after Landlord shall have notified any subtenant of
said election, such subtenant shall execute, acknowledge and deliver to
Landlord such instruments as Landlord may request to evidence and confirm
such attornment and the terms thereof. Each and every sublease shall
contain the substance of this Subsection 10.09C.
Section 10.10. Without limiting the generality of the covenant set
forth in Section 10.01 above, Tenant covenants and agrees that Tenant shall
not assign Tenant's interest under this Lease or sublet the Demised
Premises (or any portion thereof) to any tenant or occupant in the
Building. Tenant covenants and agrees not to accept an assignment of any
lease or sublease from, or become a subtenant of, any tenant or occupant in
the Building.
Section 10.11. Tenant shall reimburse Landlord on demand for all
reasonable costs (including all reasonable legal fees and disbursements, as
well as the costs of making investigations as to the acceptability of a
proposed assignee or subtenant) which may be incurred by Landlord in
connection with a request by Tenant that Landlord consent to any proposed
assignment or sublease.
Section 10.12. If Landlord shall, in accordance with the applicable
provisions of this Lease, decline to consent to any proposed assignment or
sublease, Tenant shall indemnify, defend and hold Landlord harmless from
and against any and all loss, liability, damages, cost and expense
(including reasonable attorneys' fees 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.
Section 10.13. Except as expressly provided to the contrary in this
Article 10, in the event that Tenant shall assign Tenant's interest in, to
or under this Lease, or if Tenant shall sublet the Demised Premises or any
portion thereof, without having obtained Landlord's prior written consent
thereto or in violation of any of the other provisions contained in this
Lease, Landlord shall have the right to terminate this Lease at any time
thereafter without affording Tenant any grace period or opportunity to
cure. The acceptance by Landlord of any Minimum Rent or additional rent
paid, or of the performance of any obligation to be performed by Tenant, by
a purported assignee or subtenant shall not be deemed (i) a consent by
Landlord to the assignment or sublet to such purported assignee or
subtenant, (ii) a release by Landlord of Tenant's performance of, or
compliance with, any of the obligations to be performed, or covenants or
terms to be complied with, by Tenant pursuant to this Lease, or (iii) a
waiver of Landlord's right of termination as set forth in the immediately
preceding sentence.
Section 10.14. The listing of any name other than that of Tenant,
whether on the doors of the Demised Premises, on the Building directory,
elevators or otherwise, shall not operate to vest any right or interest in
this Lease or the Demised Premises, nor shall it be deemed to be the
consent of Landlord to any assignment or transfer of this Lease or to any
sublease of the Demised Premises or to the use or occupancy thereof by
third parties. Landlord shall not be required to permit the listing of any
name other than Tenant, and Tenant agrees that, if Landlord does consent to
any such listing, the same shall be deemed a privilege extended by Landlord
that is revocable at will by written notice to Tenant. Notwithstanding
anything to the contrary contained herein, Landlord shall list the names of
permitted subtenants of the Demised Premises, and permitted assignees of
this Lease, on the Building directory, but subject nevertheless to the
provisions of this Lease and the Building rules, regulations and
requirements governing such listings.
ARTICLE 11
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NON-LIABILITY; INDEMNIFICATION
Section 11.01. Neither Landlord nor Persons Within Landlord's Control
shall be liable for: (i) any damage to property of Tenant or of others
entrusted to employees of Landlord or to Persons Within Landlord's Control,
(ii) any loss or damage to any property of Tenant or of Persons Within
Tenant's Control by theft or otherwise, except if and to the extent caused
by the gross negligence or willful misconduct of Landlord or Persons Within
Landlord's Control (and is not otherwise subject to the provisions of
Section 8,04 above); (iii) any injury or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas, electricity,
water, rain, snow or leaks from any part of the Building or from the pipes,
appliances or plumbing works or from the roof, street or sub-surface or
from any other place or by dampness or by any other cause of whatsoever
nature, except if and to the extent caused by the negligence or willful
misconduct of Landlord or Persons Within Landlord's Control (and is not
otherwise subject to the provisions of Section 8.04 above); (iv) any such
damage caused by other tenants or persons in the Building or caused by
operations in construction of any private, public or quasi-public work,
except if and to the extent caused by the negligence or willful misconduct
of Landlord or Persons Within Landlord's Control (and is not otherwise
subject to the provisions of Section 8.04 above); or (v) any latent defect
in the Demised Premises or in the Building (provided that the foregoing
shall not be construed so as to relieve Landlord of Landlord's obligation
to perform Landlord's Work or such Repairs as Landlord shall otherwise be
required to perform pursuant to the provisions of this Lease in a good and
workmanlike manner). In no event shall Landlord be liable to Tenant for any
consequential damages in connection with or with respect to this Lease.
Section 11.02. If at any time any windows of the Demised Premises
shall be temporarily or permanently closed, darkened or covered for any
reason whatsoever, including Landlord's own acts, Landlord shall not be
liable for any damage Tenant may sustain thereby, and Tenant shall not be
entitled to any compensation therefor nor abatement of rent, nor shall the
same release Tenant from Tenant's obligations hereunder or constitute an
eviction.
Section 11.03. Except to the extent that the waiver of subrogation and
release provisions of Section 8.04 hereof shall apply, Tenant agrees,
irrespective of whether Tenant shall solely have been negligent in
connection therewith, but only if and to the extent the same shall not be
caused solely by the negligence or willful misconduct of Landlord or
Persons Within Landlord's Control, to indemnify, protect, defend and save
harmless, Landlord and Landlord's partners, officers, directors,
contractors, agents and employees from and against any and all liability
(statutory or otherwise), claims, suits, demands, damages, judgments,
costs, fines, penalties, interest and expenses (including reasonable
counsel and other professional fees and disbursements incurred in any
action or proceeding), to which Landlord and/or any such partner, officer,
director, contractor, agent or employee may be subject or suffer arising
from, or in connection with: (i) any liability or claim for any injury to,
or death of, any person or persons, or damage to property (including any
loss of use thereof), occurring in or about the Demised Premises, or (ii)
the use and occupancy of the Demised Premises, or from any work,
installation or thing whatsoever done or omitted (other than by Landlord or
its agents or employees) in or about the Demised Premises during the Term
and during the period of time, if any, prior to the Commencement Date that
Tenant may have been given access to the Demised Premises, or (iii) any
default by Tenant in the performance of Tenant's obligations under this
Lease, or (iv) any act, omission, carelessness, negligence or misconduct of
Tenant or of Persons Within Tenant's Control. Notwithstanding the
foregoing, Tenant shall be relieved of Tenant's obligation of indemnity
herein pro tanto of the amount actually recovered by Landlord from one or
more of Landlord's insurers in connection with any such claim.
Section 11.04. Tenant shall reimburse and compensate Landlord, as
additional rent within thirty (30) days after rendition of a statement, for
all expenditures, costs, fees, expenses, judgments, penalties, damages and
fines sustained or incurred by Landlord (including reasonable counsel and
other professional fees and disbursements incurred in connection with any
action or proceeding) in connection with any matter set forth in this
Article 11, or breach of any warranty or representation by Tenant made in
this Lease or the default by Tenant under this Lease. If, in any action or
proceeding naming both Landlord and Tenant, liability arising out of the
negligence of Tenant is established, Tenant shall (i) indemnify Landlord in
accordance with the provisions of this Article 11 and (ii) waive any right
of contribution against Landlord. Reference in this Article 11 to Landlord
shall for all purposes be deemed to include the lessor of any Underlying
Lease and each Mortgagee.
Section 11.05. A. Subject to the provisions of Subsection 11.05B
below, Tenant agrees that Tenant's sole remedies in any instances where
Tenant disputes Landlord's reasonableness in exercising judgment or
withholding its consent or approval pursuant to a specific provision of
this Lease shall be those in the nature of an injunction, declaratory
judgment or specific performance, the rights to monetary damages or other
remedies being hereby specifically and irrevocably waived by Tenant.
Without limiting the generality of the foregoing, and unless expressly
provided to the contrary in this Lease, Tenant agrees that, in any
situation in which Landlord's consent or approval is required pursuant to
this Lease, the same may be granted or withheld in Landlord's sole and
absolute discretion, and/or be made subject to such conditions as Landlord,
in Landlord's sole and absolute discretion, may deem appropriate.
B. In any instance where this Lease expressly provides that,
in connection with a proposed Alteration, assignment or subletting,
Landlord's consent or approval is required and may not unreasonably be
withheld or delayed, if Tenant shall dispute the reasonableness of
Landlord's refusal to grant such consent or approval or the timeliness of
Landlord's response, Tenant shall have the right to submit said dispute to
binding arbitration under the Expedited Procedures provisions (Rules 53
through 57 in the November 1, 1993 edition) of the Commercial Arbitration
Rules of the American Arbitration Association ("AAA"). In cases where
Tenant shall elect to utilize such arbitration: (i) the parties will have
no right to object if the arbitrator so appointed was on the list submitted
by the AAA and was not objected to in accordance with Rule 54, (ii) the
first hearing shall be held within five (5) Business Days after the
appointment of the arbitrator, which appointment shall occur within five
(5) Business Days after Tenant elects to submit to arbitration such
dispute, (iii) if the arbitrator shall find that Landlord acted
unreasonably in withholding a consent or approval, such consent or approval
shall be deemed granted, (iv) the losing party in such arbitration shall
pay the arbitration costs charged by AAA and/or the arbitrator and any
reasonable legal fees and disbursements and other reasonable professional
fees incurred by the successful party in connection with such arbitration,
and (v) the decision of such arbitrator may be entered in a court of
competent jurisdiction.
Section 11.06.
-------------
A. Tenant acknowledges receipt of advice from Landlord to the
effect that the Demised Premises and other portions of the Building contain
(or may contain) asbestos. Tenant expressly agrees that except as set forth
below: (i) Landlord shall have no liability whatsoever to Tenant, or to any
person or entity claiming by, through or under Tenant, on account of, or in
connection with, the presence of asbestos in the Demised Premises or the
Building, and (ii) Tenant's obligation to keep, observe and perform all of
the terms, provisions, covenants and conditions on the part of Tenant to be
kept, observed and performed pursuant to this Lease shall not in any way be
diminished or contested on account of the presence of such asbestos.
B. Notwithstanding anything to the contrary contained in the
foregoing Subsection 11.06A, Landlord represents that Landlord has removed
all asbestos-containing material (as such term is defined by applicable
Legal Requirements), located in the Demised Premises, except from the
Building core and wet columns, removal of which Landlord represents is not
required pursuant to applicable Legal Requirements, in compliance with all
applicable Legal Requirements. With respect to any asbestos-containing
material which shall remain in the Demised Premises, Landlord represents
that, subject to the provisions of the last three sentences of this
Subsection 11.06B, the Demised Premises and such asbestos-containing
material shall be in compliance with all applicable Legal Requirements. If
any Legal Requirements becoming effective following the date hereof shall
require the removal, containment, treatment or encapsulation of any
asbestos-containing material which may exist in the Demised Premises,
Landlord shall promptly cause the removal, containment, treatment or
encapsulation of any such asbestos-containing material, at Landlord's own
cost and expense and in the same manner as Landlord is obligated to make
Repairs, it being understood and agreed that Landlord's obligation to so
treat such asbestos-containing materials is subject to the removal by
Tenant, at Landlord's cost and expense, of such installations of Tenant as
are necessary to remove so that Landlord shall have adequate access for
such treatment of asbestos-containing materials. Landlord shall have no
obligation for the restoration or repair of such Tenant's installations.
Notwithstanding anything to the contrary contained in this Subsection
11.06B, if the removal, containment, treatment or encapsulation of such
asbestos or asbestos-containing material shall be necessitated by the
negligence or willful misconduct of Tenant or any Persons Within Tenant's
Control, Landlord shall cause such asbestos-containing material to be
removed, contained, treated or encapsulated, to the extent required by
Legal Requirements, solely at Tenant's cost and expense. In no event shall
Tenant be responsible for remediation of any asbestos- containing material
outside the Demised Premises, unless such asbestos-containing material was
introduced by Tenant or unless Tenant necessitates the need for such
remediation.
ARTICLE 12
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CONDEMNATION
Section 12.01. If the whole of the Demised Premises shall be lawfully
condemned or taken in any manner for any public or quasi-public use, this
Lease and the term and estate hereby granted shall forthwith cease and
terminate as of the date of vesting of title. If only a part of the Demised
Premises shall be so condemned or taken, then, effective as of the date of
vesting of title, the Minimum Rent and additional rent hereunder shall be
abated in an amount thereof apportioned according to the area of the
Demised Premises so condemned or taken. If only a part of the Building
(other than a de minimis portion of the Building) shall be so condemned or
taken (whether or not the Demised Premises be affected), then Landlord may,
at Landlord's option, terminate this Lease and the term and estate hereby
granted as of the date of such vesting of title by notifying Tenant in
writing of such termination within sixty (60) days following the date on
which Landlord shall have received notice of vesting of title. If fifteen
(15%) percent or more of the Demised Premises shall be so condemned or
taken and any portion of the Building shall be so condemned or taken, which
condemnation or taking of the Building shall have a material adverse effect
on Tenant's means of access to the Demised Premises or entrance to the
Building, then Tenant may, at Tenant's option, by delivery of notice in
writing to Landlord within sixty (60) days following the date on which
Tenant shall have received notice of vesting of title, terminate this Lease
and the term and estate hereby granted as of the date set forth in Tenant's
notice and the Minimum Rent and additional rent shall be prorated and
adjusted as of the date of vesting of title. If neither Landlord nor Tenant
elects to terminate this Lease as aforesaid, this Lease shall be and remain
unaffected by such condemnation or taking, except that the Minimum Rent and
additional rent shall be abated to the extent, if any, hereinbefore
provided in this Article 12. If only a part of the Demised Premises shall
be so condemned or taken and this Lease and the term and estate hereby
granted are not terminated as hereinbefore provided, Landlord will, with
reasonable diligence and at its expense, restore the remaining portion of
the Demised Premises as nearly as practicable to the same condition as it
was in prior to such condemnation or taking, provided that such restoration
shall not exceed the scope of the work done in originally constructing the
Building and that the cost thereof shall not exceed the net proceeds of the
award received by Landlord for the value of the portion of the Demised
Premises so taken, and Tenant shall be entitled to receive no part of such
award.
Section 12.02. In the event of any condemnation or taking hereinbefore
mentioned of all or a part of the Building or the Demised Premises,
Landlord shall be entitled to receive the entire award in the condemnation
proceeding, including any award made for the value of the estate vested by
this Lease in Tenant, and Tenant hereby expressly assigns to Landlord any
and all right, title and interest of Tenant now or hereafter arising in or
to any such award or any part thereof, and Tenant shall be entitled to
receive no part of such award. In any condemnation proceeding, Tenant may
submit a separate claim against the condemning authority for the value of
Tenant's trade fixtures, the unamortized portion of Tenant's Initial Work,
and the cost of removal or relocation, if such separate claims are
allowable as such and do not reduce the award otherwise payable to
Landlord.
Section 12.03. If all or any portion of the Demised Premises shall be
taken by the exercise of the right of eminent domain for occupancy for a
limited period, this Lease shall continue in full force and effect
provided, however, effective as of the date of vesting of title, Landlord
shall be entitled to receive, for itself, the entire award or payment made
for such use during such taking and Tenant hereby expressly assigns to
Landlord any and all right, title, and interest of Tenant now or hereafter
arising in or to any such award or payment. The Minimum Rent and Recurring
Additional Rent hereunder shall be abated in an amount thereof apportioned
according to the area of the Demised Premises so taken for the period of
such taking. If such taking is for a period not extending beyond the Term
of this Lease, and if such taking results in changes or Alterations in the
Demised Premises which would necessitate an expenditure to restore the
Demised Premises to its former condition, then Landlord, at the termination
of such taking shall, at its expense, and to the extent any award or awards
shall be sufficient for the purpose, restore the Demised Premises to its
former condition.
ARTICLE 13
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ACCESS; BUILDING NAME
Section 13.01. Landlord reserves the right at any time and from time
to time (without thereby creating an actual or constructive eviction or
incurring any liability to Tenant therefor) to place such structures and to
make such relocations, changes, Alterations, additions, improvements,
Repairs and replacements on the Land and in or to the Building (including
the Demised Premises) and the Building Systems, and the operation of the
Building Systems, as well as in or to the street entrances, subway
entrances, lobbies, halls, plazas, washrooms, tunnels, elevators, stairways
and other parts thereof, and to erect, maintain and use pipes, ducts and
conduits in and through the Demised Premises, all as Landlord may
reasonably in its good faith judgment deem necessary or desirable;
provided, however, that: (i)Landlord shall use commercially reasonable
efforts (except that Landlord shall have no obligation to employ
contractors or labor at overtime or premium rates or to incur any other
overtime costs or expenses in connection therewith) to minimize
interference with Tenant's use and occupancy of the Demised Premises for
the Authorized Use or access thereto arising from the making of such
Repairs, Alterations and improvements (ii) any such changes, Alterations,
Repairs, and improvements shall not materially increase the obligations of
Tenant under this Lease and (iii) the installation and location of any
pipes, ducts, or conduits installed in or through the Demised Premises
shall not reduce the usable area of the Demised Premises by more than a de
minimis amount. Landlord shall also have the right to install solar control
window film on, or otherwise alter for energy savings purpose, any windows
of the Demised Premises. Nothing contained in this Article 13 shall be
deemed to relieve Tenant of any duty, obligation or liability of Tenant
with respect to making any repair, replacement or improvement or complying
with any Legal Requirements as elsewhere in this Lease provided.
Section 13.02. Except as provided in Section 1.02 above, neither this
Lease nor any use by Tenant shall give Tenant any right or easement in or
to the use of any door or hallways, or any passage or any tunnel or any
concourse or arcade or plaza or to any connection of the Building with any
subway, railroad or any other building or to any public conveniences, and
the use of such doors, halls, passages, tunnels, concourses, arcades,
plazas, connections and conveniences may without notice to Tenant be
regulated or discontinued at any time and from time to time by Landlord
without Landlord incurring any liability to Tenant therefor and without
affecting the obligations of Tenant under this Lease.
Section 13.03. Landlord, Overlandlord and any Mortgagee, and their
representatives, may enter the Demised Premises at all reasonable hours and
without Tenant being present, upon reasonable advance notice (which notice
may be given orally to any managerial level employee of Tenant) and Tenant
or a representative of Tenant may elect to be present and to accompany
Landlord at the time of such entry (it being agreed that if Tenant shall
not so elect, Landlord may enter the Demised Premises without Tenant being
present) to Tenant (except in emergency, in which case entry may be made at
any time and without notice), for the purpose of inspection or of making
Repairs, Alterations, additions, restorations, replacements or improvements
in or to the Demised Premises or the Building or Building Systems or of
complying with Legal Requirements or the requirements of any Insurance
Board, or of exercising any right reserved to Landlord by this Lease
(including the right, during the progress of any Repairs or Alterations or
while performing work or furnishing materials in connection with compliance
with all such Legal Requirements or requirements of any Insurance Board, to
keep and store within the Demised Premises all necessary materials, tools
and equipment), provided that the foregoing shall not be deemed to impose
any obligation on Landlord or Overlandlord or Mortgagee to make any Repairs
or Alterations.
Section 13.04. Landlord may, at reasonable times and without Tenant
being present, upon reasonable advance notice (which notice may be given
orally to any management level employee of Tenant), and Tenant may elect to
be present and to accompany Landlord at the time of such entry (it being
agreed that if Tenant shall not so elect, Landlord may enter the Demised
Premises without Tenant being present) show the Demised Premises to any
prospective purchaser, lessee, mortgagee, or assignee of the Building
and/or the Land, or of Landlord's interest therein, and their
representatives. During the twelve (12) month period preceding the
Expiration Date, Landlord may similarly show the Demised Premises or any
part thereof to any person contemplating the leasing of all or a portion of
the same.
Section 13.05. Without incurring any liability to Tenant, Landlord may
permit access to the Demised Premises and open the same, whether or not
Tenant shall be present, upon demand of any receiver, trustee, assignee for
the benefit of creditors, sheriff, marshal or court officer entitled to, or
purporting to be entitled to, such access for the purpose of taking
possession of, or removing, Tenant's property or for any other lawful
purpose (but by this provision any action by Landlord hereunder shall not
be deemed a recognition by Landlord that the person or official permitted
to such access has any right to such access or interest in or to this
Lease, or in or to the Demised Premises), or upon demand of any
representative of the fire, police, building, sanitation or other
department of the city, state or federal governments.
Section 13.06. Landlord shall have the absolute right at any time, and
from time to time, to name and change the name of the Building and to
change the designated address of the Building. The Building may be named
after any person, or otherwise, whether or not such name shall be, or shall
resemble, the name of a tenant of space in the Building.
Section 13.07. Any reservation of a right by Landlord to enter upon
the Demised Premises and to make or perform any Repairs, Alterations or
other work in, to or about the Demised Premises which, in the first
instance, is the obligation of Tenant pursuant to this Lease, shall not be
deemed to: (i) impose any obligation on Landlord to do so, (ii) render
Landlord liable (to Tenant or any third party) for the failure to do so, or
(iii) relieve Tenant from any obligation to indemnify Landlord as otherwise
provided elsewhere in this Lease.
Section 13.08. Subject to the provisions of this Lease and to
circumstances beyond the control of Landlord, Tenant shall have access to
the Demised Premises on a 24-hour per day, 7-day per week, basis.
ARTICLE 14
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BANKRUPTCY
Section 14.01. This Lease and the term and estate hereby granted shall
be subject to the conditional limitation that, if any one or more of the
following events shall occur: (i) Tenant shall (a) have applied for or
consented to the appointment of a receiver, trustee, liquidator, or other
custodian of Tenant or any of its properties or assets, (b) have made a
general assignment for the benefit of creditors, (c) have commenced a
voluntary case for relief as a debtor under the United States Bankruptcy
Code or filed a petition to take advantage of any bankruptcy,
reorganization, insolvency, readjustment of debts, dissolution or
liquidation law or statute or an answer admitting the material allegations
of a petition filed against it in any proceeding under any such law, or (d)
be adjudicated a bankrupt or insolvent, or (ii) without the acquiescence or
consent of Tenant, an order, judgment or decree shall have been entered by
any court of competent jurisdiction (a) approving as properly filed a
petition seeking relief under the United States Bankruptcy Code or any
bankruptcy, reorganization, insolvency, readjustment of debts, dissolution
or liquidation law or statute with respect to Tenant or all or a
substantial part of its properties or assets, or (b) appointing a receiver,
trustee, liquidator or other custodian of all or a substantial part of its
properties or assets, and such order, judgment or decree shall have
continued unstayed and in effect for any period of one hundred twenty (120)
days or more, then this Lease may be canceled and terminated by Landlord by
the sending of a written notice to Tenant within a reasonable time after
Landlord shall be notified of the happening of any of the aforedescribed
events. Neither Tenant, nor any person claiming through or under Tenant or
by reason of any statute or order of court, shall thereafter be entitled to
possession of the Demised Premises, but shall forthwith quit and surrender
the Demised Premises. If this Lease shall have been theretofore assigned in
accordance with its terms, the provisions of this Article shall be
applicable only to the party then owning Tenant's interest in this Lease.
Section 14.02. Without limiting any of the foregoing provisions of
this Article, if, pursuant to the United States Bankruptcy Code, Tenant
shall be permitted to assign this Lease notwithstanding the restrictions
contained in this Lease, Tenant agrees that adequate assurance of future
performance by an assignee expressly permitted under such Code shall be
deemed to mean (a) the deposit of cash security in an amount equal to the
sum of three (3) monthly installments of the Minimum Rent plus additional
rent under Article 19 of this Lease for the calendar year preceding the
year in which such assignment is intended to become effective, which
deposit shall be held by Landlord for the balance of the Term, without
interest, as security for the full performance of all of the obligations
under this Lease on the part of Tenant to be performed, and (b) evidence by
financial statement prepared and certified by a certified public accountant
that the assignee has a current net worth, after including the assignment
and excluding the value of the leasehold, sufficient to meet all of the
remaining rental obligations under this Lease.
ARTICLE 15
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DEFAULTS, REMEDIES, DAMAGES
Section 15.01. This Lease and the term and estate hereby granted shall
be subject to the conditional limitation that, if any one or more of the
following events (collectively, "Events of Default") shall occur:
(a) Tenant shall fail to pay to Landlord the full amount of
any installment of Minimum Rent or any Recurring Additional Rent on the
date upon which the same shall first become due, and such default shall
continue for five (5) days following delivery of a written notice of such
default to Tenant; or
(b) Tenant shall fail to pay to Landlord the full amount of
any additional rent (other than Recurring Additional Rent), or any other
charge payable hereunder by Tenant to Landlord, on the date upon which the
same first becomes due, and such default shall continue for ten (10) days
following delivery of a written notice of such default to Tenant; or
(c) Tenant shall do anything or permit anything to be done,
whether by action or inaction, in breach of any covenant, agreement, term,
provision or condition of this Lease, or any Exhibit annexed hereto, on the
part of Tenant to be kept, observed or performed (other than a breach of
the character referred to in clause s15.01(a) and (b) above), and such
breach shall continue and shall not be fully remedied by Tenant within
thirty (30) days after Landlord shall have given to Tenant a written notice
specifying the same (except in connection with a breach which cannot be
remedied or cured within said thirty (30) day period, in which event the
time of Tenant within which to cure such breach shall be extended for such
time as shall be necessary to cure the same, but only if Tenant, within
such thirty (30) day period, shall promptly commence and thereafter proceed
diligently and continuously to cure such breach, and provided further that
such period of time shall not be so extended as to jeopardize the interest
of Landlord in the Land and/or the Building or so as to subject Landlord to
any liability, civil or criminal); or
(d) Any event shall occur or any contingency shall arise
whereby this Lease or the estate hereby granted or the unexpired balance of
the Term of this Lease would, by operation of law or otherwise, devolve
upon or pass to any person, firm, association or corporation other than
Tenant, except as may be expressly authorized herein; or
(e) Tenant shall permanently desert or abandon the Demised
Premises, or the same shall become permanently vacant and Tenant shall not
pay the rent due hereunder (whether or not the keys be surrendered, and
whether or not improvements, personal property or trade fixtures remain in
the Demised Premises), or Tenant shall fail to take possession or move into
the Demised Premises within one hundred twenty (120) days after the
Commencement Date;
then, upon the occurrence of any of said events, Landlord may at any time
thereafter give to Tenant a notice of termination of this Lease setting
forth a termination date ten (10) days from the date of the giving of such
notice, and, upon the giving of such notice, this Lease and the term and
estate hereby granted (whether or not the Term shall theretofore have
commenced) shall expire and terminate upon the expiration of said ten (10)
days with the same effect as if that day were the date hereinbefore set for
the expiration of the Term of this Lease, but Tenant shall remain liable
for damages as provided in Section 15.03 below.
