Exhibit 10(g)
9/99
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STANDARD FORM OF LOFT LEASE
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The Real Estate Board of New York, Inc.
AGREEMENT OF LEASE, made as of this 3rd day of October in the year 2001,
between
WASHINGTON GROUP LLC ("Owner" or "Landlord") c/o Newmark & Company Real Estate,
Inc., having an office at 125 Park Avenue, New York, NY 10017 party of the
first part, hereinafter referred to as OWNER, and
EMPIRE INSURANCE COMPANY ("Tenant") of 335 Adams Street, Brooklyn, NY 11201
party of the second part, hereinafter referred to as TENANT,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner
A Portion of the Third (3rd) Floor as shown in Exhibit "A" attached hereto and
made a part hereof
in the building known as 45 Main Street
in the Borough of Brooklyn , City of New York, for the term of Four (4) Years
(or until such term shall sooner cease and expire as hereinafter provided) to
commence on the
1st day of January in the year 2002 ("Commencement Date"), and to end on the
31st day of December in the year 2005 ("Expiration Date") , and
both dates inclusive, at an annual rental rate of
See Article 41 for the annual rental rates.
which Tenant agrees to pay in lawful money of the United States which shall be
legal tender in payment of all debts and dues, public and private, at the time
of payment, in equal monthly installments in advance on the first day of each
month during said term, at the office of Owner or such other place as Owner may
designate, without any setoff or deduction whatsoever, except that Tenant shall
pay the first monthly installment(s) on the execution hereof (unless this lease
be a renewal).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder, and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
RENT: 1. Tenant shall pay the rent as above and as hereinafter provided
OCCUPANCY: 2. Tenant shall use and occupy the demised premises for
General Executive and Administrative Offices for an Insurance Company provided
such use is in accordance with the certificate of occupancy for the building, if
any, and for no other purpose.
ALTERATIONS: 3. Tenant shall make no changes in or to the demised premises of
any nature without Owner's prior written consent. Subject to the prior written
consent of Owner, and to the provisions of this article, Tenant, at Tenant's
expense, may make alterations, installations, additions or improvements which
are non-structural and which do not affect utility services or plumbing and
electrical lines, in or to the interior of the demised premises, using
contractors or mechanics first approved in each instance by Owner. Tenant shall,
at its expense, before making any alterations, additions, installations or
improvements obtain all permits, approvals and certificates required by a
governmental or quasi-governmental bodies and (upon completion) certificates of
final approval thereof; and shall deliver promptly duplicates of all such
permits, approvals and certificates to Owner. Tenant agrees to carry, and will
cause Tenant's contractors and sub-contractors to carry, such worker's
compensation, general liability, personal and property damage insurance as Owner
may require. If any mechanic's lien is filed against the demised premises, or
the building of which the same forms a part, for work claimed to have been done
for, or materials furnished to, Tenant, whether or not done pursuant to this
article, the same shall be discharged by Tenant within thirty (30) days
thereafter, at Tenant's expense, by payment or filing a bond as permitted by
law. All fixtures and all paneling, partitions, railings and like installations,
installed in the demised premises at any time, either by Tenant a by Owner on
Tenant's behalf, shall, upon installation, become the property of Owner and
shall remain upon and surrendered with the demised premises unless Owner, by
notice to Tenant no later then twenty (20) days prior to the date fixed as the
termination of this lease, elects to relinquish Owner's right thereto and to
have them removed by Tenant, in which event the same shall be removed from the
demised premises by Tenant prior to the expiration of the lease, at Tenant's
expense. Nothing in this article shall be construed to give Owner title to, or
to prevent Tenant's removal of, trade fixtures, moveable office furniture and
equipment, but upon removal of same from the demised premises, or upon removal
of other installations as may be required by Owner, Tenant shall immediately,
and at its expense, repair end restore the demised premises to the condition
existing prior to any such installations, and repair damage to the demised
premises or the building due to such removal. All property permitted or required
to be removed by Tenant at the end of the term remaining in the demised premises
after Tenant's removal shall be deemed abandoned and may, at the election of
Owner, either be retained as Owner's property or removed from the demised
premises by Owner, at Tenant's expense.
REPAIRS: 4. Owner shall maintain and repair the exterior of and the public
portions of the building. Tenant shall, throughout the term of this lease, take
good care of the demised premises including the bathrooms and lavatory
facilities (if the demised premises encompass the entire floor of the building),
the windows and window frames, and the fixtures and appurtenances therein, and
at Tenant's sole cost and expense promptly make all repairs thereto and to the
building whether structural or non-structural in nature, caused by, or resulting
from, the carelessness, omission, neglect or improper conduct of Tenant,
Tenant's servants, employees, invitees, or licensees, and whether or not arising
from Tenant's conduct or omission when required by other provisions of this
lease, including Article 6. Tenant shall also repair all damage to the building
and the demised premises caused by the moving of Tenant's fixtures, furniture or
equipment. All the aforesaid repairs shall be of quality or class equal to the
original work or construction. If Tenant fails, after ten 10) days notice, to
proceed with due diligence to make repairs required to be made by Tenant, the
same may be made by Owner at the expense of Tenant, and the expenses thereof
incurred by Owner shall be collectible, as additional rent, after rendition of a
bill or statement therefor. If the demised premises be or become infested with
vermin, Tenant shall, at its expense, cause the same to be exterminated. Tenant
shall give Owner prompt notice of any defective condition in any plumbing,
heating system or electrical lines located in the demised premises and following
such notice, Owner shall remedy the condition with due diligence, but at the
expense of Tenant, if repairs are necessitated by damage or injury attributable
to Tenant, Tenant's servants, employees, invitees or licensees as aforesaid.
Except as specifically provided in Article 9 or elsewhere in this lease, there
shall be no allowance to Tenant for a diminution of rental value and no
liability on the part of Owner by reason of inconvenience, annoyance or injury
to business arising from Owner, Tenant or others making or failing to make any
repairs, alterations, additions or improvements in or to any portion of the
building or the demised premises, or in and to the fixtures, appurtenances or
equipment thereof. It is specifically agreed that Tenant shall not be entitled
to any setoff or reduction of rent by reason of any failure of Owner to comply
with the covenants of this or any other article of this lease. Tenant agrees
that Tenant's sole remedy at law in such instance will be by way of an action
for damages far breach of contract. The provisions of this Article 4 with
respect to the making of repairs shall not apply in the case of fire or other
casualty with regard to which Article 9 hereof shall apply.
WINDOW CLEANING: 5. Tenant will not clean nor require, permit, suffer or allow
any window in the demised premises to be cleaned from the outside in violation
of Section 202 of the New York State Labor Law of any other applicable law, or
of the Rules of the Board of Standards and Appeals, or of any other Board or
body having or asserting jurisdiction.
REQUIREMENTS OF LAW, FIRE INSURANCE, FLOOR LOADS: 6. Prior to the commencement
of the lease term, if Tenant is then in possession, and at all times thereafter,
Tenant shall, at Tenant's sole cost and expense, promptly comply with all
present and future laws, orders and regulations of all state, federal, municipal
and local governments, departments, commissions and boards and any direction of
any public officer pursuant to law, and all orders, rules and regulations of the
New York Board of Fire Underwriters, Insurance Services Office, or any similar
body which shall impose any violation, order or duty upon Owner or Tenant with
respect to the demised premises, whether or non arising out of Tenant's use or
manner of use thereof, or, with respect to the building, if arising out of
Tenant's use or manner of use of the demised premises of the building (including
the use permitted under the lease). Except as provided in Article 30 hereof,
nothing herein shall require Tenant to make structural repairs or alterations
unless Tenant has, by its manner of use of the demised premises or method of
operation therein, violated any such laws, ordinances, orders, rules,
regulations or requirements with respect thereto. Tenant shall not do or permit
any act or thing to be done in or to the demised premises which is contrary to
law, or which will invalidate or be in conflict with public liability, fire or
other policies of insurance at any time carried by or for the benefit of Owner.
Tenant shall not keep anything in the demised premises except as now or
hereafter permitted by the Fire Department, Board of Fire Underwriters, Fire
Insurance Rating Organization and other authority having jurisdiction and then
only in such manner and such quantity so as not to increase the rate for fire
insurance applicable to the building, nor use the demised premises in a manner
which will increase the insurance rate for the building or any
Please initial here: Landlord _______ Tenant _______
Property located therein over that in effect prior to the commencement of
Tenant's occupancy. If by reason of failure to comply with the foregoing the
fire insurance rate shall, at the beginning of this lease or at any time
thereafter, be higher than it otherwise would be, then Tenant shall reimburse
Owner, as additional rent hereunder, for that portion of all fire insurance
premiums thereafter paid by Owner which shall have been charged because of such
failure by Tenant. In any action or proceeding wherein Owner and Tenant are
parties, a schedule or "make-up" or rate for the building or demised premises
issued a body making fire insurance rates applicable to said premises shall be
conclusive evidence of the facts therein stated and of the several items and
charges in the fire insurance rates then applicable to said premises. Tenant
shall not place a load upon any floor of the demised premises exceeding the
floor load per square foot area which it was designed to carry and which is
allowed by law. Owner reserves the right to prescribe the weight and position of
all safes, business machines and mechanical equipment. Such installations shall
be placed and maintained by Tenant, at Tenant's expense, in settings sufficient,
in Owner's judgment, to absorb and prevent vibration, noise and annoyance.
SUBORDINATION: 7. This lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or hereafter affect such
leases or the real property of which the demised premises are a part, and to all
renewals, modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be required by any ground a underlying
lessor a by any mortgagee, affecting any lease or the real property of which the
demised premises are a part. In confirmation of such subordination, Tenant shall
from time to time execute promptly any certificate that Owner may request
TENANT'S LIABILITY INSURANCE PROPERTY LOSS, DAMAGE, INDEMNITY: 8. Owner or its
agents shall not be liable for any damage to property of Tenant or of others
entrusted to employees of the building, nor for loss of, or damage to, any
property of Tenant by theft or otherwise, nor for any injury or damage to
persons or property resulting from any cause of whatsoever nature, unless caused
by or due to the carelessness, negligence or improper conduct of Owner, its
agents, servants or employees; Owner or its agents shall not be liable for any
damage caused by other tenants or persons in, upon a about said building or
caused by operations in connection of any private, public or quasi public work.
If at any time any windows of the demised premises are temporarily closed,
darkened or bricked up (or permanently closed, darkened a bricked up, if
required by law) for any reason whatsoever including but not limited to, Owner's
own acts, Owner shall not be liable for any damage Tenant may sustain thereby,
and Tenant shall not be entitled to any compensation therefor nor abatement or
diminution of rent, nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction. Tenant shall indemnify and save harmless
Owner against and from all liabilities, obligations, damages, penalties, claims,
costs and expenses for which Owner shall not be reimbursed by insurance,
including reasonable attorney's fees, paid, suffered or incurred as a result of
any breach by Tenant, Tenant's agents, contractors, employees, invitees, or
licensees, of any covenant or condition of this lease, a the carelessness,
negligence or improper conduct of Tenant, Tenant's agents, contractors,
employees, invitees or licensees. Tenant's liability under this lease extends to
the acts and omissions of any subtenant, and any agent, contractor, employee,
.invitee or licensee of any subtenant. In case any action or proceeding is
brought against Owner by reason of any such claim, Tenant, upon written notice
from Owner, will, at Tenant's expense, resist or defend such action or
proceeding by counsel approved by Owner in writing, such approval not to be
unreasonably withheld or delayed.
DESTRUCTION, FIRE, AND OTHER CASUALTY: 9. (a) If the demised or any part thereof
shall be damaged by fire or other casualty, Tenant shall give immediate notice
thereof to Owner and this lease shall continue in full force and effect except
as hereinafter set forth. (b) If the demised premises are partially damaged or
rendered partially unusable by fire or other casualty, the damages thereto shall
be repaired by, and at the expense of, Owner, and the rent and other items of
additional rent, until such repair shall be substantially completed, shall be
apportioned from the day following the casualty according to the part of the
demised premises which is usable. (c) If the demised premises are totally
damaged or rendered wholly unusable by fire or other casualty, then the rent and
other items of additional rent as hereinafter expressly provided shall be
proportionately paid up to the time of the casualty and thenceforth shall cease
until the date when the demised premises shall have been repaired and restored
by Owner (a sooner reoccupied in part by Tenant then rent shall be apportioned
as provided in subsection (b) above), subject to Owner's right to elect not to
restore the same as hereinafter provided (d) If the demised premises are
rendered wholly unusable or (whether or not the demised premises are damaged in
whole or in part) if the building shall be so damaged that Owner shall decide to
demolish a or to rebuild it, then, in any of such events. Owner may elect to
terminate this lease by written notice to Tenant, given within ninety 90) days
after such fire a casualty, or thirty (30) days after adjustment of the
insurance claim for such fire or casualty, whichever is sooner, specifying a
date for the expiration of the lease, which date shall not be more than sixty
(60) days after the giving of such notice, and upon the date specified in such
notice the term of this lease shall expire as fully and completely as if such
date were the date set forth above for the termination of this lease, and Tenant
shall forthwith quit, surrender and vacate the demised premises without
prejudice however, to Owner's rights and remedies against Tenant under the lease
provisions in effect prior to such termination, and any rent owing shall be paid
up to such date of casualty and any payments of rent made by Tenant which were
on account of any period subsequent to such date shall returned to Tenant.
Unless Owner shall serve a termination notice as provided for herein, Owner
shall make the repairs and restorations under the conditions of (b) and (c)
hereof; with all reasonable expedition, subject to delays due to adjustment of
insurance claims, labor troubles and causes beyond Owner's control. After any
such casualty, Tenant shall cooperate with Owner's restoration by removing from
the demised premises as promptly as reasonably possible, all of Tenant's
salvageable inventory and movable equipment, furniture, and other property at
Owner's expense. Tenant's liability for rent shall resume thirty (30) days after
written notice from Owner that the demised premises are substantially ready for
Tenant's
[GRAPHIC OMITTED] RIDER TO BE ADDED IF NECESSARY.
occupancy. (e) Nothing contained hereinabove shall relieve Tenant from liability
that may exist as a result of damage from fire or other casualty caused by
Tenant. Notwithstanding the foregoing, including Owner's obligation to restore
under subparagraph (b) above, each party shall look first to any insurance in
its favor before making any claim against the other party for recovery for loss
or damage resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible, and to the extent permitted by law, Owner
and Tenant each hereby releases and waives all right of recovery with respect to
subparagraphs (b), (d) and (e) above, against the other or any one claiming
through or under each of them by way of subrogation or otherwise. The release
and waiver herein referred to shall be deemed to include any loss or damage to
the demised premises and/or to any personal property, equipment, trade fixtures,
goods and merchandise located therein. The foregoing release and waiver shall be
in force only if both releasors' insurance policies contain a clause providing
that such a release or waiver shall not invalidate the insurance. If, and to the
extent, that such waiver can be obtained only by the payment of additional
premiums, then the party benefiting from the waiver shall pay such premium
within ten (10) days after written demand or shall be deemed to have agreed that
the party obtaining insurance coverage shall be free of any further obligation
under the provisions hereof with respect to waiver of subrogation. Tenant
acknowledges that Owner will not carry insurance on Tenant's furniture and/or
furnishings or any fixtures or equipment, improvements, or appurtenances
removable by Tenant, and agrees that Owner will not he obligated to repair any
damage thereto or replace the same. (f) Tenant hereby waives the provisions of
Section 227 of the Real Property Law and agrees that the provisions of this
article shall govern and control in lieu thereof.
EMINENT DOMAIN: 10. If the whole or any part of the demised premises shall be
acquired or condemned by Eminent Domain for any public or quasi public use or
purpose, then and in that event, the term of this lease shall cease and
terminate from the date of title vesting in such proceeding and Tenant shall
have no claim for the value of any unexpired term of said lease. Tenant shall
have the right to make an independent claim to the condemning authority for the
value of Tenant's moving expenses and personal property, trade fixtures and
equipment, provided Tenant is entitled pursuant to the terms of the lease to
remove such property, trade fixtures and equipment at the end of the term, and
provided further such claim does not reduce Owner's award.
