EXHIBIT 10.5
AGREEMENT OF LEASE
between
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
Landlord,
and
INTEREP NATIONAL RADIO SALES, INC.,
Tenant,
Dated: As of December 31, 1992
PREMISES:
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Entire Fifth (5th) Floor
Portion of Sixth (6th) Floor
100 Park Avenue
New York, New York
TABLE OF CONTENTS
Page
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ARTICLE 1 RENT............................................. 1
ARTICLE 2 PREPARATION OF THE DEMISED PREMISES.............. 3
ARTICLE 3 ADJUSTMENTS OF RENT.............................. 4
ARTICLE 4 ELECTRICITY...................................... 13
ARTICLE 5 USE.............................................. 15
ARTICLE 6 ALTERATIONS AND INSTALLATIONS.................... 15
ARTICLE 7 REPAIRS.......................................... 19
ARTICLE 8 REQUIREMENTS OF LAW.............................. 21
ARTICLE 9 INSURANCE, LOSS, REIMBURSEMENT, LIABILITY........ 22
ARTICLE 10 DAMAGE BY FIRE OR OTHER CAUSE.................... 25
ARTICLE 11 ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.......... 27
ARTICLE 12 CERTIFICATE OF OCCUPANCY......................... 36
ARTICLE 13 ADJACENT EXCAVATION; SHORING..................... 36
ARTICLE 14 CONDEMNATION..................................... 36
ARTICLE 15 ACCESS TO DEMISED PREMISES; CHANGES.............. 38
ARTICLE 16 CONDITIONS OF LIMITATION......................... 39
ARTICLE 17 RE-ENTRY BY LANDLORD; INJUNCTION................. 41
ARTICLE 18 DAMAGES.......................................... 42
ARTICLE 19 LANDLORDS RIGHT TO PERFORM TENANT'S OBLIGATIONS.. 44
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ARTICLE 20 QUIET ENJOYMENT.................................. 44
ARTICLE 21 SERVICES AND EQUIPMENT........................... 44
ARTICLE 22 DEFINITIONS...................................... 47
ARTICLE 23 INVALIDITY OF ANY PROVISION...................... 48
ARTICLE 24 BROKERAGE........................................ 49
ARTICLE 25 SUBORDINATION.................................... 49
ARTICLE 26 CERTIFICATE OF TENANT............................ 52
ARTICLE 27 LEGAL PROCEEDINGS; WAIVER OF JURY TRIAL.......... 52
ARTICLE 28 SURRENDER OF PREMISES............................ 53
ARTICLE 29 RULES AND REGULATIONS............................ 53
ARTICLE 30 CONSENTS AND APPROVALS........................... 53
ARTICLE 31 NOTICES.......................................... 54
ARTICLE 32 NO WAIVER........................................ 54
ARTICLE 33 CAPTIONS......................................... 55
ARTICLE 34 INABILITY TO PERFORM............................. 55
ARTICLE 35 NO REPRESENTATIONS BY LANDLORD................... 56
ARTICLE 36 NAME OF BUILDING................................. 56
ARTICLE 37 RESTRICTIONS UPON USE............................ 56
ARTICLE 38 ARBITRATION...................................... 56
ARTICLE 39 INDEMNITY........................................ 57
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ARTICLE 40 MEMORANDUM OF LEASE.............................. 57
ARTICLE 41 SECURITY......................................... 57
ARTICLE 42 MISCELLANEOUS.................................... 60
ARTICLE 43 EXTENSION OF TERM................................ 62
ARTICLE 44 RIGHT OF FIRST OFFERING.......................... 65
ARTICLE 45 LAYOUT AND FINISH................................ 67
ARTICLE 46 TENANT'S WORK CREDIT............................. 70
ARTICLE 47 EXISTING LEASE................................... 71
SCHEDULES
A - Floor Plan
B - Rules and Regulations
C - Cleaning Specifications
D - Approved Contractors
E - Freight Elevator Rules and Regulations
F - Air Conditioning Specifications
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AGREEMENT OF LEASE, made as of the 31st day of December, 1992, between
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation, having an
office at 10 Rockefeller Plaza, 15th Floor, New York, New York 10020
(hereinafter referred to as "Landlord") and INTEREP NATIONAL RADIO SALES, INC.,
a New York corporation, having an office at 100 Park Avenue, New York, New York,
Attention: Chief Financial Officer (hereinafter referred to as "Tenant").
W I T N E S S E T H:
-------------------
Landlord hereby leases and Tenant hereby hires from Landlord, in the
building (hereinafter referred to as the "Building") known as 100 Park Avenue,
New York, New York, the following space: the entire rentable space on the fifth
(5th) floor and a portion of the rentable space on the sixth (6th) floor as
shown hatched on the plans annexed hereto as Schedule A (which space is
hereinafter referred to as "the demised premises"); for a term commencing April
1, 1993 (such date on which the term of the Lease commences is hereinafter
referred to as the "Commencement Date"), and which shall end on March 31, 2005
(such date on which the term of the Lease expires is hereinafter referred to as
the "Expiration Date") or until such term shall sooner cease and terminate as
hereinafter provided.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, trustees, successors and
assigns, hereby covenant as follows:
ARTICLE 1
RENT
1.01. Tenant shall pay to Landlord a fixed annual rent (hereinafter
referred to as "fixed annual rent") at the rate of:
(i) ONE MILLION EIGHT HUNDRED SIXTEEN THOUSAND TWO HUNDRED
SIXTY-FOUR and 40/100 ($1,816,264.40) DOLLARS per annum for the period
commencing on the Commencement Date and ending on the last day of the month
immediately preceding the month in which occurs the third (3rd) anniversary
of the Commencement Date;
(ii) ONE MILLION NINE HUNDRED FORTY-NINE THOUSAND FIVE
HUNDRED NINETY-TWO and 40/100 ($1,949,592.40) DOLLARS per annum for the
period commencing on the first day of the month in which occurs the third
(3rd) anniversary of the Commencement Date and ending on the last day of the
month immediately preceding tho month in which occurs the sixth (6th)
anniversary of the Commencement Date;
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(iii) TWO MILLION EIGHTY-TWO THOUSAND NINE HUNDRED TWENTY and
40/100 ($2,082,920.40) DOLLARS per annum for the period commencing on the
first day of the month in which occurs the sixth (6th) anniversary of the
Commencement Date and ending on the last day of the month immediately
preceding the month in which occurs the ninth (9th) anniversary of the
Commencement Date; and
(iv) TWO MILLION TWO HUNDRED SIXTEEN THOUSAND TWO HUNDRED
FORTY-EIGHT and 40/100 ($2,216,248.40) DOLLARS per annum for the period
commencing on the first day of the month in which occurs the ninth (9th)
anniversary of the Commencement Date and ending on the Expiration Date.