Section 15.02.
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A. Subject to the provisions of Subsection 15.02F below, if an
Event of Default shall have occurred, Landlord and/or Landlord's agents and
employees, may, without notice to Tenant, immediately or at any time
thereafter re-enter into or upon the Demised Premises or any part thereof,
either by summary dispossess proceedings or by any suitable action or
proceeding at law, or by force or otherwise, to the extent legally
permitted, without being liable to indictment, prosecution or damages
therefor, and may repossess the same, and may remove any persons or
property therefrom, to the end that Landlord may have, hold and enjoy the
Demised Premises again as and of its first estate and interest therein. The
words "reenter" "re-entry" and "re-entered" as used in this Lease are not
restricted to their technical legal meanings. In the event of any
termination of this Lease under the provisions of Articles 14 or 15, or in
the event that Landlord shall re-enter the Demised Premises under the
provisions of this Article 15, or in the event of the termination of this
Lease (or of re-entry) by or under any summary dispossess or other
proceeding or action or any provision of law, Tenant shall thereupon pay to
Landlord the Minimum Rent, additional rent and any other charges payable
hereunder by Tenant to Landlord up to the time of such termination of this
Lease, or of such recovery of possession of the Demised Premises by
Landlord, as the case may be, plus the expenses incurred or paid by
Landlord in terminating this Lease or of re-entering the Demised Premises
and securing possession thereof, including reasonable attorneys' fees and
costs of removal and storage of Tenant's property, and Tenant shall also
pay to Landlord damages as provided in Section 15.03 below.
B. In the event of the re-entry into the Demised Premises by
Landlord under the provisions of this Section 15.02, and if this Lease
shall not be terminated (subject to the provisions of Subsection 15.02F
below), Landlord may (but shall have absolutely no obligation to do so),
not in Landlord's own name, but as agent for Tenant, relet the whole or any
part of the Demised Premises for any period equal to or greater or less
than the remainder of the original term of this Lease, for any sum which
Landlord may deem suitable, including rent concessions, and for any use and
purpose which Landlord may deem appropriate. Such reletting may include any
improvements, personalty and trade fixtures remaining in the Demised
Premises.
C. In the event of a breach or threatened breach on the part of
Tenant with respect to any of the covenants, agreements, terms, provisions
or conditions on the part of or on behalf of Tenant to be kept, observed or
performed, Landlord shall also have the right to obtain injunctive relief.
D. In the event of (i) the termination of this Lease under the
provisions of Articles 14 or 15, or (ii) the re-entry of the Demised
Premises by Landlord under the provisions of this Section 15.02, or (iii)
the termination of this Lease (or re-entry) by or under any summary
dispossess or other proceeding or action or any provision of law by reason
of default hereunder on the part of Tenant, Landlord shall be entitled to
retain all monies, if any, paid by Tenant to Landlord, whether as advance
rent, security deposit or otherwise, but such monies shall be credited by
Landlord against any Minimum Rent, additional rent or any other charge due
from Tenant at the time of such termination or re-entry or, at Landlord's
option, against any damages payable by Tenant under Section 15.03 or
pursuant to law.
E. The specified remedies to which Landlord may resort under this
Lease are cumulative and concurrent, and are not intended to be exclusive
of each other or of any other remedies or means of redress to which
Landlord may lawfully be entitled at any time, and Landlord may invoke any
remedy allowed under this Lease or at law or in equity as if specific
remedies were not herein provided for, and the exercise by Landlord of any
one or more of the remedies allowed under this Lease or in law or in equity
shall not preclude the simultaneous or later exercise by the Landlord of
any or all other remedies allowed under this Lease or in law or in equity.
F. Notwithstanding anything to the contrary contained in this
Section 15.02, Landlord shall not re-enter the Demised Premises by reason
of Tenant's default under this Lease, unless: (i) Landlord shall have
served a notice of termination pursuant to Section 15.01 above, or (ii)
this Lease shall have been otherwise terminated pursuant to Article 14
above or this Article 15, or (iii) Landlord shall have prevailed in any
summary proceeding with respect to the Demised Premises and shall have
obtained a warrant of eviction against Tenant.
Section 15.03.
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A. In the event of any termination of this Lease under the
provisions hereof or under any summary dispossess or other proceeding or
action or any provision of law, or in the event that Landlord shall
re-enter the Demised Premises under the provisions of this Lease, Tenant
shall pay to Landlord as damages, at the election of Landlord, either:
(i) a sum which at the time of such termination of this
Lease or at the time of any such re-entry by Landlord, as the case may be,
represents the then value of the excess, if any, of (a) the aggregate of
the installments of Minimum Rent and the additional rent (if any) which
would have been payable hereunder by Tenant, had this Lease not so
terminated, for the period commencing with such earlier termination of this
Lease or the date of any such re-entry, as the case may be, and ending with
the date hereinbefore set for the expiration of the full term hereby
granted pursuant to Articles 1 and 2, over (b) the aggregate rental value
of the Demised Premises for the same period (the amounts of each of clauses
(a) and (b) being first discounted to present value at an annual rate equal
to the Prime Rate (as hereinafter defined); or
(ii) sums equal to the aggregate of the installments of
Minimum Rent and additional rent (if any) which would have been payable by
Tenant had this Lease not so terminated, or had Landlord not so re-entered
the Demised Premises, payable upon the due dates therefor specified herein
following such termination or such re-entry and until the date herein
before set for the expiration of the full term hereby granted; provided,
however, that if Landlord shall relet the Demised Premises during said
period, Landlord shall credit Tenant with the net rents received by
Landlord from such reletting, such net rents to be determined by first
deducting from the gross rents as and when received by Landlord from such
reletting the customary out-of-pocket expenses incurred or paid by Landlord
in terminating this Lease and of re-entering the Demised Premises and of
securing possession thereof, including reasonable attorneys' fees and costs
of removal and storage of Tenant's property, as well as the customary
out-of-pocket expenses of reletting, including repairing, restoring and
improving the Demised Premises for new tenants, brokers' commissions,
advertising costs, reasonable attorneys' fees and disbursements, and all
other expenses chargeable against the Demised Premises and the rental
therefrom in connection with such reletting, it being understood that such
reletting may be for a period equal to or shorter or longer than the
remaining term of this Lease; and provided further, that (a) in no event
shall Tenant be entitled to receive any excess of such net rents over the
sums payable by Tenant to Landlord hereunder, (b) in no event shall Tenant
be entitled in any suit for the collection of damages pursuant to this
Subdivision (ii) to a credit in respect of any net rents from a reletting
except to the extent that such net rents are actually received by Landlord
prior to the commencement of such suit, and (c) if the Demised Premises or
any part thereof should be relet in combination with other space, then
proper apportionment on a square foot area basis shall be made of the rent
received from such reletting and of the expenses of reletting, or if relet
for a period longer than the remaining term of this lease, the expenses of
reletting shall be apportioned based on the respective periods.
B. For the purposes of Subdivision A(i) of this Section 15.03,
the amount of additional rent which would have been payable by Tenant under
Article 19 for each year, as therein provided, ending after such
termination of this Lease or such re-entry, shall be deemed to be an amount
equal to the amount of such additional rent payable by Tenant for the
calendar year and Tax Year ending immediately preceding such termination of
this Lease or such re-entry. Suit or suits for the recovery of such
damages, or any installments thereof, may be brought by Landlord from time
to time at Landlord's election, and nothing contained herein shall be
deemed to require Landlord to postpone suit until the date when the term of
this Lease would have expired if it had not been terminated under the
provisions of Articles 14 or 15, or under any provision of law, or had
Landlord not re-entered the Demised Premises.
Section 15.04. Nothing contained in this Article 15 shall be construed
as limiting or precluding the recovery by Landlord against Tenant of any
payments or damages to which, in addition to the damages particularly
provided above, Landlord may lawfully be entitled by reason of any default
hereunder on the part of Tenant. The failure or refusal of Landlord to
relet the Demised Premises or any part or parts thereof, or the failure of
Landlord to collect the rent thereof under such reletting, shall not
release or affect Tenant's liability for damages.
Section 15.05. Tenant, for Tenant, and on behalf of any and all
persons claiming through or under Tenant, including creditors of all kinds,
does hereby waive and surrender all right and privilege which they or any
of them might have under or by reason of any present or future law to
redeem the Demised Premises, or to have a continuance of this Lease for the
term hereby demised, after Tenant shall be dispossessed or ejected
therefrom by process of law or under the terms of this Lease or after the
expiration or termination of this Lease as herein provided or pursuant to
law. Tenant also waives the provisions of any law relating to notice and/or
delay in levy of execution in case of an eviction or dispossess of a tenant
for non-payment of rent, and of any other law of like import now or
hereafter in effect. In the event that Landlord shall commence any summary
proceeding for non-payment of rent or for holding over after the expiration
or sooner termination of this Lease, Tenant shall not, and hereby expressly
waives any right to, interpose any counterclaim of whatever nature or
description in any such proceeding, unless the failure of Tenant to
interpose such counterclaim would operate as a forfeiture of Tenant's right
to make such a claim separately.
Section 15.06. The provisions of this Article 15 shall survive the
expiration or sooner termination of this Lease.
ARTICLE 16
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CURING TENANT'S DEFAULTS; REIMBURSEMENT
Section 16.01. If Tenant shall default in any of its monetary
obligations hereunder or default (after notice and the expiration of any
applicable cure period provided in this Lease) in the observance or
performance of any material term, covenant, provision or condition on
Tenant's part to be observed or performed under or by virtue of any of the
terms or provisions in this Lease, then, unless otherwise provided
elsewhere in this Lease, Landlord may immediately or at any time thereafter
and without notice perform the obligation of Tenant thereunder, and if
Landlord, in connection therewith or in connection with any default by
Tenant (after notice and the expiration of any applicable cure period
provided in this Lease) in the covenant to pay Minimum Rent or additional
rent hereunder, shall make any expenditures or incur any obligations for
payment of money, including court costs and reasonable attorneys' fees, in
instituting, prosecuting or defending any action or proceeding, then such
fees, costs and expenses so paid or obligations incurred shall be
additional rent to be paid by Tenant to Landlord, upon demand, with
interest thereon at an annual rate (the "Interest Rate") equal to the
lesser of: (a) the then prevailing prime rate (which, for the purposes
hereof, includes any equivalent or successor interest rate, however
denominated) of interest for unsecured ninety-day loans by Citibank, N.A.
(or The Chase Manhattan Bank, N.A., if Citibank, N.A. shall not then have
an established prime rate; or the prime rate of any major banking
institution doing business in New York City, as selected by Landlord, if
none of the aforementioned banks shall be in existence or have an
established prime rate) (with the relevant interest rate being the "Prime
Rate") plus two (2) percentage points, or (b) the maximum rate allowed by
law. Any interest payable by Tenant pursuant to this Lease at the Interest
Rate shall be calculated from the day such expenditure is made or
obligation is incurred until the date when such payment is finally and
completely paid by Tenant to Landlord.
Section 16.02. Bills for any property, material, labor or services
provided, furnished or rendered, or caused to be provided, furnished or
rendered, by Landlord to Tenant pursuant to the terms of this Lease, may be
sent by Landlord to Tenant monthly (or immediately, at Landlord's option),
and shall be due and payable by Tenant as additional rent within thirty
(30) days after the same shall be sent to Tenant by Landlord. If Landlord
shall commence a summary proceeding against Tenant for non-payment of rent,
Tenant shall reimburse Landlord as additional rent for Landlord's
reasonable attorneys' fees and expenses, both if judgment is awarded for
Landlord, or if Tenant makes the payment subsequent to service of process
but prior to entry of judgment. If Tenant or any subtenant of Tenant shall
request Landlord's consent to any matter that requires Landlord's consent
under this Lease and if Landlord (in Landlord's sole discretion) shall
refer the matter to Landlord's attorneys or other professionals or
consultants, then, whether or not such consent shall be granted, Tenant
shall reimburse Landlord for the reasonable fees and disbursements incurred
by Landlord in connection therewith as additional rent within thirty (30)
days after a bill therefor shall have been rendered.
Section 16.03. If the Term shall have expired or been terminated after
or on the date that Landlord shall have made any of the expenditures, or
incurred any of the obligations, set forth in this Article 16, then all
such amounts and any interest thereon, as set forth in Section 16.01 above,
shall be recoverable by Landlord as damages. The provisions of this Article
16 shall survive the expiration or sooner termination of this Lease.
ARTICLE 17
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QUIET ENJOYMENT
Section 17.01. Landlord covenants that, if and for so long as Tenant
shall pay all of the Minimum Rent and additional rent reserved hereunder
and shall observe and perform all of the terms, agreements, covenants,
provisions and conditions of this Lease on Tenant's part to be observed and
performed, Tenant may peaceably and quietly enjoy the Demised Premises,
subject nevertheless to the terms and conditions of this Lease, and
provided, however, that no eviction of Tenant by reason of paramount title,
by reason of the foreclosure of any Mortgage now or hereafter affecting the
Demised Premises or by reason of any termination of any Underlying Lease to
which this Lease is subject and subordinate, whether such termination is
effected by operation of law, by agreement or otherwise, shall be construed
as a breach of this covenant nor shall any action by reason thereof be
brought against Landlord. This covenant shall be construed as a covenant
running with the Land, and is not, nor shall it be construed as, a personal
covenant of Landlord, except to the extent of Landlord's interest in this
Lease and only for so long as such interest shall continue; provided,
however, that except as otherwise provided in this Lease, nothing contained
in this Section 17.01 shall be deemed to exculpate Landlord for or with
respect to acts of Landlord which occurred during the period of time that
said Landlord held the interest of the Landlord under this Lease.
Accordingly, this covenant shall bind and be enforceable against Landlord
or any successor to Landlord's interest, subject to the terms hereof, only
for so long as Landlord or any successor to Landlord's interest,
respectively, shall be in possession and shall be collecting rent from
Tenant, but not thereafter.
ARTICLE 18
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BUILDING SERVICES
Section 18.01.
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A. So long as this Lease shall remain in full force and effect,
Landlord shall provide the following services:
(i) elevator service in the elevator bank servicing the
Demised Premises on Business Days, during usual business hours (i.e., 8
A.M. to 6 P.M.), and, subject to the provisions of Section 18.04 below,
have at least one elevator on call at all other times. Landlord shall also
provide freight elevator service on Business Days during business hours in
common with other tenants and occupants of the Building on a first-come
first-served basis for the making of deliveries in the ordinary course of
Tenant's business to and from the Demised Premises. Tenant agrees that
Landlord may, at Landlord's election, install elevators with or without
operators and may change the same from time to time;
(ii) heat to the Demised Premises when and as required by
law, on Business Days from 8 A.M. to 6 P.M.;
(iii) hot and cold running water for ordinary lavatory,
pantry, and drinking and office cleaning purposes. If Tenant requires, uses
or consumes water for any other purposes or in unusually high quantities
(as reasonably determined by Landlord), then Landlord may (or, at
Landlord's direction, Tenant shall) install a meter or meters or other
means to measure Tenant's water consumption, and Tenant agrees to pay for
the cost of the meter or meters and the installation thereof, and to pay
for the maintenance of said meter equipment and/or to pay Landlord's cost
of other means of measuring such water consumption by Tenant. Tenant shall
reimburse Landlord for the cost of all water consumed as measured by said
meter or meters or as otherwise measured, including sewer rents, as
additional rent, within thirty (30) days after bills therefor are rendered.
Tenant shall reimburse Landlord for the cost of generating such hot water
in excess of hot water that shall be required by Tenant, as reasonably
determined by Landlord, for ordinary lavatory, dwyer type pantry, drinking
and office cleaning purposes, as additional rent, within thirty (30) days
after bills therefor are rendered; and
(iv) cleaning of the Demised Premises on Business Days in
accordance with the specifications set forth in Exhibit "E" annexed hereto
and made a part hereof, provided that the Demised Premises are kept in
reasonable order by Tenant (and further subject to the provisions of
Section 18.03 below). Tenant shall reimburse Landlord for the cost of
removal from the Demised Premises and the Building of so much of Tenant's
refuse and rubbish as shall exceed that ordinarily accumulated daily in the
routine of business office occupancy (collectively, "Extra Rubbish
Removal"). The reimbursement for Extra Rubbish Removal shall be made by
Tenant to Landlord, as additional rent, in an amount not to exceed
Landlord's actual cost therefor, within thirty (30) days after bills
therefor are rendered.
B. Tenant acknowledges receipt of advice from Landlord to the
effect that there is no Building air-conditioning or ventilation system
servicing the Demised Premises, and that all air-conditioning and
ventilation of the Demised Premises (other than the A/C Units that are
specified as part of Landlord's Work) shall be procured by Tenant, at
Tenant's own cost and expense. Tenant agrees that all air-conditioning
equipment now or hereafter installed by Tenant in the Demised Premises
shall be of the package air-cooled type, window units being expressly
prohibited. Tenant covenants and agrees that, at Tenant's own cost and
expense, Tenant shall maintain said air-conditioning equipment in good
working order at all times during the Term, perform all repairs thereto and
servicing thereof, and make replacement of all parts, as the same becomes
necessary. Tenant shall be required to pay in accordance with Article 20
below for all electric energy necessary or used in connection with
air-conditioning and ventilation in the Demised Premises. Said
air-conditioning equipment shall at all times be the exclusive property of
Landlord, and shall be surrendered to Landlord with the Demised Premises
upon the expiration or sooner termination of this Lease. Landlord shall
assign to Tenant any warranties obtained by Landlord for the Building
Standard A/C Units or the Upgraded A/C Units, as the case may be, and the
installation thereof.
Section 18.02. The term "Business Days" shall be deemed to mean all
days other than Saturdays, Sundays and Holidays. The term "Holidays" shall
be deemed to mean all federal, state, municipal and bank holidays and
Building Service Employees and Operating Engineer's Union contract holidays
now or hereafter in effect. As of the date hereof, the current Building
Holidays are as shown on Exhibit "J", annexed hereto and made a part
hereof.
Section 18.03.
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A. If Tenant so elects, Tenant may, on no less than ninety (90)
days prior notice to Landlord, elect to clean the Demised Premises, in
which case Landlord shall not be obligated to provide cleaning services,
and Tenant shall, at Tenant's own cost and expense, keep the Demised
Premises clean and in order, to the reasonable satisfaction of Landlord
(including cleaning of the inside and outside of the windows once per
month), and for that purpose shall employ a person, who or which shall be
subject to the prior written approval of Landlord (which approval shall not
be unreasonably withheld or unduly delayed). In order to ensure effective
security in the Building, Tenant acknowledges the reasonableness of
Landlord's right at its option to request a party to be so employed by
Tenant and to act as maintenance and cleaning contractor for any office
cleaning, rubbish removal, waxing, polishing, lamp replacement, cleaning
and maintenance work in the Demised Premises, so long as such party is a
reputable person that charges no more than the rates in effect for
comparable services in Comparable Buildings. Landlord expressly reserves
the right to exclude from the Building any person attempting to perform any
such work or furnish any of such services without Landlord's prior written
approval or not so requested by Landlord.
B. If Landlord so elects, then, notwithstanding anything to the
contrary set forth in Subdivision 18.01A(iv) above, Tenant shall directly
procure the cleaning services and removal of refuse and rubbish which
Landlord would otherwise be obligated to provide pursuant to said
Subdivision 18.01A(iv). In the event that Landlord shall make the election
described in the first sentence of this Subsection 18.03B, Landlord shall
notify Tenant not less than thirty (30) days prior to the effective date
thereof, and Landlord shall then arrange for such procurement at no
additional cost or expense to Tenant, except for the cost of Extra Rubbish
Removal. Landlord shall have the right, on notice given to Tenant at any
time thereafter, to rescind such election.
Section 18.04. Landlord reserves the right to stop the furnishing of
the Building services and to stop service of the Building Systems, when
necessary, by reason of accident, or emergency, or for Repairs and
Alterations in the judgment of Landlord desirable or necessary to be made,
until said Repairs and Alterations shall have been completed; and Landlord
shall have no responsibility or liability for failure to supply heat,
elevator, plumbing, electric or other services during said period or when
prevented from so doing by strikes, lockouts, difficulty of obtaining
materials, accidents or by any cause beyond Landlord's reasonable control,
or by Legal Requirements or failure of electricity, water, steam, coal, oil
or other suitable fuel or power supply, or inability by exercise of
reasonable diligence to obtain electricity, water, steam, coal, oil or
other suitable fuel or power. In the event such services shall have been
stopped, Landlord agrees to use commercially reasonable efforts (but shall
not be obligated to use overtime or premium pay labor) to minimize
interference with Tenant's use and occupancy of the Demised Premises. No
diminution or abatement of rent or other compensation shall or will be
claimed by Tenant as a result therefrom, nor shall this Lease or any of the
obligations of Tenant be affected or reduced by reason of such
interruption, curtailment or suspension, nor shall the same constitute an
actual or constructive eviction.
Section 18.05. Tenant shall, at Tenant's own cost and expense, abide
by all requirements which Landlord may reasonably prescribe for the proper
protection and functioning of the Building Systems and the furnishing of
the Building services as well as cooperate with Landlord in any
conservation effort pursuant to a program or procedure promulgated or
recommended by any Legal Requirements; provided, however, that in each
instance, Landlord agrees not to enforce such requirements against Tenant
in a discriminatory manner.
Section 18.06. Landlord shall provide Tenant with a pro-rata share of
Building directory space.
ARTICLE 19
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TAXES; OPERATING EXPENSES
Section 19.01. In addition to the Minimum Rent and additional rent
hereinbefore reserved, Tenant covenants and agrees to pay Landlord, as
additional rent, all amounts computed in accordance with the provisions set
forth in this Article 19.
Section 19.02. For the purposes of this Lease:
A. The term "Taxes" shall mean (whether represented by one or
more bills) the total amount of all real estate taxes, assessments, special
assessments, water and sewer rents, vault taxes, governmental levies,
county taxes or any other governmental charge, general or special, ordinary
or extraordinary, unforeseen as well as foreseen, of any and every kind or
nature whatsoever, which are or may be levied, confirmed, charged, assessed
or imposed upon the Land, the Building and/or Landlord's interest therein,
and the sidewalks, plazas, streets and alleys in front of or adjacent
thereto, and any rights or interests appurtenant thereto under the laws of
the United States, the State of New York or any political subdivision
thereof, or by the City of New York or any political subdivision thereof
(including any assessments, levies, impositions, charges or taxes arising
from the location of the Land or Building within a Business Improvement
District or other area or zone which is subject to governmentally
authorized or civic related assessments, levies, impositions, charges or
taxes not generally applicable to other portions of the Borough of
Manhattan or the City of New York). If, due to a future change in the
method of taxation or in the taxing authority, a franchise, income, gross
receipts, transit, profit or other tax or governmental imposition, however
designated (including any tax, excise or fee, measured by or payable with
respect to any rents, licenses or other charges received by Landlord and
levied against Landlord, Land and/or the Building) shall be levied against
Landlord, the Land and/or the Building in substitution (in whole or in
part) for, or as an addition to or in lieu of, any Taxes, then such
franchise, income, gross receipts, transit, profit or other tax or
governmental imposition shall be deemed to be included within the
definition of the term "Taxes" for the purposes hereof, excluding any
general income, corporate franchise, estate, inheritance, succession,
capital stock or transfer tax levied on Landlord. Furthermore, provided
that Tenant shall have made the Tax Payment (as hereinafter defined) with
respect to the Tax Year in question on a timely basis, Taxes shall not
include any late charges, penalties, or interest which may be imposed by
reason of Landlord's late payment of Taxes.
B. The term "Tax Year" shall mean every twelve (12) consecutive
month period, all or any part of which shall occur during the Term,
commencing each July 1 or such other date as shall be the first day of the
fiscal tax year of The City of New York or other governmental agency
determined by Landlord to be responsible for the collection of
substantially all Taxes.
C. The term "Operating Year" shall mean each calendar year, all
or any part of which shall occur during the Term, following the Base
Operating Year.
D. The term "Operating Statement" shall mean a written statement
prepared by Landlord or Landlord's agent setting forth Landlord's
computation of the amount payable by Tenant pursuant to Section 19.04.