ASSIGNMENT, MORTGAGE, ETC.: 11. Tenant, for itself, its heirs, distributes,
executors, administrators, legal representatives, successors and assigns,
expressly covenants that it shall not assign., mortgage or encumber this
agreement, nor underlet, a suffer or permit the demised premises or any part
thereof to be used by others, without the prior written consent of owner in each
instance. Transfer of the majority of the stock of a corporate Tenant or the
majority partnership interest of a partnership Tenant shall be deemed an
assignment. If this lease be assigned or if the demised premises or any part
thereof be underlet or occupied by anybody other than Tenant, Owner may, after
default by Tenant, collect rent from the assignee, undertenant or occupant, and
apply the net amount collected to the rent therein reserved, but no such
assignment, underletting, occupancy or collection shall be deemed a waiver of
this covenant, or the acceptance of the assignee, undertenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any further assignment
or underletting
ELECTRIC CURRENT: 12. Deleted Intentionally
ACCESS TO PREMISES: 13. Owner or Owner's agents shall have the right (but shall
not be obligated) to enter the demised premises in any emergency at any time,
and, at other reasonable times, to examine the same and to make such repairs,
replacements and improvements as Owner may deem necessary and reasonably
desirable to any portion of the building, or which Owner may elect to perform in
the demised premises after Tenant's failure to make repairs, or perform any work
which Tenant is obligated to perform under this lease, or for the purpose of
complying with laws, regulations and other directions of governmental
authorities. Tenant shall permit Owner to use, maintain and replace pipes and
conduits in and through the demised premises, and to erect new pipes and
conduits therein provided, wherever possible, they are within walls or otherwise
concealed. Owner may, during the progress of any work in the demised premises,
take all necessary materials and equipment into said premises without the same
constituting an eviction., nor shall Tenant be required to any abatement of rent
while such work is in progress, nor to any damages by reason of loss or
interruption of business or otherwise. Throughout the term hereof Owner shall
have the right to enter the demised premises at reasonable hours for the purpose
of showing the same to prospective purchasers or mortgagees of the building, and
during the last six (6) months of the term for the purpose of showing the same
to prospective tenants, and may, during said six (6) months period place upon
the demised premises the usual notices "To Let" and "For Sale" which notices
Tenant shall permit to remain thereon without molestation. If Tenant is not
present to open and permit an entry into the demised premises, Owner or Owner's
agents may enter the same whenever such entry may be necessary or permissible by
master key or forcibly (in the event of emergency only) and provided reasonable
care is exercised to safeguard Tenant's property, such entry shall not render
Owner or its agents liable, therefor, nor in any event shall the obligations of
Tenant hereunder be affected. If during the last month of the term Tenant shall
have ceased to occupy and shall have removed all or substantially all of
Tenant's property therefrom, Owner may immediately enter, alter, renovate or
redecorate the demised premises without limitation or abatement of rent, or
incurring liability to Tenant for any compensation, and such act shall have no
effect on this lease or Tenant's obligation hereunder.
Please initial here: Landlord _______ Tenant _______
VAULT, VAULT SPACE, AREA: L4. No vaults, vault space or area, whether or not
enclosed or covered, not within the property line of the building is leased
hereunder, anything contained in or indicated on any sketch, blue print or plan,
or anything contained elsewhere in this lease to the contrary notwithstanding.
Owner makes no representation as to the location of the property line of the
building. All vaults and vault space and all such areas not within the property
line of the building, which Tenant may be permitted to use and/or occupy, is to
be used and/or occupied under a revocable license, and if any such license be
revoked, or if the amount of such space or area be diminished or required by any
federal, state or municipal authority or public utility, Owner shall not be
subject to any liability, nor shall Tenant be entitled to any compensation on
diminution or abatement of rent, nor shall such revocation, diminution on
requisition be deemed constructive or actual eviction. Any tax, fee or charge of
municipal authorities for such vault or area shall be paid by Tenant if used by
Tenant, whether or not specifically leased hereunder.
OCCUPANCY 15. Tenant will not at any time use or occupy the demised premises in
violation of the certificate of occupancy issued for the building of which the
demised premises are a part. Tenant has inspected the demised premises and
accepts them as is, subject to the riders annexed hereto with respect to Owner's
work, if any. In any event, Owner makes no representation as to the condition of
the demised premises and Tenant agrees to accept the same subject to violations,
whether or not of record. If any governmental license or permit shall be
required for the proper and lawful conduct of Tenant's business, Tenant shall be
responsible for, and shall procure and maintain, such license or permit.
BANKRUPTCY: 16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be cancelled by Owner by sending of a written
notice to Tenant within a reasonable time after the happening of any one or more
of the following events: (1) the commencement of a case in bankruptcy or under
the laws of any state naming Tenant as the debtor; or (2) the making by Tenant
of an assignment or any other arrangement for the benefit of creditors under any
state statute. Neither Tenant nor any person claiming through or under Tenant,
or by reason of any statute a order of court, shall thereafter be entitled to
possession of the premises demised, but shall forthwith quit and surrender the
demised premises. If this lease shall be assigned in accordance with its terms,
the provision of the Article 16 shall be applicable only to the party then
owning Tenant's interest in this lease.
(b) It is stipulated and agreed that in the event of the termination of
this lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any
other provisions of this lease to the contrary, be entitled to recover from
Tenant as and for liquidated damages, an amount equal to the amount by which the
rental reserved hereunder for the unexpired portion of the term demised exceeds
the fair and reasonable rental value of the demised premises for the same
period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If the demised premises
or any part thereof be relet by Owner for the unexpired term of said lease, or
any part thereof; before presentation of proof of such liquidated damages to any
court, commission or tribunal, the amount of rent reserved upon such reletting
shall be deemed to be the fair and reasonable rental value for the part or the
whole of the demised premises so re-let during the term of the re-letting.
Nothing herein contained shall limit or prejudice the right of the Owner to
prove for and obtain as liquidated damages by reason of such termination, an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, such damages are to be
proved, whether or not such amount be greater, equal to, or less than the amount
of the difference referred to above.
DEFAULT: 17. (1) if Tenant defaults in fulfilling any of the covenants of this
lease other than the covenants for the payment of rent on additional rent; or if
the demised premises becomes vacant or deserted, or if this lease be rejected
under ss.365 of Title 11 of the U.S. Code (Bankruptcy Code); or if any execution
or attachment shall be issued against Tenant or any of Tenant's property
whereupon the demised premises shall be taken or occupied by someone other than
Tenant; or if Tenant shall be in default with respect to any other lease between
Owner and Tenant; or if Tenant shall have failed after ten (10) days written
notice, to redeposit with Owner any portion of the security deposited hereunder
which Owner has applied to the payment of any rent and additional rent due and
payable hereunder; or if Tenant fails to move into or take possession of the
demised premises within thirty (30) days after the commencement of the term of
this lease, of which fact Owner shall be the sole judge; then in any one or more
of such events, upon Owner serving a written fifteen (15 ) days notice upon
Tenant specifying the nature of said default and upon the expiration of said
fifteen (15) days, if Tenant shall have failed to comply with or remedy such
default, or if the said default or omission complained of shall be of a nature
that the same cannot be completely cured or remedied within said fifteen (15)
day period, and if Tenant shall not have diligently commenced during such
default within such fifteen (15) day period, and shall not thereafter with
reasonable diligence and in good faith, proceed to remedy or cure such default,
then the provisions of Article 60 shall apply.
REMEDIES OF OWNER AND WAIVER OF REDEMPTION: 18. In case of any such default,
re-entry, expiration and/or dispossess by summary proceedings or otherwise, (a)
the rent and additional rent, shall become due thereupon and be paid up to the
time of such re-entry, dispossess and/or expiration, (b) Owner may re-let the
demised premises or any part or parts thereof either m the name of Owner or
otherwise, for a term or terms, which may at Owner's option be less than on
exceed the period which would otherwise have constituted the balance of the term
of this lease, and may grant concessions or free rent or charges a higher rental
than that in this lease, (c) Tenant or the legal representative of Tenant shall
also pay to Owner to liquidated damages for the failure of Tenant to observe and
perform said Tenant's covenants herein contained, any deficiency between the
rent hereby reserved and or covenanted to be paid and the net amount, if any, of
the rents collected on account of the subsequent lease or leases of the demised
premises for each month of the period which would otherwise have constituted the
balance of the term of this lease The failure of Owner to re-let the demised
premises on any part or parts thereof shall not release or affect Tenant's
liability for damages. In computing such liquidated damages there shall be added
to the said deficiency such expenses as Owner may incur in connection with
re-letting, such as legal expenses, reasonable attorneys' fees, brokerage,
advertising, and for keeping the demised premises in good order or for preparing
the same for re-letting. Any such liquidated damages shall be paid in monthly
installments by Tenant on the rent day specified in this lease, and any suit
brought to collect the amount of the deficiency for any month shall not
prejudice in arty way the rights of Owner to collect the deficiency for any
subsequent month by a similar proceeding. Owner, in putting the demised premises
in good order or preparing the same for re-rental may, at Owner's option, make
such alterations, repairs, replacements, and/or decorations in the demised
premises as Owner, in Owner's sole judgment, considers advisable and necessary
for the purpose of re-letting the demised premises, and the making of such
alterations, repairs, replacements, and/or decorations shall not operate on be
construed to release Tenant from liability hereunder as aforesaid. Owner shall
in no event be liable in any way whatsoever for failure to re-let the demised
premises, or in the event that the demised premises are re-let, for failure to
collect the rent thereof under such re-letting, and in no event shall Tenant be
entitled to receive any excess, if any, of such net rents collected over the
sums payable by Tenant to Owner hereunder. In the event of a breach or
threatened breach by Tenant of any of the covenants or provisions hereof, Owner
shall have the right of injunction and the right to invoke any remedy allowed at
law or in equity as if re-entry, summary proceedings and other remedies were not
herein provided for. Mention in this lease of any particular remedy, shall not
preclude Owner from any other remedy, in law or in equity. Tenant hereby
expressly waives any and all rights of redemption granted by or under any
present or future laws
FEES AND EXPENSES: 19. If Tenant shall default in the observance or performance
of any term or covenant on Tenant's part to be observed or performed under, or
by virtue of any of the terms or provisions in any article of this lease, after
notice if required, and upon expiration of the applicable grace period, if any,
(except in an emergency), then, unless otherwise provided elsewhere in this
lease, Owner may immediately, or at any time thereafter, and without notice,
perform the obligation of Tenant thereunder. If Owner, in connection with the
foregoing, or in connection with any default by Tenant in the covenant to Pay
rent hereunder, makes any expenditures or incurs any obligations for the payment
of money, including but not limited to reasonable attorneys' fees, in
instituting, prosecuting on defending action or proceeding, and prevails in any
such action or proceeding, then Tenant will reimburse Owner for such sums so
paid or obligations incurred with interest and costs. The foregoing expenses
incurred by reason of Tenant's default shall be deemed to be additional rent
hereunder and shall be paid by Tenant to Owner within ten (10) days of rendition
of any bill or statement to Tenant therefore. If Tenant's lease term shall have
expired at the time of matting of such expenditures or incurring of such
obligations, such sums shall be recoverable by Owner as damages.
BUILDING ALTERATIONS AND MANAGEMENT: 20. Owner shall have the night, at any
time, without the same constituting an eviction and without incurring liability
to Tenant therefore, to change the arrangement and/or location of public
entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets
or other public parts of the building, and to change the name, number or
designation by which the building may be known. There shall be no allowance to
Tenant for diminution of rental value and no liability on the part of Owner by
reason of inconvenience, annoyance or injury to business arising from Owner or
other Tenant making any repairs in the building or any such alterations,
additions and improvements. Furthermore, Tenant shall not have any claim against
Owner by reason of Owner's imposition of any controls of the manner of access to
the building by Tenant's social or business visitors, as Owner may deem
necessary, for the security of the building and its occupants.
NO REPRESENTATIONS BY OWNER: 21. Neither Owner nor Owner's agents have made any
representations or promises with respect to the physical condition of the
building, the land upon which it is erected, the demised premises, the rents,
leases, expenses of operation, or any other matter or thing affecting or related
to the demised premises or the building, except as herein expressly set forth,
and no rights, easements or licenses are acquired by Tenant by implication or
otherwise except as express[y set forth in the provisions of this lease. Tenant
has inspected the building and the demised premises and is thoroughly acquainted
with their condition and agrees to take the same "as-is" on the date possession
is tendered and acknowledges that the taking of possession of the demised
premises by Tenant shall be conclusive evidence that the said premises, and the
building of which the same form a part, were in good and satisfactory condition
at the time such possession was so taken, except as to latent defects. All
understandings and agreements heretofore made between the parties hereto arc
merged in this contract, which alone fully and completely expresses the
agreement between Owner and Tenant and any executory agreement hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of it
in whole or in part, unless such executory agreement is in writing and signed by
the party against whom enforcement of the change, modification, discharge or
abandonment is sought.
Please initial here: Landlord _______ Tenant _______
END OF TERM: 22. Upon the expiration on other termination of the term of this
lease, Tenant shall quit and surrender to Owner the demised premises,
"broom-clean", in good order and condition, ordinary wear and damages which
Tenant is not required to repair as provided elsewhere in this lease excepted,
and Tenant shall remove all its property from the demised premises. Tenant's
obligation to observe or perform this covenant shall survive the expiration or
other termination of this lease. If the last day of the term of this Lease, or
any renewal thereof, falls on Sunday, this lease shall expire at noon on the
preceding Saturday, unless it be a legal holiday, in which case it shall expire
at noon on the preceding business day.
QUIET ENJOYMENT: 23. Owner covenants and agrees with Tenant that upon Tenant
paying the rent and additional rent and observing and performing all the terms,
covenants, and conditions, on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the premises hereby demised, subject,
nevertheless, to the terms and conditions of this lease including, but not
limited to, Article 34 hereof, and to the ground leases, underlying leases and
mortgages hereinbefore mentioned.
FAILURE TO GIVE POSSESSION: 24. If Owner is unable to give possession of the
demised premises on the date of the commencement of the term hereof because of
the holding-over or retention of possession of any tenant, undertenant or
occupants, or if the demised premises are located in a building being
constructed, because such building has not been sufficiently completed to make
the premises ready for occupancy or because of the fact that a certificate of
occupancy has not been procured, on if Owner has not completed any work required
to be performed by Owner, or for any other reason, Owner shall not be subject to
any liability for failure to give possession on said date and the validity of
the lease shall not be impaired under such circumstances, nor shall the same be
construed in an wise to extend the term of this lease, but the rent payable
hereunder shall be abated (provided Tenant is not responsible Owner's inability
to obtain possession or complete any work required) until after Owner shall have
given Tenant notice that Owner is able to deliver possession in the condition
required by this lease. If permission is given to Tenant to enter into
possession of the demised premises, or to occupy premises other than the demised
premises, prior to the date specified as the commencement of the term of this
lease, Tenant covenants and agrees that such possession and/or occupancy shall
be deemed to be under all the terms, covenants, conditions and provisions of
this lease, except the obligation to pay the fixed annual rent set forth in page
one of this lease. The provisions of this article are intended to constitute "an
express provision to the contrary" within the meaning of Section 223-a of the
New York Real Property Law.
NO WAIVER. 25. The failure of Owner to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this lease,
or of any of the Rules or Regulations, set forth or hereafter adopted by Owner,
shall not prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original violation. The
receipt by Owner of rent with knowledge of the breach of any covenant of this
lease shall not be deemed a waiver of such breach, and no provision of this
lease shall be deemed to have been waived by Owner unless such waiver be in
writing signed by Owner. No payment by Tenant or receipt by Owner, of a lesser
amount than the monthly rent herein stipulated shall be deemed to be other than
on account of the earliest stipulated rent, nor shall any endorsement or
statement of any check or any letter accompanying any check or payment as rent
be deemed an accord and satisfaction, and Owner may accept such check or payment
without prejudice to Owner's right to recover the balance of such rent or pursue
any other remedy in this lease provided. All checks tendered to Owner as and for
the rent of the demised premises shall be deemed payments for the account of
Tenant. Acceptance by Owner of rent from anyone other than Tenant shall not be
deemed to operate as an attornment to Owner by the payor of such rent, or as a
consent by Owner to an assignment on subletting by Tenant of the demised
premises to such payor, or as a modification of the provisions of this lease. No
act or thing done by Owner or Owner's agents during the term hereby demised
shall be deemed an acceptance of a surrender of said premises, and no agreement
to accept such surrender shall be valid unless in writing signed by Owner. No
employee of Owner or Owner's agent shall have any power to accept the keys of
said premises prior to the termination of the lease, and the delivery, of keys
to any such agent or employee shall not operate as a termination of the lease or
a surrender of the demised premises.