Tenant agrees to pay the fixed annual rent in lawful money of the United States
of America, in equal monthly installments in advance on the first day of each
calendar month during said term, at the office of Landlord or such other place
in the United States of America as Landlord may designate, without any setoff or
deduction whatsoever, except such deduction as may be occasioned by the
occurrence of any event permitting or requiring a deduction from or abatement of
rent as specifically set forth in Articles 10 and 14 hereof. Should the
obligation to pay fixed annual rent commence on any day other than on the first
day of a mouth, then the fixed annual rent for such month shall be prorated on a
per diem basis.
1.02. Tenant shall pay the fixed annual rent and additional rent
as above and as hereinafter provided, by good and sufficient check (subject to
collection) drawn on a New York City bank which is a member of the New York
Clearing House Association or a successor thereto. All sums other than fixed
annual rent payable, by Tenant hereunder shall be deemed additional rent (for
default in the payment of which Landlord shall have the same remedies as for a
default in the payment of fixed annual rent), and shall be payable on demand,
unless other payment dates are hereinafter provided.
1.03. If Tenant shall fail to pay when due any installment of
fixed annual rent or any payment of additional rent for a period of 10 days
after such installment or payment shall have become due, Tenant shall pay
interest thereon at the Interest Rate (as such term is defined in Article 22
hereof), from the date when such installment or payment shall have become due to
the date of the payment thereof, and such interest shall be deemed additional
rent.
1.04. If any of the fixed annual rent or additional rent payable
under the terms and provisions of this Lease shall be or become uncollectible
reduced or required to be refunded because of any Legal Requirement (as such
term is defined in Article 22 hereof), Tenant shall enter into such reasonable
agreement(s) and take such other reasonable steps (without additional expense to
Tenant), as Landlord may request and as may be, legally permissible to permit
Landlord to collect the maximum rents which from time to time during the this
Lease (a) the rents shall become and thereafter be payable in accordance with
the amounts reserved herein for the periods following such termination and (b)
Tenant shall pay to Landlord, to the maximum extent legally permissible, an
amount (the "Uncollected Rent") equal to (i) the rents which would
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have been paid pursuant to this Lease, but for such legal rent restriction less
(ii) the rents paid by Tenant during the period such legal rent restriction was
in effect; provided that (a) if Tenant is not in default under any of the terms
and conditions of this Lease and (b) if the amount of Uncollected Rent exceeds
six (6) times the monthly installments of fixed annual rent payable thereafter,
then Tenant shall pay to Landlord the Uncollected Rent in twelve (12) equal
monthly installments, commencing on the first (1st) day of the month after the
termination of such legal rent restriction and continuing thereafter on the
first (1st) day of each month during such twelve, (12) month period until Tenant
shall have paid to Landlord the entire amount of Uncollected Rent, provided that
in the event that the Lease shall expire or be, terminated after the termination
of such legal rent restriction and prior to the full payment of the Uncollected
Rent, the entire unpaid amount thereof shall immediately be due and payable by
Tenant to Landlord.
1.05. Notwithstanding anything to the contrary in Section 1.01
hereof, the fixed annual rent payable hereunder (but expressly excluding any
additional rent payable hereunder) shall be abated for the period (the
"abatement period") commencing on the Commencement Date and ending April 30,
1994.
ARTICLE 2
PREPARATION OF THE DEMISED PREMISES
2.01. Tenant acknowledges that Tenant has inspected the demised
premises and is fully acquainted with the, demised premises and the condition
thereof and agrees to accept the demised premises absolutely "as is" in their
condition and state of repair existing as of the date hereof and further agrees
that Landlord shall not be required to perform any work, supply any materials or
incur any expense to prepare the demised premises for Tenant's occupancy, except
that Landlord (i) has performed the work detailed A(1) through A(4) hereafter
all of which Tenant acknowledges has been satisfactorily completed as of the
date of execution hereof, and (ii) shall perform, promptly following the date,
of execution hereof, at Landlord's sole, cost and expense, the work and
installations detailed B(l) hereafter (hereinafter referred to as "Landlord's
Work"), all of which work is being or has been (as the case may be) performed in
the sixth (6th) floor portion (hereinafter called the "6th Floor Space,") of the
demised promises using materials of a manufacture, material, design, capacity
and finish and otherwise in a manner, selected by Landlord as the standard of
the Building (hereinafter called "Building Standard"):
A(1). Demolish the 6th Floor Space except for core
areas;
A(2). Remove asbestos from the 6th Floor Space as
required by law and as required by the performance of Landlord's Work;
A(3). Provide and install three new Building Standard
bathrooms in the 6th Floor Space which shall comply with both Local Law
58 and the Americans with
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Disabilities Act of 1990, Public Law 101-336, 42 U.S.A. Secs. 12110 et
seq. ("Disabilities Act"); and
A(4). Replace existing lotline windows in the 6th Floor
Space with now Building Standard clear glass windows, compatible with
the clear glass windows in the balance of the 6th floor.
B(1). Demise the 6th Floor Space as per plan annexed
hereto as Schedule A.
2.02. Tenant acknowledges that Tenant agrees to accept the fifth
(5th) floor portion of the demised promises absolutely "as is" in the condition
and state of repair existing as of the date hereof and further agrees that
Landlord shall not be required to perform any work, supply any materials or
incur any expense to prepare the fifth (5th) floor portion of the demised
promises for Tenant's occupancy.
2.03. In addition to Landlord's Work to the 6th Floor Space,
Landlord shall within a reasonable time after the completion of Tenant's Work
decorate the common areas on the sixth (6th) floor of the Building to the extent
customary and standard for the decorating of such common areas in first-class
office buildings comparable to the Building.