E. The term "Operating Expenses" shall mean (subject to the
provisions of Subsection 19.02G below and without duplication), for any
Operating Year, all costs and expenses paid or incurred for such Operating
Year by Landlord or on Landlord's behalf in connection with the ownership,
management, repair, maintenance, replacement, restoration or operation of
the Building, the Land and any plazas, sidewalks, curbs and appurtenances
thereto (provided that such items are not paid directly by Tenant pursuant
to any other provisions of this Lease), including the following items
(which items are illustrative of items to be included in Operating
Expenses):
(i) "Labor Costs" (as such term is defined below) of persons
performing services in connection with the operation, repair and
maintenance of the Land or the Building;
(ii) subject to the provisions of this Subsection 19.02E,
the cost of (including any rental cost of) materials and supplies used in
the operation, cleaning, safety, security, renovation, replacement, repair
and maintenance of the Building and its plazas (if any), sidewalks, curbs
and appurtenances, and any plant, equipment, facilities and systems
designed to supply heat, ventilation, air-conditioning or any other
services or utilities, or comprising any portion of the electrical, gas,
steam, plumbing, sprinkler, mechanical, communications, alarm, security or
fire/life safety systems or equipment serving the Demised Premises or the
common areas of the Building, including any sales and other taxes thereon;
(iii) without duplication of clause (ii) of this Subsection
19.02E, the depreciation (over the useful life of such hand tools or other
moveable equipment determined in accordance with generally accepted
accounting principles) for, or the rental cost or value (including
applicable sales taxes) of, hand tools and other movable equipment used in
the operation, cleaning, safety, security, repair or maintenance of the
Building and its plazas (if any), sidewalks, curbs and appurtenances;
(iv) reasonable legal, accounting and other professional
fees incurred in connection with the operation of the Land or the Building,
but only to the extent of the amount thereof that would be levied if
Landlord's interest in the Land and Building were the only asset of
Landlord;
(v) amounts incurred by Landlord for services, materials and
supplies furnished in connection with the operation, repair and maintenance
of any part of the Building and its plazas (if any), sidewalks, curbs and
appurtenances, including the heating, air-conditioning, ventilating,
plumbing, electrical, elevator, safety and other systems of the Building;
(vi) the cost of all charges for window cleaning and other
cleaning, janitorial, security and other services, in and about the
Building and its plazas (if any), sidewalks, curbs and appurtenances;
(vii) premiums paid by Landlord for rent, casualty, boiler,
sprinkler, plate-glass, liability and fidelity insurance with respect to
the Land or Building and its plazas (if any), sidewalks, curbs and
appurtenances, and any other insurance Landlord maintains or is required to
maintain with regard to the Land or the Building or the maintenance or
operation thereof and as shall be commensurate with such coverage
maintained by landlords of Comparable Buildings;
(viii) costs (including all applicable taxes) for
electricity (as measured by the Building's electric meters, and evaluated
under the same rate classification and frequency that Landlord is charged
by the public utility furnishing electricity to the Building), steam,
telephone, and other utilities for the portions of the Land and the
Building not leased and occupied by tenants in the Building and for
utilities and electricity (so measured and evaluated) consumed in
connection with the operation of the heating, ventilating and
air-conditioning equipment servicing the common or public areas of the
Building;
(ix) water charges and sewer rents or charges to the extent
not specifically reimbursable by tenants of the Building;
(x) reasonable telephone and stationery costs;
(xi) the cost of painting and otherwise decorating any
non-tenant areas of the Building, and its plazas (if any) and sidewalks;
(xii) the cost of installing, maintaining, repairing and
replacing (but not the initial purchase of) art works (except fine art), as
well as holiday decorations, for the lobby and other public portions of the
Building, and its plazas (if any) and sidewalks;
(xiii) the cost of exterior and interior landscaping of
non-tenant areas of the Land, the Building and its plazas (if any) and
sidewalks;
(xiv) dues, fees and contributions paid to civic
organizations and associations, or business improvement districts
representing Landlord, or of which Landlord is a member, in the City of New
York, which shall be deemed to be made in the largest number of
installments permitted;
(xv) franchise, license and similar fees and charges paid by
Landlord to any governmental agency for the privilege of owning, leasing,
operating, maintaining or servicing the Building or any of its equipment,
property or appurtenances;
(xvi) reasonable management fees of a third party managing
agent, or, if no third party managing agent is then employed by Landlord,
an amount in lieu, in either case, which is not in excess of the then
prevailing rates for management fees for managing agents not affiliates of
Landlord of first-class office buildings in Manhattan;
(xvii) the cost, or the cost of the rental, together with
the cost of installation, of any Building security or other system used in
connection with life or property protection (including the cost, or the
cost or value of the rental, of all machinery, electronic systems and other
equipment comprising any part thereof), as well as the cost of the
operation and repair of any such system in operation during the Base
Operating Year; provided, however, if and to the extent such costs are
capitalized according to generally accepted accounting principles, such
costs shall be amortized on a straight line basis over the useful life of
such system (determined in accordance with generally accepted accounting
principles);
(xviii) whether or not capitalized under generally accepted
accounting principles, costs for Alterations to the Building made by reason
of any Legal Requirements not in existence as of the date hereof, or the
requirements of any Insurance Boards or Landlord's insurer enacted after
the date hereof, provided, however, that if and to the extent such costs
are capitalized under generally accepted accounting principles, such costs
shall be amortized over the useful life of such Alterations, with an
interest factor calculated using the Interest Rate in effect at the time
that any such cost is incurred;
(xix) whether or not capitalized under generally accepted
accounting principles, the cost of improvements, equipment or machinery
having the effect of reducing Operating Expenses, provided, however, that
if and to the extent such costs are capitalized under generally accepted
accounting principles, such costs shall be amortized over the useful life
of such improvement, equipment or machinery with an interest factor
calculated using the Interest Rate in effect at the time that any such cost
is incurred, and provided further that Tenant shall not be required to pay
more on the basis of such amortized cost than it can be reasonably
anticipated that Tenant would have had to pay with respect to such
component of Operating Expenses absent such expenditure;
(xx) all other charges properly allocable to the repair,
management, maintenance, replacement, restoration or operation of the
Building in accordance with the then-prevailing real estate accounting
practices customarily used in Manhattan.
F. The term "Labor Costs" shall mean any and all expenses
incurred by Landlord or on Landlord's behalf which shall be related to
employment of personnel, including amounts incurred for wages, salaries and
other compensation for services, payroll, social security, unemployment and
other similar taxes, Workers' Compensation insurance, liability benefits,
pensions, hospitalization, retirement plans and insurance (including group
life and disability), uniforms and working clothes and the cleaning
thereof, and expenses imposed on or on behalf of Landlord pursuant to any
collective bargaining agreement relating to such employees. With respect to
employees who are not employed on a full-time basis with respect to the
Building, a pro rata portion of expenses allocable to the time any such
employee is employed with respect to the Building shall be included in
Labor Costs.
G. The term "Operating Expenses" shall not include the following
items:
(i) Labor Costs (including compensation, salaries and fringe
benefits) in respect of personnel above the grade of building manager,
officers and executives of Landlord, unless for work actually performed in
or about the Building ordinarily done by a third person, and then only at
compensation no higher than that which would have been paid to such third
person;
(ii) legal fees, leasing commissions, takeover expenses,
advertising expenses, promotional expenses, demolishing, painting,
carpeting, refurnishing, contributions, and other costs incurred in the
leasing or re-leasing of space in the Building;
(iii) insurance premiums, but only if and to the extent that
Landlord is specifically entitled to be reimbursed therefor by Tenant
pursuant to this Lease (other than pursuant to this Article) or by any
other tenant or other occupant of the Building pursuant to its lease (other
than pursuant to an operating expenses escalation clause contained
therein);
(iv) the cost of any item for which Landlord is reimbursed
by insurance or otherwise compensated, including reimbursement by any
tenant (including Tenant);
(v) the cost of any alterations, additions, changes,
replacements and improvements that are made solely in order to prepare
space for occupancy by a tenant and the costs incurred in performing work
or furnishing services to or for any tenant (including Tenant), whether at
such tenant's or Landlord's expense, to the extent that such work or
service is in excess of work or service that Landlord is obligated to
furnish to Tenant at Landlord's expense (except that cleaning costs shall
only be excluded from Operating Expenses in excess of the costs of
Landlord's Cleaning Services, regardless of whether tenant shall contract
directly with a cleaning contractor pursuant to the provisions of Section
18.03B;
(vi) the cost of capital improvements and capital
expenditures, other than those (a) which under generally applied real
estate practice are deemed expenses or deferred expenses, or (b) described
in clauses (xviii) and (xix) of Subsection 19.02E above;
(vii) the cost of electricity, fuel, gas, steam, or chilled
or condenser water furnished to the Demised Premises or any other space in
the Building leased, or available for lease, to tenants; provided, however,
that this exclusion shall not apply to the cost of heat, air conditioning,
and ventilation furnished to kiosks or booths in the lobby of the Building
or to the cost of any electricity consumed in connection with the operation
of, and the cost of any acquisition, installation, maintenance, repair or
replacement of, any water towers which service the nonleasable portions of
the Building and the Building's plazas, sidewalks, curbs and appurtenances;
(viii) Taxes and corporate franchise, inheritance, estate,
succession, gift, income and profit taxes, and capital stock taxes imposed
payable by Landlord;
(ix) financing and refinancing costs (including "points",
commitment fees, brokerage fees and legal fees), and payments of mortgage
interest and principal;
(x) payments of any amounts to any person seeking recovery
for liability of Landlord;
(xi) costs incurred to place the Building in compliance with
any Legal Requirements in effect on the date hereof with which the Building
does not comply, unless attributable to the acts or omissions of any tenant
in the Building (including Tenant) or of any agents, employees, servants or
contractors of such tenant;
(xii) costs to perform work or to provide services for any
tenant of the Building, but only if and to the extent that the same is in
excess of that which Landlord furnishes generally (with no additional
expense) to the tenants of the Building;
(xiii) the costs of any expansions to the rentable area of
the Building after the date of this Lease and any costs arising therefrom;
(xiv) the cost of the acquisition or leasing, restoring,
removing, or replacing of art work (including, without limitation,
sculptures, painting, and other objects of art) for the Building lobby
(provided that this exclusion shall not be deemed to exclude from Operating
Expenses the cost of the routine maintenance thereof);
(xv) payments for rental equipment, the cost of which would
constitute a capital expenditure if the equipment were purchased, except to
the extent that the same would be included above;
(xvi) any cost which would have been an Operating Expense
which is reimbursed to Landlord by Tenant under this Lease (other than
pursuant to this Article 19), or by any other tenant of the Building under
its lease (other than reimbursement pursuant to provisions of its lease
similar to this Article 19);
(xvii) costs associated with the operation of the legal
entity that constitutes Landlord (such as, by way of example, legal entity
formation, organization and qualification) as distinguished from the cost
of the operation of the Building;
(xviii) any costs incurred in connection with the transfer
or sale of any interest in the Building, Land, any Underlying Lease, or in
the entity or entities directly or indirectly comprising Landlord,
including any transfer, deed, mortgage recording or gains taxes payable by
Landlord;
(xix) fines, penalties, interest, or late charges incurred
by Landlord, if due to Landlord's late payment or due to violations of any
Legal Requirements;
(xx) bad debt losses, rent losses or reserves for either;
(xxi) ground rent and any other amounts (other than amounts
paid for the equivalent of Operating Expenses if same were paid directly by
Landlord) payable under any Underlying Lease;
(xxii) depreciation or amortization, except as provided
above;
(xxiii) any amounts paid by Landlord to any affiliate of
Landlord, to the extent such amount is in excess of the amount which would
have been paid by Landlord in the absence of such relationship;
(xxiv) costs associated with correcting defects in the
construction of the Building or defects in Landlord's Work, except costs
resulting from ordinary wear and tear;
(xxv) legal fees incurred in the enforcement of any leases
in the Building or in defending any suits brought by tenants in the
Building and other legal fees (other than legal fees incurred in connection
with the maintenance or operation of the Building or Land);
(xxvi) INTENTIONALLY DELETED;
(xxvii) any compensation paid to clerks, attendants or other
persons in commercial concessions operated by Landlord or an affiliate of
Landlord;
(xxviii) the costs of operating and maintaining any retail
areas and garages in the Building;
(xxix) the cost of repairs or rebuilding necessitated by
casualty or condemnation;
(xxx) costs incurred by Landlord in connection with
Landlord's breach of any of Landlord's covenants, agreements or indemnities
expressly made in this Lease or Landlord's gross negligence or willful
misconduct;
(xxxi) any costs incurred in the removal, containment,
encapsulation, disposal or repair of asbestos or any other "Hazardous
Material" (as such term is defined pursuant to Section 7.01 hereof).
(xxxii) fees incurred by Landlord in connection with
disputes of Landlord with tenants, prospective tenants, or other occupants,
purchasers, prospective purchasers, or mortgagees of the Building;
(xxxiii) any costs incurred by Landlord in connection with
the negotiation of leases for space in the Building or for any Underlying
Lease and any costs incurred by Landlord in connection with the obtaining
of any loan affecting the Land or the Building;
(xxxiv) the cost of repairs, replacements or restorations
necessitated by reason of fire or other casualty; and
(xxxv) the cost of any work or service performed for any
facility other than the Building, the appurtenant common areas and Building
Systems.
H. The cost of any item that was included in Operating Expenses
for the Base Operating Year and is no longer being incurred by Landlord by
reason of the installation of a labor saving device or other capital
improvement shall be deleted from Operating Expenses for the Base Operating
Year in connection with the calculation of the Operating Expense Payment
for all Operating Years from and after the Operating Year in which such
installation occurs, unless Tenant shall be paying Tenant's Proportionate
Share of the cost of such labor saving device or capital improvement as
part of the Operating Expense Payment for such Operating Year.
I. If, during all or part of any Operating Year (including the
Base Operating Year), Landlord shall not furnish any particular item(s) of
work or service (which would otherwise constitute an Operating Expense
hereunder) to portions of the Building due to the fact that (i) such
portions are not occupied or leased, (ii) such item of work or service is
not required or desired by the tenant of such portion, (iii) such tenant is
itself obtaining and providing such item of work or service, or (iv) for
any other reason, then, for the purposes of computing Operating Expenses,
the amount for such item and for such period shall be deemed to be
increased by an amount equal to the additional costs and expenses of
furnishing such item of work or services to such portion of the Building or
to such tenant. In connection with the immediately preceding clause (i),
there shall be no adjustment made to Operating Expenses for a particular
Operating Year unless less than ninety-five (95%) percent of the Building
was occupied in the relevant Operating Year, and any such adjustment shall
be made on the basis of ninety-five (95%) percent of the Building being
occupied.
J. Unless expressly excluded from Operating Expenses pursuant to
Subsection 19.02G above or expressly provided otherwise elsewhere in this
Lease, all items of cost and expense identified in this Lease as being "at
Landlord's cost and expense" or phrases of similar import (regardless of
whether the words "solely" or "exclusive" are used in connection therewith,
and regardless of whether specific reference is made to Landlord's right to
recoup such cost or expense as part of Operating Expenses) shall be
included in Operating Expenses.
Section 19.03.
-------------
A. (i) If, for any reason whatsoever (whether foreseen or
unforeseen), the Taxes applicable with respect to any Tax Year shall be
greater than the Base Tax Amount, then Tenant shall pay to Landlord as
additional rent for each such Tax Year an amount (the "Tax Payment") equal
to Tenant's Proportionate Share (as defined in Section 1.01 above) of the
amount by which the Taxes payable for such Tax Year exceeds the Base Tax
Amount.
(ii) Within a reasonable time period after the issuance by
the governmental authority having jurisdiction thereover of tax bills for
Taxes payable for any Tax Year, Landlord shall submit to Tenant a statement
(the "Tax Statement") which shall indicate the amount, if any, required to
be paid by Tenant as additional rent provided in this Section 19.03,
accompanied by a copy of the relevant tax bill(s) upon which such Tax
Statement is based, provided that Tenant shall not be responsible for any
Tax Statement first billed to Tenant more than three (3) calendar years
after the end of the Tax Year to which such Tax Statement relates, except
that if the taxing authority shall not have timely billed any amounts to
Landlord within three (3) years following the relevant Tax Year, then
Landlord may bill any such amounts to Tenant within one (1) year following
receipt of a bill thereafter from the taxing authority.
(iii) Within thirty (30) days after delivery of the Tax
Statement, Tenant shall pay to Landlord the additional rent as set forth on
such Tax Statement. Notwithstanding anything to the contrary contained
herein, Tenant's tax payment shall be payable in the same number of
installments as Landlord is required to pay to the taxing authority, unless
any Mortgagee shall require otherwise.
B. If, following the delivery of any Tax Statement, Landlord
shall receive a refund of Taxes with respect to a Tax Year for which Tenant
has paid any additional rent under the provisions of this Section, then
Tenant's Proportionate Share of the net proceeds of such refund, after
deduction of reasonable legal fees, appraiser's fees and other expenses
incurred in obtaining reductions and refunds and collecting the same (and
after deduction of such expenses for previous Tax Years which were not
offset by tax refunds for such Tax Years) shall be applied and allocated to
the periods for which the refund was obtained and, if Tenant shall not be
in default (after notice and the expiration of the applicable cure period)
of any of Tenant's obligations under this Lease, or, if Tenant shall be in
default of any of Tenant's obligations under this Lease (after notice and
the expiration of the applicable cure period), but shall cure such default
within sixty (60) days after Landlord's receipt of such refund of Taxes,
and shall notify Landlord of such cure within such sixty (60) day period
(except in connection with a breach which cannot be remedied or cured
within said sixty (60) day period, in which event the time of Tenant within
which to cure such breach shall be extended for such time as shall be
reasonably necessary to cure the same, but only if Tenant, within such
sixty (60) day period, shall promptly commence and thereafter proceed
diligently and continuously to cure such breach), Landlord shall refund to
Tenant or credit against the installment of Minimum Rent next due, an
amount equal to Tenant's Proportionate Share of the net proceeds of such
refund. In no event shall any refund or credit due to Tenant hereunder
exceed the sum paid by Tenant for such particular Tax Year. Only Landlord
shall be eligible to institute tax reduction or other proceedings to reduce
the assessed valuation of the Landlord or the Building. In no event shall
Tenant have the right to seek from the taxing authority any refund or
reduction of Taxes. If, prior to the delivery of a Tax Statement to Tenant
with respect to a particular Tax Year, Landlord shall obtain a reduction in
Taxes for that Tax Year, then Tenant shall pay to Landlord, within thirty
(30) days following the issuance to Tenant of a bill therefor, an amount
equal to Tenant's Proportionate Share of all costs and expenses (including
legal, appraisal and other expert fees) incurred by Landlord in obtaining
such reduction.
C. If there shall be a reduction or refund of Taxes for either
year used to compute the Base Tax Amount, Landlord shall furnish to Tenant
a statement indicating the amount thereof, and all prior and future
additional rent payments provided for in this Section 19.03 shall be
recalculated accordingly. Any additional payment due for any Tax Year shall
be made by Tenant within thirty (30) days after the furnishing to Tenant of
the revised statement.
D. If there shall be a reduction of the area of the Demised
Premises either due to a partial taking thereof by eminent domain or due to
subsequent agreement of the parties or if the area of the Demised Premises
shall be increased, Tenant's Proportionate Share of increases of Taxes
thereafter payable by Tenant under Subsection 19.03A shall, except as may
otherwise be expressly agreed in writing by the parties, be increased or
decreased on the basis of the ratio between the square feet of rentable
area in the Demised Premises before and after said increase or decrease in
area.
E. Tenant shall pay, before delinquency, all rent and occupancy
taxes and all property taxes and assessments on the furniture, fixtures,
equipment and other property of Tenant at any time situated on or installed
in the Demised Premises, and on additions and improvements in the Demised
Premises made or installed by Tenant subsequent to the Commencement Date,
if any. If at any time during the Term any of the foregoing are assessed as
a part of the real property of which the Demised Premises are a part,
Tenant shall pay to Landlord upon demand the amount of such additional
taxes as may be levied against said real property by reason thereof.
F. (i) Notwithstanding anything to the contrary contained in this
Lease, in the event that Landlord receives any refund or abatement of Taxes
pursuant to the "Lower Manhattan Plan" (as hereinafter defined), then, if
and for so long as Landlord shall actually receive such benefits, Tenant
shall be entitled to receive, as a credit against the rent due hereunder,
the benefit of such refund or abatement in the amount and in the manner
provided for in the Lower Manhattan Plan, but only to the extent required
to be provided under the Lower Manhattan Plan. Landlord shall use
reasonable efforts to become (and, if Landlord shall qualify for the Lower
Manhattan Plan, to remain) qualified under the Lower Manhattan Plan.
(ii) For purposes of this Subsection 19.03F, unless
otherwise defined in this Lease, all terms used herein shall have the
meanings ascribed to them in Title 4 of Article 4 of the New York Real
Property Tax Law (the "Lower Manhattan Plan"). The term "LMP Abatement
Benefits" shall mean the real estate tax abatement benefits of the Lower
Manhattan Plan. The term "Department" shall mean New York City Department
of Finance. For purposes of the Lower Manhattan Plan, "Tenant's
Proportionate Share" shall mean 2.72% percent as determined pursuant to
Section 1.01 hereof by dividing the net rentable square footage contained
in the Demised Premises by the net rentable square footage contained in the
Building owned by Landlord.
(iii) Tenant represents that there shall be more than 125
employees located at the Demised Premises throughout the Term of this
Lease.
(iv) In accordance with the Lower Manhattan Plan and
notwithstanding anything to the contrary contained in this Lease, Landlord
agrees to allow Tenant a credit against the Minimum Rent and the Recurring
Additional Rent (including the Tax Payment (as defined in Subsection 19.03
hereof)) payable by Tenant hereunder in an amount that, in the aggregate,
equals the full amount of any abatement of real estate taxes granted for
the Demised Premises pursuant to the Lower Manhattan Plan and actually
received by Landlord (the "Actual LMP Benefits"). Landlord shall, within
thirty (30) days after its receipt of the Actual LMP Benefits, credit the
full amount thereof against the next installment(s) of Minimum Rent and/or
Recurring Additional Rent becoming due hereunder.
(v) Tenant shall promptly pay to Landlord, as additional
rent hereunder, the amount of all or any portion of the Actual LMP Benefits
that have been credited against Minimum Rent and/or Recurring Additional
Rent becoming due hereunder, and which may thereafter actually be revoked,
to the extent such Minimum Rent and/or Recurring Additional Rent must be
repaid by Tenant (including, without limitation, if such Actual LMP
Benefits are revoked due to the exercise by Tenant of its right to assign
or sublease pursuant to Article 10 of this Lease), together with any
interest and/or penalties imposed against Landlord in connection with such
Actual LMP Benefits; provided, however, that Tenant shall be responsible
for any amounts due under this Subsection 19.03G(v) if and only if Tenant
or any Persons Within Tenant's Control shall be responsible, whether as a
result of any act, omission, carelessness, negligence, or misconduct, for
the revocation of such Actual LMP Benefits.
(vi) In accordance with Section 499-c(5) of the Lower
Manhattan Plan, Landlord agrees and informs Tenant that:
(a) an application for abatement of real property taxes
pursuant to Title 4 of Article 4 of the New York Real Property Tax Law
will be made for the Demised Premises pursuant to Subsection 3.04J
hereof;
(b) the rent, including amounts payable by Tenant for
Taxes, will accurately reflect any abatement of Taxes granted pursuant
to Title 4 of Article 4 of the New York Property Tax Law for the
Demised Premises in accordance with Subsection 3.04F hereof;
(c) at least ten dollars per square foot or thirty-five
dollars per square foot must be spent on improvements to the premises
and the common area, the amount being dependent upon the length of the
lease and whether it is a new, renewal or expansion lease; and
(d) all abatements granted with respect to the Building
pursuant to Title 4 of Article 4 of the New York Real Property Law
will be revoked if, during the Benefit Period, real estate taxes or
water or sewer charges or other lienable charges are unpaid for more
than one year, unless such delinquent amounts are paid as provided in
subdivision four of section four hundred ninety-nine-f of Title 4 of
the New York Real Property Law.
(vii) Landlord covenants and agrees that (i) Landlord shall
timely pay all Taxes, water and sewer charges and other lienable charges
that become due and payable during the period for which Tenant is entitled
to receive the Actual LMP Benefits and (ii) there shall be no Taxes, water
and sewer charges or other lienable charges due and owing with respect to
the Building on the date the "Abatement Application" (as hereinafter
defined) is filed with the Department, unless such Taxes or charges are
being paid in timely installments pursuant to a written agreement with the
Department or other appropriate agency.
(viii) Landlord, upon not less than thirty (30) days advance
written notice from Tenant, agrees to cooperate with Tenant to execute,
deliver and file, together with the Abatement Application, the affidavit
required by Section 499-c(7) of the Lower Manhattan Plan, and thereafter to
diligently pursue the processing of such application. Landlord, upon not
less than thirty (30) days advance written notice from Tenant, agrees to
cooperate with Tenant to execute, deliver and file, within sixty (60) days
after the Commencement Date, an application (the "Abatement Application")
for a certificate of abatement in accordance with Section 499-d of the
Lower Manhattan Plan. Landlord and Tenant each further agree to provide all
other information required by the Department of Finance pursuant to Section
499-d of the Lower Manhattan Plan and to otherwise comply with the
provisions of said Section 499-d and the Lower Manhattan Plan. Tenant shall
have no right to make any separate application under the Lower Manhattan
Plan without Landlord's participation.
(ix) Tenant shall promptly pay to Landlord, upon such
request of Landlord and as additional rent hereunder, the amount of any
costs incurred by Landlord in connection with the performance of Landlord's
obligations pursuant to this Section 19.03, including, without limitation,
the amount of any administrative charges or fees imposed by the Department
in connection with such compliance, including, without limitation, the
$500.00 fee due in connection with the Abatement Application. Tenant shall
indemnify and hold harmless Landlord and its respective partners,
directors, officers, principals, shareholders, agents and employees from
and against any and all losses, costs, damages and expenses (including
attorney's fees) arising from or in connection with Tenant's failure to pay
such charges or fees or from Tenant's failure to comply with the provisions
and requirements of the Lower Manhattan Plan or this Section 19.03.
(x) Tenant shall notify Landlord of any vacation or
subletting of the Demised Premises or any portion thereof, or any
assignment of Tenant's interest in this Lease, which would result in the
revocation of any abatement or other benefits, or any portion thereof,
granted pursuant to the Lower Manhattan Plan. Within thirty (30) days
following demand therefor, Tenant shall reimburse Landlord for any interest
or penalties imposed by any governmental authority in connection with the
revocation of the abatement or other benefits resulting directly from
Tenant's failure to so notify Landlord of any such vacation, subletting or
assignment.
(xi) Landlord does not warrant or represent that any
abatement, reduction or other benefit described in this Section 19.03 or
the Lower Manhattan Plan is available or will be obtained for the Building,
or by Landlord and/or Tenant, except as expressly provided to the contrary
herein. Landlord shall have no liability to Tenant, and the Minimum Rent
and Recurring Additional Rent set forth in this Lease will not be abated or
reduced, if and to the extent that such abatement or reduction under the
Lower Manhattan Plan is denied, reduced, suspended, revoked or terminated
for any reason, except if the same shall result solely from the gross
negligence or willful misconduct of Landlord.
Section 19.04.
-------------
A. For each Operating Year, any part of which shall occur during
the Term, Tenant shall pay an amount (the "Operating Expense Payment")
equal to Tenant's Proportionate Share of the amount, if any, by which
Operating Expenses for such Operating Year shall exceed the Operating
Expenses for the Base Operating Year; provided, however, that if the
Commencement Date shall occur other than on the first day of an Operating
Year or if the Term shall expire or be sooner terminated on other than the
last day of an Operating Year, then the Operating Expense Payment in
respect thereof shall be prorated to correspond to that portion of such
Operating Year occurring within the Term.
B. At any time during each Operating Year, Landlord may furnish
to Tenant a written statement (an "Estimate Statement") setting forth
Landlord's reasonable estimate of the Operating Expense Payment for such
Operating Year (the "Estimated Payment"). Tenant shall pay to Landlord on
the first day of each month during each Operating Year an amount equal to
one twelfth (1/12th) of the Estimated Payment. If Landlord furnishes an
Estimate Statement for an Operating Year subsequent to the commencement
thereof, then: (i) until the first day of the month following the month in
which the Estimate Statement shall be furnished to Tenant, Tenant shall
continue to pay to Landlord on the first day of each month an amount equal
to the monthly sum payable by Tenant to Landlord with respect to the most
recent Operating Year; (ii) promptly after the Estimate Statement shall be
furnished to Tenant, Landlord shall give notice to Tenant stating whether
the amount previously paid by Tenant to Landlord for the current Operating
Year was greater or less than the installment of the Estimated Payment to
be paid for the current Operating Year, and (x) if there shall be a
deficiency, Tenant shall pay the amount thereof to Landlord within thirty
(30) days after demand therefor, or (y) if there shall have been an
overpayment, Landlord shall credit the amount thereof against the next
monthly installment of the Minimum Rent payable under this Lease; and (iii)
on the first day of the month following the month in which the Estimate
Statement shall be furnished to Tenant, and monthly thereafter throughout
the remainder of the Operating Year, Tenant shall pay to Landlord an amount
equal to one-twelfth (1/12th) of the Estimated Payment shown on the
Estimate Statement. Landlord may during an Operating Year (but not more
than three (3) times with respect to an Operating Year), furnish to Tenant
a revised Estimate Statement, and, if a revised Estimate Statement shall be
furnished to Tenant, the Estimated Payment for such Operating Year shall be
adjusted in the same manner as provided in the preceding sentence. If an
Estimate Statement or a revised Estimate Statement, as the case may be,
shall show an increase of more than five (5%) percent of the Operating
Expense Amount that Tenant was required to pay for the immediately prior
Operating Year, Landlord shall furnish to Tenant in reasonable detail the
reasons therefor.