WAIVER OF TRIAL BY JURY: 26. It is mutually agreed by and between Owner and
Tenant that the respective parties hereto shall, and they hereby do, waive trial
by jury in any action, proceeding, or counterclaim brought by either of the
parties hereto against the other (except for personal injury or property damage)
on any matters whatsoever arising out of or in any way connected with this
lease, the relationship of Owner and Tenant, Tenant's use of or occupancy of
demised premises, and any emergency statutory or any other statutory remedy. It
is further mutually agreed that in the event Owner commences any proceeding or
action for possession, including a summary proceeding for possession of the
demised premises, Tenant will not interpose any. counterclaim of whatever nature
or description, in any such proceeding, including a counterclaim under Article
4, except for statutory mandatory counterclaims.
INABILITY TO PERFORM: 27. This Lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenants and agreements hereunder on
part of Tenant to be performed shall in no wise be affected, impaired or excused
because Owner is unable to fulfill any of its obligations under this lease, or
to supply, on is delayed in supplying, any service expressly or impliedly to be
supplied, or is unable to make, or is delayed in making any repairs, additions,
alterations or decorations, or is unable to supply, or is delayed in supplying
any equipment, fixtures or other materials, if Owner is prevented or delayed
from doing so by reason of strike or labor troubles, on any cause whatsoever
beyond Owner's sole control including, but not limited to, government preemption
or restrictions, or by reason of any rule, order or regulation of any department
or subdivision thereof of any government agency, or by reason of the conditions
which have been or are affected, either directly on indirectly, by war on other
emergency.
[GRAPHIC OMITTED] SPACE TO BE FILLED IN OR DELETED
BILLS AND NOTICES: 28. Deleted Intentionally
See Article 54
WATER CHARGES: 29. If Tenant requires, uses or consumes water for any purpose in
addition to ordinary lavatory purposes (of which fact Owner shall be the sole
judge) Owner may install a water meter and thereby measure Tenant's water
consumption for all purposes. Tenant shall pay Owner for the cost of the meter
and the cost of the installation. Throughout the duration of Tenant's occupancy,
Tenant shall keep said meter and installation equipment in good working order
and repair at Tenant's own cost and expense. In the event Tenant fails to
maintain the meter and installation equipment in good working order and repair
(of which fact Owner shall be the sole judge) Owner may cause such meter and
equipment to be replaced or repaired, and collect the cost thereof from Tenant
as additional rent. Tenant agrees to pay for water consumed, as shown on said
meter as and when bills are rendered, and in the event Tenant defaults in the
making of such payment, Owner may pay such charges and collect the same from
Tenant as additional rent. Tenant covenants and agrees to pay, as additional
rent, the sewer rent, charge or any other tax, rent or levy which now or
hereafter is assessed, imposed or a lien upon the demised premises, on the
realty of which they are a part, pursuant to any law, order or regulation made
or issued in connection with the use, consumption, maintenance or supply of
water, the water system or sewage on sewage connection or system. If the
building, the demised premises, or any part thereof, is supplied with water
through a meter through which water is also supplied to other premises, Tenant
shall pay to Owner, as additional rent,
[GRAPHIC OMITTED] on the first day of each month, %
($ None ) of the total meter charges as Tenant's portion. Independently
of: and in addition to any of the remedies reserved to Owner hereinabove or
elsewhere in this lease, Owner may sue for and collect any monies to be paid by
Tenant, or paid by Owner, for any of the reasons or purposes hereinabove set
forth.
SPRINKLERS: 30. Anything elsewhere in this lease to the contrary notwithstanding
if the New York Board of Fire Underwriters or the New York Fire Insurance
Exchange or any bureau, department or official of the federal, state or city
government recommend or require the installation of a sprinkler system, or that
any changes, modifications, alterations, or additional sprinkler heads or other
equipment be made or supplied in an existing sprinkler system by reason of
Tenant's business, the location of partitions, trade fixtures, or other contents
of the demised premises, or for any other reason, or if any such sprinkler
system installations, modifications, alterations, additional sprinkler heads or
other such equipment, become necessary to prevent the imposition of a penalty or
charge against the full allowance for a sprinkler system in the fire insurance
rate set by said Exchange or any other body making fire insurance rates, or by
any fire insurance company, Tenant shall, at Tenant's expense, promptly make
such sprinkler system installations, changes, modifications, alterations, and
supply additional sprinkler heads or other equipment as required, whether the
work involved shall be structural or non-structural in nature. Tenant shall pay
to Owner as additional rent the sum of
[GRAPHIC OMITTED]$ None , on the first day of each month during the term of this
lease, as Tenant s portion of the contract price for sprinkler supervisory
service.
ELEVATORS, HEAT, CLEANING: 31. As long as Tenant is not in default under any the
covenants of this lease, beyond the applicable grace period provided in this
lease for the curing of such defaults, Owner shall (a) provide necessary
passenger elevator facilities on business days from 8 a.m. to 6 p.m. and on
Saturdays from 8 am. to 1 p.m.; (b) if freight elevator service is provided,
same shall be provided only on regular business days, Monday through Friday
inclusive, and on those days only between the hours of 9 am. and 12 noon and
between 1 p.m. and 5 p.m.; (c) furnish heat, water and other services supplied
by Owner to the demised premises, when and as required by law, on business days
from 8 a.m. to 6 p.m. and on Saturdays from 8 a.m. to 1 p.m.; (d) clean the
public halls and public portions of the building which are used in common by all
tenants.
See Article 73, Paragraph B
Owner reserves the right to stop service of the heating, elevator, plumbing and
electric systems, when necessary, by reason of accident or emergency, or for
repairs, alterations, replacements or improvements, which in the judgment of
Owner are desirable or necessary to be made, until said repairs, alterations,
replacements or improvements shall have been completed. If the building of which
the demised premises are a part supplies manually operated elevator service,
Owner may proceed diligently with alterations necessary to substitute automatic
control elevator service without in any way affecting the obligations of Tenant
hereunder.
Please initial here: Landlord _______ Tenant _______
SECURITY: 32. Tenant has deposited with Owner the sum of $ 0.00 as security for
the faithful performance and observance by Tenant of the terms, provisions and
conditions of this lease. It is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this lease, including,
but not limited to, the payment of rent and additional rent, Owner may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any rent and additional rent, or any other sum as to
which Tenant is in default, on for any sum which Owner may expend, or may be
required to expend, by reason of Tenant's default in respect of any of the
terms, covenants and conditions of this lease, including but not limited to, 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 Owner. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this lease, the
security shall be returned to Tenant after the date fixed as the end of the
lease, and after delivery of entire possession of the demised premises to Owner.
In the event of a sale of the land and building or leasing of the building, of
which the demised premises form a part, Owner shall have the right to transfer
the security to the vendee or lessee, and Owner shall thereupon be released by
Tenant from all liability for the return of such security; and Tenant agrees to
look to the new Owner solely for the return of said security, and it is agreed
that the provisions hereof shall apply to every transfer or assignment made of
the security to a new Owner. Tenant further covenants that it will not assign or
encumber, or attempt to assign or encumber, the monies deposited herein as
security, and that neither Owner nor its successors or assigns shall be bound by
any such assignment, encumbrance, attempted assignment or attempted encumbrance.
CAPTIONS: 33. The Captions are inserted only as a matter of convenience and for
reference, and in no way define, limit or describe the scope of this lease nor
the intent of any provision thereof
DEFINITIONS: 34. The term "Owner" as used in this lease means only the owner of
the fee or of the leasehold of the building, or the mortgagee in possession for
the time being, of the land and building (or the owner of a lease of the
building or of the land and building) of which the demised premises form a part,
so that in the went of any sale or sales of said land and building or of said
lease, or in the event of a lease of said building or of the land and building,
the said Owner shall be and hereby is entirely freed and relieved of all
covenants and obligations of Owner hereunder excluding any monetary obligation
owed to Tenant and not assumed by subsequent Owner and it shall be deemed and
construed without further agreement between the parties or their successors in
interest, or between the parties and the purchaser, at any such sale, or the
said lessee of the building, or of the land and building, that the purchaser or
the lessee of the building has assumed and agreed to carry out any and all
covenants and obligations of Owner hereunder. The words "re-enter" and
"re-entry" as used in this lease are not restricted to their technical legal
meaning. The term "rent" includes the annual rental rate whether so expressed or
expressed in monthly installments, and "additional rent." "Additional rent"
means all sums which shall be due to Owner from Tenant under this lease, in
addition to the annual rental rate. The term "business days" as used in this
lease, shall exclude Saturdays, Sundays and all days observed by the State or
Federal Government as legal holidays, and those designated as holidays by the
applicable building service union employees service contract, or by the
applicable Operating Engineers contract with respect to HVAC service. Wherever
it is expressly provided in this lease that consent shall not be unreasonably
withheld, such consent shall not be unreasonably delayed.
ADJACENT EXCAVATION SHORING: 35. If an excavation shall be made upon land
adjacent to the demised premises, or shall be authorized to be made, Tenant
shall afford to the person causing or authorized to cause such excavation, a
license to enter upon the demised premises for the purpose of doing such work as
said person shall deem necessary to preserve the wall or the building, of which
demised premises form a part, from injury of damage,
[GRAPHIC OMITTED] Space to be filled in or deleted.
and to support the same by proper foundations, without any claim for damages or
indemnity against Owner, or diminution or abatement of rent.
RULES AND REGULATIONS: 36. Tenant and Tenant's servants, employees, agents,
visitors, and licensees shall observe faithfully and comply strictly with, the
Rules and Regulations annexed hereto and such other and further reasonable Rules
and Regulations as Owner or Owner's agents may from time to time adopt. Notice
of any additional Rules or Regulations shall be given in such manner as Owner
may elect. In case Tenant disputes the reasonableness of any additional Rules or
Regulations hereafter made or adopted by Owner or Owner's agents, the parties
hereto agree to submit the question of the reasonableness of such Rules or
Regulations for decision to the New York office of the American Arbitration
Association, whose determination shall be final and conclusive upon the parties
hereto. The right to dispute the reasonableness of any additional Rules or
Regulations upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice in writing, upon Owner, within fifteen (15) days
after the giving of notice thereof. Nothing in this lease contained shall be
construed to impose upon Owner any duty. or obligation to enforce the Rules and
Regulations or terms, covenants or conditions in any other lease, as against any
other tenant, and Owner shall not be liable to Tenant for violation of the same
by any other tenant, its servants, employees, agents, visitors or licensees
GLASS: 37
Deleted Intentionally
ESTOPPEL CERTIFICATE: 38. Tenant, at any time, and from time to time upon at
least ten (10) days prior notice by Owner, shall execute, acknowledge and
deliver to Owner, and/or to any other person, firm or corporation specified by
Owner, a statement 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), stating, the dates to
which the rent and additional rent have been paid, and stating whether or not
there exists any default by Owner under this lease, and, if so, specifying each
such default.
DIRECTORY BOARD LISTING: 39. If; at the request of, and as accommodation to,
Tenant, Owner shall place upon the directory board in the lobby of the building,
one or more names of persons or entities other than Tenant, such directory board
listing shall not be construed as the consent by Owner to an assignment or
subletting by Tenant to such persons or entities.
SUCCESSORS AND ASSIGNES: 40. The covenants, conditions and agreements contained
in this lease shall bind and inure to the benefit of Owner and Tenant and their
respective heirs, distributees, executors, administrators, successors and except
as otherwise provided in this lease, their assigns.
See Article 50.
See Rider and Exhibits attached hereto and made a part hereof.
In Witness Whereof, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
Witness for Owner: WASHINGTON GROUP LLC [GRAPHIC OMITTED]
-------------------------
_____________________________ By:______________________ [L.S]
Witness for Tenant EMPIRE INSURANCE COMPANY [GRAPHIC OMITTED]
-------------------------
_____________________________ By:______________________ [L.S]
ACKNOWLEDGEMENT
STATE OF NEW YORK,
SS.:
COUNTY OF
On the _____ day of ___________________ in the year __________, before me, the
undersigned, a Notary Public in and for said State, personally appeared
__________________________________________________, personally known to me or
proved tome on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
_________________________________
NOTARY PUBLIC
Please initial here: Landlord _______ Tenant _______
IMPORTANT - PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF THIS LEASE IN ACCORDANCE
WITH ARTICLE 36.
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by Tenant or used for any purpose other than for ingress or egress from the
demised premises and for delivery of merchandise and equipment in a prompt and
efficient manner, using elevators and passageways designated for such delivery
by Owner. There shall not be used to any space, on in the public hall of the
building either by Tenant or by jobbers or others in the delivery, or receipt of
merchandise, any hand trucks, except those equipped with rubber tires and
sideguards. If said premises are situated on the ground floor of the building,
Tenant shall further, at Tenant's expense, keep the sidewalk and, curb in front
of said premises clean and free from ice, snow, dirt and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for
any purposes other than those for which they were designed or constructed, and
no sweepings, rubbish, rags, acids or other substances shall be deposited
therein, and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by Tenant, whether on not caused by
Tenant, its clerks, agents, employees or visitors.
3. No carpet, rug or other article shall be hung or shaken out of any
window of the building; and Tenant shall not sweep or throw, or permit to
substances into any of the corridors of halls, elevators, or out of the doors
other windows on stairways of the building and Tenant shall not use, keep or
permit to be used or kept, any foul on noxious gas or substance in the demised
premises, on it on suffer the demised premises to be occupied or used in a
manner offensive or objectionable to Owner or other occupants of the buildings
by reason of noise, odors, and or vibrations, or interfere in any way , with
other tenants or those having business therein nor shall any bicycles, vehicles,
animals, fish, or birds be kept in or about the building. Smoking or carrying
lighted cigars or cigarettes in the elevators of the building is prohibited
4. No awnings or other projections shall be attached to the outside walls
of the building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the outside of the
demised premises or the building, or on the inside of the demised premises if
the same is visible from the outside of the demised premises, without the prior
written consent of Owner, except that the name of Tenant may appear on the
entrance door of the demised premises. In the event of the violation of the
foregoing by Tenant, Owner may remove same without any liability, and may charge
the expense incurred by such removal to Tenant. Interior signs on doors and
directory tablet shall be inscribed, painted or affixed for Tenant by Owner at
the expense of Tenant, and shall be of a size, color and style acceptable to
Owner.
6. Tenant shall not mark, paint, drill into, or in any way deface any part
of the demised premises or the building of which they form a part. No boring,
cutting or stringing of wires shall be permitted, except with the prior written
consent of Owner, and as Owner may direct. Tenant shall not lay linoleum, or
other similar floor covering, so that the same shall come in direct contact with
the floor of the demised 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.
7. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by Tenant, nor shall any changes be made in existing locks or
mechanism thereof. Tenant must, upon the termination of his tenancy, restore to
Owner all keys of stones, offices and toilet rooms, either furnished to, or
otherwise procured by, Tenant, and in the event of the loss of any keys, so
furnished, Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter of
any description shall be delivered to and removed from the demised premises only
on the freight elevators and through the service entrances and corridors, and
only during hours, and in a manner approved by Owner. Owner reserves the right
to inspect all freight to be brought into the building, and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease, of which these Rules and Regulations are a part.
9. Tenant shall not obtain for use upon the demised premises ice, drinking
water, towel and other similar services, or accept barbering or bootblacking
services in the demised premises, except from persons authorized by Owner, and
at hours and under regulations fixed by Owner. Canvassing, soliciting and
peddling in the building is prohibited and Tenant shall cooperate to prevent
same.
10. Owner reserves the right to exclude from the building all who do not
present a pass to the building signed by Owner. Owner will furnish passes to
persons for whom any Tenant requests same in writing. Tenant shall be
responsible for all persons for whom it requests such pass, and shall be liable
to Owner for all acts of such persons. Notwithstanding the foregoing, Owner
shall not be required to allow Tenant or any person to enter or remain in the
building, except on business days from 8:00 a.m. to 6:00 p.m. and on Saturdays
from 8 :00 a.m. to 1:00 p.m. Tenant shall not have a claim against Owner by
reason of Owner excluding from the building any person who does not present such
pass.
11. Owner shall have the night to prohibit any advertising by Tenant which
in Owner's opinion, tends to impair the reputation of the building of its
desirability as a loft building, and upon written notice from Owner, Tenant
shall refrain from or discontinue such advertising.
12. Tenant shall not bring, or permit to be brought or kept, in or on the
demised premises, any inflammable, combustible, explosive, or hazardous fluid,
material, chemical or substance, or cause or permit any odors of cooking or
other processes or any unusual or other objectionable odors, to permeate in, or
emanate from the demised premises.
13. Tenant shall not use the demised premises in a manner which disturbs or
interferes with other tenants in the beneficial use of their premises
14. Refuse and Trash. (1) Compliance by Tenant. Tenant covenants and
agrees, at its sole cost an expense, to comply with all present and future laws,
orders, and regulations, of all state, federal, municipal, and local
governments, departments, commissions and boards regarding the collection,
sorting, separation and recycling of waste products, garbage, refuse and trash.