ARTICLE 3
ADJUSTMENTS OF RENT
3.01. For the purposes of this Article 3, the following
definitions shall apply:
(a) The term "Base Tax" shall be deemed to mean fifty (50%) Percent of
the aggregate of (i) the Taxes (as hereinafter defined) for the New York City
real estate tax fiscal year commencing on July 1, 1992 and ending June 30, 1993
and (b) the Taxes for the New York City real estate tax fiscal year commencing
on July 1, 1993 and ending June 30, 1994.
(b) The term "Tenant's Tax Proportionate Share" shall be deemed to
mean 8.07 (8.07%) percent. For the purpose of this calculation, the parties
hereto have agreed that the demised premises shall be deemed to have a rentable
area of 66,664 rentable square foot.
(c) The term "Taxes" shall mean all real estate taxes, assessments,
governmental levies, municipal taxes, county taxes or any other governmental
charge, general or special, ordinary or extraordinary, unforeseen as well as
foreseen, of any kind or nature whatsoever, which are or may be assessed, levied
or imposed upon all or any part of the Land, the Building and the sidewalks,
plazas or streets in front of or adjacent thereto, including any tax, excise or
fee measured by or payable with respect to any rent, and levied against Landlord
and/or the Land and/or Building, under the laws of the United States, the State
of New York, or any
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political subdivision thereof. If, due to a future change in the method of
taxation or in the taxing authority, a new or additional real estate tax, or a
franchise, income, transit, profit or other tax or governmental imposition,
however designated, shall be levied against Landlord (in its capacity as the
owner or lessee of the Land and/or Building), and/or the Land and/or Building,
in addition to, or in substitution in whole or in part for any tax which would
constitute "Taxes", or in lieu of additional Taxes, such tax or imposition shall
be deemed for the purposes hereof to be included within the term "Taxes". The
term "Taxes" shall in no event include (i) any taxes included as Operating
Expenses (as hereinafter defined), (ii) any estate or inheritance taxes, (iii)
except as set forth in the preceding sentence, any taxes based on Landlord's
income, or (iv) except as set forth in the preceding sentence, any franchise
taxes relating to or arising out of the corporate status of Landlord. To the
extent that Taxes hereunder may include income or franchise taxes, the same
shall be determined as though the Land and Building (or Landlord's leasehold
interest therein) were Landlord's only asset and the revenues derived therefrom
were Landlord's only income.
(d) The term "Tax Year" shall mean each period of twelve months,
commencing on the first day of July of each such period, in which occurs any
part of the term of this Lease or such other period of twelve months occurring
during the term of this Lease as hereafter may be duly adopted as the fiscal
year for real estate tax purposes of the City of New York.
(e) The term "Operating Year" shall mean the full calendar year in
which the term of this Lease commences and each succeeding calendar year
thereafter.
(f) The term "Base Year" shall mean the calendar year 1993.
(g) "Operating expenses" shall mean the total of all the costs and
expenses incurred or borne by Landlord in connection with the operation and
maintenance of the Building, and the services provided tenants therein,
including all expenses incurred as a result of Landlord's compliance with any of
its obligations hereunder. Operating expenses shall include, without being
limited thereto, the following (i) salaries, wages, medical, surgical and
general welfare benefits (including group life insurance) and pension payments
of employees of the managing agent for the Building (or, in the event of a
successor Landlord or a change, in the agreement practices of Landlord, the
employees of such managing agent or Landlord) engaged in the operation and
maintenance of the Building; (ii) payroll taxes, workmen's compensation,
uniforms and dry cleaning for the employees referred to in subdivision (i);
(iii) the cost of all charges for steam, heat, ventilation, air-conditioning and
water (including water and sewer rentals) furnished to the Building (including
common areas thereof), together with any taxes on any such utilities; (iv) the
cost of all charges for rent, casualty, war risk (if obtainable, from the United
States government), liability and other types of insurances (v) the cost of all
building and cleaning supplies and charges for telephone for the Building and
cleaning of the Building, including common areas; (vi) the cost of all charges
for management, cleaning and service contracts for any areas of the Building;
(vii) the cost of Building electric current (for the purposes of this clause
(vii), the cost of Building electric current shall be deemed to mean the Cost of
all
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e1ectricity purchased, including any taxes thereon or fuel or other adjustments
in connection therewith, for use in the Building other than that which is
furnished to the demised space of tenants in the Building; the parties agree
that forty (40%) percent of the Building's payment to the Public utility for the
purchase of electricity shall be deemed to be payment for Building electric
current); (viii) the cost relating to the elevators and escalators; (ix) the
cost relating to protection and security; (x) the cost relating to lobby
decorations and interior and exterior landscape maintenance; (xi) repairs,
replacements and improvements performed after the Base Year which are
appropriate for the continued operation of the Building as a first class office
building (no such capital expenditures incurred during the Base Year shall be
included in Operating Expenses for the Base Year nor shall any unamortized
portion of such expenditure incurred during the Base Year be included in
Operating Expenses of any subsequent Operating Year); (xii) painting of non-
tenanted areas; (xiii) professional and consulting fees; (xiv) association fees
or dues; (xv) the cost of capital expenditures made to the Building by reason of
the laws and requirements of any public authorities or the requirements of
insurance bodies incurred after the Base Year (no such capital expenditures
incurred during the Base Year shall be included in Operating Expenses for the
Base Year nor shall any unamortized portion of such expenditure incurred during
the Base Year be included in Operating Expenses of any subsequent Operating
Year), provided, however, that if under generally accepted accounting principles
consistently applied, any of the costs referred to in clause (xi) or this clause
(xv) are required to be, capitalized, then such capitalized costs, together with
interest on the, Amortized portion thereof at the Interest Rate (as defined in
Section 22.03 hereof) at the time of Landlord having incurred said costs, shall
be amortized or depreciated, as the case may be, over a period of time which
shall be the shorter of (A) the useful life of the item in question, as
reasonably determined by Landlord; or (B) ten (10) years; and (xvi) the rental
value of Landlord's Building office and any other promises in the Building
utilized by the personnel of either Landlord or Landlord's affiliates or
contractors (to the extent that the amount of such rental value is customary and
standard for owners of first-class office buildings in midtown Manhattan
comparable to the Building), in connection with the repair, replacement,
maintenance, operation and/or security thereof, and all Building office