C. As soon as reasonably practicable after each Operating Year,
Landlord shall furnish to Tenant an annual Operating Statement (the "Annual
Statement") for such Operating Year, provided that Tenant shall not be
responsible for any Operating Statement first billed to Tenant more than
three (3) calendar years after the end of the Operating Year to which such
Operating Statement relates. If the Annual Statement shows that the
Estimated Payment (or other payments) for such Operating Year exceeds the
Operating Expense Payment which should have been paid for such Operating
Year, then Landlord shall credit the amount of such excess against the next
monthly installment of Minimum Rent payable under this Lease (except at the
end of the Term, when Landlord shall refund the amount of such excess to
Tenant within thirty (30) days thereafter, provided that there shall not
then be any remaining uncured defaults of any of Tenant's monetary
obligations hereunder or of any of the material terms, covenants and
conditions to be performed or observed by Tenant under this Lease); if the
Annual Statement for such Operating Year shows that the Estimated Payment
(or other payments) for such Operating Year was less than the Operating
Expense Payment (or other payments) which should have been paid for such
Operating Year. Tenant shall pay the amount of such deficiency to Landlord
within twenty (20) days after receipt of the Annual Statement.
D. Each Annual Statement shall be conclusive and binding upon
Tenant unless, within one hundred and eighty (180) days after receipt
thereof, Tenant shall give Landlord written notice (the "Operating Dispute
Notice") that Tenant requests additional information with respect to the
Annual Statement or that Tenant disputes the correctness of the Annual
Statement, specifying the particular respects in which the Annual Statement
is claimed to be incorrect, to the extent such information is available. If
such Operating Dispute Notice shall be timely delivered by Tenant to
Landlord, then, provided that Tenant shall pay or have paid to Landlord the
amount shown to be due to Landlord on the disputed Annual Statement, Tenant
and its representatives shall have the right, not later than forty-five
(45) days after Landlord's receipt of Tenant's Operating Dispute Notice,
and not earlier than five (5) Business Days after Landlord's receipt of a
written request therefor, to examine during regular business hours at a
location in New York City designated by Landlord, Landlord's relevant books
and records with respect to Operating Expenses relating to the Building for
the period in question (the "Relevant Records") in order to verify the
accuracy of the relevant Annual Statement; provided, however, that Tenant
and its authorized representatives shall use reasonable efforts to minimize
interference to Landlord's business operations during the course of such
examination. Tenant shall not disclose (and shall require all of Tenant's
representatives not to disclose) to any third party any information
obtained in the course of such examination, except if and to the extent the
same shall be required by a court of competent jurisdiction. Tenant
recognizes and agrees that Landlord's books and records (and those of
Landlord's agents) with respect to the operation of the Land and the
Building are confidential, and that, except as provided herein, Tenant
shall have no right to inspect the same. If Tenant shall have timely
delivered the Operating Dispute Notice to Landlord, and the parties shall
not be able to resolve such dispute within sixty (60) days after Tenant or
its authorized representatives have examined the Relevant Records or the
Relevant Records have been made available for examination, as the case may
be, then, provided that Tenant shall have theretofore paid to Landlord the
amount shown to be due to Landlord on the disputed Annual Statement, either
party may refer the decision of the issue raised to a reputable independent
firm of certified public accountants mutually agreeable to the parties, and
the decision of such accountants shall be conclusive and binding upon the
parties. The fees and expenses involved in such decision 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). Tenant agrees that,
notwithstanding any such dispute (and pending resolution thereof), Tenant
shall timely pay to Landlord in full the amount shown to be due to Landlord
on the disputed annual statement. If such dispute is resolved in Tenant's
favor, Landlord shall either reimburse Tenant for any overpayment or credit
the amount of such overpayment against the next monthly installment of
Minimum Rent payable under this Lease.
Section 19.05. Nothing contained in this Article 19 or any other
provision of this Lease concerning the payment of additional rents shall be
construed so as to reduce the Minimum Rent below the amount set forth in
Section 1.01, plus any increases therein pursuant to any provision of this
Lease.
Section 19.06. Any payments due hereunder for any period of less than
a full Tax Year or Operating Year at the commencement or end of the Term
shall be equitably prorated. In the event of any change in the fiscal
period constituting a Tax Year, Taxes levied during any transitional period
shall be added to the first subsequent Tax Year for purposes of Section
19.03. Except as otherwise provided in Subsection 19.04C, any delay or
failure by Landlord to render any statement under the provisions of this
Article 19 shall not prejudice Landlord's right hereunder to render such
statement for prior or subsequent periods. Except as other wise provided in
Subsection 19.04C, any delay or failure by Landlord in making any request
or demand for any amount payable by Tenant pursuant to the provisions of
this Article 19 shall not constitute a waiver of, or in any way diminish,
the continuing obligation of Tenant to make such payment. Except as
otherwise provided in Subsection 19.04D above, all statements rendered by
Landlord pursuant to the provisions of this Article 19 shall be deemed
final and conclusive as to Tenant, unless, within ninety (90) days
following rendition of any such statement, Tenant shall, in good faith and
with reasonable specificity, notify Landlord that such statement contains
mathematical error. Tenant agrees that, notwithstanding any dispute as to
the correctness of a statement (and pending resolution of such dispute),
Tenant shall timely pay to Landlord in full the amount shown to be due to
Landlord on the disputed statement. If such dispute is resolved in Tenant's
favor, Landlord shall either reimburse Tenant for any overpayment or credit
the amount of such overpayment against the next monthly installment of
Minimum Rent payable under this Lease (except at the end of the Term, when
Landlord shall refund the amount within thirty (30) days following such
resolution). The obligations of Landlord or Tenant with respect to any
payment required pursuant to the provisions of this Article 19 shall
survive the expiration or sooner termination of the Term.
ARTICLE 20
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ELECTRICITY
Section 20.01. Subject to the provisions of this Article 20 and other
provisions of this Lease, Landlord shall furnish the electricity that
Tenant shall reasonably require in the Demised Premises for normal business
office purposes, making available to the Demised Premises a capacity (the
"Existing Capacity") based on the feeders, risers, wiring and panel boards
currently servicing the Demised Premises of twelve (12) watts per rentable
square foot (on a connected load basis), inclusive of electricity used by
the machinery and equipment of Tenant's air-conditioning unit(s) servicing
the Demised Premises. Landlord shall not be liable to Tenant for any loss
or damage or expense which Tenant may sustain or incur if either the
quantity or character of electric service shall be changed or shall no
longer be available or suitable for Tenant's requirements. At Landlord's
election, Landlord shall furnish and install all replacement lighting
tubes, lamps, bulbs and ballasts required in the Demised Premises, and
Tenant shall pay to Landlord or Landlord's designated contractor upon
demand the then established charges of Landlord or said contractor, as the
case may be, provided the same are commercially reasonable.
Section 20.02.
-------------
A. Subject to the provisions of Section 20.03 below, Tenant's
consumption and demand of all electricity made available to the Demised
Premises (including the machinery and equipment of Tenant's
air-conditioning unit(s) servicing the Demised Premises) or to Tenant
elsewhere in the Building (collectively, "Tenant Electricity") shall be
measured by one or more submeters (collectively, the "Submeter") to be
furnished and installed by Landlord, the cost and expense of which shall be
borne equally by Landlord and Tenant, in a location designated by Landlord.
Landlord agrees to use commercially reasonable efforts (but shall not be
obligated to use overtime or premium pay labor) to install the Submeter by
the date Tenant first occupies the Demised Premises for the conduct of its
business therein. Landlord shall also, at Tenant's cost and expense,
install connections from the risers and/or circuits servicing the Demised
Premises to the Submeter, and perform all other work necessary for the
furnishing of Tenant Electricity by Landlord in the manner provided for in
this Section 20.02. Tenant shall pay all such costs and expenses to
Landlord, as additional rent, within thirty (30) days after being billed
therefor.
B. Tenant agrees to purchase Tenant Electricity from Landlord or
Landlord's designated agent at terms and rates equal to "Landlord's
Electricity Cost" (as such term is defined below), plus five (5%) percent
thereof to reimburse Landlord for administrative services in connection
with supplying, measuring and billing Tenant Electricity and for
transmission and transformer losses. If more than one submeter shall
measure Tenant Electricity, then the service rendered through each such
submeter shall be aggregated and billed in accordance with the foregoing
rate, unless Landlord shall elect separate billing on a per meter basis.
Landlord may at any time render bills for Tenant Electricity in accordance
with the foregoing provisions, and Tenant shall pay all amounts shown on
said bills to Landlord, as additional rent, within thirty (30) days
following the date that such bills shall have been rendered.
C. For purposes of this Article 20 and the other provisions of
this Lease:
(i) The term "Landlord's Electricity Cost", shall mean the
cost per kilowatt hour and cost per kilowatt demand, by time of day, if
applicable, or other applicable billing method, to Landlord of purchasing
electricity for the Building, including fuel adjustment charges (as
determined for each month of the relevant period), rate adjustment charges,
sales tax, and/or any other factors used by the public utility furnishing
electric service to the Building (the "Public Utility") in computing its
charges to Landlord, applied to the kilowatt hours of electricity and
kilowatts of demand purchased by Landlord during a given period.
(ii) The term "Electricity Additional Rent" shall mean all
amounts computed in accordance with Subsection 20.02B above, and Landlord's
determination of such amounts shall be binding and conclusive on Tenant,
unless, within one hundred eighty (180) days after an electricity bill
shall have been rendered, Tenant shall give Landlord written notice (the
"Electricity Dispute Notice") that Tenant disputes the correctness of such
electricity bill, specifying whether such electricity bill contains a
mathematical error or whether there has been an error in reading the
Submeter(s). If Tenant shall have timely delivered the Electricity Dispute
Notice to Landlord, and the parties shall not be able to resolve such
dispute within one hundred eighty (180) days thereafter, then, provided
that Tenant shall have theretofore paid to Landlord the amount shown to be
due to Landlord on the disputed electricity bill, either party may refer
the decision of the issue raised to a reputable independent third party
electrical consultant mutually agreeable to the parties, and the decision
of such electrical consultant shall be conclusive and binding upon the
parties. The fees and expenses involved in such decision shall be borne by
the unsuccessful party (and if both parties are partially unsuccessful, the
electrical consultant shall apportion the fees and expenses between the
parties based on the degree of success of each party). Tenant agrees that,
notwithstanding any such dispute (and pending resolution thereof), Tenant
shall timely pay to Landlord in full the amount shown to be due to Landlord
on the disputed electricity bill. If such dispute is resolved in Tenant's
favor, Landlord shall either reimburse Tenant for any overpayment or credit
the amount of such overpayment against the next monthly installment(s) of
Minimum Rent payable under this Lease. .
D. If the Submeter should fail to properly register or operate at
any time during the Term for any reason whatsoever, then, unless Landlord
shall otherwise elect in accordance with the provisions of Section 20.03
below, Landlord may estimate the Electricity Additional Rent, and when the
Submeter shall again become properly operative, an appropriate
reconciliation shall be made, by Tenant paying any deficiency to Landlord
within ten (10) Business Days after demand therefor, or by Landlord
crediting Tenant with the amount of any overpayment, as the case may be.
E. Landlord and Tenant agree that the Submeter might be installed
or become operational subsequent to the date (the "Initial Occupancy Date")
that Tenant or any Person Within Tenant's Control first enters the Demised
Premises. In such event, Landlord, in Landlord's sole discretion, may: (i)
furnish Tenant Electricity on a "rent inclusion" basis in accordance with
the provisions of Section 20.03 below for the period between the
Commencement Date and such time as the Submeter shall be installed and
operating; or (ii) estimate the Electricity Additional Rent payable by
Tenant for the period commencing on the Initial Occupancy Date and ending
on the "Occupancy Reading Date" (hereinafter defined), and Tenant shall pay
to Landlord, within thirty (30) days after demand therefor, the amount set
forth on Landlord's estimate and, after rendition of a subsequent
statement, an appropriate reconciliation shall be made for any deficiency
owed by Tenant, or any overage paid by Tenant; or (iii) render a statement
to Tenant after the first reading of the Submeter shall be made (the date
upon which the Submeter shall be first read being herein called the
"Occupancy Reading Date"), which shall be on or about the date upon which
Tenant shall have commenced the conduct of Tenant's business operations in
the Demised Premises, and the amount calculated based on the Submeter
reading on the Occupancy Reading Date shall be determined on a per diem
basis and then multiplied by the number of days from the Initial Occupancy
Date through the Occupancy Reading Date to arrive at the amount due for
said period, and Tenant shall pay the Electricity Additional Rent to
Landlord on the basis of such Submeter reading within thirty (30) days
after rendition of Landlord's statement setting forth such computation.
Section 20.03.
-------------
A. Notwithstanding anything to the contrary contained in the
provisions of Section 20.02 above, if at any time during the Term said
submeter(s) shall not then be installed or operating, despite Landlord's
good faith efforts, or if Landlord shall be compelled by the Public Utility
or any Legal Requirement to discontinue furnishing electricity to Tenant on
a submetered basis, or if Landlord shall elect to discontinue furnishing
electricity to substantially all of the office tenants of the Building on a
submetered basis, then (subject to the provisions of Section 20.05 below)
Landlord shall furnish electricity to the Demised Premises in quantity
equal to the Existing Capacity on a "rent inclusion" basis, and there shall
be no separate charge to Tenant for such electricity; it being agreed that
if Landlord is not able to collect from Tenant all or a portion of the
allowable costs (as described in this Lease) incurred by Landlord for
Tenant Electricity for any reason, then the Minimum Rent shall be increased
by an amount equal to Landlord's actual costs to provide and deliver Tenant
Electricity less any portion of such allowable costs actually collected by
Landlord, and all references to Minimum Rent throughout this Lease shall
include the increase set forth herein, for so long as Landlord shall not be
able to collect from Tenant the allowable costs incurred by Landlord for
Tenant Electricity.
B. For the purposes of this Article 20, and other provisions of
this Lease:
(i) The term "Base Electric Charge" shall initially mean the
amount of $133,810.35 per annum (except during the period which shall begin
on the Commencement Date and end on the earlier to occur of (i) the day on
which Tenant shall first occupy the Demised Premises for the purpose of
conducting Tenant's business operations therein, or (ii) the expiration of
the Free Rent Period, during which period the term "Base Electric Charge"
shall mean the amount of $46,951.00 per annum).
(ii) The term "Electric Inclusion Factor" shall mean an
amount, to be included as a component of Minimum Rent, equal to the sum of
the Base Electric Charge plus all increases thereto pursuant to the
provisions of this Article 20; it being understood and agreed that at all
times the Electric Inclusion Factor shall not be less than the amount
computed by multiplying Landlord's Electricity Cost by Tenant's kilowatt
hour and kilowatt demand usage as determined by the estimate of Landlord's
electrical consultant ("Landlord's Consultant"), plus five (5%) percent of
the resulting total.
C. Landlord and Tenant agree that, during any period in which
electricity shall be furnished to the Demised Premises on a "rent
inclusion" basis, the annual Minimum Rent set forth in Section 1.01 above
shall be increased by an amount equal to the Base Electric Charge, as the
same may be adjusted pursuant to the provisions of this Article 20. Tenant
acknowledges and agrees that the Base Electric Charge currently represents
the amount initially included in the Electric Inclusion Factor to
compensate Landlord for the electrical wiring and other installations
necessary for, and for Landlord's obtaining and making available to Tenant,
the redistribution of electric energy to the Demised Premises as an
additional service, and that such Base Electric Charge component of the
Electric Inclusion Factor is subject to adjustment as provided herein based
on Tenant's consumption and/or demand of electricity, but shall in no event
be subject to reduction.
D. At any time, and from time to time, after Tenant shall have
entered into possession of the Demised Premises or any portion thereof, and
electricity shall be furnished to the Demised Premises on a "rent
inclusion" basis, Landlord and Landlord's agents and consultants may survey
the electrical fixtures, appliances and equipment located in or servicing
the Demised Premises and Tenant's consumption and demand of electricity
therein to (i) ascertain whether Tenant is complying with Tenant's
obligations under this Article 20, and (ii) determine whether the then
Electric Inclusion Factor included in Minimum Rent is less than the
Electric Inclusion Factor computed as a result of said survey, and to
adjust the Electric Inclusion Factor component of Minimum Rent in
accordance with the following computations:
(x) In the case of the first electric survey, if the cost or
value of Tenant's electric consumption and/or demand shown by the survey
shall exceed the initial Electric Inclusion Factor, then the Electric
Inclusion Factor component of the Minimum Rent shall be increased by the
amount of such excess retroactive to the date on which increases in the
connected load or changes in electric consumption occurred (as reasonably
determined by Landlord's Consultant); and
(y) In the event of the second and subsequent surveys, if
the cost or value of Tenant's electric consumption and/or demand shown by
such survey shall exceed the then Electric Inclusion Factor, then such
Electric Inclusion Factor component of Minimum Rent shall be increased by
the amount of such excess, effective as of the earlier of (a) the date of
such survey or (b) the date on which increases in the connected power load
or changes in electric consumption occurred (as reasonably determined by
Landlord's Consultant).
E. The initial amount of each such increase shall be paid by
Tenant to Landlord within thirty (30) days after Landlord furnishes Tenant
with a statement thereof, and thereafter, such increase shall be added to
each of the monthly installments of Minimum Rent. The cost of each survey
made pursuant to Subsection 20.03D above shall be borne equally by Landlord
and Tenant. The determination of Landlord's Consultant as to any increase
in the Minimum Rent based on such average monthly electric energy
consumption and/or demand shall be conclusive and binding upon the parties
from and after the delivery of a copy of such determination to Landlord and
Tenant, unless, within thirty (30) days thereafter, Tenant shall dispute
such determination by having an independent reputable electrical
consultant, selected and paid for by Tenant ("Tenant's Consultant"),
consult with Landlord or Landlord's Consultant as to said determination. If
the parties or their respective consultants shall agree as to a resolution
of said dispute, then such agreement shall be binding upon the parties, or
if the difference between them shall be eight (8%) percent or less of the
determination made by Landlord's Consultant, then the determination made by
Landlord's Consultant shall be binding upon the parties. If Landlord's
Consultant and Tenant's Consultant shall not agree within the said eight
(8%) percent of each other, then Landlord's Consultant and Tenant's
Consultant shall jointly select a third duly qualified independent,
reputable electrical consultant who shall determine the matter and whose
decision shall be binding upon both parties with the same force and effect
as if a non-appealable judgment had been entered by a court of competent
jurisdiction. If Landlord's Consultant and Tenant's Consultant shall not
agree upon such a third electrical consultant, the matter shall be
submitted to the American Arbitration Association in New York City to be
determined in accordance with its rules and regulations, and the decision
of the arbitrators shall be binding upon the parties with the same force
and effect as if a non-appealable judgment had been entered by a court of
competent jurisdiction. Any charges of such third consultant or of the
American Arbitration Association, and all costs and expenses of either,
shall be borne equally by both parties. Notwithstanding the foregoing,
until such final determination, Tenant shall pay Minimum Rent to Landlord
in accordance with the determination made by Landlord's Consultant. After
such final determination, the parties shall promptly make adjustment for
any deficiency owed by Tenant or any overage paid by Tenant.
F. If at any time during the Term the electric rate charged by
the Public Utility (the "Electric Rate") shall be increased or decreased by
the Public Utility, then, effective as of the date of each such change in
the Electric Rate, the Electric Inclusion Factor included in the Minimum
Rent shall be increased or decreased in proportion to such change in the
Electric Rate (as determined by Landlord's Consultant, whose determination
shall be binding and conclusive upon the parties, subject to the provisions
of Subsection 20.03E above).
G. At Landlord's request, the parties shall execute, acknowledge
and deliver to each other a supplemental agreement in such form as Landlord
shall reasonably require to reflect each change in the Minimum Rent under
this Article 20, but each and every such change shall be effective as of
the effective date described in the provision under which such change is
provided for, even if such agreement shall not be executed and delivered.
Section 20.04.
-------------
A. Tenant's use of electricity in the Demised Premises shall not
at any time exceed the Existing Capacity. In order to ensure that the
Existing Capacity is not exceeded and to avert possible adverse effect upon
the Building's distribution of electricity via the Building's electric
system, if at any time the total connected load of Tenant's fixtures,
appliances and equipment in the Demised Premises shall equal or exceed the
Existing Capacity, then Tenant shall not, without Landlord's prior consent
in each instance, connect any additional fixtures, appliances or equipment
to the Building's electric system, or make any alterations or additions to
the electric system of the Demised Premises existing on the Commencement
Date.
B. In the event that Tenant shall request electric energy in
addition to the Existing Capacity, and if and to the extent that Landlord
shall determine that such additional electric energy is available for use
by Tenant without (x) resulting in allocation to Tenant of a
disproportionate amount of available electric energy and (y) otherwise
adversely affecting the Building or any of the other tenancies therein,
then Landlord shall connect such additional electric energy to the Demised
Premises, and Tenant shall pay to Landlord a charge equal to Landlord's
then established connection charge for each additional amp of electric
energy or portion thereof so supplied to the Demised Premises, in addition
to the cost of installing additional risers, switches and related equipment
necessary in providing such additional electric energy.
Section 20.05.
-------------
A. Landlord reserves the right to discontinue furnishing
electricity to Tenant in the Demised Premises at any time upon not less
than sixty (60) days notice to Tenant, if Landlord shall be compelled by
the Public Utility or any Legal Requirements, it being agreed that such
compulsion shall include Landlord's inability to collect from Tenant the
allowable electric charges set forth in this Lease, except that, if Tenant
shall immediately commence and diligently pursue to completion arrangements
to obtain electricity from the Public Utility upon receipt of Landlord's
notice that Landlord intends to discontinue furnishing electricity to the
Demised Premises, then Landlord shall postpone such discontinuance for a
sufficient amount of time so as to allow Tenant to obtain electricity
directly from the Public Utility. If Landlord exercises such right, this
Lease shall continue in full force and effect and shall be unaffected
thereby, except that, from and after the effective date of such
discontinuance, Landlord shall not be obligated to furnish electricity to
Tenant.
B. If Landlord so discontinues furnishing electricity to Tenant,
then Tenant shall, at Tenant's own cost and expense, promptly arrange to
obtain electricity directly from the Public Utility. Such electricity may
be furnished to Tenant by means of the then existing Building System
feeders, risers and wiring, but only if and to the extent that Landlord
determines the same to be available, suitable and safe for such purpose.
All meters and additional panel boards, feeders, risers, wiring and other
conductors and equipment which may be required to obtain electricity
directly from such Public Utility shall be: (x) if located entirely within
the Demised Premises, installed and connected by Tenant, at Tenant's own
cost and expense, but only after having received Landlord's prior written
consent thereto (which consent shall not be unreasonably withheld or unduly
delayed), and Tenant shall thereafter maintain, repair and replace the
same, as necessary, at Tenant's own cost and expense; and (y) if located
wholly or in part outside of the Demised Premises, installed, connected and
thereafter maintained, repaired and replaced, as necessary, by Landlord, at
Tenant's cost and expense. Only rigid conduit will be allowed in connection
with any such installation.
Section 20.06. If, pursuant to any Legal Requirement, the amount which
Landlord shall be permitted to charge Tenant for the purchase of
electricity pursuant to this Article 20 shall be reduced below that which
Landlord would otherwise be entitled to charge Tenant hereunder, then
Tenant shall pay the difference between such amounts to Landlord as
additional rent within thirty (30) days after being billed therefor by
Landlord, as compensation for the use of the Building's electrical
distribution system. If any tax shall be imposed on Landlord by any
federal, state or municipal authority with respect to electricity furnished
to Tenant, then Tenant's pro rata share of such taxes shall be reimbursed
by Tenant to Landlord as additional rent within thirty (30) days after
being billed therefor.
Section 20.07. If the Public Utility or any Legal Requirement shall
institute or require a change in the manner in which electricity is to be
furnished or paid for, and such change reasonably necessitates an
appropriate modification of this Article 20, Tenant shall execute and
deliver to Landlord an instrument which sets forth such modification;
provided, however, that in no event shall the Minimum Rent be reduced to an
amount below the amount thereof stated in Section 1.01 above. Tenant agrees
to fully and timely comply with all rules and regulations of the Public
Utility applicable to Tenant or the Demised Premises.
Section 20.08. In the event that, pursuant to any of the provisions of
this Article 20, any initial determinations, statements or estimates are
made by or on behalf of Landlord (whether or not such initial
determinations, statements or estimates are subject to dispute), Tenant
shall pay to Landlord the amount(s) set forth on such initial
determinations, statements or estimates, as the case may be, until
subsequent determinations, statements or estimates are rendered, at which
time the parties shall make adjustment for any deficiency owed by Tenant,
or any overage paid by Tenant.
Section 20.09. Notwithstanding any provisions of this Article 20 and
regardless of the manner of service of electricity to the Demised Premises
(whether by submetering or as described in Section 20.02E, but excluding a
situation in which Tenant shall be obtaining electricity directly from the
Public Utility pursuant to the provisions of Section 20.05 above), in no
event shall the cost to Tenant for electricity to the Demised Premises be
less than one hundred five (105%) percent of Landlord's Electricity Cost,
subject to LMEP benefits.
Section 20.10. Any payments due hereunder for less than a calendar
year at the commencement or end of the Term shall be equitably prorated.