Tenant shall sort and separate such waste products, garbage, refuse and trash
into such categories as provided by law. Each separately sorted category of
waste products, garbage, refuse and trash shall be placed in separate
receptacles reasonably approved by Owner. Tenant shall remove, or cause to be
removed by a contractor acceptable to Owner, at Owner's sole discretion, such
items as Owner may expressly designate. (2) Owner's Rights in Event of
Noncompliance. Owner has the option to refuse to collect or accept from Tenant
waste products, garbage, refuse or trash (a) that is not separated and sorted as
required by law or (b) which consists of such items as Owner may expressly
designate for Tenant's removal, and to require Tenant to arrange for such
collection at Tenant's sole cost and expense, utilizing a contractor
satisfactory to Owner. Tenant shall pay all costs, expenses, fines, penalties,
or damages that may be imposed on Owner or Tenant by reason of Tenant's failure
to comply with the provisions of this Building Rule 15, and, at Tenant's sole
cost and expense, shall indemnify, defend, and hold Owner harmless (including
reasonable legal fees and expenses) from and against, any actions, claims and
suits arising from such noncompliance, utilizing counsel reasonably satisfactory
to Owner.
Address
Premises
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Drawn by .........................
The Real Estate Board of New York, Inc. Checked by .......................
Copyright. 1999. All rights Reserved. Entered by........................
Reproduction in whole on in part prohibited. Approved by.......................
Please initial here: Landlord _______ Tenant _______
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RIDER ATTACHED TO AND FORMING A PART OF LEASE DATED OCTOBER 3, 2001 BY AND
BETWEEN WASHINGTON GROUP LLC ("OWNER" OR "LANDLORD") AND EMPIRE INSURANCE
COMPANY ("TENANT") FOR SPACE CONSISTING OF A PORTION OF THE THIRD (3RD) FLOOR AT
45 MAIN STREET, BROOKLYN, NY
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41. CERTAIN DEFINITIONS
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A. The Term of this Lease (the "Term") shall commence on January 1, 2002
(the "Commencement Date"). The Term of this Lease shall expire, unless sooner
terminated as herein provided, on December 31, 2005 (the "Expiration Date").
B. The "Building" means the land, building, improvements and appurtenances
known as and located at 45 Main Street in Kings County of the City and State of
New York.
C. Tenant covenants and agrees to pay "Annual Base Rent" to Landlord in
equal advance monthly installments ("Monthly Base Rent") on the first day of
each and every month that occurs, in whole or in part, during the Term, without
any prior demand, offset or deduction of any kind whatsoever at the annual
rental rates set forth in the following Chart #1:
Chart #1. ANNUAL BASE RENT
- --------------------------------------------------------------------------------
Lease Year Period Annual Base Rent Monthly Base Rent
- --------------------------------------------------------------------------------
January 1, 2002 to December 31, 2002 $625,000.00 $52,083.33
- --------------------------------------------------------------------------------
January 1, 2003 to December 31, 2003 $643,750.00 $53,645.83
- --------------------------------------------------------------------------------
January 1, 2004 to December 31, 2004 $663,062.50 $55,255.21
- --------------------------------------------------------------------------------
January 1, 2005 to December 31, 2005 $682,954.38 $56,912.87
- --------------------------------------------------------------------------------
D. The agreed "Rentable Square Footage" of the demised premises is 25,000.
E. "Tenant's Percentage" means 5.252%.
F. "Base Tax Year" means July 1, 2002 to June 30, 2003.
42. ADDITIONAL RENT AND MISCELLANEOUS DEFINITIONS
---------------------------------------------
A. All payments other than Annual Base Rent required to be made by Tenant
pursuant to this lease (including, but not limited to, escalation charges, and
any and all damages, interest, costs, fees and expenses caused by Tenant's
default) shall be deemed additional rent and, in the event of any nonpayment
thereof, Landlord shall have all rights and remedies provided for herein and by
law for nonpayment of Annual Base Rent in addition to whatever other remedies
may be available to Landlord.
B. Unless expressly provided otherwise in this lease, the amount shown as
due to Landlord (or Landlord's agent) in all bills, invoices and statements to
Tenant shall be due and payable by Tenant upon receipt without further demand.
Any delay or failure of Landlord or its agent to prepare and deliver any bill,
statement or invoice shall not constitute a waiver of the right to collect any
payment that may have become due during the term of this lease, including,
without limitation, retroactive payments for any and all amounts unbilled,
provided that no default shall exist unless and until such amounts are billed.
Tenant shall perform such acts, execute such documents and furnish such
information as Landlord may
Lease Rider Page 1. Please Initial: Landlord _____ Tenant _____
reasonably require from time to time to substantiate Tenant's compliance with
the provisions of this lease within a reasonable time after written demand, and
such obligations shall survive the expiration or sooner termination of this
lease.
C. All payments of Annual Base Rent and additional rent pursuant to this
lease shall be made by Tenant with checks drawn upon a New York City bank that
is a member of the New York Clearing House Association or any successor thereto
if any out-of-state check of Tenant is dishonored. If Landlord receives from
Tenant any payment less than the full amount of the Annual Base Rent and
additional rent then due and owing, Tenant hereby waives its right, if any, to
designate the items to which such payment shall be applied and agrees that
Landlord, in its sole discretion, may apply such payment in whole or in part to
any Annual Base Rent, any additional rent or to any combination thereof then due
and payable hereunder.
D. The non-prevailing party in any cause of action or defense asserted in
any action or proceeding between Landlord and Tenant relating to this lease or
the demised premises, shall pay the reasonable attorneys' fees, costs and
disbursements of the prevailing party for such action or proceeding within
thirty (30) days of demand. If a default by one party causes the other party to
prosecute or defend an action or proceeding, the defaulting party shall pay the
attorneys' fees, costs and disbursements of the non-defaulting party for such
action or proceeding within thirty (30) days of demand. If either party suffers,
pays or incurs any damages, losses, fees or expenses (including, without
limitation, reasonable attorneys' fees and disbursements) due to a default, act,
omission or request of the other party, the defaulting party shall pay the total
amount thereof to the non-defaulting within thirty (30) days of demand.
E. If all rent is not paid in full within thirty (30) days after it is due
and payable hereunder, Tenant shall pay Landlord interest on late payments that
shall accrue daily from the date payment was due to the date Landlord collects
payment in full. The rate of interest on late payments shall be equal to an
annual rate that is two (2) percentage points above the then current annualized
prime commercial short term lending rate of Citibank, NA or its successor.
However, if the collection of interest at the rate specified herein would be
usurious or otherwise unenforceable, interest on late payments shall accrue at
the highest enforceable rate.
F. Unless Landlord shall otherwise expressly agree in writing, acceptance
of rent from anyone other than Tenant named herein shall not relieve Tenant of
any of its obligations under this lease (including, but not limited to, the
obligation to pay Annual Base Rent and additional rent, to the extent still due
and unpaid). Acceptance of rent from anyone other than Tenant shall not be
deemed to constitute a consent to assignment of this lease or a subletting or
other occupancy of the demised premises (in whole or in part) by anyone other
than Tenant or a waiver of any of Landlord's rights or Tenant's obligations. A
transfer of control, or a transfer of an interest equal to, or greater than a
fifty percent (50%) beneficial interest in Tenant, whether such transfer occurs
at one time, or in a series of transactions, and whether of stock, partnership
or membership interest(s), or otherwise, shall be deemed an assignment of this
lease requiring Landlord's prior written consent except if and as expressly
provided otherwise in this lease.
G. References in this lease to "rent", "Rent", "rents", "Rents", "rental",
"Rental", "rentals" and "Rentals" shall mean and include Annual Base Rent and
additional rent. The "annual rental rate" identified at page 1 of this lease
means the Annual Base Rent. The Annual Base Rent is the minimum rental due and
payable without prior demand, offset or deduction. No decrease in any additional
rent for any period shall yield an offset or deduction in any other rental or
for any other period. References in this lease to Tenant being "in default"
and/or "Tenant's breach" or "default" shall mean and include each and every
default, breach, misfeasance, nonfeasance, nonpayment, or any other failure of
Tenant to perform any of its obligations hereunder. If there is an other lease
between Landlord and Tenant (or any entity that is an affiliate, subsidiary,
parent, partner, member, manager, shareholder, successor, assignee
Lease Rider Page 2. Please Initial: Landlord _____ Tenant _____
or designee of Tenant) for space in the Building containing the demised
premises, a default under either lease shall be deemed to be a default under
both leases. If Landlord gives notice of default, Tenant seeks declaratory or
injunctive relief, and Tenant's time to cure is extended pending the outcome of
such declaratory judgment and/or injunctive action or proceeding, Tenant shall
be deemed to be "in default" under this lease during the pendency of such action
or proceeding for the purposes of those rights that are exercisable by Tenant
(and/or those obligations which are enforceable against Landlord) only if Tenant
is not "in default". All of Tenant's obligations to pay rent, to indemnify
Landlord and to obtain insurance during the Term shall survive the expiration of
the Term or sooner termination of this lease.
H. Landlord's managing agent may give notices, demands, invoices,
statements and/or bills to Tenant in Landlord's behalf; any such notice,
statement, invoice, demand or bill shall be deemed to have been given by
Landlord. Tenant agrees that all of the representations, warranties, covenants,
waivers and indemnities made in this lease by Tenant for the benefit of Landlord
shall also be deemed to inure to and be for the benefit of Landlord's agent, and
its and/or Landlord's, partners, members, manager(s), trustee(s), shareholders,
directors, officers, employees, agents, attorneys and independent contractors.
References to "Landlord's agent" or "Landlord's agents" shall include, but not
be limited to, Landlord's managing and/or leasing agent.
I. "Laws" shall mean and include all present and future laws, rules,
regulations, ordinances, codes and orders of all governmental and
quasi-governmental authorities, agencies and departments, and the directions,
provisions and requirements thereof and of utility companies, labor agreements
and insurance boards, policies, carriers, underwriters and rating bureaus.
Whenever this lease requires or permits Tenant to "provide" something, "provide"
shall mean and include supply, furnish, install, operate, repair, replace and
maintain the same as necessary to keep the same and the demised premises in good
working order and condition throughout the Term at Tenant's sole cost, risk and
expense.
J. The provisions of this Article shall supplement (not limit) other
provisions of this lease pertaining to the same matters as this Article and
related matters.
43. RENT ESCALATION - TAX INCREASES
-------------------------------
A. "Tenant's Percentage" is defined in Article 41.
B. "Tax Year" shall mean each successive period of twelve (12) months
starting July 1 and ending June 30 that occurs, in whole or in part, during the
term of this lease, or such other fiscal year as may be duly adopted as the
fiscal year for real estate tax purposes of the City of New York.
C. "Base Tax Year" is defined in Article 41.
D. "Real Estate Taxes" shall mean all taxes, assessments and impositions
(general or special, foreseen or unforeseen, ordinary or extraordinary) levied,
assessed or imposed (including, but not limited to, real property taxes and any
building improvement district charges) by federal, state or local governments
and their political subdivisions upon all or part of the building(s) and the
land(s) of which the demised premises forms a part and any sidewalks, curbs,
plazas, air rights and the like appurtenant to them (collectively called the
"Building"). Real Estate Taxes shall not include any transfer, income,
inheritance or gift taxes of Landlord nor any tax that does not relate only to
the land, building, appurtenances and improvements of which the demised premises
forms a part. If there is a change in the method of taxation which results in
any franchise, income, rent, profit or other tax, fee, charge or assessment,
however designated, being made against Landlord and/or the owner of the
Building, in substitution of, or in addition to any Real Estate Tax (in whole or
in part) each and every such tax, fee, charge or assessment, to the extent the
same pertains solely to the land, building, appurtenances and improvements,
shall be included as a part of Real Estate Taxes.
E. If Landlord incurs any expenses (including, but not limited to,
reasonable attorneys' fees and rebilling expenses) in connection with its
efforts to reduce, or minimize increases in the Real Estate
Lease Rider Page 3. Please Initial: Landlord _____ Tenant _____
Taxes and/or the assessed valuation of the Building, any and all such expenses
shall be added to, and made a part of Real Estate Taxes for the Tax Year to
which they relate.
F. If the amount of the Real Estate Taxes in any Tax Year exceeds the
amount of the Real Estate Taxes for the Base Tax Year, as finally determined,
Tenant agrees to pay Landlord annually the Tenant's Percentage of the difference
between such amounts (the "Tax Escalation Payment") within thirty (30) days
after Landlord bills Tenant therefor. If a Tax Year after the Base Tax Year
falls partially outside the term of this lease, Tenant's Tax Escalation Payment
under this paragraph for such Tax Year shall be prorated to reflect the portion
of such Tax Year which falls within the term of this lease. The tax bill issued
to Landlord shall be conclusive as to the Real Estate Taxes to which such tax
bill relates and shall be used in computations of Real Estate Taxes under this
Article unless and until a new or amended tax bill is issued to Landlord for the
same period. If Landlord elects to bill amounts due from Tenant under this
Article in more than one installment, it may do so without waiving its right to
collect any balance of the yearly amount of the Tax Escalation Payment in one
installment within thirty (30) days as provided above.
G. If, during the Term, the Real Estate Taxes for the Base Tax Year
ultimately are less than the Real Estate Taxes initially imposed upon the
Building for the Base Tax Year, Tenant shall pay Landlord, promptly upon demand,
any additional amount thereby payable pursuant to this Article as the Tax
Escalation Payment for all Tax Years elapsed subsequent to the Base Tax Year.
H. If Landlord receives any refund of Real Estate Taxes for any Tax Year
for which Tenant has made a payment pursuant to this Article, Landlord shall
(after deducting from such refund all expenses incurred in connection therewith)
pay or credit to Tenant, if Tenant is not in default hereunder, Tenant's
Percentage of the net refund.
44. LEASE NOT BINDING UNLESS EXECUTED AND DELIVERED
-----------------------------------------------
This lease shall not bind Landlord unless and until it has been signed and
delivered by Tenant, received and accepted by Landlord, and then countersigned
and redelivered by Landlord to Tenant. The execution and delivery of this lease
by Tenant shall constitute its irrevocable offer to enter into this lease that
Landlord shall have at least five (5) business days to accept or reject.
45. ADDITIONAL ASSIGNMENT AND SUBLETTING PROVISIONS
A. "Disposition" means an assignment, release or reassignment (in whole or
in part) of this lease, a sublease of all or part of the demised premises, or a
license, concession or other agreement to permit any or all of the demised
premises to be used or occupied by any other party. A sub-sublease,
sub-assignment or the cancellation, renewal or other material modification of
any Disposition shall be deemed to be a new Disposition. No Disposition shall be
made without Landlord's prior written consent. The "Effective Date" of a
sublease or assignment means the date on which the sublease term will begin or
the assignment will become effective.
B. Every assignment of this lease must provide that the assignee assumes
the payment and performance of Tenant's obligations under this lease as if it
had executed it as the original Tenant; and that Landlord and the assignee may
modify this lease in any manner, without notice to the Tenant or Tenant's prior
consent, without thereby terminating any assignor's liability under this lease,
except that any such modification that, in any way, increases an assignor's
liability shall not, to the extent of such increase only, be binding upon the
assignor.
C. Every sublease of the demised premises, in whole or in part, shall be
subject and subordinate to this lease in all respects and must include the
following:
"In the event of a termination of any underlying lease, the subtenant
hereunder shall, at the option of the lessor under any such lease
('Underlying Lessor'), attorn to and recognize the Underlying Lessor as
sublandlord hereunder and shall, promptly upon the Underlying Lessor's
Lease Rider Page 4. Please Initial: Landlord _____ Tenant _____
request, execute and deliver all instruments necessary or appropriate to
confirm such attornment and recognition. Notwithstanding such attornment
and recognition, the Underlying Lessor shall not (i) be liable for any
previous act or omission of the sublandlord under this sublease, (ii) be
subject to any offset, not expressly provided for in this sublease, which
shall have accrued to the subtenant hereunder against said sublandlord,
(iii) be bound by any modification of this sublease or by any prepayment
of more than one month's rent, unless such modification or prepayment
shall have been previously approved in writing by the Underlying Lessor,
or (iv) be obligated to afford rights or provide services in excess of or
different than those required to be furnished to the sublandlord as the
tenant under the Underlying Lease for the space to which this sublease
relates. The subtenant hereunder hereby waives all rights under any
present or future law to elect, by reason of the termination of such
Underlying Lease, to terminate this sublease or surrender possession of
the premises demised hereby. This sublease may not be assigned or the
premises demised hereunder further sublet, in whole or in part, without
the prior written consent of the Underlying Lessor."