expenses, such as telephone, utility, stationery and similar expenses incurred
in connection therewith. The term "Operating Expenses", as used and defined
under, this Subsection (g), shall not, however, include the following item:
(1) depreciation and amortization (except as provided above in this
Section 3.01(g);
(2) Interest on and amortization of debts;
(3) the cost of tenant improvements made for new or existing tenants
of the Building and all other costs incurred in preparing space for now or
existing tenants;
(4) leasing or brokerage commissions in connection with the
procurement of tenants or other occupants of the Building;
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(5) financing or refinancing costs;
(6) the cost of any work or services performed for any tenants of
the Building, to the extent that such work or services are in excess of the
work or services which Landlord is required to furnish or actually furnishes
to Tenant under this Lease;
(7) Taxes;
(8) franchise, gains, inheritance, or income taxes imposed upon
Landlord;
(9) any rent, additional rent or other charges under any ground
leases or superior leases;
(10) salaries and fringe and other benefits of personnel above the
grade of building manager and all other expenses and taxes relating thereto;
(11) expenses in an amount equal to proceeds of insurance,
condemnation, refund, credit, warranty or indemnity received by Landlord, to
the extent such proceeds are compensation for expenses which would otherwise
be included in Operating Expenses; provided, however, in the event that any
reimbursement refund or credit in received or receivable by Landlord in a
later Operating Year, Tenant's Proportionate Share of such reimbursement (less
the cost incurred by Landlord in obtaining the same) shall be applied against
the Operating Expenses for such later Operating Year as and when received, or
if such later Operating Year is not one for which Tenant shall be obligated to
make a payment towards Operating Expenses, Landlord shall refund such amount
to Tenant within thirty (30) days after Landlord's receipt of such
reimbursement;
(12) any other expenditure which would otherwise be an Operating
Expense, to the extent Landlord in reimbursed directly therefor by a tenant,
including Tenant (excluding, however, any reimbursement from any tenant
pursuant to rent provisions in the nature of an operating expense escalation);
(13) any costs representing an amount paid to an affiliate of
Landlord to the extent that same is in excess of the amount which would have
been paid in the absence of such relationship;
(14) advertising and promotional expenditures;
(15) the costs and expenses of any judgment, settlement or
arbitration award resulting from any tort liability of Landlord and any
attorneys' fees or other expenses incurred in connection therewith, except
that the cost of performing any repair,
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alteration or other work which would otherwise be includable in Operating
Expenses to the extent included in any such Judgment, settlement or
arbitration award shall not be excluded hereby;
(16) the cost of installing, maintaining and operating any
observatory, broadcasting facility, newsstand, athletic or recreational club
or other similar specialty service, provided, however, this exclusion shall
not apply to the cost of any building services furnished to an area of space
leased to another tenant and used by such tenant for such purposes, except as
otherwise provided in clause (6) of this Section 3.01(g);
(17) cost of alterations and improvements made to cure conditions
existing as of the Commencement Date, which conditions, as of the Commencement
Date, constitute a violation of Legal Requirements (as defined in Article 22
hereof) in effect as of the Commencement Dates provided, however, that costs
to comply with any re-interpretation, amendment or modification of such Legal
Requirements which are enacted, adopted or enforced after the Commencement
Date shall be includable in Operating Expenses);
(18) costs and expenses otherwise included in Operating Expenses to
the extent incurred due to any misrepresentations expressly made herein by
Landlord;
(19) salaries paid to personnel in commercial concessions operated in
the Building by Landlord or any affiliate of Landlord;
(20) the cost of any reconstruction made in accordance with Articles
10 and 14 of this Lease, except that in connection therewith, any amount equal
to the deductibles under Landlord's insurance policies, provided such
deductibles are not substantially higher than the deductibles customarily
carried by landlords of first-class office buildings in midtown Manhattan
comparable to the Building, may be included in Operating Expenses; and
(21) capital expenditures (which for the purposes hereof, shall mean
expenditures which, in accordance with generally accepted accounting
principles consistently applied, are or should be capitalized on the books of
Landlord) other than those expressly set forth in Sections 3.01(g)(xi) and
(xv) hereof.
If Landlord shall purchase any item of capital equipment or make any
capital expenditure designed to result in savings or reductions in Operating
Expenses, then the cost thereof shall be included in Operating Expenses. The
costs of capital equipment or capital expenditures are so to be included in
Operating Expenses for the Operating Year in which the costs are incurred and
subsequent Operating Years, on a straight line basis, to the extent that such
items are amortized over such period of time as reasonably can be estimated as
the time in which such savings or reductions in Operating Expenses are expected
to equal Landlord's costs for such
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capital equipment or capital expenditure, with an interest factor equal to the
Interest Rate at the time of Landlord's having incurred said costs. If Landlord
shall lease any such item of capital equipment designed to result in savings or
reductions in Operating Expenses, then the rentals and other costs paid or
incurred in connection with such leasing shall be included in Operating Expenses
for the Operating Year in which they were incurred.
If during all or part of the Base Year or any Operating Year, Landlord
shall not furnish any particular item(s) of work or service (which would
constitute an Operating Expense hereunder) to portions of the Building
(including without limitation the demised premises) due to the fact that such
portions are not occupied or leased, or because such item of work or service is
not required or desired by the tenant (including without limitation Tenant) or
such portion, or such tenant is itself obtaining and providing; such item of
work of service, or for any other reasons, then, for the purposes of computing
the additional rent payable hereunder pursuant to paragraphs A and 3 of Section
3.02 hereof, the amount of the expenses for such item(s) for such period shall
be deemed to be increased by an amount equal to the additional operating and
maintenance expenses which would reasonably have been incurred during such
period by Landlord if it had at its own expense furnished such item(s) of work
or services to such portion of the Building.
(h) The term "Tenant's Proportionate Share" shall be deemed to mean
8.72 (8.72%) percent. For the purpose of this calculation, the parties hereto
have agreed that the demised premises shall be deemed to have a rentable area of
66,664 rentable square feet.
(i) "Tenant's Proportionate Share of Increase" shall mean the
percentage set forth in Section 3.01(h) multiplied by the increase, in Operating
Expenses for an Operating Year over Operating Expenses in the Base Year.