Any delay or failure by Landlord to render any bills or statements under
the provisions of this Article 20 shall not prejudice Landlord's right
thereunder to render such bills or statements for prior or subsequent
periods. Any delay or failure by Landlord in making any request or demand
for any amount payable by Tenant pursuant to the provisions of this Article
20 shall not constitute a waiver of, or in any way diminish, the continuing
obligation of Tenant to make such payment. The obligations of Tenant with
respect to any payment or increase, and the obligations of Landlord with
respect to a refund of any overpayment, pursuant to the provisions of this
Article 20 shall survive for a period of three (3) years after the
expiration or sooner termination of the Term; provided Landlord shall have
sent Tenant within said three (3) year period a written notice (including
the basis for such payment) or bill or statement pursuant to the provisions
of this Article 20; and provided, further, however, that any action by
Landlord to enforce its rights to any payment due or owing pursuant to the
provisions of this Article 20 shall have been brought by Landlord no later
than six (6) years after the expiration or sooner termination of the Term.
Section 20.11. Tenant acknowledges receipt of advice from Landlord to
the effect that, prior to the date of this Lease, Landlord filed an
application to qualify the Building under the Industrial and Commercial
Incentive Program, City of New York Administrative Code, Title 11, Chapter
2, Part 4 (the "ICIP Program"). Landlord and Tenant further acknowledge
that in the event the Building qualifies under the ICIP Program, then due
to such qualification, the Building may also qualify under the Lower
Manhattan Energy Plan, Article 2-I of the General City Law of the City of
New York (the "LMEP") and, if Landlord has applied for, and successfully
qualifies the Building under the LMEP, then Landlord shall credit against
Tenant's obligation to pay Electricity Additional Rent (as defined in
Subsection 20.02C hereof) due under this Lease (whether the same are due
through a rent inclusion charge for electricity, or otherwise (as the case
may be)), the reduction in Landlord's Electricity Cost (as defined in
Subsection 20.02C hereof) realized by the Building under the LMEP to the
extent attributable to the Demised Premises. If the Building qualifies
under the LMEP as the date hereof, Landlord shall use diligent, good faith
efforts to remain qualified under the LMEP. In accordance with Article 2-I
of the General City Law of the City of New York, subsection 25-bb(c)(5),
Landlord shall set forth on all invoices for Tenant's bills from Landlord
for electricity (for which reductions thereof are by reason of the
applicability of the LMEP), substantially the following language:
"Tenant may be entitled to share a rebate which your Landlord has
received for charges for energy pursuant to the revitalization area
energy rebate program. The amount is separately stated and identified
in this bill."
ARTICLE 21
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BROKER
Section 21.01. Each party represents and warrants to the other that
such party has not employed, dealt with or negotiated with any broker in
connection with this Lease, and each party shall indemnify, protect, defend
and hold the other harmless from and against any and all liability, damage,
cost and expense (including reasonable attorneys' fees and disbursements)
arising out of a breach by such party of the foregoing representation and
warranty. The provisions of this Section 21.01 shall not apply to the
Designated Broker, if a Designated Broker is specified in Section 1.01.
Landlord agrees to pay the Designated Broker's commission, if any, in
accordance with the terms of separate agreements between Landlord and the
Designated Broker.
ARTICLE 22
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SUBORDINATION
Section 22.01.
-------------
A. This Lease and all of Tenant's rights hereunder, including
Tenant's rights under Section 27.01, are and shall be subject and
subordinate to (i) every Underlying Lease, the rights of the Overlandlord
or Overlandlords under each Underlying Lease, all mortgages heretofore or
hereafter placed on or affecting any Underlying Lease, alone or with other
property, and to all advances heretofore or hereafter made under any such
leasehold mortgage, and to all renewals, modifications, consolidations,
replacements, substitutions, spreaders, additions and extensions of any
such leasehold mortgage, and (ii) any condominium plan or declaration now
or hereafter affecting the Building, and any other instruments or rules and
regulations promulgated in connection therewith, and (iii) any Mortgage now
or hereafter affecting the real property of which the Demised Premises form
a part or any part or parts of such real property, or such real property
and other property, and to each advance made or hereafter to be made under
any such Mortgage and to all renewals, modifications, consolidations,
replacements, substitutions, spreaders, additions and extensions of any
such Underlying Lease or Leases and/or Mortgages. The subordination
provisions herein contained shall be self-operative and no further
instrument of subordination shall be required. Landlord reserves the right,
by written notice to Tenant from Landlord, to provide that the foregoing
provisions shall not apply to any or all Mortgages then being and/or
thereafter to be made. In confirmation of such subordination, Tenant shall
execute and deliver promptly any certificate that Landlord or its
successors in interest may reasonably request. Notwithstanding any
provision in this Lease or any separate agreement with Tenant, Tenant
covenants and agrees that Tenant shall not do any act, or refrain from
doing any act, if doing such act, or refraining from doing such act, would
constitute a default or breach of any Underlying Lease or Mortgage to which
this Lease is subordinate, and as to which Tenant has knowledge.
B. Without limiting the generality of the provisions of the
foregoing Subsection 22.01A, Tenant acknowledges receipt of advice from
Landlord to the effect that this Lease, and all rights of Tenant hereunder,
are and shall be subject and subordinate in all respects to the lease dated
as of July 15, 1955, between Webb & Knapp, Inc., as landlord, and 13039
Corporation, as tenant, as such lease has been amended, and as assigned by
mesne assignments to Landlord with respect to the interest of the tenant
thereunder, and to 405 Company, S.K. Realty Company and 715 Realty Company,
collectively, with respect to the interest of the landlord thereunder
(collectively, the "Ground Lessor"). Landlord warrants and represents that
(i) since October 27, 1993, the date that the landlord named herein (i.e.,
Broadpine Realty Holding Company, Inc.) acquired title to the Building by
foreclosure (with respect to which foreclosure a Notice of Entry of Order
was entered on April 11, 1994), the Ground Lessor has not executed and
delivered to any tenant in the Building a non-disturbance or other
recognition-type agreement for such tenant's benefit, (ii) the Ground Lease
is the only Underlying Lease affecting the Land and/or the Building on the
date hereof, (iii) there is no Mortgage affecting the Land and/or the
Building on the date hereof, and (iv) on the date hereof, Landlord has not
received any written notice of default and, to the best of Landlord's
knowledge, is not in default in the observance of any of its obligations as
tenant under the Ground Lease.
Section 22.02. This Lease may be conditionally assigned as collateral
security by Landlord to a Mortgagee, which collateral assignment may
provide that, without Mortgagee's prior written consent, the parties shall
not (i) pay or accept the rent or additional rent under the terms of this
Lease for more than one month in advance of its due date, or (ii) enter
into an agreement to amend or modify this Lease if there is an unexpired
term of more than one (1) year thereunder, or (iii) voluntarily surrender
the Demised Premises, terminate this Lease, or accelerate the Term without
cause, or (iv) authorize the Tenant to assign this Lease or sublet the
Demised Premises or any part thereof except in the manner as provided under
the terms of this Lease. Any agreement by Landlord to make, perform or
furnish any capital improvements or services not related to the possession
or use of the Demised Premises by Tenant, shall not be binding on any
Mortgagee in the event of foreclosure or in the event that a Mortgagee
enters upon the Demised Premises pursuant to any security instrument in
connection with the mortgage loan. Any Mortgagee and its successor shall
not be responsible for any improvements, covenants, contractual obligations
or services which Landlord has agreed to make, furnish or perform for
Tenant under the terms of this Lease which do not run with the Land, or for
the control, care or management of the Building or any waste committed on
the Building by any tenant, or for any dangerous or defective condition of
the Building resulting in loss or injury or death to any tenant, licensee
or stranger. No Mortgagee will be deemed to assume liability for any
security deposited by Tenant unless such Mortgagee accepts the transfer of
said security and assumes responsibility therefor.
Section 22.03. Tenant agrees that, unless a Mortgagee shall elect
otherwise in the case of a foreclosure of such Mortgage, or unless the
Overlandlord of an Underlying Lease to which this Lease is subordinate
shall elect otherwise in the case of a cancellation or a termination of
such Underlying Lease, neither the cancellation nor termination of any
Underlying Lease, nor any foreclosure of a Mortgage affecting the Land,
Building, an Underlying Lease or the Demised Premises, nor the institution
of any suit, action, summary or other proceeding against Landlord herein or
any successor landlord, shall by operation of law or otherwise result in
cancellation or termination of this Lease or the obligations of Tenant
hereunder, and upon the request of the Overlandlord of such Underlying
Lease, or the holder of such Mortgage, or the purchaser at a sale in
foreclosure of such Mortgage, or other person who shall succeed to the
interests of Landlord (which such Overlandlord, holder, purchaser or other
person is hereafter in this paragraph referred to as "such successor in
interest"), Tenant covenants and agrees to attorn to such successor in
interest and recognize such successor in interest as its landlord under
this Lease. Tenant agrees to execute an instrument in writing reasonably
satisfactory to such successor in interest whereby Tenant attorns to such
successor in interest. Tenant further waives the provisions of any statute
or rule of law now or hereafter in effect which may give or purport to give
Tenant any right of election to terminate this Lease or to surrender
possession of the Demised Premises in the event any Underlying Lease
terminates or any such mortgage is foreclosed or any such proceeding is
brought by any Overlandlord or the holder of any such mortgage.
Section 22.04. In the event of the occurrence of any act or omission
by Landlord which would give Tenant the right to terminate this Lease or
claim a partial or total eviction, or make any claim against Landlord for
the payment of money, Tenant will not exercise such right until Tenant has
given written notice of such occurrence to (i) Landlord and (ii) each
Mortgagee and the Overlandlord of any Underlying Lease, as to whom, and to
the last address to which Tenant has been instructed to give such notice,
and a reasonable period for remedying such act or omission shall have
elapsed following the giving of such notices, during which such parties or
any of them with reasonable diligence following the giving of such notice,
have not commenced and continued to remedy such act or omission or to cause
the same to be remedied. Nothing herein contained shall be deemed to create
any rights in Tenant not specifically granted in this Lease or under any
applicable provision of law, nor to obligate any such Mortgagee or
Overlandlord to remedy any such act or omission.
Section 22.05. If a Mortgagee or prospective mortgagee shall request
modifications to this Lease, Tenant shall not unreasonably withhold, delay
or defer Tenant's consent thereto, provided that such modifications shall
not increase Tenant's monetary obligations hereunder or increase Tenant's
non-monetary obligations hereunder by more than a de minimis amount or
adversely affect the leasehold interest hereby created by more than a de
minimis amount. In no event shall a requirement that the consent of any
such Mortgagee or prospective mortgagee be given for any modification of
this Lease or for any assignment or sublease, be deemed to materially
adversely affect the leasehold interest hereby created.
Section 22.06 Notwithstanding anything to the contrary contained in
this Lease, Landlord hereby agrees to use reasonable efforts to obtain from
a Mortgagee a non-disturbance agreement in favor of Tenant on such
Mortgagee's standard form.
ARTICLE 23
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ESTOPPEL CERTIFICATE
Section 23.01. Tenant agrees, at any time, and from time to time,
within twenty (20) days after request by Landlord, to execute, acknowledge
and deliver to Landlord, a statement in writing addressed to Landlord
and/or to such other party(ies) as Landlord may designate: (i) certifying
that this Lease is unmodified and in full force and effect (or, if there
have been modifications, that the same is in full force and effect as
modified and stating the modifications), (ii) stating the dates to which
the Minimum Rent, additional rent and other charges have been paid, (iii)
stating whether or not, to the best knowledge of the signer of such
certificate, there exists any default by either party in the performance of
any covenant, agreement, term, provision or condition contained in this
Lease, and, if so, specifying each such default of which the signer may
have knowledge, and (iv) setting forth such other information as Landlord
may reasonably request concerning this Lease, it being intended that any
such statement delivered pursuant hereto may be relied upon by Landlord or
a purchaser of Landlord's interest and by any mortgagee, or prospective
mortgagee, of any mortgage affecting the Building or the Land, or both, and
by any Overlandlord or prospective Overlandlord under any Underlying Lease
affecting the Land or Building, or both, and by any mortgagee or
prospective mortgagee of any Underlying Lease, it being understood that
Tenant shall not be required to make any investigation of any matter beyond
Tenant's own books and records.
Section 23.02. Landlord agrees, in connection with any proposed
assignment of this Lease or subletting of the Demised Premises by Tenant
(except to an unaffiliated Successor Corporation), or in connection with
any offering materials to be delivered by Tenant to the Securities Exchange
Commission, within thirty (30) days after request by Tenant, to execute,
acknowledge, and deliver to Tenant, a statement in writing addressed to
Tenant and/or any other party(ies) as Tenant may designate: (i) certifying
that this Lease is unmodified and in full force and effect (or, if there
have been modifications, that the same is in full force and effect as
modified and stating the modifications), (ii) stating, to the best of
Landlord (but without having made any independent investigation), the dates
to which the Minimum Rent and Recurring Additional Rent have been paid, and
(iii) stating whether, to the best knowledge of Landlord (but without
having made any independent investigation), Tenant is in default in the
performance of any covenant, agreement, term, provision, or condition
contained in this Lease, and, if Tenant is in default, identifying all such
defaults; provided, however, that Landlord shall not be required to provide
such a statement to Tenant more than twice during any twelve (12) month
period.
ARTICLE 24
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LEGAL PROCEEDINGS
Section 24.01. If Tenant or Landlord shall bring any action or suit
for any relief against the other, declaratory or otherwise, arising out of
this Lease or Tenant's occupancy of the Demised Premises, the parties
hereto agree to and hereby waive any right to a trial by jury.
Section 24.02. This Lease shall be governed in all respects by the
laws of the State of New York. Tenant hereby specifically consents to
jurisdiction in the State of New York in any action or proceeding arising
out of this Lease and/or the use and occupation of the Demised Premises. If
Tenant at any time during the Term shall not be a New York partnership or a
New York corporation or a foreign corporation qualified to do business in
New York State, Tenant shall designate, in writing, an agent located in New
York County (together with such agent's address) for service under the laws
of the State of New York for the entry of a personal judgment against
Tenant. Tenant, by notice to Landlord, shall have the right to change
Tenant's designation of such agent, provided that at all times there shall
be an agent in New York County for such service. In the event of any
revocation by Tenant of such agency, such revocation shall be void and have
no force or effect unless and until a new agent shall have been designated
for service and Tenant shall have notified Landlord thereof (together with
such new agent's address). If any such agency designation shall require a
filing in the office of the Clerk of the County of New York, the same shall
be promptly accomplished by Tenant, at Tenant's expense, and a certified
copy thereof shall thereupon be transmitted by Tenant to Landlord.
ARTICLE 25
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SURRENDER
Section 25.01. Tenant shall, at the expiration or sooner termination
of the Term (either, as applicable, being referred to herein as the
"Surrender Date"), quit and surrender to Landlord the Demised Premises,
broom clean and in the condition required under this Lease, reasonable wear
and tear and Repairs that are the obligation of Landlord pursuant to the
terms of this Lease excepted, and shall surrender all keys for the Demised
Premises to Landlord at the place then fixed for the payment of rent, and
shall inform Landlord of all combinations of locks, safes and vaults, if
any, located (and permitted by Landlord to remain) in the Demised Premises.
Except as otherwise expressly provided elsewhere in this Lease, Tenant
shall, on the Surrender Date, remove all of Tenant's property from the
Demised Premises and shall immediately repair any damage to the Demised
Premises caused by the installation and/or removal of such property. Any or
all of such property not so removed shall, at Landlord's option, become the
exclusive property of Landlord or be disposed of by Landlord, at Tenant's
cost and expense, without further notice to or demand upon Tenant, and
without any liability to Tenant, in connection therewith.
Section 25.02.
-------------
A. If the Demised Premises (or any portion thereof) shall not be
surrendered as and when aforesaid, Tenant shall pay to Landlord as use and
occupancy for each month or fraction thereof during which Tenant continues
to occupy the Demised Premises (or any portion thereof) from and after the
Surrender Date (the "Continued Occupancy Period") an amount of money (the
"Occupancy Payment") equal to one hundred fifty (150%) percent of one
twelfth (1/12) of the Minimum Rent and additional rent payable by Tenant
during the immediately preceding twelve (12) months. Notwithstanding
anything to the contrary contained in this Section 25.02A, in the event
that Tenant shall be unable to surrender the Demised Premises on the
Surrender Date for any reason outside of Tenant's reasonable control (an
"Excusable Surrender Delay Event") and provided Tenant is not then in
default under this Lease (other than by reason of such failure to vacate)
and has given Landlord notice specifying the nature of the Excusable
Surrender Delay Event no less than thirty (30) days prior to the Surrender
Date, then the Occupancy Payment for the thirty (30) day period following
the Surrender Date shall be one twelfth (1/12) of the Minimum Rent and
additional rent payable by Tenant during the immediately preceding twelve
(12) months. Tenant shall make the Occupancy Payment, without notice or
previous demand therefor, on the first day of each and every month during
the Continued Occupancy Period.
B. In addition to making all required Occupancy Payments, Tenant
shall, in the event of Tenant's failure to surrender the Demised Premises
on the Surrender Date as and in the manner aforesaid, also indemnify and
hold Landlord harmless from and against any and all cost, expense, damage,
claim, loss or liability resulting from any delay or failure by Tenant in
so surrendering the Demised Premises, including any consequential damages
suffered by Landlord and any claims made by any succeeding occupant founded
on such delay or failure, and any and all reasonable attorneys' fees,
disbursements and court costs incurred by Landlord in connection with any
of the foregoing.
C. The receipt and acceptance by Landlord of all or any portion
of the Occupancy Payment shall not be deemed a waiver or acceptance by
Landlord of Tenant's breach of Tenant's covenants and agreements under this
Article 25, or a waiver by Landlord of Landlord's right to institute any
summary holdover proceedings against Tenant, or a waiver by Landlord of
Landlord's rights to enforce any of Landlord's rights, or pursue any of
Landlord's remedies against Tenant in such event as provided for in this
Lease or under law.
Section 25.03. It is expressly understood and agreed that there can be
no extension of the Term unless said extension is reduced to writing and
agreed to by Landlord. No verbal statement or unsigned writing shall be
deemed to extend the Term, and Tenant hereby agrees that any improvements
Tenant shall make to the Demised Premises in reliance upon any extension of
the Term given verbally or by an unsigned writing shall be at Tenant's
peril.
Section 25.04. If the last day of the Term shall fall on a Saturday,
Sunday or legal holiday, the term of this Lease shall expire on the
business day immediately following such date.
Section 25.05. Tenant expressly waives, for itself and for any person
claiming by, through or under Tenant, any rights which Tenant or any such
persons 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 summary holdover proceedings which Landlord
may institute to enforce the provisions of this Article 25.
Section 25.06. Each and every one of Tenant's obligations set forth in
this Article 25 (including the indemnity) shall survive the expiration or
other termination of the Term.
ARTICLE 26
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RULES AND REGULATIONS
Section 26.01. Tenant, and all Persons Within Tenant's Control, shall
observe and comply with: (i) all of the rules and regulations set forth in
Exhibit "F" annexed hereto and made a part hereof, and (ii) such additional
rules and regulations as Landlord hereafter at any time or from time to
time may reasonably make and may communicate in writing to Tenant, which,
in the reasonable judgment of Landlord, shall be necessary or desirable for
the reputation, safety, care or appearance of the Building and the Building
Systems, or the preservation of good order therein, or the operation or
maintenance of the Building and Building Systems, or the comfort of tenants
or others in the Building and which do not materially increase Tenant's
obligations or materially reduce Tenant's right hereunder; provided,
however, that in the case of any conflict between the provisions of this
Lease and any such rules or regulations, the provisions of this Lease shall
control, and provided further that nothing contained in this Lease shall be
construed to impose upon Landlord any duty or obligation to enforce the
rules and regulations or the terms, covenants or conditions in any other
lease as against any other tenant, and provided further that Landlord shall
not be liable to Tenant for violation of the same by any other tenant, its
servants, employees, agents, visitors, invitees, subtenants or licensees.
In the event that Tenant shall dispute the reasonableness of any additional
rule or regulation hereafter made or adopted by Landlord or Landlord's
agents, the parties hereto agree to submit the question of the
reasonableness of such rule or regulation for decision to the AAA, whose
determination shall be final and conclusive upon the parties hereto. The
right to dispute the reasonableness of any additional rule or regulation
upon Tenant's part shall be deemed waived unless the same shall be asserted
by service of a notice in writing upon Landlord within thirty (30) days
after the giving of notice of the making of the rule or regulation to
Tenant. Notwithstanding the foregoing, Landlord agrees not to enforce the
rules and regulations against Tenant in a discriminatory manner.
ARTICLE 27
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PERSONS BOUND
Section 27.01. The covenants, agreements, terms, provisions and
conditions of this Lease shall bind and inure to the benefit of the
respective heirs, distributees, executors, administrators, successors,
assigns and legal representatives of the parties hereto with the same
effect as if mentioned in each instance where a party hereto is named or
referred to, except that no violation of the provisions of Article 10 shall
operate to vest any rights in any successor, assignee or legal
representative of Tenant, and that the provisions of this Article 27 shall
not be construed as modifying the conditions of limitation contained in
Articles 14 and 15. The term "Landlord" as used in this Lease shall mean
the Landlord at the particular time in question, and it is agreed that the
covenants and obligations of Landlord under this Lease shall not be binding
upon Landlord herein named or any subsequent landlord with respect to any
period subsequent to the transfer of its interest under this Lease by
operation of law or otherwise. In the event of any such transfer, the
transferee shall be deemed to have assumed (subject to this Article 27) the
covenants and obligations of Landlord under this Lease, and Tenant agrees
to look solely to the transferee for the performance of the obligations of
Landlord hereunder, but only with respect to the period beginning with such
transfer and ending with a subsequent transfer of such interest. A lease of
Landlord's interest shall be deemed a transfer within the meaning of this
Article 27.
Section 27.02. Notwithstanding anything to the contrary provided in
this Lease, Tenant agrees that there shall be no personal liability on the
part of Landlord or Landlord's principals, partners, members, shareholders,
directors, officers, employees or agents, arising out of any default by
Landlord under this Lease, and that Tenant (and any person claiming by,
through or under Tenant) shall look solely to the equity interest of
Landlord in and to the Building or the leasehold estate of Landlord, and
the proceeds of any sale or other disposition thereof or proceeds from
insurance or condemnation awards, for the enforcement and satisfaction of
any defaults by Landlord hereunder, and that Tenant shall not enforce any
judgment or other judicial decree requiring the payment of money by
Landlord, against any other property or assets of Landlord, and at no time
shall any other property or assets of Landlord, or Landlord's principals,
partners, members, shareholders, directors or officers, be subject to levy,
execution, attachment or other enforcement procedure for the satisfaction
of Tenant's (or such person's) remedies under or with respect to this
Lease, the relationship of Landlord and Tenant hereunder or Tenant's use or
occupancy of the Demised Premises; such exculpation of personal liability
to be absolute and without any exception.
ARTICLE 28
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NOTICES
Section 28.01. In order for the same to be effective, each and every
notice, request or demand permitted or required to be given by the terms
and provisions of this Lease, or by any Legal Requirement, either by
Landlord to Tenant or by Tenant to Landlord (any of the foregoing being
referred to in this Article 28 as a "Notice"), shall be given in writing,
in the manner provided in this Section 28.01, unless expressly provided
otherwise elsewhere in this Lease. In the case of Notices given by Landlord
to Tenant, any such Notice shall be deemed to have been served and given by
Landlord and received by Tenant, on the third business day following the
date on which Landlord shall have deposited such Notice by registered or
certified mail, return receipt requested, enclosed in a securely closed
postpaid wrapper, in a United States general or branch post office facility
("Post Office"), addressed to Tenant at the Demised Premises (or before
Tenant has moved its offices to the Demised Premises, addressed to Tenant
at its address as stated on the first page of this Lease), Attention: Mr.
Frank Joyce, Chief Operating Officer, with a copy to Fried, Frank, Harris,
Shriver & Jacobson, One New York Plaza, New York, New York, 10004-1980,
Attention: Valerie Ford Jacob, Esq. In the case of Notices given by Tenant
to Landlord, any such Notice shall be deemed to have been served and given
by Tenant and received by Landlord on the third business day following the
date on which Tenant shall have deposited such Notice (and any required
copies thereof) by registered or certified mail, return receipt requested,
enclosed in securely closed postpaid wrapper in a Post Office addressed to
Landlord as follows: Broadpine Realty Holding Company, Inc., c/o J.P.
Morgan Investment Management Inc., 522 Fifth Avenue, New York, New York
10036, Attention: Ms. Elizabeth Propp, with a copy to Silverstein
Properties, Inc., 120 Broadway, New York, New York 10271, Attention: Ms.
Catherine T. Giliberti and with an additional copy to: Stroock & Stroock &
Lavan LLP, 180 Maiden Lane, New York, New York 10038, Attention: Brian
Diamond, Esq., and with copies thereof mailed as aforesaid to parties
designated in accordance with Section 22.04. Notices may also be given by
air courier or personal delivery with receipted delivery, each effective
upon receipt (or refusal to receive). Either party may, by notice as
aforesaid, designate a different address or addresses for Notices.
Section 28.02. Notices may be given on behalf of Landlord by the
managing agent for the Building, which currently is Silverstein Properties,
Inc. Notices may also be given on behalf of Landlord and Tenant by their
respective attorneys.
ARTICLE 29
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PARTNERSHIP TENANT
Section 29.01. If Tenant is a partnership (or is comprised of two (2)
or more persons, individually and as co-partners of a partnership) or if
Tenant's interest in this Lease shall be assigned to a partnership (or to
two (2) or more persons, individually and as co-partners of a partnership)
pursuant to Article 10 (any such partnership and such persons being
referred to in this Article as "Partnership Tenant"), the following
provisions of this Section 29.01 shall apply to such Partnership Tenant:
(i) the liability of each of the parties comprising Partnership Tenant
(other than limited partners of the initial Tenant entity if such entity
shall be a limited partnership) shall be joint and several, (ii) 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 changing, modifying or discharging this Lease, in whole or in
part, or surrendering all or any part of the Demised Premises to Landlord,
and by any notices, demands, requests or other communications which may
hereafter be given by Partnership Tenant or by any of the parties
comprising Partnership Tenant, (iii) any bills, statements, notices,
demands, requests or other communications given or rendered to Partnership
Tenant or to any of the parties comprising Partnership Tenant (other than
limited partners of the initial Tenant entity if such entity shall be a
limited partnership) shall be binding upon Partnership Tenant and all such
parties, (iv) if Partnership Tenant shall admit new partners, all of such
new partners shall, by their admission to Partnership Tenant, be deemed to
have assumed performance of all of the terms, covenants and conditions of
this Lease on Tenant's part to be observed and performed (it being
understood, however, that, in the case of a limited partnership, such new
limited partners shall not be deemed to have personally assumed such
performance), (v) Partnership Tenant shall give prompt notice to Landlord
of the admission of any such new partners (other than limited partners),
and, upon demand of Landlord, shall cause each such new partner (other than
limited partners) to execute and deliver to Landlord an agreement in form
satisfactory to Landlord, wherein each such new partner shall assume
performance of all of 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 clause (iv) of this Section 29.01), and (vi) on each
anniversary of the Commencement Date, Partnership Tenant shall deliver to
Landlord a list of the names of all partners and their current residential
addresses.