D. Subject to the provisions of Article 11 and the other applicable
provisions of this lease, if Tenant is not in default, Landlord shall not
unreasonably withhold or delay its prior written consent to a Disposition in the
form of an assignment of this lease or a sublease of all or part of the demised
premises by Tenant provided that: Tenant gives written notice to Landlord at
least thirty (30) days, but not more than one hundred twenty (120) days prior to
the Effective Date requesting Landlord's prior written consent, and such notice
is delivered to Landlord together with executed duplicate originals of the
assignment or sublease and any and all other agreements that will have been made
in connection with the Disposition, and the agreements have been signed and
delivered subject to receipt of Landlord's prior written consent; and, at least
ten (10) days prior to the Effective Date, Tenant furnishes Landlord with such
other such other documents and information as Landlord may reasonably require to
substantiate compliance with the provisions of this lease, to evaluate the
financial strength and suitability of the other party to the Disposition, and be
fully informed of all relevant facts when it decides whether or not to issue its
consent to the Disposition. If there is any assignment or sublease permitted
under this Article, Landlord shall be entitled to receive fifty percent (50%) of
any consideration paid for the assignment and fifty percent (50%) of any
"Profits" (as defined below) in connection with the subletting as additional
rent. "Profits" on a subletting shall mean the difference between (i) the
amounts paid as rent and additional rent by the subtenant to the Tenant in and
for each month of the sublease term and (ii) the Annual Base Rent and monthly
additional rents due and payable by Tenant to Landlord in and for each month of
the sublease term, in each and every month when the former exceeds the latter,
provided, however, that if a sublease involves less than the entire demised
premises, for the purposes only of computing the Profits on a subletting, the
amounts paid by Tenant to Landlord used in subpart (ii) above shall be prorated
each month to reflect the portion of the demised premises being sublet.
E. The foregoing notwithstanding, no Disposition shall be made with any of
the following: a prospective tenant (or its designee) who is discussing with
Landlord (or Landlord's agent) its need for space in the Building, or who has so
negotiated within the previous six (6) months; a current tenant, subtenant or
occupant of space in the Building or the subsidiary, affiliate, parent, or
successor thereof, or of any such successor or related entity; any party not
financially responsible or unable to adequately evidence financial
responsibility to Landlord's reasonable satisfaction; any party that will be
engaged in a business or use that will require services from Landlord, or place
demands on facilities in the Building of a different nature or to a greater
extent than Landlord was required to afford before under this lease, that is
likely to adversely affect (or increase burdens on) any operation of Landlord or
any tenant or occupant of the Building, violate a restrictive covenant of
Landlord, contravene any provision of a mortgage, net lease or any other
agreement of Landlord or breach this lease. Landlord's managing/leasing agent
shall be hired by Tenant as the exclusive real estate broker of Tenant with the
exclusive right to effect any Disposition requiring Landlord's prior written
consent for a period of one hundred eighty (180) days
Lease Rider Page 5. Please Initial: Landlord _____ Tenant _____
in each instance in accordance with the then current rates and rules for payment
of one full commission to said real estate broker under its then standard
listing agreement for an assignment, sublease or release of lease.
F. If a Disposition requires subdividing the demised premises (e.g.,
construction of new demising walls to create a separate independently
serviceable unit of space) or any other Tenant Change, such Disposition and the
alterations described therein shall require Landlord's prior written consent and
approval, which shall not be unreasonably withheld or delayed.
G. Neither Landlord's consent to any Disposition, nor any Disposition made
at any time shall release Tenant from its liability for the performance of
Tenant's obligations hereunder before, during or after any such Disposition, or
constitute Landlord's consent required for any other, or further Disposition, or
Landlord's approval of any alterations described therein, or in any other or
further Disposition. Landlord may collect payments from an assignee, subtenant
or occupant and apply the net rent received to Tenant's obligations without
accepting the payor as a direct tenant of Landlord, and without having such acts
constitute Landlord's consent to an assignment, subletting or other Disposition,
or a release of Tenant.
H. Anything contained in this lease to the contrary notwithstanding,
within fifteen (15) days after Landlord's receipt of Tenant's notice requesting
Landlord's consent to an assignment of this lease or the subletting of the
demised premises, in whole or in part, Landlord may give notice electing to
cancel this lease effective as of either (i) the Effective Date of the proposed
Disposition, or (ii) as of the last day of the month occurring sixty (60) days
after such notice of cancellation is given, at Landlord's option. If Landlord
shall give its cancellation notice as provided in this paragraph, the Term shall
end on the effective date of cancellation specified therein as if such date had
been the original Expiration Date of this lease.
I. Tenant shall pay to Landlord, promptly upon demand therefor, all
reasonable costs and expenses (including, but not limited to, reasonable
attorneys' fees and disbursements) incurred by Landlord in connection with any
Disposition whether or not Landlord consents thereto.
46. BROKERAGE
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Landlord and Tenant warrant and represent to each other that they have had no
dealings with any real estate broker, agent or finder except NEWMARK & COMPANY
REAL ESTATE, INC. and GRUBB & ELLIS NEW YORK, INC. (the "Brokers") in connection
with this lease and covenant and agree to indemnify, defend and hold each other
harmless on demand from and against any and all costs, expenses or liability
(including reasonable attorneys' fees) for any compensation, commissions, fees
and charges claimed by any agent, broker or finder (other than the Brokers) with
respect to this lease or the negotiation thereof due to the dealings of the
other with the claimant. Landlord will pay the commission of the Brokers
pursuant to its separate agreement with the Brokers subject to execution and
delivery of this lease by Landlord and Tenant.
47. TENANT'S OPERATIONS
-------------------
A. Landlord has the right to use, repair, maintain and replace the facade
and exterior elements of the Building and its appurtenances to comply with Laws
and properly operate the Building and Landlord's exercise of such right shall
not be a breach of the lease, a constructive, partial or actual eviction of
Tenant or cause any rent abatement or release of Tenant. Tenant covenants and
agrees to apply for, secure, maintain and comply with all licenses or permits
which may be required for the conduct by Tenant of the business herein permitted
to be conducted in the demised premises and to pay, if, as and when due all
license and permit fees and charges of any nature in connection therewith; not
to use any sign or display (visual, auditory or otherwise) which has not been
approved in writing by Landlord or any paper or temporary signage outside (or
inside, if visible from outside) the demised premises. Tenant shall not obstruct
or operate from the stairwells or any area around the demised
Lease Rider Page 6. Please Initial: Landlord _____ Tenant _____
premises or cause any offensive, excessive or unusual noise, odor, or vibration
in or about the demised premises. All signage, displays and the like, visible
from the outside of the demised premises (including, but not limited to,
entrance door signs and signs visible from the elevators) shall be subject to
Landlord's prior written approval as to form, content, character, color, size,
location and materials and shall be of first-class quality and appearance in
conformity with Landlord's consent. The parties acknowledge that the Building
may now be or may hereafter become subject to local laws or requirements of the
Landmarks Preservation Commission, historic preservation district status and the
like that may regulate items visible from the street (in addition to the
exterior of the Building) and Tenant will comply at its own expense with any and
all of those regulations and requirements for the Demised Premises relating to
any alteration of Tenant. Tenant, at its own expense, shall provide, clean,
maintain, repair and replace its permitted signs (if any) as necessary to comply
with Laws and to keep the same in attractive and first class condition and free
of graffiti.
B. Anything in Article 2 or elsewhere in this lease to the contrary
notwithstanding, Tenant shall not use or permit all or any part of the demised
premises to be used for any of the following: (1) residential use of any kind;
(2) retail use (involving the presence of the general public in the demised
premises) of any kind; (3) real estate brokerage or property management; (4) an
employment, personnel or executive search agency (5) any health care,
rehabilitation, massage, clinic, counseling or exercise facility of any kind,
including, but not limited to, a medical or dental office; (6) occupancy by any
foreign or domestic government or any subdivision, agency, department, or
instrumentality thereof, including, without limitation, any foreign, federal,
state or local governmental or quasi-governmental body, agency or department, or
any other authority or entity that is affiliated therewith or controlled
thereby, or any person, group or entity that enjoys diplomatic, sovereign or any
other form of immunity from civil or criminal process; (7) occupancy by any
political, labor, not-for-profit, religious, charitable, eleemosynary, school or
educational corporation, or any other form of organization for such purposes;
(8) engaging in the sale or distribution of any goods, services or merchandise
other than those expressly permitted under this lease; (9) the live performance
of any form of entertainment, including, but not limited to, singing and/or the
playing of any musical instrument of any kind in any manner whatsoever at any
time, without regard to whether or not admission is charged for any live vocal
or musical performance; (10) cooking other than the warming of prepared foods
for employee lunches and snacks in a small microwave oven; (11) a messenger
service; (12) banking, cash machine, check cashing and the like; (13) a
recording studio; (14) sale or distribution of lewd or pornographic materials,
alcoholic beverages, tobacco products or firearms of any kind; (15) the
manufacturing of any product; (16) any activity which involves the storage, use
or generation of medical waste, corrosive or toxic solids, liquids or gases,
and/or hazardous materials.
C. Tenant shall not use or permit the use of the demised premises or any
part thereof in any way that would violate any of the covenants, agreements,
terms, provisions and conditions of this lease or for any unlawful purpose or in
any unlawful manner or in violation of the Certificate of Occupancy for the
demised premises or the Building, and Tenant shall not suffer or permit the
demised premises or any part thereof to be used in any manner or for anything to
be done therein or anything to be brought into or be kept therein that, in the
reasonable judgment of Landlord, shall in any way threaten to impair or
adversely affect the character, reputation or appearance of the Building, the
proper and economical operation of the Building or any systems, facility or
service used to operate or clean all or any part of the Building or the demised
premises, or the use of any of the areas of the Building by Landlord or the
business or use of any of the other tenants or occupants of the Building. Tenant
shall not install or use any equipment that, in the reasonable judgment of
Landlord, could cause any adverse effect on the demised premises, the Building
and/or the comfort and convenience of other tenants and occupants of the
Building.
D. Tenant acknowledges that the identity of Tenant, the specific character
of Tenant's business, the anticipated use of the premises, and the relationship
between such use and other uses within the
Lease Rider Page 7. Please Initial: Landlord _____ Tenant _____
Building and adjacent properties have been material considerations to Landlord's
entry into this lease. Any material change in the character of Tenant's business
or Tenant's use will constitute a default under this lease. Tenant will not,
without the consent of Landlord, use the name of the Building for any purpose
other than as the address of the business to be conducted by Tenant in the
demised premises, nor will Tenant do or permit the doing of anything in
connection with Tenant's business or advertising that in the reasonable judgment
of Landlord may reflect unfavorably on Landlord or the Building or confuse or
mislead the public as to any relationship between Landlord and Tenant.
48. SUBORDINATION
-------------
A. This lease and Tenant's rights under this lease are subject and
subordinate to any ground or underlying lease, mortgage, indenture, or other
lien encumbrance (each a "superior lien"), together with any renewals,
extensions, modifications, consolidations, and replacements of such superior
lien, now or at any time hereafter affecting or placed, charged, or enforced
against all or any portion of the Building or any interest of Landlord in it or
Landlord's interest in this lease and the leasehold estate created by this
lease. The provisions of this paragraph will be self-operative and no further
instrument of subordination will be required in order to effect it.
Notwithstanding the foregoing, Tenant will execute, acknowledge, and deliver to
Landlord, within ten (10) days after written demand by Landlord, such documents
as may be reasonably requested by Landlord or the holder of any superior lien to
confirm or effect any such subordination.
B. Tenant agrees that in the event that any holder of a superior lien
succeeds to Landlord's interest in the demised premises, Tenant will pay to such
holder all rents subsequently payable under this lease. Further, in the event of
the enforcement by the holder of a superior lien of the remedies provided for by
law or by such superior lien, Tenant will, automatically become the Tenant of
and attorn to such successor in interest without change in the terms or
provisions of this lease. Such successor in interest will not be bound by: any
payment of rent for more than one month in advance, except prepayments in the
nature of security for the performance by Tenant of its obligations under this
lease if and to the extent that the same have been transferred by Landlord to
such successor in interest; any amendment or modification of this lease made
without the written consent of such successor in interest (if such consent was
required under the terms of such superior lien); any claim against Landlord
arising prior to the date on which such successor in interest succeeded to
Landlord's interest (as to which Landlord shall remain liable to Tenant); any
claim for equitable or legal relief against such successor in interest for
Landlord's failure or inability to complete construction required to be done by
Landlord under the lease; or any other claim or offset of rent against the
Landlord.
C. Upon request by such successor in interest and without cost to Landlord
or such successor in interest, Tenant will, within ten (10) days after written
demand, execute, acknowledge, and deliver an instrument or instruments
confirming the attornment. If Tenant fails to so execute or deliver any such
instrument or any other estoppel certificate or the like when and as provided in
this lease, Tenant irrevocably appoints Landlord as its attorney-in-fact to do
so in Tenant's behalf if Landlord so elects.
D. Tenant shall not record this lease or any short form memorandum of this
lease without Landlord's prior written consent.
49. ELECTRICITY (SUBMETER)
----------------------
A. Tenant agrees that Landlord shall furnish electricity to Tenant on a
"submetering" basis. Landlord shall instal1 any submeter(s) required in
Landlord's judgment in the demised premises. Electricity and electric service,
as used herein, shall mean any element affecting the generation, transmission,
and / or distribution or redistribution of electricity, including, but not
limited to, services which facilitate the distribution of service.
Lease Rider Page 8. Please Initial: Landlord _____ Tenant _____
B. Tenant covenants and agrees to purchase electricity from Landlord or
Landlord's designated agent at charges, terms and rates, including, without
limitation, fuel adjustments and taxes, equal to those specified in the Con
Edison SC#4 bundled rate schedule, or any successor full bundled rate from which
Landlord buys electricity from the utility, effective on and after the date
Landlord first provides electricity to the demised premises, on a submetering
basis plus two percent (2%) for transmission line loss and other redistribution
costs. Where more than one meter measures the service of Tenant in the Building,
the service rendered through each meter may be computed and billed separately in
accordance with the rates and terms set forth herein. Bills therefore shall be
rendered at such times as Landlord may elect and the amount, as computed from a
meter(s) pursuant to the provisions of this Article shall be paid as additional
rent. If any tax other than income tax is imposed upon Landlord's receipt from
the sale or resale of electrical energy or gas or telephone service to Tenant by
any Federal, State or Municipal authority, Tenant covenants and agrees that
where permitted by law, Tenant's pro-rata share of such taxes shall be passed on
to and included in the amount charged to, and paid by Tenant to Landlord as
additional rent.
C. If all or part of the submetering additional rent payable in accordance
with this Article 49 becomes uncollectible or reduced or refunded by virtue of
any law, order or regulation, the parties agree that, at Landlord's option, in
lieu of the additional rent for electrical submetering, and in consideration of
Tenant's use of the Building's electrical distribution system and receipt of
redistributed electricity and payment by the Landlord of consultant's fees and
other redistribution costs, the fixed annual rent to be paid under this Lease
shall be increased by an "alternative charge" which shall be a sum equal to
$2.00 per year times the agreed rentable square foot area of the demised
premises, changed in the same percentage as any increases in the cost to
Landlord for electricity for the entire Building subsequent to January 1, 2000
because of electric rate, time of day charges, service classification or market
price changes.
D. Landlord shall not in any way be liable or responsible to Tenant for
any loss or damage or expense which Tenant may sustain or incur if either the
quantity or character of electric service is changed or is no longer available
or suitable for Tenant's requirements. Tenant's use of electric current in the
demised premises shall not at any time exceed the capacity of any of the
electrical conductors and facilities in or otherwise serving the demised
premises in order to insure that such capacity is not exceeded and to avert any
possible adverse effect upon the Building's electric service, Tenant, shall not,
without Landlord's prior written consent in each instance (not to be
unreasonably withheld or delayed), connect any fixtures, appliances or equipment
(other than those set forth in Tenant's Plan and a reasonable number of table
and floor lamps, typewriters, personal computers and similar small office
machines using comparable electric current) to the Building's electric
distribution system nor make any alteration or addition to the electrical system
of the demised premises. Should Landlord grant such consent, all additional
risers or other equipment required therefore shall be provided by Landlord upon
notice to Tenant, and all reasonable and out-of-pocket cost and expenses of
Landlord in connection therewith shall be paid by Tenant as additional rent upon
demand by Landlord.