(j) "Tenant's Projected Share of Increase," shall mean Tenant's
Proportionate Share of Increase, for the prior Operating Year and the reasonably
estimated increase in costs for the current Operating Year divided by twelve
(12) and payable monthly by Tenant- to Landlord as additional rent. If, however,
Landlord shall furnish any such estimate for an Operating Year subsequent to the
commencement thereof (provided that Landlord will furnish no more than three (3)
such estimates during any Operating Year), then (a) until the first day of the
month following the month in which such estimate is furnished to Tenant, Tenant
shall pay to Landlord on the first day of each month an amount equal to the
monthly sum payable by Tenant to Landlord under this Section in respect of the
last month of the preceding Operating Year; (b) promptly after such estimate is
furnished to Tenant, Landlord shall give notice to Tenant stating whether the
installments of Tenant's Projected Share of Increase previously made for such
Operating Year were greater or less than the installments of Tenant's Projected
Share of Increase to be made for such Operating Year in accordance with such
estimate, and (i) if there shall be a deficiency, Tenant shall pay the amount
thereof within 10 days after demand therefor, or (ii) if there shall have been
an overpayment, Landlord shall promptly either refund to Tenant the amount
thereof or permit Tenant to credit the amount thereof against subsequent
payments under
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this Article 3; and (c) on the first day of the month following the month in
which such estimate is furnished to Tenant, and monthly thereafter throughout
the remainder of such Operating Year, Tenant shall pay to Landlord an amount
equal to Tenant's Projected Share of Increase as shown on such estimate. If the
aggregate installments of Tenant's Projected Share of increase for any Operating
year shall exceed Tenant's Proportionate Share of increase for such Operating
Year by an amount in excess of ten (10%) percent, such excess shall bear
interest at the Interest Rate from the date the aggregate excess exceeded such
ten (10%) percent to the date the excess is refunded or credited by Landlord to
Tenant.
(k) The term "Escalation Statement" shall mean a statement setting
forth in reasonable detail the amount payable by Tenant for a specified Tax Year
or Operating Year (as the case may be) pursuant to this Article 3.
3.02. A. After the expiration of the Base Year, Landlord shall
furnish Tenant a statement setting forth the Operating Expenses incurred for
such Base Year. After the expiration of any Operating Year, Landlord shall
furnish Tenant an Escalation Statement setting forth Tenant's Proportionate
Share of Increase with respect to the Operating Expenses incurred for such
Operating Year. Within thirty (30) days after receipt of such Escalation
Statement for any Operating Year, Tenant shall pay Tenant's Proportionate Share
of Increase to Landlord as additional rent to the extent set forth in Section
3.02B hereof.
B. Commencing with the first Operating Year for which
Landlord shall be entitled to receive Tenant's Proportionate Share of Increase,
Tenant shall pay to Landlord as additional rent for the then Operating Year,
Tenant's Projected Share of Increase. If the Escalation Statement furnished by
Landlord to Tenant pursuant to Section 3.02A above at the end of the then
Operating Year shall indicate that Tenant's Projected Share of Increase exceeded
Tenant's Proportionate Share of Increase, Landlord shall forthwith either (i)
pay the amount of excess directly to Tenant concurrently with the notice or (ii)
permit Tenant to credit the amount of such excess against the subsequent
payments of rent due hereunder; if such statement furnished by Landlord to
Tenant hereunder shall indicate that Tenant's Proportionate Share of Increase
exceeded Tenant's Projected Share of Increase for the then Operating Year,
Tenant shall within ten (10) Business Days pay the amount of such excess to
Landlord.
3.03. A. Tenant shall pay as additional rent for each Tax Year a
sum (hereinafter referred to as "Tenant's Tax Payment") equal to Tenant's Tax
Proportionate Share of the amount by which the Taxes for such Tax Year exceed
the Base Tax. Tenant's Tax Payment for each Tax Year shall be due and payable in
two (2) equal installments, in advance, on the first day, of each June and
December during each Tax Year, based upon the Escalation Statement furnished
prior to the commencement of such Tax Year, until such time as a new Escalation
Statement for a subsequent Tax Year shall become effective. If an Escalation
Statement is furnished to Tenant after the commencement of a Tax Year in respect
of which such Escalation Statement is rendered, Tenant shall, within 15 days
thereafter, pay to Landlord an amount equal to the amount of any underpayment of
Tenant's Tax Payment with respect to such Tax Year and,
10
in the event of an overpayment, Landlord shall permit Tenant to credit against
subsequent payments under this Section 3.03 the amount of Tenant's overpayment.
If there shall be any increase in Taxes for any Tax Year, whether during or
after such Tax Year, Landlord shall furnish a revised Escalation Statement for
such Tax Year, and Tenant's Tax Payment for such Tax Year shall be adjusted and
paid substantially in the same manner as provided in the preceding sentence. If
during the term of this Lease, taxes are required to be paid (either to the
appropriate taxing authorities or as tax escrow payments to a superior
mortgagee) in full or in monthly, quarterly, or other installments, on any other
date or dates than as presently required, then at Landlord's option, Tenant's
Tax Payments shall be correspondingly accelerated or revised so that said
Tenant's Tax Payments are due at least 30 days prior to the date payments are
due to the taxing authorities or the superior mortgagee. The benefit of any
discount for any early payment or prepayment of Taxes shall accrue solely to the
benefit of Landlord and such discount shall not be subtracted from Taxes.
B. If the real estate tax fiscal Year of The City of New York
shall be changed during the term of this Lease, any Taxes for such fiscal year,
a part of which is included within a particular Tax Year and a part of which is
not so included, shall be apportioned on the basis of the number of days in such
fiscal year included in the particularTax Year for the purpose of making the
computations under this Section 3.03.
C. If Landlord shall receive a refund of Taxes for any Tax
Year, Landlord shall permit Tenant to credit against subsequent payments under
this Section 3.03, Tenant's Tax Proportionate Share of the refund (after
deducting all reasonable or customary costs incurred by Landlord to obtain such
refund which have not been previously recovered); but not to exceed Tenant's Tax
Payment paid for such Tax Year.
D. If the Base Tax is reduced as a result of a certiorari
proceeding or otherwise Landlord shall adjust the amounts previously paid by
Tenant pursuant to the provisions of Section 3.03 hereof, and Tenant shall pay
the amount of said adjustment within thirty (30) days after demand setting forth
the amount of said adjustment.
3.04. Tenant shall pay to Landlord upon demand, as additional
rent, any occupancy tax or rent tax now in effect or hereafter enacted, if
payable by Landlord in the first instance or hereafter required to be paid by
Landlord.