Section 29.02. If any partner in Tenant is or shall be a professional
corporation, Tenant agrees to cause such professional corporation and each
individual shareholder thereof to execute such guaranties and other
instruments, agreements or documents as Landlord may reasonably request
confirming that such individual shareholder shall have the same obligations
and liability under this Lease as such shareholder would have had if he,
and not such professional corporation, were a partner in Tenant.
Section 29.03. Tenant and each of the partners/shareholders of Tenant
hereby waive any requirements of law that may require that Landlord first
look to the assets of Tenant for recovery of any monies due hereunder, it
being the intention of the parties hereto that Landlord may, at Landlord's
election, proceed against the assets of Tenant and/or the assets of the
individual partners/shareholders of Tenant, whether simultaneously, or in
such order of priority as Landlord may determine in Landlord's sole
discretion. The provisions of this Section 29.03 are not intended to mean
that Landlord shall have limited or waived its rights to any other
available remedies hereunder or under applicable law as to Tenant,
including the right to look to the assets of Tenant for recovery of any
monies due hereunder.
Section 29.04. The partners/shareholders of Tenant hereby consent and
submit to the jurisdiction of any court of record of New York State located
in New York County, or of the United States District Court for the Southern
District of New York, and agree that service of process in any action or
proceeding brought by Landlord may be made upon any or all of the
partners/shareholders of Tenant by mailing a copy of the summons to such
partner(s)/shareholder(s) either at their respective addresses or at the
Demised Premises, by registered or certified mail, return receipt
requested. Notwithstanding the foregoing, the residence of any
partner/shareholder of Tenant shall not be a basis for a choice of venue or
for a motion by a partner/shareholder of Tenant for transfer of venue or
forum non conveniens pursuant to any rule of common law and/or any
applicable state of federal provision or statute, and each
partner/shareholder of Tenant and Tenant hereby waives the right to choose
venue or to move for transfer of venue or forum non conveniens on the
grounds that an individual partner/shareholder of the Tenant resides in a
particular jurisdiction.
ARTICLE 30
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NO WAIVER; ENTIRE AGREEMENT
Section 30.01. The failure of the Landlord to enforce Landlord's
rights for violation of, or to insist upon the strict performance of any
covenant, agreement, term, provision or condition of this Lease, or any of
the rules and regulations, shall not constitute a waiver thereof, and
Landlord shall have all remedies provided herein and by applicable law with
respect to any subsequent act which would have originally constituted a
violation. The receipt by Landlord of Minimum Rent and/or additional rent
with knowledge of the breach of any covenant, agreement, term, provision or
condition of this Lease shall not be deemed a waiver of such breach. No
provision of this Lease shall be deemed to have been waived by Landlord,
unless such waiver be in writing signed by Landlord. Tenant hereby
expressly waives any right that Tenant might otherwise have to raise or
assert either the aforesaid failure of Landlord to enforce rights, seek
redress or insist upon strict performance, or the aforesaid receipt by
Landlord of Minimum Rent and/or additional rent, as a basis for any defense
or counterclaim in any legal, equitable or other proceeding in which
Landlord shall seek to enforce any rights, covenants or conditions under
this Lease. The remedies provided in this Lease shall be cumulative and
shall not in any way abridge, modify or preclude any other rights or
remedies to which Landlord may be entitled under this Lease, at law or in
equity. Without limiting the generality of the foregoing, Tenant expressly
agrees that, upon the occurrence of an Event of Default, Landlord shall be
entitled to exercise all of the rights set forth in Article 15 above
(including the right to terminate this Lease), notwithstanding that this
Lease provides that Landlord may cure the default or otherwise perform the
obligation of Tenant which gave rise to such Event of Default, and
regardless of whether Landlord shall have effected such cure or performed
such obligation. The receipt and retention by Landlord of Minimum Rent or
additional rent from any person other than Tenant shall not be deemed a
waiver by Landlord of any breach by Tenant or any covenant, agreement,
term, provision or condition herein contained, or the acceptance of such
other person as a tenant, or a release of Tenant from the further
performance of the covenants, agreements, terms, provisions and conditions
herein contained.
Section 30.02. This Lease, with the schedules, riders and exhibits, if
any, annexed hereto, contains the entire agreement between Landlord and
Tenant, and any agreement heretofore made with respect to the subject
matter hereof shall be deemed merged herein. Any agreement hereafter made
between Landlord and Tenant shall be ineffective to change, modify, waive,
release, discharge, terminate or effect a surrender or abandonment of this
Lease, in whole or in part, unless such agreement is in writing and signed
by the party against whom enforcement is sought. All of the schedules,
riders and exhibits, if any, annexed hereto are incorporated herein and
made a part hereof as though fully set forth herein. If Tenant shall have
any right to an extension or renewal of the Term, or any right to lease
other space from Landlord, Landlord's exercise of Landlord's right to
terminate this Lease shall operate, ipso facto, to terminate such renewal,
extension or other right, whether or not theretofore exercised by Tenant.
Any option on the part of Tenant herein contained for an extension or
renewal hereof shall not be deemed to give Tenant any option for a further
extension beyond the first renewal or extended term. No option or right
granted to Tenant under this Lease to terminate, extend, or make any other
election, shall be exercisable or valid during such time as Tenant shall be
in default in any of its monetary obligations or in default (after notice
and the expiration of any applicable cure period provided in this Lease)
with respect to any of Tenant's material obligations under this Lease.
Section 30.03. No act or thing done by Landlord or Landlord's agents
during the Term shall be deemed to constitute an eviction by Landlord, or
be deemed an acceptance of a surrender of the Demised Premises, and no
agreement to accept such surrender shall be valid, unless in writing signed
by Landlord. No employee of Landlord or of Landlord's agents shall have any
power to accept the keys of the Demised Premises prior to the termination
of this Lease. The delivery of keys to any employee of Landlord or of
Landlord's agents shall not operate as a termination of this Lease or a
surrender of the Demised Premises. In the event that Tenant at any time
shall desire to have Landlord sublet the Demised Premises for Tenant's
account, Landlord or Landlord's agents are authorized to receive said keys
for such purposes without releasing Tenant from any of Tenant's obligations
under this Lease, and Tenant hereby relieves Landlord of any liability for
loss of or damage to any of Tenant's property in connection with such
subletting.
ARTICLE 31
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MISCELLANEOUS
Section 31.01. Tenant represents that Tenant has inspected the Demised
Premises, and (except as may be otherwise expressly set forth elsewhere in
this Lease) agrees to take same in its existing condition "as is" and
"where is" at the commencement of the term of this Lease, subject, however,
to Landlord's obligation to substantially complete Landlord's Work, in
accordance with Article 2 of this Lease. The taking of possession of the
Demised Premises by Tenant shall be deemed conclusive evidence that Tenant
accepts the same "as is" and "where is", and that the Demised Premises and
the Building are in good and satisfactory condition, but nothing contained
in this Section 31.01 shall be construed as a waiver by Tenant of
Landlord's obligations to perform such Repairs as Landlord shall otherwise
be required to perform pursuant to the provisions of this Lease, or to
complete such incomplete portions of any work as Landlord may be required
to complete pursuant to Article 2 above. Tenant agrees that neither
Landlord, nor any broker, agent, employee or representative of Landlord nor
any other party, has made, and Tenant does not rely on, any
representations, warranties or promises with respect to the Building, the
Land, the Demised Premises or this Lease, except as herein expressly set
forth, and no rights, easements or licenses are acquired by Tenant by
implication or otherwise except as expressly set forth in the provisions of
this Lease. Landlord makes no representation as to the design,
construction, development or use of the Land or Building, except as may be
expressly set forth in this Lease.
Section 31.02. The Table of Contents and Article headings of this
Lease are included for convenience only, and shall not limit or define the
meaning or content hereof. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural, as
the identity of the person or persons may require. The terms "herein,"
"hereof" and "hereunder," and words of similar import, shall be construed
to refer to this Lease as a whole, and not to any particular Article or
Section, unless expressly so stated. The term "and/or", when applied to two
or more matters or things, shall be construed to apply to any one or more
or all thereof as the circumstances warrant at the time in question. The
term "person" shall mean any natural person or persons, a partnership, a
corporation, and any other form of business or legal association or entity,
unless expressly otherwise stated. An "affiliate" of Tenant shall mean any
person which controls or is controlled by, or is under common control with,
Tenant, with the word "control" (and, correspondingly, "controlled by" and
"under common control with"), as used with respect to any person, meaning
the possession of the power to direct or cause the direction of the
management and policies of such person. The rule of "ejusdem generis" shall
not apply in or to the construction of any term of this Lease.
Section 31.03. If the term "Tenant", as used in this Lease, refers or
shall refer to more than one person, then, as used in this Lease, said term
shall be deemed to include all of such persons or any one of them. If any
of the obligations of Tenant under this Lease is or shall be guaranteed,
the term "Tenant" as used in Article 14 shall be deemed to mean the Tenant
and the guarantor, or either of them. If this Lease shall have been
assigned, then for purposes of Article 14, the term "Tenant" shall be
deemed to mean either assignor or assignee. The term "Tenant" shall mean
the Tenant herein named or any assignee or other successor in interest
(immediate or remote) of the Tenant herein named, which at the time in
question is the owner of the Tenant's estate and interest granted by this
Lease; but the foregoing provisions of this Section 31.03 shall not be
construed to permit any assignment of this Lease or to relieve the Tenant
herein named or any assignee or other successor in interest (whether
immediate or remote) of the Tenant herein named from the full and prompt
payment, performance and observance of each and every one of the covenants,
obligations and conditions to be paid, performed and observed by Tenant
under this Lease.
Section 31.04. If any portion of the Building shall be sold or
transferred by Landlord in a transaction in the nature of a condominium,
Landlord may, by notice to Tenant, elect to increase Tenant's Proportionate
Share under this Lease by dividing the prior Tenant's Proportionate Share
by the percentage that the assessed valuation of the tax lot which includes
the Demised Premises for the first year of changed ownership bears to the
total of the assessed valuations of all new tax lots which comprised the
single tax lot which included the Demised Premises during the preceding
Year, and base period amounts shall be reduced by multiplying the amount
thereof theretofore in effect by the same percentage, and affected
computations under Subsection 19.03A shall be apportioned, but in no event
shall Tenant's Operating Expense Payment or Tax Payment following such sale
or transfer exceed the amount that such Operating Expense Payment or Tax
Payment would have been had the Building remained as a single unit and
Tenant's Proportionate Share not been recalculated .
Section 31.05. Landlord and Tenant and any subtenant under this Lease,
hereby expressly consent to the jurisdiction of the Civil Court of the City
of New York and the Supreme Court of the State of New York with respect to
any action or proceeding between Landlord and Tenant or such party with
respect to this Lease or any rights or obligations of either party pursuant
to this Lease, and each of such subtenant, Landlord and Tenant agrees that
venue shall lie in New York County. Tenant and any subtenant further waive
any and all rights to commence any such action or proceeding against
Landlord before any other court.
Section 31.06. The submission of this Lease to Tenant shall not be
construed as an offer, nor shall Tenant have any rights with respect
thereto or the Demised Premises, unless and until Landlord and Tenant shall
each have executed a counterpart of this Lease and delivered the same to
the other. Until such execution and delivery, any action taken or expense
incurred by Tenant in connection with this Lease or the Demised Premises
shall be solely at Tenant's own risk and account.
Section 31.07. Neither this Lease nor any memorandum thereof shall be
recorded.
Section 31.08. This Lease shall be governed exclusively by (i) the
provisions hereof, 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, and (ii) the internal laws of
the State of New York as the same may from time to time exist, without
giving effect to the principles of conflicts of laws.
Section 31.09. There shall be no merger of this Lease, or the
leasehold estate created by this Lease, with any other estate or interest
in the Demised Premises, or any part thereof, by reason of the fact that
the same person may acquire or own or hold, directly or indirectly, (i)
this Lease or the leasehold estate created by this Lease, or any interest
in this Lease or in any such leasehold estate, and (ii) any such other
estate or interest in the Demised Premises or any part thereof; and no such
merger shall occur unless and until all persons having an interest
(including a security interest) in (a) this Lease or the leasehold estate
created by this Lease and (b) any such other estate or interest in the
Demised Premises, or any part thereof, shall join in a written instrument
effecting such merger and shall duly record the same.
Section 31.10. If Tenant is a corporation, each person executing this
Lease on behalf of Tenant hereby covenants, represents and warrants that
Tenant is a duly incorporated or duly qualified (if foreign) corporation
and is authorized to do business in the State of New York (a copy of
evidence thereof to be supplied to Landlord upon request); and that each
person executing this Lease on behalf of Tenant is an officer of Tenant,
and that he is duly authorized to execute, acknowledge and deliver this
Lease to Landlord (a copy of a resolution to that effect to be supplied to
Landlord upon request).
Section 31.11. The terms "Landlord shall have no liability to Tenant",
or "the same shall be without liability to Landlord", or "without incurring
any liability to Tenant therefor", or words of similar import, shall mean
that Tenant shall not be entitled to terminate this Lease, or to claim
actual or constructive eviction (partial or total), or to receive any
abatement or diminution of rent, or to be relieved in any manner of any of
Tenant's other obligations hereunder, or to be compensated for loss or
injury suffered, or to enforce any other right or kind of liability
whatsoever against Landlord under or with respect to this Lease or with
respect to Tenant's use or occupancy of the Demised Premises.
Section 31.12. If, under the terms of this Lease, Tenant shall be
obligated to pay to Landlord any amount (other than Minimum Rent), and no
payment period therefor is specified, Tenant shall pay to Landlord the
amount due within thirty (30) days after being billed therefor.
Section 31.13. Except as otherwise expressly provided herein, all
bills, invoices or statements rendered to Tenant pursuant to the terms of
this Lease shall be deemed binding and conclusive if, within ninety (90)
days of receipt of the same, Tenant fails to notify Landlord, in writing,
of Tenant's intention to dispute such bill, invoice or statement.
Section 31.14. Time shall be of the essence with respect to the
exercise of any option granted to Tenant pursuant to this Lease.
Section 31.15. Notwithstanding anything to the contrary contained in
this Lease, during the continuance of any default by Tenant (after notice
and the expiration of any applicable cure period provided in this Lease)
with respect to any of Tenant's obligations under this Lease, Tenant shall
not be entitled to exercise any rights or options or to receive any funds
or proceeds being held by Landlord under or pursuant to this Lease.
Section 31.16. If any sales or other tax shall be due or payable with
respect to any cleaning or other service which Tenant obtains or contracts
for directly from any third party or parties, Tenant shall file any
required tax returns and shall pay any such tax, and Tenant shall indemnify
and hold Landlord harmless from and against any loss, damage or liability
suffered or incurred by Landlord by reason thereof.
Section 31.17. Tenant acknowledges that Tenant has no rights to any
development rights, "air rights" or comparable rights appurtenant to the
Land and the Building, and consents, without further consideration, to any
utilization of such rights by Landlord, and agrees to promptly execute and
deliver any instruments which may be requested by Landlord, including
instruments merging zoning lots, evidencing such acknowledgment and
consent. The provisions of this Section 31.17 shall be deemed to be and
shall be construed as an express waiver by Tenant of any interest Tenant
may have as a "party in interest" (as such quoted term is defined under the
definition of "Zoning Lot" in Section 12-10 of the Zoning Resolution of the
City of New York) in the Land and/or the Building.
Section 31.18. This Lease shall not be deemed or construed to create
or establish any relationship of partnership or joint venture or similar
relationship or arrangement between Landlord or Tenant.
Section 31.19. The terms "actual" and "reasonable" when referring to
costs or expenses in connection with work or services performed shall be
deemed to include all amounts actually incurred and payable by a party
which shall be attributable to any requirements or regulations prescribed
by any labor unions.
ARTICLE 32
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INABILITY TO PERFORM; SEVERABILITY
Section 32.01. This Lease and the obligation of Tenant to pay Minimum
Rent and additional rent hereunder, and to perform and comply with all of
the other covenants and agreements hereunder on the part of Tenant to be
performed or complied with, shall in no way be affected, impaired or
excused because of Landlord's delay or failure to perform or comply with
any of the covenants and agreements hereunder on the part of Landlord to be
performed or complied with, or to furnish any service or facility, for
reasons beyond the reasonable control of Landlord, including strikes,
lock-outs or labor problems, governmental preemption, or by reason of any
Legal Requirements, or by reason of the conditions of supply and demand
which have been or shall be affected by war or other emergency or general
market conditions or otherwise.
Section 32.02. If any provision of this Lease or the application
thereof to any person or circumstance shall be determined by a court of
competent jurisdiction to be invalid or unenforceable, the remaining
provisions of this Lease or the application of such provision to persons or
circumstances other than those to which it is held invalid or unenforceable
shall not be affected thereby, and shall be valid and enforceable to the
fullest extent permitted by law.
Section 32.03. Each covenant, agreement, obligation and/or other
provision of this Lease on Tenant's part to be performed shall be deemed
and construed as a separate and independent covenant of Tenant, and not
dependent on any other provision of this Lease.
ARTICLE 33
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SECURITY
Section 33.01. Upon the execution of this Lease, Tenant shall deliver
to Landlord the "Letter of Credit" (as defined in Section 33.02 below), in
an amount equal to the Security Deposit Amount, as security for the
faithful performance and observance by Tenant of all of the covenants,
agreements, terms, provisions and conditions of this Lease. Tenant agrees
that, if Tenant shall default (after notice and the expiration of any
applicable cure period provided in this Lease) in respect of any of the
covenants, agreements, terms, provisions and conditions of this Lease,
including the payment of the Minimum Rent and additional rent, Landlord
may, at Landlord's option (unless Tenant has cured such default prior to
Landlord's drawing and Landlord shall have received satisfactory evidence
thereof) draw upon the entire Letter of Credit (or a portion thereof) and
thereafter use, apply or retain the whole or any part of the cash security
then being held by Landlord by reason of Landlord's having drawn upon the
Letter of Credit, as aforesaid (the "Cash Security") to the extent required
for the payment of any Minimum Rent and additional rent, or any other
payments as to which Tenant shall be in default or for any monies which
Landlord may expend or may be required to expend by reason of Tenant's
default (after notice and the expiration of any applicable cure period
provided in this Lease) in respect of any of the covenants, agreements,
terms, provisions and conditions of this Lease, including any damages or
deficiency in the reletting of the Demised Premises, whether such damages
or deficiency accrued before or after summary proceedings or other re-entry
by Landlord. Landlord shall not be required to so use, apply or retain the
whole or any part of the Cash Security, but if the whole or any part
thereof shall be so used, applied or retained, then Tenant shall, upon
demand, immediately deliver to Landlord a supplementary letter of credit
equal to the amount of the Cash Security so used, applied or retained or a
replacement letter of credit for the Security Deposit Amount (each of which
shall comply with the requirements of Section 33.02 below), so that
Landlord shall have the entire Security Deposit Amount on hand at all times
during the Term. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants, agreements and conditions of
this Lease, the Cash Security and/or Letter of Credit, as applicable, shall
be returned to Tenant within thirty (30) days after the Expiration Date and
delivery of exclusive possession of the Demised Premises to Landlord. In
the event of any making or assignment of any Underlying Lease or upon a
conveyance of the Building: (i) Landlord shall have the right to transfer
the Cash Security and/or Letter of Credit, as applicable, to the assignee
or lessee or transferee, (ii) upon such transfer to the assignee, lessee,
or transferee, and the assumption by the assignee, lessee, or transferee of
the Cash Security and/or Letter of Credit in writing, Landlord shall
thereupon be released by Tenant from all liability for the return of such
Cash Security and/or Letter of Credit, as applicable, and (iii) Tenant
agrees to look solely to Landlord's successor for the return of said Cash
Security and/or Letter of Credit, as applicable; it being agreed that the
provisions hereof shall apply to every transfer or assignment made of the
Cash Security and/or Letter of Credit, as applicable, to a new Landlord.
Tenant further covenants that Tenant will not assign or encumber or attempt
to assign or encumber either the Cash Security or the Letter of Credit, as
applicable, and that neither Landlord nor Landlord's successors or assigns
shall be bound by any such assignment, encumbrance, attempted assignment or
attempted encumbrance
Section 33.02.
-------------
A. The Letter of Credit that Tenant shall deliver to Landlord
(the "Letter of Credit") shall be a clean, irrevocable, transferable and
unconditional letter of credit (the "Letter of Credit") issued by and drawn
upon a commercial bank (hereinafter referred to as the "Issuing Bank")
which shall be a member bank of the New York Clearinghouse Association (or,
in the alternative, which shall have offices for banking purposes in the
Borough of Manhattan and shall have a net worth of not less than
$100,000,000, with appropriate evidence thereof to be submitted by Tenant),
which Letter of Credit shall: (i) have a term of not less than one year,
(ii) be materially in the form annexed hereto as Exhibit "G" or such other
form as is satisfactory to Landlord, (iii) be for the benefit of Landlord,
(iv) be in the amount of $1,500,000.00 (i.e., the Security Deposit Amount,
subject to reduction as provided in Subsection 33.02B), (v) except as
otherwise provided in this Section 33.02, conform and be subject to Uniform
Customs and Practice for Documentary Credits, 1993 Revision, ICC
Publication No. 500 (or any revision thereof or successor thereto), (vi) be
fully transferable by Landlord without any fees or charges therefor (or, if
the Letter of Credit shall provide for the payment of any transfer fees or
charges, the same shall be paid by Tenant as and when such payment shall be
requested by the Issuing Bank), (vii) provide that Landlord shall be
entitled to draw upon the Letter of Credit upon presentation to the Issuing
Bank of a sight draft accompanied by Landlord's statement that Landlord is
then entitled to draw upon the Letter of Credit pursuant to the terms of
this Lease, and (viii) provide that the Letter of Credit shall be deemed
automatically renewed, without amendment, for consecutive periods of one
year each year thereafter during the entire Term of this Lease and for a
period of thirty (30) days thereafter, unless the Issuing Bank shall send
notice (the "Non-Renewal Notice") to Landlord by registered mail, return
receipt requested, not less than thirty (30) days next preceding the then
expiration date of the Letter of Credit that the Issuing Bank elects not to
renew such Letter of Credit, in which case Landlord shall have the right,
by sight draft on the Issuing Bank, to receive the monies represented by
the then existing Letter of Credit, and to hold and/or disburse such
proceeds as cash security. If Landlord shall fail, for any reason
whatsoever, to draw upon the Letter of Credit within said thirty (30) day
period, and the Letter of Credit shall expire prior to the thirtieth (30th)
day following the Expiration Date of the Term of this Lease, then Tenant
shall, upon demand, immediately furnish Landlord with a replacement Letter
of Credit (which shall comply with all of the conditions set forth in the
immediately preceding sentence), in the Security Deposit Amount so that
Landlord shall have the entire Security Deposit Amount on hand at all times
during the Term and for a period of thirty (30) days thereafter. Tenant
acknowledges and agrees that the Letter of Credit shall be delivered to
Landlord as security for the faithful performance and observance by Tenant
of all of the covenants, agreements, terms, provisions and conditions of
this Lease, and that Landlord shall have the right to draw upon the entire
Letter of Credit (or a portion thereof) as hereinbefore described in
Section 33.01 above.
B. Landlord agrees that, provided that Tenant shall not then be
in default in any of its monetary obligations or in default (after notice
and the expiration of any applicable cure period provided in this Lease)
with respect to any of the material terms, provisions, covenants,
agreements and conditions of this Lease, Tenant shall be permitted to
reduce the amount of said Letter of Credit by the sum of $115,960.50 on the
first anniversary of the Commencement Date and on each anniversary of the
Commencement Date thereafter through and including the tenth (10th)
anniversary of the Commencement Date, provided, however, that at no time
shall the Letter of Credit furnished to Landlord pursuant to this Section
33.02 be reduced to an amount less than $340, 395.00. In the event that, at
the time Tenant would have been permitted to so reduce the amount of the
Letter of Credit in accordance with the provisions of this Section 33.02B,
Tenant shall have been in default of any of its monetary obligations
hereunder or in default (after notice and the expiration of any applicable
cure period provided in this Lease), with respect to any of the material
terms, covenants, or conditions to be performed or observed by Tenant under
this Lease, then following the cure of such default, as evidenced to the
satisfaction of Landlord, Tenant may reduce the Letter of Credit by the
aforesaid amount.
ARTICLE 34
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RENEWAL OPTION
Section 34.01. Tenant shall have an option (the "Renewal Option") to
extend the term of this Lease for a single renewal term of five (5) years
(the "Renewal Term"), which shall commence at noon on the Expiration Date
and shall expire at 11:59 p.m. on the fifth (5th) anniversary of the
Expiration Date or such earlier date upon which this Lease may be
terminated as herein provided. The Renewal Option may be exercised only by
Tenant giving Landlord written notice (the "Renewal Notice") of Tenant's
intention to renew this Lease pursuant to this Article 34 not later than
one (1) year prior to the Expiration Date, and not earlier than twenty-four
(24) months prior to the Expiration Date (TIME BEING STRICTLY OF THE
ESSENCE WITH RESPECT TO THE GIVING OF SUCH NOTICE), and such Renewal Notice
shall be deemed properly given only if, on the date that Tenant shall
exercise the Renewal Option (the "Exercise Date"): (i) this Lease shall not
have been previously terminated or canceled, (ii) Tenant shall be in
occupancy of all of the Demised Premises, and (iii) Tenant shall not be in
breach or default of any of the obligations of Tenant under this Lease.
Time shall be strictly of the essence with respect to the giving of the
Renewal Notice by Tenant to Landlord. Notwithstanding anything to the
contrary contained in this Section 34.01, if, subsequent to the Exercise
Date but prior to the commencement of the Renewal Term: (x) Tenant shall
not be in occupancy of all of the Demised Premises, or (y) an Event of
Default shall have occurred and then be continuing, then Landlord, in
Landlord's sole and absolute discretion, may elect, by written notice to
Tenant, to void Tenant's exercise of the Renewal Option, in which case
Tenant's exercise of the Renewal Option shall be of no force or effect, and
the Term shall end on the Expiration Date of the initial term of this
Lease, unless sooner canceled or terminated pursuant to the provisions of
this Lease or by law.