E. Landlord reserves the right to discontinue furnishing electric current
to Tenant in the demised premises at any time upon not less than sixty (60)
days' notice to Tenant. If Landlord, at its option, exercises such right of
discontinuance, this lease shall continue in full force and effect and shall be
unaffected thereby, except only that, from and after the effective date of such
discontinuance, Landlord shall not be obligated to furnish electric current to
Tenant, except that, from and after the effective date of such discontinuance,
Electrical Charges shall no longer be payable by Tenant as additional rent,
however in the event that the Tenant is delayed in obtaining direct electric
service but continues to make reasonable efforts to do so, Landlord shall
continue to provide electric service until Tenant has obtained direct electric
service.
Lease Rider Page 9. Please Initial: Landlord _____ Tenant _____
F. If Landlord elects not to furnish electric current to Tenant, Tenant
shall arrange to obtain electric current directly from the public utility
corporation supplying electric current to the Building; and in that event, all
risers, equipment and other facilities which may be required for Tenant to
obtain electric current directly from such public utility corporation and may
already be in the Building, may be used by Tenant at no additional charge from
Tenant. If, in Landlord's reasonable judgment, additional risers are required,
such risers shall be installed by Landlord at Tenant's reasonable expense,
payable in advance to Landlord upon demand, provided same will not cause damage
or injury to the Building or any part thereof or create a hazardous condition or
entail excessive alterations, repairs or expense or unreasonably interfere with
or disturb any other tenants or occupants of the Building, and in any event, any
such installation shall be maintained by Tenant, at its expense and shall be
subject to such reasonable conditions as Landlord and/or the public utility
corporation may require. If Landlord shall not furnish electric current to
Tenant it shall not be liable to Tenant therefor, provided that a replacement
source is then available to Tenant, and the same shall not be deemed to be a
lessening or diminution of services within the meaning of any law, rule or
regulation now or hereafter enacted, promulgated or issued, unless due to
Landlord's, its agents; or employees' willful improper act or omission or gross
negligence.
G. At all times, Tenant will comply with all present and future general
rules, regulations, terms and conditions applicable to service equipment, wiring
and requirements in accordance with the regulations of the public utility
corporation supplying electric current to the Building with respect to the
demised premises and Tenant's use of the electrical system in the Building.
50. EXCULPATORY CLAUSE
------------------
Anything contained in this lease to the contrary notwithstanding, Tenant's sole
recourse against Landlord, and any successor to the interest of Landlord in the
demised premises, is to the interest of Landlord, and any such successor, in the
demised premises and the Building of which the demised premises is a part.
Tenant will not have any right to satisfy any judgment that it may have against
Landlord, or any successor, from any other assets of Landlord, or any successor
(unless any cause of action of Tenant against Landlord survives Landlord's
transfer of its estate and interest). "Landlord" and "successor" include the
shareholders, beneficial owners, members, venturers, and/or partners of
"Landlord" and/or "successor" and the officers, directors, trustees and
employees of "Landlord" and/or "successor." Anything contained in this lease to
the contrary notwithstanding, in no event shall Landlord be liable to Tenant for
any consequential, indirect, special, exemplary or punitive damages unless due
to Landlord's carelessness, negligence or improper conduct.
51. NOTICE OF LANDLORD'S DEFAULT
----------------------------
In the event of any alleged default in any obligation of Landlord under this
lease, Tenant will deliver to Landlord written notice listing the reasons for
Landlord's default and Landlord will have thirty (30) days following receipt of
such notice to cure such alleged default or, in the event the alleged default
cannot reasonably be cured within a thirty (30) day period, to commence action
and proceed diligently to cure such alleged default. A copy of such notice to
Landlord will be sent to any holder of a mortgage or other superior lien on the
Building or this lease of which Tenant has been notified in writing, and any
such holder will also have the same time periods to cure such alleged default,
but the same shall run concurrently with Landlord's thirty (30) day period.
52. MODIFICATIONS REQUESTED BY MORTGAGEE
------------------------------------
If any actual or prospective holder of a fee or mortgage interest in the
Building, the improvements thereon, the land thereunder or any leasehold
interest in either requires the modification of this lease in such manner as
does not materially lessen Tenant's rights or increase its obligations
hereunder, Tenant shall not unreasonably withhold or delay its consent to such
modification and shall execute and deliver such confirming documents therefor as
such holder requires.
Lease Rider Page 10. Please Initial: Landlord _____ Tenant _____
53. ESTOPPEL CERTIFICATE
--------------------
Tenant, at any time, and from time to time, upon at least ten (10) days' prior
notice by Landlord, shall execute, acknowledge and deliver to Landlord, and/or
to any other person, firm or corporation specified by Landlord (the "Recipient")
a statement 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), stating the dates to which
the Annual Base Rent and additional rent have been paid, whether or not there
exists any default by Landlord under this lease, and, if so, specifying each
such default and any other matters reasonably requested by Landlord or the
Recipient.
54. NOTICES
-------
Any notice or demand, consent, approval or disapproval, or statement required to
be given by the terms and provisions of this Lease, or by any Laws, either by
Landlord to Tenant or by Tenant to Landlord, shall be in writing. Unless
otherwise required by any such Laws, such notice or demand shall be given, and
shall be deemed to have been served and given when such notice or demand is
mailed by registered or certified mail deposited enclosed in a securely closed
post-paid wrapper, in a United States Postal Service general or branch post
office, or official depository within the exclusive care or custody thereof,
addressed to either party, at its address set forth on the first page of this
Lease. After Tenant shall occupy the demised premises, the address of Tenant for
notices, demands, consents, approvals or disapprovals shall be at the Building
with a copy to the address on the first page of this lease, provided, however,
that statutory notices shall be served upon Tenant at the demised premises in
the manner provided by law. Either party may, on ten (10) days prior notice as
aforesaid, designate a different address or addresses for notices, demands,
consents, approvals or disapprovals, or statements to be sent to it. The
foregoing notwithstanding, rent bills and statements may be sent by ordinary
mail.
55. AS IS
-----
Tenant acknowledges that it has inspected and is fully familiar with the
Building and the demised premises, and agrees that Landlord shall not be
obligated to make any improvements or alterations to the demised premises to
prepare it for Tenant's occupancy or otherwise, and that Tenant covenants and
agrees to accept the demised premises in "as is" condition, except as otherwise
provided in Exhibit "B" ("Landlord's Work") which is attached hereto and made a
part hereof. Tenant acknowledges that nothing contained herein, and no consent
or approval which may be issued by Landlord in connection with Tenant's
alterations or otherwise shall constitute an express or implied representation
of Landlord that the demised premises or the Building (with or without any
alteration) will be suitable, feasible or lawful for any general or specific
use, purpose or requirement of Tenant. Except as otherwise provided in Exhibit
"B", all work required to enable Tenant to use the demised premises shall be
provided by Tenant at is sole expense pursuant to plans, drawings and
specifications therefor prepared by Tenant and submitted to, and approved by
Landlord, subject to the provisions of this lease and the requirements of Laws.
56. INSURANCE
---------
During the term of this lease and at all other times (if any) that Tenant has
possession of the demised premises, Tenant shall pay for and keep in force
comprehensive general liability policies with broad form endorsements and water
damage legal liability coverage against any and all liability occasioned by
accident or occurrence, such policies to be written by recognized and well-rated
insurance companies authorized to transact business in the State of New York, in
the minimum amount of $5,000,000.00 combined single limit for personal injuries,
death, and loss of, and damage to property. Tenant shall obtain "All Risk"
insurance having extended coverage for fire and other casualties for its
personal property, fixtures and equipment for the full replacement value thereof
and such insurance policies, and any other property damage policies of Tenant,
shall have an appropriate clause or endorsement whereby the insurer waives
subrogation or consents to a waiver of the right of recovery against Landlord
and Landlord's agent, and, to the extent permitted by law, Tenant hereby agrees
not to make any claim against, or seek to recover from Landlord or
Lease Rider Page 11. Please Initial: Landlord _____ Tenant _____
Landlord's agent for any loss or damage to property of the type covered by such
insurance without regard to whether Tenant's claims exceed the coverage limits
of its insurance policies. If the waiver and release set forth in the previous
sentence shall be prohibited by law, the liability of any party that would have
been released shall be secondary to the other's insurance. If at any time during
the term of this lease it appears that public liability or property damage
limits in the City of New York for premises similarly situated, due regard being
given to the use and occupancy thereof, are higher than the foregoing limits,
then Tenant shall increase the foregoing limits accordingly. Landlord and its
agent(s) and mortgagee(s), as appropriate, shall be named as additional insureds
in the aforesaid general liability insurance policies. All policies shall
provide that Landlord shall be afforded thirty (30) days' prior notice of
cancellation of such insurance. Tenant shall deliver certificates of insurance
evidencing such policies. All premiums and charges for the aforesaid insurance
shall be paid by Tenant and if Tenant shall fail to make such payment when due,
Landlord may pay it (after notice and expiration of period to cure) and the
amount thereof shall be repaid to Landlord by Tenant on demand and the amount
thereof may, at the option of Landlord be added to and become a part of the
additional rent payable hereunder. Tenant shall not violate or permit to be
violated any condition of any of said policies and Tenant shall perform and
satisfy the requirements of the companies writing such policies.
57. HAZARDOUS MATERIALS
-------------------
A. For purposes of this lease, "hazardous materials" means any explosives,
radioactive materials, hazardous wastes, or hazardous substances, including,
without limitation, substances defined as "hazardous substances" in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. ss.ss. 9601-9657; the Hazardous Materials Transportation Act
of 1975, 49 U.S.C.ss.ss. 1801-1812; the Resource Conservation and Recovery Act
of 1976, 42 U.S.C. ss.ss. 6901-6987; or any other similar laws (collectively,
"hazardous materials laws").
B. Tenant will not cause or permit the storage, use, generation, or
disposition of any hazardous materials in, on, or about the demised premises or
the Building by Tenant, its agents, employees, or contractors. Tenant will not
permit the demised premises to be used or operated in a manner that may cause
the demised premises or the Building to be contaminated by any hazardous
materials in violation of any hazardous materials laws. Tenant will immediately
advise Landlord in writing of (1) any and all enforcement, cleanup, remedial,
removal, or other governmental or regulatory actions instituted, completed, or
threatened pursuant to any hazardous materials laws relating to any hazardous
materials affecting the demised premises; and (2) all claims made or threatened
by any third party against Tenant, Landlord, or the demised premises relating to
damage, contribution, cost recovery, compensation, loss, or injury resulting
from any hazardous materials on or about the demised premises. Without
Landlord's prior written consent, Tenant will not take any remedial action or
enter into any agreements or settlements in response to the presence of any
hazardous materials in, on, or about the demised premises.
C. Tenant will be solely responsible for and will defend, indemnify and
hold Landlord, its agents, and employees harmless from and against all claims,
costs, and liabilities, including attorneys' fees and costs, arising out of or
in connection with Tenant's breach of its obligations in this Article,
including, but not limited to, the removal, cleanup, and restoration work and
materials necessary to return the demised premises and any other property of
whatever nature located on the Building to their condition existing prior to the
appearance of Tenant's hazardous materials on the demised premises. Tenant's
obligations under this Article will survive the expiration or other termination
of this lease.
58. BANKRUPTCY
----------
Without limiting any of the provisions of Articles 16, 17 or 18 hereof, if
pursuant to the Bankruptcy Code of 1978, as the same may be amended, Tenant is
permitted to assign this lease in disregard of the restrictions contained in
Article 11 or any other provisions of this lease, Tenant agrees that adequate
Lease Rider Page 12. Please Initial: Landlord _____ Tenant _____
assurance of future performance by the assignee permitted under such Code shall
mean the deposit of cash security with Landlord in an amount equal to the sum of
one (1) year's Annual Base Rent then reserved hereunder plus an amount equal to
all additional rent payable under the provisions 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, without interest, for the
balance of the term of this lease as security for the full and faithful
performance of all of the obligations under this lease on the part of Tenant yet
to be performed. If Tenant receives or is to receive any valuable consideration
for such an assignment of this lease pursuant to the Bankruptcy Code, such
consideration, after deducting therefrom (A) the brokerage commissions, if any,
and other expenses reasonably incurred by Tenant for such assignment and (B) any
portion of such consideration reasonably designated by the assignee as paid for
the purchase of Tenant's property in the demised premises, shall be and become
the sole and exclusive property of Landlord and shall be paid over to Landlord
directly by such assignee. In addition, adequate assurance shall mean that any
such assignee of this lease shall have a net worth, exclusive of good will,
equal to at least fifteen (15) times the aggregate of the Annual Base Rent
reserved hereunder plus all additional rent for the preceding calendar year as
aforesaid.
59. HOLDING OVER
------------
Tenant will have no right to remain in possession of all or any part of the
demised premises after the expiration of the term. If Tenant remains in
possession of all or any part of the demised premises after the end of the term,
with the express or implied consent of Landlord: (a) such tenancy will be deemed
to be a periodic tenancy from month-to-month only; (b) such tenancy will not
constitute a renewal or extension of this lease for any further term; and (c)
such tenancy may be terminated by Landlord upon the earlier of thirty (30) days
prior written notice or the earliest date permitted by law. In such event,
monthly rent (the reasonable value of use and occupancy) will be increased to an
amount equal to one ninth (1/9) of the sum of the Annual Base Rent plus all
additional rentals payable during last year of the term, and any other sums due
for additional rent under this lease will be payable in the amount and at the
times specified in this lease. Such month-to-month tenancy will be subject to
every other term, condition, and covenant contained in this lease. Neither the
billing nor the collection of use and occupancy in the above amount shall be
deemed a waiver of any right of Landlord to collect damages for Tenant's failure
to vacate the demised premises after the expiration or sooner termination of
this lease. The provisions of this Article shall survive the expiration or
sooner termination of this lease.
60. CONDITIONAL LIMITATION
----------------------
A. In the event that twice in any twelve (12) month period (A) a
non-monetary default of the kind set forth in Article 17(1) shall have occurred
or (B) Tenant shall have defaulted in the payment of Annual Base Rent or
additional rent, or any part of either, and Landlord shall have commenced a
summary proceeding to dispossess Tenant in each such instance, then,
notwithstanding that such defaults may have been cured at any time after the
commencement of such summary proceeding, any further default by Tenant within
such twelve (12) month period shall be deemed to be a violation of a substantial
obligation of this lease by Tenant and Landlord may serve a written ten (10)
days' notice of cancellation of this lease upon Tenant and, upon the expiration
of said ten (10) days, this lease and the term shall end and expire as fully and
completely as if the expiration of such ten (10) day period were the day herein
definitely fixed for the end and expiration of this lease and the term of this
lease and Tenant shall then quit and surrender the demised premises to Landlord,
but Tenant shall remain liable as elsewhere provided in this lease.
B. In the second (2nd) line of subdivision (1) of Article 17, "other than"
is replaced by "including, but not limited to,".
61. TENANT CHANGES
--------------
Lease Rider Page 13. Please Initial: Landlord _____ Tenant _____
A. Supplementing Article 3, Landlord's consent shall not be required for
minor changes to the demised premises such as the installation of typical office
decorations, furniture, furnishings, cabinets and shelves which are not affixed
to the realty. All other renovations, signs, additions, installations,
improvements and alterations of any kind or nature in or to the demised premises
whether performed by Tenant or by Landlord (collectively, "Tenant Changes")
shall require the prior written consent of Landlord which, in the case of a
non-structural interior Tenant Changes, Landlord agrees not to unreasonably
withhold or delay. In granting its consent to any Tenant Changes, Landlord may
impose such reasonable conditions as Landlord may reasonably require. In no
event shall Landlord be required to consent to any Tenant Changes that would
adversely affect the structure of the Building, the exterior thereof, any part
of the Building outside of the demised premises or the mechanical, electrical,
heating, ventilation, air conditioning, sanitary, plumbing or other service
systems and facilities (including elevators) of the Building. Tenant Changes
shall be performed only by contractors designated or approved by Landlord (which
approval shall not be unreasonably withheld or delayed) in accordance with
plans, drawings and specifications prepared by Tenant at its own expense and
submitted to, and approved in writing by Landlord. In connection with Landlord's
review, modification, approval, supervision and/or coordination of Tenant
Changes, Tenant shall, promptly upon demand, reimburse Landlord for any
reasonable out-of-pocket fees, expenses and other charges incurred by Landlord
or its agent in connection with the review, modification and/or approval of such
plans and specifications by Landlord and other professional consultants of
Landlord. Tenant shall promptly provide such evidence as Landlord may request to
substantiate any such costs incurred by Tenant. Tenant shall, at its sole cost
and expense, in making any Tenant Change, comply with all requirements of Local
Law No. 5 of 1973 of The City of New York and the Americans With Disabilities
Act, as heretofore and hereafter amended, as well as all other applicable Laws.