3.05. In the event that the Commencement Date shall be other than
the first day of a Tax Year or an Operating Year or the date of the expiration
or other termination of this Lease shall be a day other than the last day of a
Tax Year or an Operating Year, then in such event in applying the provisions of
this Article 3 with respect to any Tax Year or Operating Year in which such
event shall have occurred, appropriate adjustments shall be made to reflect the
occurrence of such event on a basis consistent with the principles underlying
the provisions of this Article 3 taking into consideration the portion of such
Tax Year or Operating Year which shall have elapsed after the term hereof
commences in the case of the Commencement Date, and
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prior to the date of such expiration or termination in the case of the
Expiration Date or other termination.
3.06. Payments shall be made pursuant to this Article 3
notwithstanding the fact that an Escalation Statement is furnished to Tenant
after the expiration of the term of this Lease, except as otherwise set forth in
Section 3.08 hereof.
3.07. In no event shall the fixed annual rent ever be reduced by
operation of this Article 3 and the rights and obligations of Landlord and
Tenant under the provisions of this Article 3, with respect to any additional
rent shall survive the termination of this Lease.
3.08. Landlord's failure to render an Escalation Statement with
respect to any Tax Year or Operating Year shall not prejudice Landlord's right
to thereafter render an Escalation Statement with respect thereto or with
respect to any subsequent Tax Year or Operating Year; provided, however, that in
the event that Landlord shall have failed to render any Escalation Statement
prior to the expiration of the two (2) year period following the Expiration
Date, then Landlord shall be deemed to have waived its right to any unpaid
additional rent in connection with such Escalation Statement.
3.09. Each Escalation Statement shall be conclusive and binding
upon Tenant unless within 30 days after receipt of such Escalation Statement
Tenant shall notify Landlord that it disputes the correctness of such Escalation
Statement ("Tenant's Dispute Notice"). After Tenant delivers Tenant's Dispute
Notice, Tenant shall have the right during normal business hours and upon not
less than five (5) Business Days' (as defined in Article 22 hereof) prior
written notice to Landlord, to examine (or cause its accountants to examine)
such of Landlord's books and records as are relevant to the Escalation Statement
in question, provided such examination is commenced within fifteen (15) days
after Tenant's Dispute Notice is given and is concluded within twenty (20) days
after said books and records are made available to Tenant. In making such
examination, Tenant agrees, and shall cause its accountant (and such other
agents of Tenant who may be accompanying the accountant) to agree to keep
confidential any and all information contained in such books and records. Any
dispute relating to any Escalation Statement, not resolved within ninety (90)
days after the giving of such Escalation Statement, may be submitted to
arbitration by either party pursuant to Article 38 hereof. Pending the
determination of such dispute, Tenant shall pay additional rent in accordance
with the Escalation Statement that Tenant is disputing, without prejudice to
Tenant's position.
3.10. If Landlord shall pay or incur any costs or expenses in
contesting any Taxes for any Tax Year (other than any such year for which such
Taxes comprise all or part of the Base Tax) or in connection with any challenge
to the assessed valuation of all or part of the Building or the parcel of land
on which the Building is constructed (the "Land") or otherwise in connection
with any endeavor to lower the Taxes for any Tax Year (other than any such year
for which such Taxes comprise all or part of the Base Tax), and such contest,
challenge or endeavor has the effect of reducing the Taxes for any Tax Year,
then, within twenty (20) days after request
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by Landlord, Tenant shall pay to Landlord Tenant's Tax Proportionate Share of
the aggregate amounts of such costs and expenses so paid or incurred by
Landlord.
ARTICLE 4
ELECTRICITY
4.01. Subject to the provisions of this Article 4, Tenant and
Landlord agree that Landlord shall make available for Tenant's use within the
demised premises up to six (6) watts connected load per rentable square foot of
electric energy (the "Electric Capacity") and Tenant will pay Landlord or
Landlord's designated agent, as additional rent for the supplying of such
electric energy, the sum of (i) an amount computed by applying Tenant's
consumption and demand for the billing period in question (as measured by the
meter installed in the demised promises) to Landlord's Rate, as such term is
hereinafter defined, plus, (iii) ten (10%) percent of such amount. As used
herein, the term "Landlord's Rate" shall mean the rate classification of the
public utility serving the Building pursuant to which Landlord purchases
electricity for the Building. Where more than one (1) meter measures the service
of Tenant in the Building of which the demised premises forms a part, the
service rendered through each meter may be computed and billed separately in
accordance with the rates herein. Bills therefor shall be rendered at such times
as Landlord may elect and the amount, as computed from a meter, shall be deemed
to be, and be paid as, additional rent within twenty (20) days of rendition
thereof. Each electric bill shall be conclusive and binding upon Tenant unless,
within thirty (30) days after receipt of such electric bill, Tenant shall notify
Landlord that it disputes the correctness of such electric bill (hereinafter
called "Tenant's Electric Dispute Notice"). After Tenant delivers Tenant's
Electric Dispute Notice, Tenant shall have the right during normal business
hours and upon not less than five (5) Business Days ' (as defined in Article 22
hereof) prior written notice to Landlord, to examine (or cause its accountants
to examine) such of Landlord's books and records as are relevant to the
calculation of the electric bill in question, provided such examination is
commenced within fifteen (15) days after Tenant's Electric Dispute Notice is
given and is concluded within twenty (20) days after said books and records are
made available to Tenant. In making such examination, Tenant agrees; and shall
cause its accountant (and such other agents of Tenant who may be accompanying
the accountant) to agree to keep confidential any and all information contained
in such books and records. If any tax is imposed or Landlord's receipt from the
sale or resale of electric 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 rate share of such taxes shall be passed on to,
and included in the bill of, and paid by, Tenant to Landlord. In no event shall
the cost to Tenant for the supply of electric energy be less than 110% of the
aggregate cost to Landlord for the supply of electric energy to Tenant at the
demised premises (including any meter company charges, taxes, fuel adjustment
charges and other charges and expenses to which Landlord is subject). If any
meters or other equipment must be installed to furnish electric service to the
demised premises on a submetered basis, as herein provided, the same shall be
installed by Landlord at Landlord's expense.