Section 34.02. If Tenant shall exercise the Renewal Option in
accordance with the provisions of this Article 34, then this Lease shall be
extended for the Renewal Term upon all of the terms, covenants and
conditions contained in this Lease, except that: (i) during the Renewal
Term, the Minimum Rent shall be the fair annual market rental value (the
"Market Value Rent") of the Demised Premises on the Expiration Date,
determined as provided in Section 34.03 below, but in no event less than
the Minimum Rent in effect on the Expiration Date, (ii) during the Renewal
Term, the Base Tax Amount shall be Taxes for the fiscal year in which the
first day of the Renewal Term shall occur, (iii) during the Renewal Term,
the Base Operating Year shall be the calendar year in which the first day
of the Renewal Term shall occur, (iv) from and after the Exercise Date (but
subject to the provisions of the last sentence of Section 34.01 above), all
references to "Expiration Date" shall be deemed to refer to the last day of
the Renewal Term, and all references to "Term" shall be deemed to include
the Renewal Term, (v) Tenant shall have no further right or option to renew
this Lease or the term hereof, and (vi) all provisions of this Lease
concerning the performance by Landlord or Tenant of any work, and the grant
by Landlord of any monetary contribution, rent abatement or rent credit, in
connection with Tenant's initial occupancy of the Demised Premises shall be
deemed deleted.
Section 34.03.
-------------
A. The term "Market Value Rent" shall mean the annual fair market
rental value of the Demised Premises as of the Determination Date (as
hereinafter defined), taking into consideration the value of such rental
abatements and construction allowances customarily being granted by
landlords at such times in Comparable Buildings to tenants entering into
leases of the size of the Demised Premises for a five (5) year term and all
other relevant factors, but in no event less than the Minimum Rent and all
additional rent payable pursuant to Article 19 of this Lease ("Recurring
Additional Rent") payable by Tenant in the twelve-month period immediately
prior to the Expiration Date of the initial term of this Lease. In
addition, commencing on the first day of the Renewal Term, Tenant shall
pay, as additional rent, in addition to the escalation payments provided
for under this Lease, such other types of escalation payments which
Landlord shall be then charging tenants under other leases, or shall be
then requiring in other offers for leases, in the Building. For purposes
hereof, the "Determination Date" shall mean the date which shall occur one
(1) year prior to the Expiration Date.
B. The initial determination of Market Value Rent shall be made
by Landlord. In the event that Tenant shall have duly and timely delivered
this Renewal Notice, then Landlord shall give notice (the "MVR Notice") to
Tenant of Landlord's initial determination of the Market Value Rent within
thirty (30) days following the Determination Date. Such initial
determination of Market Value Rent shall be final and binding in fixing the
Market Value Rent, unless, within thirty (30) days after Landlord shall
have given MVR Notice to Tenant, Landlord shall receive a notice from
Tenant (the "MVR Objection Notice"): (i) advising Landlord that Tenant
disagrees with the initial determination of Market Value Rent set forth in
the MVR Notice, and (ii) proposing a specific alternative Market Value
Rent, which shall have been determined in good faith by Tenant. If Landlord
and Tenant shall fail to agree upon the Market Value Rent within thirty
(30) days after Landlord shall have received the MVR Objection Notice, then
Landlord and Tenant each shall give notice to the other setting forth the
name and address of an arbitrator designated by the party giving such
notice. If either party shall fail to give notice of such designation
within ten (10) days, then the first arbitrator chosen shall make the
determination alone. If two arbitrators shall have been designated, such
two arbitrators shall, within thirty (30) days following the designation of
the second arbitrator, make their determinations of Market Value Rent in
writing and give notice thereof to each other and to Landlord and Tenant.
Such two arbitrators shall have twenty (20) days after the receipt of
notice of each other's determinations to confer with each other and to
attempt to reach agreement as to the determination of Market Value Rent. If
such two arbitrators shall concur as to the determination of the Market
Value Rent, such concurrence shall be final and binding upon Landlord and
Tenant. If such two arbitrators shall fail to concur by the end of said
twenty (20) day period, then such two arbitrators shall forthwith designate
a third arbitrator. If the two arbitrators shall fail to agree upon the
designation of such third arbitrator within ten (10) days, then either
party may apply to the American Arbitration Association or any successor
thereto having jurisdiction for the designation of such arbitrator. All
arbitrators shall be real estate appraisers or consultants who shall have
had at least fifteen (15) years continuous experience in the business of
appraising or managing real estate or acting as real estate agents or
brokers in the Borough of Manhattan, City of New York. The third arbitrator
shall conduct such hearings and investigations as he may deem appropriate
and shall, within thirty (30) days after his designation, choose one of the
determinations of the two arbitrators originally selected by the parties,
and that choice by the third arbitrator shall be binding upon Landlord and
Tenant. Each party shall pay its own counsel fees and expenses, if any, in
connection with any arbitration under this Article 34, including the
expenses and fees of any arbitrator selected by it in accordance with the
provisions of this Article, and the parties shall share equally all other
expenses and fees of any such arbitration. The determination rendered in
accordance with the provisions of this Section 34.03 shall be final and
binding in fixing the Market Value Rent. The arbitrators shall not have the
power to add to, modify or change any of the provisions of this Lease.
C. If for any reason the Market Value Rent shall not have been
determined prior to the commencement of the Renewal Term, then, until the
Market Value Rent and, accordingly, the Minimum Rent, shall have been
finally determined, the Minimum Rent and all Recurring Additional Rent
payable for and during the Renewal Term shall be equal to the Market Value
Rent and Recurring Additional Rent proposed by Landlord. Upon final
determination of the Market Value Rent, an appropriate adjustment to the
Minimum Rent shall be made reflecting such final determination, and
Landlord or Tenant, as the case may be, shall refund or pay to the other
any overpayment or deficiency, as the case may be, in the payment of
Minimum Rent from the commencement of the Renewal Term to the date of such
final determination.
ARTICLE 35
----------
FIRST OFFER RIGHTS
Section 35.01.
-------------
A. During the first five (5) years of the Term of this Lease,
provided that (x) this Lease shall then be in full force and effect, (y)
Tenant shall not then be in default with respect to any of Tenant's
monetary obligations or in default (after notice and the expiration of any
applicable cure period provided in this Lease) with respect to any of the
material terms, provisions, covenants, agreements and conditions of this
Lease and (z) Tenant or a Related Corporation shall then occupy the entire
Demised Premises, then, at the time that any First Offer Space (as
hereinafter defined) shall be available for lease by Landlord, Landlord
shall deliver to Tenant notice of such availability (each a "First Offer
Space Notice"), and Tenant shall, subject to the provisions of this Article
35, have one-time first offer rights (collectively, the "First Offer
Rights") with respect to each such First Offer Space. If Landlord has any
obligation to take any affirmative action or if Landlord has any right to
trigger a tenant's right, in either instance, with respect to any First
Offer Space (or any portion thereof) under any lease with another tenant of
the Building (which tenant has rights with respect to such First Offer
Space (or any portion thereof)), Landlord will take such action or exercise
such right in accordance with the terms of the relevant lease. The First
Offer Spaces are as follows (with each being referred to individually as a
"First Offer Space"): (i) approximately 9,879 rentable square feet of space
on the thirtieth (30th) floor of the Building as depicted on Exhibit K (the
"First 30th Floor Offer Space"), which space Landlord hereby agrees not to
lease to any other tenant during the six (6) month period following the
execution of this Lease; provided, however, that, notwithstanding the
foregoing, Landlord may lease or attempt to lease the 30th Floor Offer
Space during such six month (6) period (without offering same to Tenant)
if, prior to the end of such six (6) month period, Landlord shall have
leased or licensed the space on the fifteenth (15th) floor of the Building
(the "15th Floor Space") as depicted on Exhibit L to a third party tenant
and the space on the twelfth (12th) floor of the Building (the "12th Floor
Space") as depicted on Exhibit M to a third party tenant (it being
understood that Landlord shall promptly notify Tenant of the latter to
occur of the leasing of the 15th Floor Space or the 12th Floor Space); (ii)
approximately 6,434 rentable square feet of space on the thirtieth (30th)
floor of the Building as depicted on Exhibit N (the "Second 30th Floor
Offer Space"), which Landlord anticipates shall become available for lease
by Landlord on or about January 1, 2000, subject to the superior right of
Donaldson, Lufkin, and Jenrette, Inc. to lease such space; (iii) any
portion of the thirty-sixth (36th) floor of the Building (the "36th Floor
Offer Space") which shall become available for lease by Landlord, subject
to the superior right of Lester Schwab Katz & Dwyer ("Lester Schwab") to
lease all or a portion of such space within two (2) years from the
Commencement Date; provided, however, that if Lester Schwab elects to take
only a portion of the 36th Floor Offer Space, Tenant may lease from
Landlord that portion of space on the thirty sixth (36th) floor not leased
by Lester Schwab (the "Remaining 36th Floor Offer Space") or any portion
thereof, provided that the portion of the Remaining 36th Floor Offer Space
that Tenant does not elect to lease is, in Landlord's sole discretion, an
area that is contiguous, commercially rentable, and divisible from that
portion of the Remaining 36th Floor Offer Space that Tenant elects to so
lease; (iv) the entire rentable portion of the thirty-first (31st) floor of
the Building and that portion of the thirtieth (30th) floor of the
Building, as depicted on Exhibit O (the "30th/31st Floor Offer Space"),
subject to the superior right of Donaldson, Lufkin, and Jenrette, Inc. to
lease such space; it being agreed, however, that Tenant shall not have the
right to lease less than the entire 30th/31st Floor Offer Space; and (v)
the entire rentable portion of the twenty-first (21st) floor of the
Building, as depicted on Exhibit P (the "21st Floor Offer Space"), subject
to the exercise by Garban, Ltd. of Garban, Ltd.'s right to cancel its lease
with respect to such space effective November 1, 2000; provided, however,
that Tenant must elect to lease all of the 21st Floor Offer Space unless
Landlord, in Landlord's sole discretion, agrees to lease a lesser portion
of such space to Tenant, in which case such portion shall contain at least
one-half of the rentable square footage of the 21st floor of the Building.
Notwithstanding the foregoing, in the event Tenant does not elect to lease
the entire 30th/31st Floor Offer Space in accordance with the provisions of
clause (iv) above, and if General Reinsurance Corp. does not elect to renew
its lease for such space, then, subject to the right of Donaldson, Lufkin,
and Jenrette, Inc. to lease such space, Tenant may lease from Landlord that
portion of space, if any, which Landlord, in Landlord's sole discretion,
agrees to lease to Tenant, provided that such portion shall contain at
least one-half of the rentable square footage on the floor of the Building
where such space is located. The lease of General Reinsurance Corp. with
Landlord with respect to the 30th/31st Floor Offer Space expires according
to its terms in March 2002. The First Offer Space Notice shall set forth
the First Offer Space, together with a floor plan depicting such First
Offer Space. In the event Tenant fails to deliver to Landlord written
notice of Tenant's election to exercise a particular First Offer Right
(each a "First Offer Notice") within ten (10) business days after delivery
of the First Offer Space Notice (time being of the essence with respect
thereto) (the "First Offer Exercise Date"), the relevant First Offer Right
shall be deemed revoked, null, and void, and of no further force or effect,
and Tenant shall have no further rights of first offer with respect to such
First Offer Space, and Landlord may thereafter proceed with the leasing of
the relevant First Offer Space to any party upon any terms and conditions.
Such First Offer Notice shall be deemed properly given only if on the First
Offer Exercise Date: (i) this Lease shall not have been previously
terminated or canceled and (ii) Tenant shall not be in breach or default of
any of Tenant's monetary or material non-monetary obligations under this
Lease (after notice and the expiration of any applicable cure period
provided in this Lease).
B. Notwithstanding anything to the contrary contained in this
Section 35.01, if on the relevant First Offer Space Commencement Date (as
defined in Subsection 35.02B), an Event of Default shall have occurred and
be continuing (and if the underlying default shall have been of a monetary
or material non-monetary nature), Landlord, in Landlord's sole and absolute
discretion, may elect, by written notice to Tenant, to void Tenant's
exercise of the relevant First Offer Right, in which case Tenant's exercise
of such First Offer Right shall be of no force or effect.
Section 35.02.
-------------
A. If Tenant shall duly and timely deliver the relevant First
Offer Notice to Landlord in the manner specified hereinabove, the parties
hereto shall enter into an amendment (the "First Offer Space Lease
Amendment") with respect to the First Offer Space in question, pursuant to
which (i) the relevant First Offer Space shall be added to and become part
of the Demised Premises under this Lease, (ii) the Minimum Rent shall be
increased by an amount equal to the product of (a) the Minimum Rent then
payable for the Demised Premises (on a per square foot basis), and (b) the
rentable square footage of the relevant First Offer Space, (iii) Tenant's
Proportionate Share shall be adjusted to reflect the addition of the
relevant First Offer Space (with no change in the Base Tax Amount or the
Base Operating Year), (iv) Landlord shall provide Tenant with an abatement
of Minimum Rent under the Lease with respect to the relevant First Offer
Space from the First Offer Space Commencement Date in an amount equal to
the product of (x) three (3) months of Minimum Rent for the relevant First
Offer Space, and (y) the amount of the percentage amount determined by
dividing the number of months then remaining in the Term by the total
number of months in the Term (the "Allocable Percentage"), (v) Landlord's
Contribution for the relevant First Offer Space shall be equal to the
product of (x) the Allocable Percentage and (y) Landlord's Contribution (on
a per square foot basis) and (z) the rentable square footage of the
relevant First Offer Space, (vi) the Security Deposit Amount for the
relevant First Offer Space shall be equal to the product of (x) Landlord's
Contribution for the relevant First Offer Space (on a per square foot
basis) and (y) the rentable square footage of the relevant First Offer
Space, and (vii) the lease term with respect to the relevant First Offer
Space shall be co-terminous with the Term of the Lease; provided, however,
that the failure of the parties to so execute or exchange said First Offer
Space Lease Amendment shall not in any way reduce the parties' obligations
or rights under this Lease. Notwithstanding anything to the contrary
contained in this Lease, the Security Deposit Amount for the relevant First
Offer Space will be reduced on the first anniversary of the relevant First
Offer Space Commencement Date and on each anniversary of the relevant First
Offer Space Commencement Date thereafter through and including the tenth
(10th) anniversary of the relevant First Offer Space Commencement Date by
the "Differential Amount"(as hereinafter defined). For the purposes hereof,
for any relevant First Offer Space the "Differential Amount" is that amount
obtained by dividing the sum obtained by subtracting from the Security
Deposit Amount for the relevant First Offer Space an amount equal to three
(3) months of Fixed Rent for the relevant First Offer Space by the number
(10); provided, however, that at no time shall the Security Deposit Amount
for the relevant First Offer Space be reduced to an amount less than three
(3) months of Fixed Rent for the relevant First Offer Space.
B. If Tenant shall timely exercise the relevant First Offer
Right, Landlord shall endeavor to deliver possession of the relevant First
Offer Space to Tenant on the date set forth in the relevant First Offer
Space Notice, subject to delays beyond Landlord's reasonable control (the
date of delivery of possession of the relevant First Offer Space to Tenant
being hereinafter referred to as the "First Offer Space Commencement
Date").
C. The relevant First Offer Space shall be delivered to Tenant in
its then "as is" condition, and Landlord shall have no obligation to
perform any work or Alterations in order to prepare the relevant First
Offer Space for Tenant's initial occupancy thereof, except that Landlord
shall, at Landlord's cost and expense, demolish the relevant First Offer
Space and install Building Standard A/C Unit(s) (as hereinafter defined),
the tonnage of which shall be proportionate to the size of the relevant
First Offer Space; it being agreed that, notwithstanding anything to the
contrary contained in this Lease, the tonnage of Building Standard A/C
Unit(s) for a full floor at the Building is 120 tons ("Landlord's First
Offer Space Work"). Landlord shall perform Landlord's First Offer Space
Work in the same manner in which Landlord was obligated to perform
Landlord's work.
Section 35.03. If Landlord, after using reasonable efforts, is unable
to give possession of the relevant First Offer Space to Tenant on the
relevant First Offer Space Commencement Date because of the holding-over or
retention of possession of any tenant, undertenant or occupants, or for any
other reason beyond Landlord's reasonable control, 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 the First
Offer Space or the Term of this Lease, but the relevant First Offer Space
Commencement Date shall be deemed extended until the date on which Landlord
shall have delivered possession thereof to Tenant (provided Tenant is not
responsible for the inability to obtain possession). Notwithstanding
anything to the contrary contained in this Lease, in the event that
Landlord is unable to deliver the relevant First Offer Space to Tenant
within ninety (90) days from the relevant First Offer Space Commencement
Date (the ninetieth (90th) day of such period being referred to as the
"Inability to Convey Date"), then Tenant may, at Tenant's option, elect to
revoke Tenant's exercise of such relevant First Offer Right within ninety
(90) days after the Inability to Convey Date (such period being hereinafter
referred to as the "Tenant Revocation Period"), it being understood that if
Tenant does not elect to revoke Tenant's exercise of Tenant's relevant
First Offer Right by the expiration of such Tenant Revocation Period,
Tenant shall be deemed to have waived Tenant's right to revoke Tenant's
exercise of Tenant's relevant First Offer Right and shall remain obligated
with respect to the relevant First Offer Space pursuant to the provisions
of this Lease and shall accept the relevant First Offer Space on the date
on which Landlord delivers possession thereof to Tenant in accordance with
the provisions of this Article 35 of the Lease. The provisions of this
Section 35.03 are intended to constitute "an express provision to the
contrary" within the meaning of Section 223-a of the New York Real Property
Law.
Section 35.04. All materials, work, labor, fixtures and installations
required by Tenant for completion of the relevant First Offer Space (if
any) other than Landlord's First Offer Space Work, shall (subject to the
provisions of Article 5 hereof) be performed by Tenant, at Tenant's sole
cost and expense (other than Landlord's Contribution for the relevant First
Offer Space as provided in Subsection 35.02A above).
ARTICLE 36
----------
EXPANSION OPTION
Section 36.01.
-------------
A. Notwithstanding anything to the contrary stated in this Lease,
provided that this Lease shall then be in full force and effect and that
Tenant shall not then be in default with respect to any of Tenant's
monetary obligations or in default (after notice and the expiration of any
applicable cure period provided in this Lease) with respect to any of the
material terms, provisions, covenants, agreements and conditions of this
Lease, Landlord shall provide to Tenant, during the first five (5) years of
the Term (but in no event more often than three (3) times in any twelve
(12) month period), within thirty (30) days following Landlord's receipt of
Tenant's written request therefor, a list (the "Available Space List") of
space(s) contiguous to the Demised Premises (or if such contiguous space(s)
is not available, other space(s) in the Building) comprising up to one full
floor of the Building and available for lease by Landlord or anticipated to
become available for lease within four (4) months following the date of the
delivery of such Available Space List (the "Available Expansion Space(s)").
B. Provided that this Lease shall be in full force and effect and
Tenant shall not then be in default with respect to any of Tenant's
obligations under this Lease, Tenant shall have the one-time option (the
"Expansion Option"), subject to any existing rights or options of other
tenants (i.e., rights existing as of the date of such Available Space List)
and any renewal rights or renewal options granted to any future occupants
of the Available Expansion Space, to lease one of the Available Expansion
Spaces or portions thereof upon the terms and conditions contained in this
Article 35. The Expansion Option shall be exercisable only by Tenant giving
written notice to Landlord that Tenant elects to exercise such Expansion
Option (the "Expansion Notice"), not later than ten (10) Business Days
after the date of delivery of the Available Space List to Tenant (time
being strictly of the essence with respect to the giving of such expansion
notice), and such Expansion Notice shall specify which Available Expansion
Space or portions thereof Tenant elects to lease pursuant to this Expansion
Option, it being agreed that Tenant may elect to lease less than an entire
particular Available Expansion Space provided that the remaining portion of
the Available Expansion Space that Tenant does not elect to lease (the
"Non-Leased Space") is, in Landlord's judgment, an area that is contiguous,
commercially rentable, and divisible from that portion of the Available
Expansion Space that Tenant elects to so lease (the "Expansion Space"),
and, in no event, shall such Non-Leased Space contain less than one-quarter
of the rentable square footage on the floor of the Building where such
Expansion Space is located (i.e., one "quadrant").
Section 36.02.
-------------
A. The terms and conditions of the Lease with respect to the
Expansion Space shall be the same terms and conditions contained in this
Lease, except as provided herein, such that (i) the Expansion Space shall
be added to and become part of the Demised Premises under this Lease, (ii)
the Minimum Rent shall be increased by an amount equal to the product of
(a) the Minimum Rent then payable for the Demised Premises (on a per square
foot basis), and (b) the rentable square footage of the Expansion Space,
(iii) Tenant's Proportionate Share shall be adjusted to reflect the
addition of the Expansion Space (with no change in the Base Tax Amount or
the Base Operating Year), (iv) Landlord shall provide Tenant with an
abatement of Minimum Rent under the Lease with respect to the Expansion
Space in an amount equal to the product of (x) three (3) months of Minimum
Rent for the Expansion Space, and (y) the amount of the percentage amount
determined by dividing the number of months then remaining in the Term by
the total number of months in the Term (the "Allocable Percentage") (v)
Landlord's Contribution for the Expansion Space shall be equal to the
product of (x) the Allocable Percentage and (y) Landlord's Contribution (on
a per square foot basis) and (z) the rentable square footage of the
Expansion Space, (vi) the Security Deposit Amount for the Expansion Space
shall be equal to the product of (x) Landlord's Contribution for the
relevant Expansion Space (on a per square foot basis) and (y) the rentable
square footage of the Expansion Space, and (vii) the lease term with
respect to the Expansion Space shall be co-terminous with the Term of the
Lease. Notwithstanding anything to the contrary contained in this Lease,
the Security Deposit Amount for the relevant Expansion Space will be
reduced on the first anniversary of the relevant Expansion Space
Commencement Date and on each anniversary of the relevant Expansion Space
Commencement Date thereafter through and including the tenth (10th)
anniversary of the relevant Expansion Space Commencement Date by the
"Expansion Differential Amount" (as hereinafter defined). For the purposes
hereof, for any relevant Expansion Space the "Expansion Differential
Amount" is that amount obtained by dividing the sum obtained by subtracting
from the Security Deposit Amount for the relevant Expansion Space an amount
equal to three (3) months of Fixed Rent for the relevant Expansion Space by
the number (10); provided, however, that at no time shall the Security
Deposit Amount for the relevant Expansion Space be reduced to an amount
less than three (3) months of Fixed Rent for the relevant Expansion Space.
If Tenant shall timely exercise the Expansion Option, Landlord shall
deliver possession of the Expansion Space to Tenant on a date set forth in
the Expansion Notice, subject to delays beyond Landlord's reasonable
control (the date of delivery of possession of the Expansion Space to
Tenant being hereinafter referred to as the "Expansion Space Commencement
Date"). In the event that Tenant timely exercises the right granted herein,
Landlord and Tenant shall promptly thereafter execute an amendment to this
Lease to incorporate the Expansion Space and to make necessary adjustments
to the relevant provisions of this Lease (e.g., the definitions of Square
Feet of Rentable Area, Tenant's Proportionate Share, Minimum Rent, Security
Deposit Amount, Landlord's Contribution); provided, however, that the
failure to so execute or exchange said amendment shall not in any way
reduce Tenant's obligations or Landlord's rights under this Lease.
B. The Expansion Space shall be delivered to Tenant in its then
"as is" condition, and Landlord shall have no obligation to perform any
work or Alterations in order to prepare the Expansion Space for Tenant's
initial occupancy thereof, except that Landlord shall, at Landlord's cost
and expense, demolish the Expansion Space and install air-conditioning
unit(s), the tonnage of which shall be proportionate to the Building
Standard A/C Units based on the size of the Expansion Space ("Landlord's
Expansion Space Work"). Landlord shall perform Landlord's Expansion Space
Work in the same manner in which Landlord was obligated to perform
Landlord's Work. Notwithstanding anything to the contrary contained in this
Section 36.02B, if on the relevant Expansion Space Commencement Date (as
defined in Subsection 36.02A), an Event of Default shall have occurred and
be continuing (and if the underlying default shall have been of a monetary
or material non-monetary nature), Landlord, in Landlord's sole and absolute
discretion, may elect, by written notice to Tenant, to void Tenant's
exercise of such Expansion Option, in which case Tenant's exercise of the
Expansion Option shall be of no force or effect.
Section 36.03. If Landlord, after using reasonable efforts, is unable
to give possession of the Expansion Space to Tenant on the Expansion Space
Commencement Date because of the holding-over or retention of possession of
any tenant, undertenant or occupants, or for any other reason beyond
Landlord's reasonable control, 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 the Expansion Space or
the Term of this Lease, but the Expansion Space Commencement Date shall be
deemed extended until the date on which Landlord shall have delivered
possession thereof to Tenant (provided Tenant is not responsible for the
inability to obtain possession). Notwithstanding anything to the contrary
stated herein, in the event that Landlord is unable to deliver the
Expansion Space to Tenant within one hundred eight (180) days from the
Expansion Space Commencement Date, then Tenant may, at Tenant's option,
elect a substitute Available Expansion Space from an updated Available
Space List (the "Substitute Available Space List"), which shall be
comprised of a list of space(s) contiguous to the Demised Premises or if
such contiguous space(s) is not available, other space(s) in the Building,
comprising up to one full floor of the Building and then available for
lease by Landlord or anticipated to become available for lease with four
(4) months following the date of delivery of such Substitute Available
Space List (the "Substitute Available Expansion Space"). The provisions of
this Section 35.03 are intended to constitute "an express provision to the
contrary" within the meaning of Section 223-a of the New York Real Property
Law.
Section 36.04. Except as expressly provided herein, all materials,
work, labor, fixtures and installations required by Tenant for completion
of the Expansion Space (if any) shall be performed by Tenant, at Tenant's
sole cost and expense.
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year first above written.
BROADPINE REALTY HOLDING COMPANY, INC.,
Landlord
By: /s/ Elizabeth
---------------------------------------
theglobe.com, inc. f/k/a WebGenesis, Inc.
Tenant
By: /s/ Frank Joyce
---------------------------------------
Tenant's Federal ID# 14-1782-422
----------------------
<PAGE>
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On this 12th day of January, 1999, before me personally came Francis
T. Joyce, to me known, who being by me duly sworn, did depose and say that
he is the CFO and Treasurer of theglobe.com, inc. f/k/a WebGenesis, Inc.,
the corporation described in and which executed the foregoing instrument;
and that he signed his name thereto by order of the Board of Directors of
said corporation.
/s/ Jason R. Grebin
------------------------
Notary Public
<PAGE>
EXHIBIT "A"
-----------
FLOOR PLANS
The location and dimensions of walls, partitions, columns, stairs and
openings are approximate and subject to revisions due to mechanical work,
job conditions and requirements of governmental departments and
authorities. If the space as actually partitioned shall differ in any
respect from this sketch, the actual area as partitioned shall in all
events control. No resulting deviation or discrepancy shall affect the rent
or Tenant's obligations under this Lease.