B. Nothing in this lease is intended to constitute a consent by Landlord
to the subjection of Landlord's or Tenant's interest in the Building to any lien
or claim by any person that performs and/or supplies any work, labor, material,
service or equipment to Tenant for any Tenant Change. Landlord hereby notifies
all such persons of such intent and each such person agrees that by performing
any Tenant Changes for Tenant it accepts that Landlord has not granted such
consent and that such person shall not have a right to file any lien or claim
against such interest of Landlord or Tenant in the Building or land upon which
it is located. All materials and equipment to be incorporated in the demised
premises as a result of all Tenant Changes shall be new and first quality; no
such materials or equipment shall be subject to any lien, encumbrance, chattel
mortgage, title retention or security agreement. Tenant shall not, at any time
prior to or during the term of this lease, directly or indirectly employ, or
permit the employment of, any contractor, mechanic or laborer in the demised
premises, whether in connection with any Tenant Changes or otherwise, if, in
Landlord's sole discretion, such employment will interfere or cause any conflict
with other contractors, mechanics, or laborers engaged in the construction,
maintenance or operation of the Building by Landlord, Tenant or others. In the
event of any such interference or conflict, Tenant, upon demand of Landlord,
shall cause all contractors, mechanics or laborers causing such interference or
conflict to leave the Building immediately.
C. Any Tenant modifications, changes or alterations to the Class E fire
safety system for the floor in the Building on which the demised premises are
located ("Fire Safety System"), including without limitation, installing
speakers, strobes and pull stations, making modifications to the reentry door(s)
and making other Class E installations and hookups and making modifications and
additions to said Fire Safety System, shall be performed by Tenant at its sole
cost and expense pursuant to plans, drawings and specifications therefor to be
prepared by Tenant and submitted to, and approved by Landlord. If Tenant shall
have made such changes before Tenant's initial occupancy of the demised
premises, Tenant shall deliver to Landlord a letter issued by the Building's
Fire Safety System vendor/service provider indicating that all Fire Safety
System devices located on the floor on which the Demised Premises are located
are functioning properly together with a schedule indicating the dates for
Lease Rider Page 14. Please Initial: Landlord _____ Tenant _____
the pre-testing and final testing of the Fire Safety System providing for final
testing to be completed within six (6) months from the date of the initial
filing of any plans for any Tenant Change with the Department of Buildings of
the City of New York. Tenant shall use only the contractor or contractors
designated by Landlord with respect to any Tenant Change relating to the Fire
Safety System as well as the maintenance, repair and replacement thereof, all of
which are to be done by Tenant at its own expense. The costs incurred in
connection with the modification kit for the Fire Safety System for the floor on
which the demised premises are located to accommodate Tenant's Fire Safety
System shall be paid by Tenant as additional rent within ten (10) days of being
billed therefor by the Landlord.
D. Tenant covenants and agrees that prior to and throughout the demised
term, it shall not take any action which would violate Landlord's union
contract, if any, affecting the Building, nor create any work stoppage,
picketing, labor disruption or dispute, or any interference with the business of
the Landlord or any other tenant or occupant in the Building or with the rights
and privileges of any person(s) lawfully in said Building.
E. Certificates of insurance from Tenant's contractor(s) evidencing
insurance policies for each Tenant Change in forms, amounts, carriers and
coverages satisfactory to Landlord (including, but not limited to, adequate
Builder's Risk coverage) protecting Tenant, Landlord, Landlord's agent,
Landlord's mortgagee, and the Tenant's contractors and subcontractors shall be
submitted to Landlord for its review and approval prior to the commencement of
any Tenant Change. Such insurance for construction shall be in addition to, and
not in lieu of any other insurance required to be carried by Tenant under this
lease.
F. INTENTIONALLY DELETED
62. LIMITATION ON RENT
------------------
If at the Commencement Date, or at any time during the Term, any of the rents
reserved in this lease are not fully collectible by reason of any Federal,
State, County or City law, proclamation, order or regulation, or direction of a
public officer or body pursuant to law, Tenant agrees to take such steps as
Landlord may reasonably request to permit Landlord to collect the maximum rents
which may be legally permissible from time to time during the continuance of
such legal rent restriction (but not in excess of the amounts reserved therefor
under this lease). Upon the termination of such legal rent restriction, Tenant
shall pay to Landlord, to the extent permitted by law, an amount equal to (a)
the rents that would have been paid pursuant to this lease but for such legal
rent restriction less (b) the rents paid by Tenant to Landlord during the period
such legal rent restriction was in effect.
63. CONSENTS AND APPROVALS
----------------------
If Tenant shall request Landlord's consent or approval and Landlord shall fail
or refuse to give such consent or approval, Tenant shall not be entitled to any
damages for any withholding by Landlord of its consent or approval, it being
agreed that Tenant's sole remedy shall be an action for specific performance or
an injunction, and that such remedy shall be available only in those cases where
Landlord has expressly agreed in writing not to unreasonably withhold its
consent or approval or where as a matter of law Landlord may not unreasonably
withhold its consent or approval.
64. CONFLICT BETWEEN RIDER AND PRINTED LEASE
----------------------------------------
If and to the extent that any of the provisions of any rider to this lease
conflict or are otherwise inconsistent with any of the printed provisions of
this lease, whether or not such inconsistency is expressly noted in the rider,
the provisions of the rider shall prevail. The description of a particular right
or remedy of Landlord shall not be deemed exclusive or otherwise limit, waive or
impair Landlord's resort to any or all other rights and remedies available. The
terms "Owner" and "Landlord", whenever used in this lease shall have the same
meaning. The meaning and effect of this lease shall not be determined subject to
any presumption against Landlord as drafter. The doctrine of ejusdem generis
------- -------
Lease Rider Page 15. Please Initial: Landlord _____ Tenant _____
shall not be applied to limit a general description to the same class or
category of things or matters contained in the list (or specific description)
which the general description follows or otherwise relates to. If a word or
phrase contained in a prior draft of this lease was deleted intentionally, the
meaning and effect of this lease shall be determined as if the language stricken
had not been included in any prior draft.
65. TENANT'S FEDERAL EMPLOYER TAX IDENTIFICATION NUMBER
---------------------------------------------------
Tenant states that its Federal Employer Tax Identification (or Social Security,
as the case may be) Number (the "Number") is as follows: 13-1203170. From time
to time, upon Landlord's request, Tenant shall confirm in writing that the
Number provided by Tenant is correct and, if it is missing or incorrect, what
the correct number is. Tenant shall indemnify Landlord from and against any and
all liability for any claim, fine, penalty, cost or expense (including
attorneys' fees) paid, suffered or incurred by reason of Tenant's failure to
comply with this Article. Tenant shall, if required by law, obtain a sales tax
identification number and furnish the same to Landlord upon request.
66. NO ROOF ACCESS
--------------
Tenant has been advised by Landlord and Tenant agrees and acknowledges that
Tenant, Tenant's employees, guests, invites, and agents shall not at any time
for any reason whatsoever use, access, enter or have any rights in or to the
roof or roof top area of the Building. Tenant's failure to abide by the terms
and conditions of this Article shall be deemed a material default of the Lease.
67. GOVERNMENTAL REGULATIONS
------------------------
Notwithstanding anything contained in the lease to the contrary, if at any time
during the term of this lease, Landlord expends any sums for alterations or
improvements to the Building which are required to be made pursuant to any Legal
Requirement (as hereinafter defined), Tenant shall pay to Landlord, as
additional rent, Tenant's Percentage of such cost within ten (10) days after
demand therefor. For the purposes hereof: (i) the cost of any alteration or
improvement shall be deemed to include the cost of labor and materials and the
costs for preparing any necessary plans and the fees for filing such plans; and
(ii) the term "Legal Requirements" shall mean laws, statutes and ordinances
(including building codes and zoning regulations and ordinances) and the orders,
rules, regulations, directives and requirements of all federal, state, county,
city and borough departments, bureaus, boards, agencies, offices, commissions
and other subdivisions thereof, or of any official thereof, or of any other
governmental public or quasi-public authority, whether now or hereafter in
force, which may be applicable to the land and improvements constituting the
Building or the demised premises or any part thereof, including the sidewalks,
curbs or areas adjacent thereto and all requirements, obligations and conditions
of all instruments of record on the date of this lease.
68. PARTNERSHIP TENANT
------------------
If Tenant is a partnership (or if this lease shall be assigned to, or held by
two (2) or more persons, individually and/or as co-partners of a partnership),
any such partnership and such persons are referred to in this Article as a
"Partnership Tenant," then the following provisions of this Article shall apply
to such Partnership Tenant: (i) the liability of each of the parties comprising
a Partnership Tenant shall be joint and several, and (ii) each of the parties
comprising a 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 a Partnership
Tenant or by any of the parties comprising a Partnership Tenant, and (iii) any
bills, statements, notices, demands, requests or other communications given or
rendered to a Partnership Tenant and to all such parties shall be binding upon a
Partnership Tenant and all such parties, and (iv) if a Partnership Tenant shall
admit new partners, all of such new partners shall, by their admission to a
Partnership Tenant, be deemed to have assumed performance of all of the terms,
covenants and
Lease Rider Page 16. Please Initial: Landlord _____ Tenant _____
conditions of this Lease on Tenant's part to be observed and performed as if
each of them had signed this lease as one of the original parties comprising the
Tenant, and (v) a Partnership Tenant shall give prompt notice to Landlord of the
admission of any such new partners, and upon demand of Landlord, shall cause
each such new partner to execute and deliver to Landlord an agreement in form
satisfactory to Landlord, wherein each such new partner shall assume performance
of all the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed as aforesaid (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 subdivision (iv)
of this Article).
69. SORTING AND SEPARATION OF REFUSE AND TRASH
------------------------------------------
Tenant covenants and agrees, at its sole cost and expense, to comply with all
Laws regarding the collection, sorting, separation and recycling of waste
products, garbage, refuse and trash. Tenant shall sort and separate such waste
products, garbage, refuse and trash into such categories as provided by Laws.
Each separately sorted category of waste products, garbage and trash shall be
placed in separate receptacles reasonably approved by Landlord. Such separate
receptacles may at Landlord's option, be removed from the demised premises in
accordance with a collection schedule prescribed by Laws. Landlord reserves the
right to refuse to collect or accept from Tenant any waste products, garbage
refuse or trash which are not separated and sorted as required by Laws and to
require Tenant to arrange for such collection, at Tenant's sole cost and expense
utilizing a contractor satisfactory to Landlord. Tenant shall pay all costs,
expenses, fines, penalties or damages which may be imposed on Landlord or Tenant
by reason of Tenant's failure to comply with the provisions of this Article,
and, at Tenant's sole cost and expense, shall indemnify, defend and hold
Landlord harmless on demand from and against any actions, claims and suits
arising from such non-compliance, utilizing counsel hired by Tenant that is
reasonably satisfactory to Landlord.
70. CERTAIN TAX INCENTIVE AND ABATEMENT PROGRAMS
--------------------------------------------
A. Landlord and Tenant acknowledge that Landlord may apply for a
certificate of eligibility from the Department of Finance of the City of New
York determining that Landlord is eligible to apply for exemption from tax
payments for the Building pursuant to the provisions of Section 11-256 through
11-267 (the "ICIP Program") of the Administrative Code of the City of New York
and the regulations promulgated pursuant to the ICIP Program. Any such tax
exemption for the Building is referred to as "Tax Exemption" and the period of
such Tax Exemption is referred to as the "Tax Exemption Period". Landlord agrees
that Tenant shall not be required to (a) pay Taxes or charges which become due
because of the willful neglect or fraud by Landlord in connection with the ICIP
Program or (b) otherwise relieve or indemnify Landlord from any personal
liability arising under the ICIP Program, except where imposition of such Taxes,
charges or liability is occasioned by actions of Tenant in violation of this
Lease. Tenant agrees (i) to report to Landlord, as often as is necessary under
such regulations, the number of workers engaged in employment in the Demised
Premises, the nature of each worker's employment and the residency of each
worker and to provide access to the Demised Premises by employees and agents of
the Department of Finance of the City of New York at all reasonable times at the
request of Landlord, (ii) that any work performed by Tenant or any person or
entity claiming through or under Tenant shall be subject to the requirements of
Executive Order No. 50 (April 25, 1980) and the Rules and Regulations
promulgated thereunder (collectively, "EO 50") and the ICIP Program and (iii)
that Tenant will comply with and cause its general contractor, construction
manager, and all other subcontractors (collectively, the "Contractors") to
comply with EO 50 and the ICIP Program. Tenant represents to the Landlord that,
within the seven (7) years immediately preceding the date of this Lease, Tenant
has not been adjudged by a court of competent jurisdiction to have been guilty
of (x) an act, with respect to a building, which is made a crime under the
provisions of Article 150 of the Penal Law of the State of New York or any
similar law of another state, or (y) any act made a crime or violation by the
provisions of Section 235 of the Real Property Law of the State of New York, nor
is any charge for a
Lease Rider Page 17. Please Initial: Landlord _____ Tenant _____
violation of such laws presently pending against Tenant. Upon request of
Landlord, from time to time, Tenant agrees to update said representation when
required because of the ICIP Program and regulations thereunder. Tenant further
agrees to cooperate with Landlord in compliance with such ICIP Program and
regulations to aid Landlord in obtaining and maintaining the Tax Exemption and,
if requested by Landlord, to post a notice in a conspicuous place in the Demised
Premises and to publish a notice in a newspaper of general circulation in the
City of New York, in such form as shall be prescribed by the Department of
Finance stating that persons having information concerning any violation by
Tenant of Section 235 of the Real Property Law or any Section of Article 150 of
the Penal Law or any similar law of another jurisdiction may submit such
information to the Department of Finance to be considered in determining
Landlord's eligibility for benefits. Tenant acknowledges that its obligations
under the provisions of Subsection 23.02.A. may be greater if Landlord fails to
obtain a Tax Exemption, and agrees that Landlord shall have no liability to
Tenant nor shall Tenant be entitled to any abatement or diminution of rent if
Landlord fails to obtain a Tax Exemption.
B. Landlord has applied or may hereafter apply to make the demised
premises eligible for the New York City Commercial Enhancement Program ("CEP").
If Tenant is deemed eligible for CEP, any reduction in real property taxes on
the Tenant's Percentage thereof will be passed through to the tenant. Tenant
understands that the minimum required expenditure for any given space to be
eligible for CEP is $2.50 per square foot or $25 per square foot, depending on
the length and nature of the lease. The tenant also understands that all
abatements granted under CEP are contingent upon Landlord's payment of real
estate taxes, water or sewer charges, and/or other lienable charges during the
benefit period, which Landlord covenants to pay. Benefits will be revoked if
such charges are not paid as provided in the relevant law.
C. Tenant agrees to submit a complete Energy Cost Savings Program ("ECSP")
application to the New York City Department of Business Services ("DBS") as
directed by Landlord or Landlord's representative. Tenant agrees to comply with
ECSP and DBS rules and regulations regarding same. This includes the submittal
of all appropriate documentation required for the ECSP approval including, but
not limited to, one week of payroll information current at the time of
application submittal, disclosing the identity of all company principals, and
the like. Landlord will cooperate with Tenant's application process as it may
pertain to the supplying of Landlord requisite information. If Tenant has an
existing lease at the time of ECSP building approval, it must submit the
completed ECSP application to DBS within ninety (90) days of such approval and
notification by Landlord.
D. In no event shall Landlord have any liability to Tenant if Landlord
fails to obtain the benefits, in whole or in part, of any tax abatement, credit
or exemption described in this Article or otherwise.
71. AIR CONDITIONING
----------------
A. Tenant shall, at its own cost and expense operate, maintain, repair and
replace the air conditioning system, equipment and facilities (hereinafter
called the "AC System") now or hereafter located in or servicing the demised
premises, and provide a repair and maintenance contract in form reasonably
satisfactory to Landlord with an air conditioning contractor or servicing
organization approved by Landlord. Any additions or other alterations to the AC
System shall require Landlord's prior written consent, which consent shall not
be unreasonably withheld in accordance with the applicable provisions of this
lease relating to "Tenant Changes". The electricity consumed by the AC System
shall be paid for by Tenant subject to the applicable provisions of Article 49.
B. If the AC System shall consist of one or more package air-conditioning
or air handling units (collectively, the "Units") located in the demised
premises, condenser water will be provided by Landlord at Landlord's expense
from Monday to Friday, 8:00A.M. to 8:00P.M. and Saturday, 8:00A.M. to 5:00P, M.
during the period May 1 to October 31.