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4.02. Landlord shall not be liable in any way to Tenant for any
failure or defect in the supply or character of electric energy, steam or other
utilities furnished to the demised premises by reason of any requirement, act or
omission of the public utility serving the. Building with electricity or steam
or other utilities or for any other reason. Tenant's use of electric energy in
the demised premises shall not at any time exceed the capacity of any of the
electrical conductors, machinery and equipment in or otherwise serving the
demised premises. In order to ensure that such capacity is not exceeded and to
avert possible adverse effect upon the electric service in the Building, Tenant
agrees not to connect any additional electrical equipment, fixtures, machinery
or appliances of any type to the Building electric distribution system, other
than lamps, typewriters and other small office machines which consume comparable
amounts of electricity, without Landlord's prior written consent, which consent
shall not be unreasonably withhold. Any additional risers, feeders, or other
equipment proper or necessary to supply Tenant's electrical requirements, upon
written request of Tenant, will be installed by Landlord, at the sole cost and
expense of Tenant, if, in Landlord's sole judgment, the same are necessary and
will not cause permanent damage or injury to the Building or the demised
premises, or cause or create a dangerous or hazardous condition or entail
excessive or unreasonable alterations, repair or expense or interfere, with or
disturb other tenants or occupants. Landlord agrees that Tenant's use of
electric energy which does not exceed in the aggregate the Electric Capacity
shall not exceed the electric capacity of the lines, feeders, cables and other
equipment furnishing electric power to (as opposed to within) the demised
premises.
4.03. Landlord reserves the right to discontinue furnishing
electric energy to Tenant at any time upon sixty (60) days' written notice to
Tenant, and from and after the effective date of such termination, Landlord
shall no longer be obligated to furnish Tenant with electric energy, provided,
however, that such termination date shall be extended for a time reasonably
necessary for Tenant to make arrangements to obtain electric service directly
from the public utility company servicing the Building. If Landlord exercises
such right of termination, this Lease shall remain unaffected thereby and shall
continue in full force and effect, and thereafter Tenant shall diligently
arrange to obtain electric service directly from the public utility company
servicing the Building, and may utilize the then existing electric feeders,
risers and wiring serving the demised premises to the extent available and
safely capable of being used for such purpose and only to the extent of Tenant's
then authorized connected load. Landlord shall be obligated to pay no part of
any cost required for Tenant's direct electric service including without
limitation the cost of obtaining the same.
4.04. To the extent that Landlord shall receive any rebates or
refunds of payments to the public utility furnishing electric service to the
Building on account of energy saving light fixtures installed on the portion of
the demised premises located on the 5th floor, Tenant shall be entitled thereto,
and Landlord shall promptly remit the same to Tenant or at Landlord's option, if
the same is possible, advise the public utility to pay the same directly to
Tenant.
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ARTICLE 5
USE
5.01. The demised premises shall be used solely as and for
executive, sales and general offices, and for no other purpose.
5.02. Tenant shall not use or permit the use of the demised
premises or any part thereof in any way which would violate any of the
covenants, agreements, terms, provisions and conditions of this Lease or for any
unlawful purposes 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 anything to be done therein or anything to be brought into or kept
therein which, in the reasonable judgment of Landlord, shall in any way impair
or tend to impair the character, reputation or appearance of the Building as a
high quality office building, impair or interfere with or tend to impair or
interfere, with any of the Building services or the proper and economic heating,
cleaning, air-conditioning or other servicing of the Building or the demised
premises, or impair or interfere with or tend to impair or interfere with the
use, of any of the other areas of the Building by, or occasion discomfort,
inconvenience or annoyance to, any of the other tenants or occupants of the
Building. Tenant shall not install any electrical or other equipment of any kind
which causes any such impairment, interference, discomfort, inconvenience or
annoyance.
ARTICLE 6
ALTERATIONS AND INSTALLATIONS
6.01. Tenant shall make no alterations, installations, additions
or improvements in or to the demised premises without Landlord's prior written
consent. Nothing contained herein shall be construed to require Tenant to
obtain Landlord's consent for painting, wall and floor coverings and other
purely cosmetic or decorative changes to be performed in the demised premises;
provided, however, that Tenant shall (i) give Landlord reasonable prior notice
of the performance of any such activities (for informational purposes only) and
(ii) perform (or cause its contractor to perform) the same in compliance with
all Legal Requirements and (iii) maintain (or cause its contractor to maintain)
adequate insurance in connection with such performance. Tenant agrees that
Tenant will not at any time during the term, of this Lease, either directly or
indirectly, use any contractors and/or labor and/or materials if the use of such
contractors and/or labor and/or materials would or will create any difficulty
with other contractors and/or labor engaged by Tenant or Landlord or others in
the maintenance and/or operation of the Building or any part thereof. Landlord
shall provide upon request a list of contractors approved for work in the
Building (hereinafter called the "Approved List"). There shall be at least three
(3) contractors for each trade on the Approved List at all times. Landlord
hereby agrees, except as provided in the next sentence, not to unreasonably
withhold or delay its consent to Tenant's. request for approval of any
contractor or tradesman not on the Approved List, provided Tenant supplies
15
Landlord with reasonable information about such tradesman or contractor.
Notwithstanding the foregoing, with respect to the mechanical,' electrical,
sanitary, heating, ventilating, air-conditioning, plumbing, lift-safety or other
systems of the Building, Tenant agrees to use only contractors on the Approved
List. All such work, alterations, installations, additions and improvements
shall be done at Tenant's sole expense and at such times and in such manner as
Landlord may from time to time designate. Prior to commencement of any
alterations as to which Landlord's consent is required, Landlord may request and
Tenant shall upon such request provide to Landlord proof reasonably satisfactory
to Landlord of Tenant's financial capacity to complete the performance of such
alterations and pay the entire cost thereof including without limitation all
contractors and suppliers utilized in connection therewith. Landlord agrees that
with respect to non-structural alterations which do not affect the exterior of
the Building or any portions of the Building outside the demised premises or
adversely affect any Building systems, Landlord shall not unreasonably withhold
or delay its approval.
Any Tenant's work in the demised premises shall be effected solely in
accordance with plans and specifications first approved in writing by Landlord.
Tenant shall reimburse Landlord promptly upon demand for any reasonable out-of-
pocket costs and expenses incurred by Landlord (including, without limitation,
the commercially reasonable fees of any architect or engineer or any independent
third party employed by Landlord, but excluding attorneys' fees if any) in
connection with Landlord's review of such Tenant's plans and specifications.