<PAGE>
[Floor plan for the 22nd floor of 120 Broadway]
<PAGE>
EXHIBIT "B"
-----------
COMMENCEMENT DATE AGREEMENT
AGREEMENT made this ______ day of _________, 1999, between Broadpine
Realty Holding Company, Inc., hereinafter referred to as "Landlord", and
theglobe.com, inc. f/k/a WebGenesis, Inc., hereinafter referred to as
"Tenant".
WITNESSETH:
1. Landlord and Tenant have heretofore entered into a written
indenture of Lease dated as of _____________ __, 199_ (hereinafter referred
to as the "Lease"), for the leasing by Landlord to Tenant of certain space
in the building known as 120 Broadway, New York, N.Y., all as in said Lease
more particularly described.
2. Pursuant to Article 2 of the Lease, Landlord and Tenant agree that
the Commencement Date of the term of said Lease is [was] [shall be] ; and
that the term thereof shall expire, unless sooner terminated pursuant to
the Lease, on ________________________ (the "Expiration Date").
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Commencement Date Agreement as of the day and year first above written.
BROADPINE REALTY HOLDING
COMPANY, INC., Landlord
By:
---------------------------------------
theglobe.com, inc. f/k/a WebGenesis, Inc.,
Tenant
By:
---------------------------------------
<PAGE>
STATE OF )
--------------
) ss.:
COUNTY OF )
-------------
On this ______ day of __________, 1999, before me personally came
________________________, to me known, who being by me duly sworn, did
depose and say that he is the of theglobe.com, inc. f/k/a WebGenesis, Inc.,
the corporation described in and which executed the foregoing instrument;
and that he signed his name thereto by order of the Board of Directors of
said corporation.
--------------------------
Notary Public
<PAGE>
EXHIBIT "C"
-----------
LANDLORD'S WORK
All work set forth in this Exhibit "C" ("Landlord's Work") shall be of
material, design, capacity, finish and color adopted by Landlord as
"Building Standard".
Landlord shall:
1. Subject to the provisions of the next sentence, Landlord, at
Landlord's expense, agrees to install new 120 ton air cooled air
conditioning units (the "Building Standard A/C Units") in the Demised
Premises to exclusively service same. Upon written notice from Tenant to
Landlord, which notice shall be received by Landlord prior to the ordering
by Landlord of the Building Standard A/C Units, and which notice shall be
accompanied by a payment in the amount of the Excess A/C Amount (as
hereinafter defined), Landlord shall install, at Landlord's expense, new
140 ton air cooled air conditioning units (the "Upgraded A/C Units") in
lieu of the Building Standard A/C Units. The term "Excess A/C Amount" shall
mean the difference between the cost of purchasing and installing the
Upgraded A/C Units and the Building Standard A/C Units. Landlord will
inform Tenant of the Excess A/C Amount within five (5) business days
following written request therefor. Landlord's Work shall include
purchasing and installing the Building Standard A/C Units or the Upgraded
A/C Units, as the case may be, including duct mounted smoke detectors,
window louvers, ducts to the louvers, and control wiring. Notwithstanding
the above, Tenant shall be responsible for the cost of constructing the
mechanical rooms and the duct work distribution throughout the Demised
Premises.
<PAGE>
EXHIBIT "D"
-----------
LAND DESCRIPTION
ALL that certain plot, piece or parcel of land, situate, lying and being in
the Borough of Manhattan, County of New York, City and State of New York,
bounded and described as follows:
BEGINNING at a point formed by the intersection of the northerly side of
Pine Street and the westerly side of Nassau Street;
RUNNING THENCE northerly along the westerly side of Nassau Street, 152 feet
3 inches to the southerly side of Cedar Street;
THENCE westerly along the southerly side of Cedar Street, 312 feet 7 inches
to the easterly side of Broadway;
THENCE southerly along the easterly side of Broadway, 167 feet 1 inch to
the northerly side of Pine Street;
THENCE easterly along the northerly side of Pine Street, 304 feet 2 inches
to the point or place of BEGINNING.
<PAGE>
EXHIBIT "E"
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CLEANING SPECIFICATIONS
General Cleaning
----------------
Nightly:
General Offices including conference rooms:
1. All hardsurfaced flooring to be swept.
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 and clean all ash trays and screen all sand urns.
5. Empty and clean all waste receptacles and remove wastepaper.
6. Dust interiors of all waste disposal cans and baskets.
7. Wash clean all water fountains and coolers.
8. Sweep all private stairways.
Building Standard 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 and remove wastepaper.
7. Fill toilet tissue holders. Multi-tenanted floors only.
8. Empty and clean disposal receptacles.
Periodic-as reasonably required
1. Vacuum clean all carpeting and rugs.
2. Dust all doors louvers and other ventilating louvers within a
person's reach.
3. Dust all baseboards.
4. Remove all finger marks from vinyl or painted surfaces near light
switches, entrance doors, etc.
5. Wash all windows.
6. High dust premises complete including the following:
a. Dust all pictures, frames, charts, graphs and similar wall
hangings not reached in nightly cleaning.
b. Dust clean all vertical surfaces, such as walls, partitions,
doors, bucks and other surfaces not reached in nightly
cleaning.
c. Dust all venetian blinds.
7. Clean any employee dining areas and dwyer pantries.
<PAGE>
EXHIBIT "F"
-----------
RULES AND REGULATIONS
1. The rights of tenants with respect to the entrances, corridors,
elevators and escalators of the Building are limited to ingress to and
egress from the tenants' premises for the tenants and their employees,
licensees and invitees, and no tenant shall use, or permit the use of, the
entrances, corridors, escalators or elevators for any other purpose. All
deliveries and shipments of goods and packages shall be through the freight
elevators, and not the passenger elevators. No tenant shall invite to the
tenant's premises, or permit the visit of, persons in such numbers or under
such conditions as to interfere in any material respect with the use and
enjoyment of any of the plazas, entrances, corridors, escalators, elevators
and other facilities of the Building by other tenants. Fire exits and
stairways are for emergency use only, and they shall not be used for any
other purpose by the tenants, their employees, licensees or invitees. No
tenant shall encumber or obstruct, or permit the encumbrance or obstruction
of any of the lobbies, sidewalks, plazas, entrances, corridors, escalators,
elevators, fire exits, stairways or other public portions of the Building.
No door mat of any kind whatsoever shall be placed or left in any public
hall or outside any entry door of any tenant's premises. Landlord reserves
the right to control and operate the public portions of the Building and
the public facilities, as well as facilities furnished for the common use
of the tenants, in such manner as it deems best for the benefit of the
tenants generally.
2. Landlord may refuse admission to the Building outside of ordinary
business hours to any person not known to the watchman in charge or not
having a pass issued by Landlord or not properly identified, and may
require all persons admitted to or leaving the Building outside of ordinary
business hours to register. Tenant's employees, agents and visitors shall
be permitted to enter and leave the Building whenever appropriate
arrangements have been previously made between Landlord and Tenant with
respect thereto. Each tenant shall be responsible for all persons for whom
the tenant requests such permission, and shall be liable to Landlord for
all acts of such persons. Any person whose presence in the Building at any
time shall, in the judgment of Landlord, be prejudicial to the safety,
character, reputation or interests of the Building or its tenants may be
denied access to the Building or may be ejected therefrom. In case of
invasion, riot, public excitement or other commotion, Landlord may prevent
all access to the Building during the continuance of the same, by closing
the doors or otherwise, for the safety of the tenants and protection of
property in the Building. All removals, or the carrying in or out of any
safes, freight, furniture, packages, boxes, crates or any other object or
matter of any description must take place during such hours and in such
elevators as Landlord may determine from time to time. 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
violate any of these Rules and Regulations or the lease of which these
Rules and Regulations are a part. Landlord may require any person leaving
the Building with any package or other object to exhibit a pass from the
tenant from whose premises the package or object is being removed, but the
establishment and enforcement of such requirement shall not impose any
responsibility on Landlord for the protection of any tenant against the
removal of property from the premises of the tenant. Landlord shall in no
way be liable to any tenant for damages or loss arising from the admission,
exclusion or ejection of any person to or from the tenant's premises or the
Building under or despite the provisions of this rule. On days and hours
other than those during which full elevator service is required to be
provided, Landlord may lock all outside Building doors and require use of a
night bell to summon a watchman from his other duties in order to gain
access.
3. No tenant shall obtain or accept for use in its premises food,
beverage, (other than vending machines for Tenant's own use), towel,
barbering, boot blacking, floor polishing, lighting maintenance, cleaning,
or other similar services from any persons not authorized by Landlord in
writing to furnish such services, provided always that the charges for such
services by persons authorized by Landlord are not excessive. Such services
shall be furnished only at such hours, in such places within the tenant's
premises and under such regulations as may be fixed by Landlord.
4. No awnings or other projections over or around the windows shall be
installed by any tenant, and only such window blinds or drapes as are
supplied or permitted by Landlord shall be used in a tenant's premises. No
curtains, blinds, shades or screens shall be attached to or hung in, or
used in connection with, any window or door of a tenant's premises, without
the prior written consent of Landlord. Such curtains, blinds, shades or
screens must be of a quality, type, design and color, and attached in the
manner, approved by Landlord. No tenant shall place objects on the
windowsills which are visible from outside of the Building. No tenant shall
darken, cover or permanently close any windows in the tenant's premises.
5. There shall not be used in any space, or in the public halls of the
Building, either by a tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires, side guards and such other safeguards as Landlord shall require.
6. All entrance doors in each tenant's premises shall be left locked
when the tenant's premises are not in use. Entrance doors shall not be left
open at any time unless the tenant, at its expense, has connected a special
smoke detector system in compliance with all Legal Requirements and
approved by Landlord. The sashes, sash doors, skylights, windows, and doors
that reflect or admit light and air into the halls, passageways or other
public places in the Building shall not be covered or obstructed by any
tenant, nor shall any bottles, parcels, or other articles be placed on the
window sills.
7. No noise, including the playing of any musical instruments, radio
or television, which, in the judgment of Landlord, might disturb other
tenants in the Building shall be made or permitted by any tenant. No tenant
shall throw anything out of the doors, windows or skylights or down the
passageways. Nothing shall be done or permitted in any tenant's premises,
and nothing shall be brought into or kept in any tenant's premises, which
would materially impair or interfere with any of the Building services or
the proper and economic heating, cleaning or other servicing of the
Building or the premises, or the use or enjoyment by any other tenant of
any other premises, nor shall there be installed by any tenant any
ventilating, air-conditioning, electrical or other equipment of any kind
which, in the judgment of Landlord, might cause any such impairment or
interference. No dangerous, inflammable, combustible or explosive object or
material shall be brought into the Building by any tenant or with the
permission of any tenant.
8. Tenants shall not permit any cooking within their premises (unless
consented to in writing by Landlord), except for reheating by microwave of
prepared foods for Tenant's own use, and shall not permit any food odors
emanating within their premises to seep into other portions of the
Building. In the event that Landlord shall consent to any cooking or
installation of kitchen equipment in a tenant's premises, such tenant shall
operate its dining room and kitchen equipment, if any, in a manner that
will prevent odors and smoke from escaping into areas of the Building
outside the premises, and shall, at its expense, (i) install and maintain
appropriate filters and grease traps to prevent accumulation of grease in
any duct, stack or flue used to exhaust fumes and vapors resulting from
such food preparation and to prevent stopping up of the sewerage ejecting
system of the Building if any of same are necessary or are required by any
governmental authority, (ii) keep all range hoods and ducts therefrom, if
any, clean and free of grease at all times so as to avoid fire hazard, and
(iii) clean out the vertical exhaust flue and duct, if any, at least once a
year, or more frequently as conditions require. The discharge of any fumes,
vapors and odors, which, by any Legal Requirement, must be discharged into
a separate stack or flue, will not be permitted unless such tenant, at its
expense, shall provide for such discharge in a proper manner.
9. No acids, vapors or other materials shall be discharged or
permitted to be discharged into the waste lines, vents or flues of the
Building which may damage them. The water and wash closets and other
plumbing fixtures in or serving any tenant's premises shall not be used for
any purpose other than the purpose for which they were designed or
constructed, and no sweepings, rubbish, rags, acids or other foreign
substances shall be deposited therein. All damages resulting from any
misuse of the fixtures shall be borne by the tenant who or whose servants,
employees, agents, visitors or licensees, shall have caused the same.
10. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by a tenant on any part of the
outside or inside of its premises or the Building without the prior written
consent of Landlord. In the event of the violation of the foregoing by a
tenant, Landlord may remove the same without any liability, and may charge
the expense incurred by such removal to the tenant or tenants violating
this rule. Interior signs and lettering on doors shall be inscribed,
painted or affixed for each tenant by Landlord at the expense of such
tenant, and shall be of a size, color and style reasonably acceptable to
Landlord. Landlord shall have the right to prohibit any advertising by any
tenant in or around the Building which refers to the Building and impairs
the reputation of the Building or its desirability as a building for
offices, and, upon written notice from Landlord, such tenant shall refrain
from or discontinue such advertising.
11. Except as otherwise permitted in a tenant's lease, no additional
locks or bolts of any kind shall be placed upon any of the doors or windows
in any tenant's premises, and no lock on any door therein shall be changed
or altered in any respect, unless, in each such case, Landlord shall have
been furnished with a key thereto (or the same shall be operable by
Landlord's master key for the Building). Duplicate keys for a tenant's
premises and toilet rooms shall be procured only from the Landlord, which
may make a reasonable charge therefor. Upon the termination of a tenant's
lease, all keys to the tenant's premises and toilet rooms shall be
delivered to the Landlord, and, in the event of the loss of any keys
furnished by Landlord, such tenant shall pay to Landlord the cost thereof.
12. Except as otherwise permitted in a tenant's lease, no tenant shall
make, paint, drill into, or in any way deface any part of the Building or
the premises demised to such tenant. No boring, cutting or stringing of
wires shall be permitted, except with the prior written consent of
Landlord, and as Landlord may direct. No tenant shall install any resilient
tile or similar floor covering in the premises demised to such tenant,
except in a manner approved by Landlord. Unless and until Landlord may
otherwise direct, no tenant shall lay linoleum, or other similar floor
covering, so that the same shall come in direct contact with the floor of
its premises, and, if linoleum or other similar 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. No tenant shall use or occupy, or permit any portion of the
premises demised to such tenant to be used or occupied, as an office for a
public stenographer or typist, or as a barber or manicure shop or as an
employment bureau or for any mail order business. No tenant or occupant
shall engage or pay any employees in the Building, except those actually
working for such tenant or occupant in the Building, nor advertise for
laborers giving an address at the Building. No premises shall be used, or
permitted to be used, at any time, as a store for the sale or display of
goods, wares or merchandise of any kind, or as a restaurant, shop, booth,
bootblack or other stand, or for the conduct of any business or occupation
which predominantly involves direct patronage of the general public in the
premises demised to such tenant, or for manufacturing or for other similar
purposes.
14. The requirements of tenants will be attended to only upon
application at the office of the Building. Employees of Landlord shall not
perform any work or do anything outside of their regular duties, unless
under special instructions from the office of the Landlord.
15. Unless Landlord shall be furnishing electricity to the tenant's
premises, each tenant shall, at its expense, provide artificial light and
electricity in the premises demised to such tenant for Landlord's agents,
contractors and employees while performing janitorial or other cleaning
services and making repairs or alterations in said premises.
16. Tenants' employees shall not loiter around the hallways,
stairways, elevators, front, roof or any other part of the Building used in
common by the occupants thereof. No tenant shall allow its premises to be
used for lodging or sleeping, or for any immoral or illegal purposes. No
bicycles, vehicles, animals, fish or birds of any kind shall be brought
into or kept in or about any tenant's premises. Canvassing, soliciting and
peddling in the Building are prohibited, and each tenant shall cooperate to
prevent the same.
17. If the premises demised to any tenant become infested with vermin,
such tenant, at its own cost and expense, shall cause its premises to be
exterminated, from time to time, to the satisfaction of Landlord, and shall
employ such exterminators therefor as shall be approved by Landlord.
Landlord reserves the right to require that the exterminators generally
employed in the Building be employed, so long as their charges are
reasonable.
18. Any cuspidors or similar containers or receptacles used in any
tenant's premises shall be cared for and cleaned by and at the expense of
the tenant. No showcases or other articles shall be put in front of or
affixed to any part of the exterior of the Building, nor placed in the
halls, corridors or vestibules. If a tenant's premises shall be an entire
floor, the elevator lobby in the premises shall be kept neat, orderly and
fresh in appearance to Landlord's satisfaction.
19. No tenant shall place a load upon any floor of its premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law.
20. Business machines and mechanical equipment of any tenant which
cause noise, vibration or any other nuisance that may be transmitted to the
structure or other portions of the Building or to premises, to such a
degree as to be reasonably objectionable to Landlord or which interfere
with the use or enjoyment by other tenants of their premises or the public
portions of the Building, shall be placed and maintained by such tenant at
such tenant's own cost and expense, in settings of cork, rubber or spring
type vibration eliminators sufficient to eliminate noise or vibration to
the satisfaction of Landlord.
21. Landlord will, at the request of a tenant, maintain listings on
the Building directory of the name of such tenant and, in the sole
discretion of Landlord, of any other person, firm, association or
corporation lawfully in possession of the premises or any part thereof. The
listing of any name other than that of a tenant, whether on the doors of
the premises, on the Building directory, or otherwise, shall not operate to
vest any right or interest in such tenant's lease or in the premises or be
deemed to be the written consent of Landlord required pursuant to such
tenant's lease, it being expressly understood that any such listing is a
privilege extended by Landlord revocable at will by written notice to such
tenant.
22. No tenant shall move any safe, heavy equipment or bulky matter in
or out of the Building without Landlord's written consent. If the movement
of such items requires special handling, the tenant shall employ only
persons holding a Master Rigger's License to do said work, and all such
work shall be done in full compliance with the Administrative Code of the
City of New York and other municipal requirements. All such movements shall
be made during hours which will least interfere with the normal operations
of the Building, and all damage caused by such movement shall be promptly
repaired by such tenant at such tenant's expense.
23. All moving, shipping and receiving of a tenant's property shall be
through the freight elevator only, and at such times and in such a manner
as Landlord shall designate for the proper operation of the Building. If a
tenant's use of such elevator is after regular business hours, or in such a
manner that requires the supervision of Landlord's employees (of which fact
Landlord shall be the sole judge), such tenant shall pay to Landlord the
cost of furnishing such after hour service and/or supervision. All bulk
deliveries shall be made during non-business hours, at the tenant's cost.
24. Any entrance door or doors leading from a tenant's premises into
the public corridor shall be repaired and/or maintained by such tenant, at
such tenant's own cost and expense, including, without limitation, repair
and maintenance of the enframement and mechanisms of said door(s), whether
such repair or maintenance is caused by any damage by such tenant, its
employees, workmen or contractors, by ordinary wear and tear or otherwise.
25. Landlord reserves the right to rescind, alter or waive any rule or
regulation at any time prescribed for the Building when Landlord deems it
necessary or desirable for the reputation, safety, care of appearance of
the Building, or the preservation of good order therein, or the operation
or maintenance of the Building or the equipment thereof, or the comfort of
tenants or others in the Building. No rescission, alteration or waiver of
any rule or regulation in favor of one tenant shall operate as a
rescission, alteration or waiver in favor of any other tenant.
<PAGE>
EXHIBIT "G"
-----------
FORM OF LETTER OF CREDIT
NO.___________ Date ________________ Irrevocable Letter of Credit
#_______
BENEFICIARY
Broadpine Realty Holding Company, Inc.
c/o J.P. Morgan Investment Management Inc.
522 Fifth Avenue
New York, New York 10036
Dear Sir(s),
We hereby authorize you to value on ___________________________ New York,
New York.
For the account of Broadpine Realty Holding Company, Inc. up to the
aggregate amount of $1,500,000.00.
Available by your drafts at sight, accompanied by your statement,
purportedly signed by one of your authorized officers, partners or agents,
that the amount of your drawing represents funds due and payable under a
certain lease dated as of ____________________, executed by and between
Broadpine Realty Holding Company, Inc., and theglobe.com, inc. f/k/a
WebGenesis, Inc.
This Letter of Credit may be transferred to any transferee of the interest
of the landlord under the lease dated as of ___________________ between
Broadpine Realty Holding Company, Inc., as landlord, and theglobe.com, inc.
f/k/a WebGenesis, Inc. as tenant.
It is a condition of this Letter of Credit that it shall be deemed to be
automatically extended for a period of one year from the present or any
future expiration date, unless we shall notify you by written notice given
by registered mail at least 60 days prior to such expiration date that we
elect not to renew it for such additional period, in which case you shall
have the right to draw on us the full amount of this Letter of Credit by
your sight draft, accompanied by your signed written statement that you are
drawing under Letter of Credit #_______________ because you have received
notice of non-renewal from us, and the accountee is still obligated to you
under the above-referenced lease.
Partial draws are permitted under this Letter of Credit.
All drafts drawn under this Letter of Credit must bear on their face the
clause "Drawn under Letter of Credit No. _________________".
Except so far as otherwise expressly stated, this Letter of Credit is
subject to the Uniform Customs and Practice for Documentary Credits (1993
Revision) International Chamber of Commerce, Publication No. 500.
<PAGE>
EXHIBIT "H"
-----------
REQUEST FOR TAXPAYER IDENTIFICATION NUMBER
14-1782-422
<PAGE>
[Attached, Internal Revenue Service Form W-9]
<PAGE>
EXHIBIT "I"
-----------
APPROVED CONTRACTORS
[LOGO of THE WAEHLER GROUP/Project Management Services]
Date: January 7, 1999
To: David Goldstein
Julien J. Studley
From: Steve Waehler
Re: theglobe.com
120 Broadway
SUBCONTRACTOR LIST
Electrical JRD Electric
HighTech Electric
Forest Electric
Mechanical/HVAC BP Mechanical
Matrix Mechanical
Penquin
Drywall/Acoustic J.P. Phillips
Glenn Partition
Donaldson
Plumbing LAB Plumbing
PAR Plumbing
Ashland Plumbing
Sprinkler ABCO Peerless
National
RAEL
THE WAEHLER GROUP - PROJECT MANAGEMENT SERVICES
155 East 34th Street - New York, NY 10016
Tel: (212) 684-4565 * Fax: (212) 532-7279
<PAGE>
120 Broadway
GENERAL CONTRACTORS
Ambassador Construction Company Jack Shafran
317 Madison Avenue 212-922-1020
New York, NY 10017 FAX - 212-949-9762
Structure Tone, Inc. Patrick Donaghy/John White
15 East 25th Street 212-481-6100
New York, NY 10010-1589 FAX - 212-685-8267
Barney Skanska Construction Co. Ms. Marla J. Glickman
360 Lexington Avenue 212-972-0720
New York, NY 10166 FAX - 212-697-7438
Lehrer McGovern Bovis, Inc. Ms. Tony Mannion
200 Park Avenue (9th floor) 212-582-6751
New York, NY 10166 FAX - 212-582-6988
Morse Diesel International, Inc. Mr. Graeme A. Whitelaw
1633 Broadway 212-484-0497
New York, NY 10019-6708 FAX - 212-484-0580
SUB-CONTRACTORS
---------------
ELECTRICIANS
Robert B. Samuels Al Fishbone
352 Park Avenue South 212-686-6700
New York, NY 10010 FAX - 212-213-4089
Campbell & Dawes, Ltd. Gary Dawes
86-02 57th Avenue 718-651-4433
Elmhurst, NY 11373 FAX - 718-899-1213
Forest Electric Corporation Phillip Altheim
370 Seventh Avenue 212-594-4110
New York, NY 11101 FAX 212-318-1793
S.P.B. Electrical Contractors Sean Burke
480 Canal Street - Suite 208 212-714-0270
New York, NY 10013 FAX - 212-714-0408
Artic Electric Corporation Ken Ashendorf
132 West 22nd Street 212-255-6830
New York, NY 10011 FAX - 212-627-1549
MECHANICAL
Kaback Enterprises, Inc. John Murphy/Vance Schipani
41 West 25th Street 212-645-5100
New York, NY 10016 FAX - 212-645-8962
Penquin Air Conditioning Paul Shields
26 West Street 718-706-2558
Brooklyn, NY 11222 FAX - 718-706-2565
Power Cooling, Inc. Lloyd Larsen
43-43 Vernon Blvd. 718-784-1300
Long Island City, NY 11101 FAX - 718-937-8418
Hennrick Lane Ernie Hennrick
49-22 9th Street 718-786-7277
Long Island City, NY 11101 FAX - 718-482-1625
PLUMBERS
MJM Plumbing & Heating Company, Inc. Michael Carbone
268 West Street 212-966-2444
New York, NY 10013 FAX - 212-966-0031
American Contracting Company, Inc. Richard Silver
538 West 35th Street 212-736-6618
New York, NY 10001 FAX - 212 465-1734
S.B.A. Steven Verderame
23-30 50th Avenue 718-785-1100
Long Island City, NY 11101 FAX - 718-361-5327
Par Planning Company, Inc. Marty Levine
60 North Prospect Avenue 212-926-1088
Lynnbrook, NY 11563 FAX - 516-593-9089
<PAGE>
EXHIBIT "J"
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BUILDING HOLIDAYS
New Year's Day Columbus Day
Washington's Birthday Thanksgiving Day
Good Friday Day after Thanksgiving
Memorial Day Christmas Day
Independence Day Employee's Birthday
Martin Luther King's Birthday or Yom Kippur at the option of the
employee.
<PAGE>
EXHIBIT "K"
-----------
FIRST 30th FLOOR OFFER SPACE
<PAGE>
[Floor plan for 30th floor at 120 Broadway]
<PAGE>
EXHIBIT "L"
15th FLOOR SPACE
<PAGE>
[Floor plan of the 15th floor at 120 Broadway]
<PAGE>
EXHIBIT "M"
-----------
12TH FLOOR OFFER SPACE
<PAGE>
[Floor plan for the 12th floor at 120 Broadway]
<PAGE>
EXHIBIT "N"
-----------
SECOND 30th FLOOR OFFER SPACE
<PAGE>
[Floor plan for the 30th floor at 120 Broadway]
<PAGE>
EXHIBIT "O"
-----------
30th/31st FLOOR OFFER SPACE
<PAGE>
[Floor plan for 31st floor at 120 Broadway]
[Floor plan for 30th floor at 120 Broadway]
<PAGE>
EXHIBIT "P"
-----------
21st FLOOR OFFER SPACE
<PAGE>
[Floor plan for 21st floor at 120 Broadway]