Lease Rider Page 18. Please Initial: Landlord _____ Tenant _____
C. Tenant's obligation to maintain Units shall include, but not be limited
to, the periodic cleaning and/or replacements of filters, replacement of fuses
and belts, the calibration of thermostats and all startup and shut down
maintenance of the Units. In the event Tenant shall fail to engage an air
conditioning company as provided in this Article, or Landlord chooses to service
and maintain the units, Landlord may (but shall not be obligated to) perform
such maintenance and/or engage an air conditioning service company at Tenant's
expense to perform the aforesaid maintenance on the Units, and Tenant shall pay
within thirty (30) days of demand as additional rent hereunder all expenses
incurred by Landlord in connection therewith.
The foregoing notwithstanding, commencing as of the inception of the
term of this lease and continuing until further notice to the contrary from
Landlord, Landlord shall have Katz Metal Fabricators (or any other replacement
air conditioning service contractor selected by Landlord) perform Tenant's
maintenance obligations under this Article at Tenant's expense, with Tenant to
pay Landlord additional rent in the sum of $415.00 per month in advance on the
first day of each and every month during the term for such air conditioning
maintenance contract, subject to reasonable adjustments from time to time on
prior written notice from Landlord to Tenant to reflect changes in the cost
thereof.
D. If any permit or license shall be required for the operation of AC
System, Landlord shall have the option of obtaining the same on Tenant's behalf
and at Tenant's expense, or by written notice to Tenant requiring Tenant, at
Tenant's expense, to obtain and maintain any such permit or license.
E. Landlord reserves the right to interrupt, curtail or suspend the
services required to be furnished by Landlord under this Article when the
necessity therefore arises by reason of accident, emergency, or when required by
any law, order or regulation of any Federal, State, County or Municipal
authority or for any other cause beyond the reasonable control of Landlord.
Landlord shall use due diligence to complete all required repairs or other
necessary work as quickly as possible so that Tenant's inconvenience resulting
there from may be for as short a period of time as circumstances will permit,
except that nothing shall be construed so as to require Landlord to employ
overtime help. No diminution or abatement of rent or additional rent or other
compensation or claim of constructive eviction shall or will be claimed by
Tenant as a result there from nor shall this lease or any of the obligations of
Tenant be affected or reduced by reason of such interruption, curtailment or
suspension.
72. UTILITY SERVICES
----------------
Tenant shall pay for any and all utility services used for or consumed in the
demised premises relating to Tenant's alteration, occupancy, use or operation of
the demised premises at any time prior, during and after the Term. As used
herein, "utility services" shall include, but not be limited to, energy charges,
any Internet access fees, cable company services, and local and long distance
wired and wireless telephone charges for voice and/or data. Tenant shall
indemnify, defend and hold Landlord harmless on demand from and against any
liability of Landlord for the failure of Tenant to pay for utility services
furnished to Tenant.
73. TENANT'S WORK AND CLEANING/TRASH SERVICES
-----------------------------------------
A. Subject to the applicable provisions of this Lease relating to Tenant
Changes, Tenant shall provide all of the work ("Tenant's Work") necessary for it
to use the demised premises as contemplated in this Lease other than Landlord's
Work.
B. Landlord, at its sole cost and expense, shall provide building-standard
cleaning and trash removal services for the demised premises commencing as of
the date on which Tenant takes possession of the demised premises.
74. INTENTIONALLY DELETED
75. LOAN TOWARDS CONSTRUCTION COSTS
-------------------------------
Lease Rider Page 19. Please Initial: Landlord _____ Tenant _____
In furtherance of the improvement of the demised premises and the performance of
"Landlord's Work", Tenant shall, upon the execution of this lease, advance to
Landlord, as a loan, the sum of $625,000.00 (the "Loan"). In consideration
thereof, Landlord promises to pay to Tenant or order not later than January 1,
2006 (the "Maturity Date") the sum of $625,000.00 with interest thereon at the
rate of six percent (6%) per annum, compounded annually, provided however that
the Loan and the rights and obligations of the parties in respect thereof, shall
be subject to the following terms, conditions and modifications:
A. If Tenant shall have exercised its rights under Article 76 (the
"Giveback Clause") then, as of January 1, 2004 (the "Giveback Date"), and
provided Tenant is not then in default of any material obligation under the
Lease, the Loan shall be reduced to $407,916.05 (the "Reduced Principal
Amount"), and Landlord shall pay to Tenant, not later than January 15, 2004 an
amount (the "Refund") equal to the difference between the Loan (plus the
interest accrued thereon) and the Reduced Principal Amount, and the Reduced
Principal Amount shall thereupon commence to accrue interest as aforesaid. In
the event that Landlord shall fail to pay the Refund, in whole or in part, when
due, any deficiency shall be added to the Reduced Principal Amount.
B. If Tenant shall be in default under any provision of this Lease which
would entitle Landlord to apply monies held as a Security Deposit pursuant to
Article 32, Landlord shall have the right to cause the Loan (or the Reduced
Principal Amount, as the case may be) to be reduced accordingly, and, in each
such instance, Landlord shall inform Tenant in writing of such reduction, and
Tenant shall advance to Landlord funds sufficient to replace the amount by which
the Loan (or the Reduced Principal Amount) shall have been so reduced within ten
(10) days of demand therefor.
C. Not later than June 30, 2004 (the "Adjustment Date"), Landlord shall
deliver to Tenant a statement setting forth (i) the Loan (or the Reduced
Principal Amount) and the interest accrued thereon, (ii) the amount of Annual
Base Rent payable through the end of the Term, and (iii) the date (the
"Abatement Date") on which, assuming all intervening payments of rent have been
made, the Loan (or the Reduced Principal Amount) and the interest accrued
thereon shall equal the Annual Base Rent due for the balance of the Term. From
and after the Abatement Date, the Annual Base Rent shall abate, and for each
month of the Term for which the Rent shall have so abated, the Loan (or the
Reduced Principal Amount) shall be reduced by the amount of the Monthly Base
Rent otherwise payable in respect of said month. In the event of an extension of
the Term under Articles 77 and 78, payment of the Annual Base Rent shall resume
upon Landlord's receipt of "Tenant's First Renewal Notice" under Article 77 (or
upon Landlord's receipt of "Tenant's Second Renewal Notice" under Article 78, as
the case may be) until such time that the remainder of the Loan (or the Reduced
Principal Amount) and the interest accrued thereon shall equal the Annual Base
Rent payable through the end of the "First Renewal Period" (or the "Second
Renewal Period", as the case may be), whereupon the Annual Base Rent shall again
abate. If, during the Term or any Renewal Period thereof, Tenant shall have been
placed in liquidation or rehabilitation by the State of New York Insurance
Department, become insolvent, entered into receivership, or adjudicated a
bankrupt, then, notwithstanding the foregoing provisions of this Article 75,
Paragraph C, any abatement of Annual Base Rent on account of the Loan or the
Reduced Principal Amount which would then otherwise be in effect shall cease,
and Tenant shall resume payment of Annual Base Rent (and the monthly reduction
of the Loan or the Reduced Principal Amount shall cease) during the pendency of
such liquidation, rehabilitation, insolvency, receivership, or bankruptcy.
Thereafter, the Rent abatement and Loan reduction provisions shall resume for
the balance of the Term or any Renewal Period thereof, at the end of which any
remaining balance of principal and interest in respect of the Loan or the
Reduced Principal Amount shall be paid by Landlord to Tenant on demand.
D. Not later then the last day of the Term (as extended if applicable),
Landlord shall prepare and submit to Tenant a reconciliation setting forth the
amounts, if any, then due and payable to either party hereunder, and the parties
shall resolve same in good faith.
Lease Rider Page 20. Please Initial: Landlord _____ Tenant _____
76. GIVEBACK CLAUSE
---------------
If Tenant is not in default under this lease and it remains in effect, the
initial Tenant named herein shall have a right to surrender the portion of the
demised premises labeled "Giveback Space" in Exhibit "A" effective as of January
1, 2004 (the "Giveback Date"), provided that Tenant notifies Landlord of such
election to surrender the Giveback Space broom clean and free of all liens,
claims, damages, occupants and personal property on the Giveback Date by
certified mail, return receipt requested, no later than October 1, 2003
("Giveback Notice"). If Tenant gives the Giveback Notice within the time (of the
essence), in the manner, and under the circumstances described above, and Tenant
surrenders the Giveback Space within the time (of the essence), in the manner,
and under the circumstances described above, the following amendments to this
lease shall become effective on the Giveback Date:
A. The demised premises shall no longer include the Giveback Space;
B. The agreed "Rentable Square Footage" of the demised premises in Article
41 shall be changed from 25,000 to 15,380;
C. The "Tenant's Percentage" in Article 41 shall be changed from 5.252% to
3.231%;
D. The "Annual Base Rent" during the period from January 1, 2004 to
December 31, 2004 shall be changed from $663,062.50 to $407,916.05 (the "Monthly
Base Rent" shall be changed from $55,255.21 to $33,993.00); the "Annual Base
Rent" during the period from January 1, 2005 to December 31, 2005 shall be
changed from $682,954.38 to $420,153.53 (the "Monthly Base Rent" shall be
changed from $56,912.87 to $35,012.79).
77. FIRST ONE-YEAR RENEWAL OPTION
-----------------------------
If Tenant is not in default under this lease and it remains in effect, the
initial Tenant named herein shall have an option to renew and extend the term of
this lease for a period of one (1) year, i.e., from January 1, 2006 to December
31, 2006 (the "First Renewal Period") by giving notice of such election to
Landlord ("Tenant's First Renewal Notice") by certified mail, return receipt
requested, no later than September 1, 2005. If Tenant shall give Tenant's First
Renewal Notice to Landlord within the time (of the essence), in the manner, and
under the circumstances described in this paragraph, the Term of this lease
shall be renewed and extended for the First Renewal Period on all of the same
terms, provisions, covenants and conditions except that:
A. Tenant will accept the demised premises in "as is" condition at the
commencement of the First Renewal Period;
B. The "Expiration Date" of this lease shall become December 31, 2006;
C. If Tenant has exercised its right to surrender the "Giveback Space"
referenced above, the "Annual Base Rent" shall be $432,758.14 per year
($36,063.18 per month) in and for the First Renewal Period;
D. If Tenant has not exercised its right to surrender the "Giveback Space"
referenced above, the "Annual Base Rent" shall be $703,443.01 per year
($58,620.25 per month) in and for the First Renewal Period.
78. SECOND ONE-YEAR RENEWAL OPTION
------------------------------
If Tenant is not in default under this lease and it remains in effect, the
initial Tenant named herein shall have an option to renew and extend the term of
this lease for an additional period of one (1) year, i.e., from January 1, 2007
to December 31, 2007 (the "Second Renewal Period") by giving notice of such
election to Landlord ("Tenant's Second Renewal Notice") by certified mail,
return receipt requested, no later than September 1, 2006. If Tenant shall give
Tenant's Second Renewal Notice to Landlord within the time (of the essence), in
the manner, and under the circumstances described in this paragraph, the
Lease Rider Page 21. Please Initial: Landlord _____ Tenant _____
Term of this lease shall be renewed and extended for the Second Renewal Period
on all of the same terms, provisions, covenants and conditions except that:
A. Tenant will accept the demised premises in "as is" condition at the
commencement of the Second Renewal Period;
B. The "Expiration Date" of this lease shall become December 31, 2007;
C. If Tenant has exercised its right to surrender the "Giveback Space"
referenced above, the "Annual Base Rent" shall be $445,740.88 per year
($37,145.07 per month) in and for the Second Renewal Period;
D. If Tenant has not exercised its right to surrender the "Giveback Space"
referenced above, the "Annual Base Rent" shall be $724,546.30 per year
($60,378.86 per month) in and for the Second Renewal Period.
79. PREMISES RENDERED UNUSABLE
--------------------------
In the event that, as a direct result of (a) Landlord's failure (i) to maintain
and repair the exterior and/or the public portions of the Building pursuant to
Article 4, (ii) to provide elevator service, heat or water pursuant to Article
31, (iii) to provide condenser water for the AC System or otherwise provide
services pursuant to Article 71 or (iv) to furnish electricity pursuant to
Article 49 (except as otherwise permitted by paragraphs E or F); or (b)
Landlord's performance of (x) work within the demised premises pursuant to
Article 13, (y) Building alterations and repairs pursuant to Article 20 or (z)
repairs or maintenance of the facade or exterior of the Building pursuant to
Article 47, Tenant shall be unable to use and occupy the demised premises (or a
portion thereof) for the normal conduct of Tenant's business as permitted under
the Lease, Tenant shall give written notice to Landlord, which notice shall
specify the condition complained of. If Landlord shall fail to remedy said
condition and said failure shall continue for a period of fifteen (15) days or
more from the date of receipt of the foregoing notice, Tenant may deliver a
second notice to Landlord, and the Monthly Base Rent shall abate
(proportionately if only a portion of the demised premises is so affected) for
the period commencing with Landlord's receipt of Tenant's second notice and
continuing until the earlier of the date such condition is remedied or the date
Tenant shall re-occupy the demised premises. The foregoing provisions shall
apply notwithstanding any provision to the contrary which would limit or deny
Tenant's right to abate Rent as set forth in this Lease.
80. FAILURE TO GIVE POSSESSION
--------------------------
A. Notwithstanding the provisions of Article 24 hereof, if Landlord
anticipates that it will be unable to complete "Landlord's Work" (as defined in
Exhibit "B" attached hereto and made a part hereof) and deliver possession of
the demised premises to Tenant by February 15, 2002, Landlord shall so notify
Tenant in writing no later than January 1, 2002. Tenant shall receive a credit
against Annual Base Rent in the amount of twice such rent, prorated for each
full week following February 15, 2002 until Landlord shall have completed
Landlord's Work and delivered possession of the demised premises to Tenant.
B. "Tenant's Plans" (as defined in Exhibit "B" attached hereto and made a
part hereof) shall be submitted to, agreed to and approved by Landlord by
November 1, 2001. If Tenant's Plans are not submitted to, agreed to and approved
by Landlord by November 1, 2001, then both Landlord's notification date and
Tenant's rent credit effective date, as outlined in Paragraph A above, shall be
tolled for every day that Landlord does not have approved plans. If Tenant's
Plans are not submitted to, agreed to and approved by Landlord by December 1,
2001, the provisions of this Article shall be of no further force or effect,
provided however that Landlord's consent shall not be unreasonably withheld or
delayed.
Lease Rider Page 22. Please Initial: Landlord _____ Tenant _____
Exhibit "A"
Diagram of the Demised Premises
-------------------------------
[Not to scale; all dimensions approximate; subject to actual conditions.]
Lease Rider Page 23. Please Initial: Landlord _____ Tenant _____
Exhibit "B"
Landlord's Work
---------------
Landlord shall do the following once at Landlord's expense promptly after the
date hereof and shall substantially complete the same subject to the provisions
of Article 80: Supply and install "Landlord's Work" as depicted in "Tenant's
Plans" as defined below.
Section I
"Landlord's Work" shall mean provide a newly finished space with newly renovated
common areas including the following:
1. Supply and install air conditioning equipment complete with round spiral
ductwork sufficient to cool entire premises.
2. Supply and install building-standard separate electrical meter, circuit
breaker box, lighting, and electrical outlets.
3. Insulate, sheetrock, and paint perimeter walls in entire premises.
4. Paint concrete ceilings and columns in entire premises.
5. Finish floor with a choice of gray epoxy or carpeting.
6. Supply and install building-standard perimeter baseboard heating and
thermostat(s).
7. Supply and install building-standard windows throughout the premises.
8. Construct building-standard ADA-compliant bathrooms.
9. Construct building-standard hallways.
Section II
IF TENANT'S PLANS HAVE BEEN AGREED TO AND APPROVED BY LANDLORD AS OF THE DATE OF
EXECUTION OF THIS LEASE, "Tenant's Plans" shall mean those plans identified as
___________________________________, signed by Landlord and attached hereto.
IF TENANT'S PLANS HAVE NOT BEEN AGREED TO AND APPROVED BY LANDLORD AS OF THE
DATE OF EXECUTION OF THIS LEASE, "Tenant's Plans" shall mean those plans
hereafter submitted to, agreed to and approved by Landlord.
ANY AND ALL OF TENANT'S PLANS HERETOFORE OR HEREAFTER FURNISHED TO LANDLORD
SHALL BE SUBJECT TO THE APPLICABLE PROVISIONS OF THE LEASE TO WHICH THIS EXHIBIT
IS ATTACHED INCLUDING, BUT NOT LIMITED TO, ANY AND ALL APPLICABLE LAWS.
Lease Rider Page 24. Please Initial: Landlord _____ Tenant _____