Provided that Tenant makes reference to the following time limitation in its
submission of plans and specifications and the consequences of Landlord's
failure to abide thereby, Landlord's failure to respond to Tenant' s submission
within two (2) weeks thereof (or to specify' the reasons for any disapproval)
shall be ftemod approval. The date of submission shall be the date of Landlord's
receipt thereof.
Any such approved alterations and improvements shall be performed in
accordance with the foregoing and the following provisions of this Article 6:
1. All work shall be done in a good and workmanlike manner.
2. In the event Tenant shall employ any contractor to do in the
demised premises any work permitted by this Lease, such contractor and any
subcontractor shall agree to employ only such labor as will not result in
jurisdictional disputes or strikes or result in causing disharmony with other
workers employed at the Building. Tenant will inform Landlord in writing of the
names of any contractor or subcontractor Tenant proposes to use in the demised
premises at least ten (10) days prior to the beginning of work by such
contractor or subcontractor.
3. All such alterations shall be effected in compliance with all
applicable laws, ordinances, rules and regulations of governmental bodies having
or asserting jurisdiction in the demised premises and in accordance with
Landlord's Rules and Regulations with respect to alterations.
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4. Tenant shall keep the Building and the demised premises free and
clear of all liens for any work or material claimed to have been furnished to
Tenant or to the demised premises on Tenant's behalf, and all work to be
performed by Tenant shall be done in a manner which will not unreasonably
interfere with or disturb other tenants or occupants of the Building.
5. During the progress of the work to be done by Tenant, said work
shall be subject to inspection by representatives of Landlord which shall be
permitted access and the opportunity to inspect, at reasonable times, but this
provision shall not in any way whatsoever create any obligation on Landlord to
conduct such an inspection.
6. Tenant agrees to pay to Landlord or its managing agent, as
additional rent, promptly upon being billed therefor, Landlord's reasonable out-
of-pocket costs and expenses (including, without limitation, the fees of any
architect or engineer employed by Landlord, but excluding attorneys' fees if
any) for Landlord's field supervision and coordination in connection with such
work.
7. Prior to commencement of any work, Tenant shall furnish to
Landlord certificates evidencing the existence of:
(i) workmen's compensation insurance covering all persons
employed for such work; and
(ii) reasonable comprehensive general liability and property
damage insurance naming Landlord, its designees and Tenant as insureds, with
coverage of at least $3,000,000 single limit.
Notice is hereby given that Landlord shall not be liable for any labor or
materials furnished or to be furnished to Tenant upon credit, and that no
mechanic's or other lien for any such labor or materials shall attach to or
affect the reversion or other estate or interest of Landlord in and to the
demised premises.
6.02. Any mechanic's lien, filed against the demised premises or
the Building for work claimed to have been done for or materials claimed to have
been furnished to Tenant shall be discharged by Tenant at its expense within
thirty (30) days after such filing, by payment, filing of the bond required by
law or otherwise.
6.03. All alterations, installations, additions and improvements
made and installed by Landlord, if any, shall be the property of Landlord and
shall remain upon and be surrendered with the demised premises as a part thereof
at the end of the term of this Lease.
6.04. All alterations, installations, additions and improvements
made and installed by Tenant, or at Tenant's expense, upon or in the demised
premises which are of a permanent nature and which cannot be removed without
damage to the demised premises or
17
Building shall become and be the property of Landlord, and shall remain upon and
be surrendered with the demised premises as a part thereof at the end of ' the
term of this Lease. Notwithstanding the foregoing, Landlord may require Tenant
to remove any "non-standard Building alteration" (as hereinafter defined) and to
restore the affected portions of the demised premises to their condition
immediately prior to the making of an such non-standard Building alteration. If
Landlord requires removal of any non-standard Building alteration, the same
shall be removed from the demised premises by Tenant prior to the expiration of
the Lease at Tenant's sole cost and expense. For the purposes hereof, a "non-
standard Building alteration" shall include: auditoriums or similar type special
use areas, vaults, atriums, kitchen equipment or cafeterias, internal stairways,
slab reinforcements which reduce the height of the finished coiling within the
demised premises or impede the installation of duct work and other normal
installations above the finished ceiling, and any installations which are
unusually difficult or costly to remove.
6.05. Where furnished by or at the expense of Tenant all
furniture, furnishings and trade fixtures, including without limitation, murals,
business machines and equipment, counters, screens, grille work, special paneled
doors, cages, partitions, metal railings, closets, paneling lighting fixtures
and equipment, drinking fountains, refrigeration and air-handling equipment, and
any other movable property shall remain the property of Tenant which may at its
option remove all or any part thereof at any time prior to the expiration of the
term of this Lease. In case Tenant shall decide not to remove any part of such
property, Tenant shall notify Landlord in writing not less than three (3) months
prior to the expiration of the term of this Lease, specifying the items of
property which it has decided not to remove. If, within thirty (30) days after
the service of such notice, Landlord shall request Tenant to remove any of the
said property, Tenant shall at its expense remove the same in accordance with
such request. As to such property which Landlord does not request Tenant to
remove, the same shall be, if left by Tenant, deemed abandoned by Tenant and
thereupon the same shall become the property of Landlord.
6.06. If any alterations, installations, additions, improvements
or other property which Tenant shall have the right to remove or be requested by
Landlord to remove as provided in Sections 6.04 and 6.05 hereof (herein in this
Section 6.06 called the "property") are not removed on or prior to the
expiration of the term of this Lease, Landlord shall have the right to remove
the property and to dispose of the same without accountability to Tenant
(provided that Landlord acts reasonably under the circumstances) and at the sole
cost and expense of Tenant. In case of any damage to the demised premises or the
Building resulting from the removal of the property, which damage is not caused
by or due to the gross negligence or willful misconduct of Landlord, its agents,
servants or employees, Tenant shall repair such damage or, in default thereof,
shall reimburse Landlord for Landlord's cost in repairing such damage. This
obligation shall survive any termination of this Lease.
6.07. Tenant shall keep records of Tenant's alterations,
installations, additions and improvements costing in excess of $5,000 and of the
cost thereof. Tenant shall, within forty-five (45) days after demand by
Landlord, furnish to Landlord copies of such records and
18
cost if Landlord shall require same in connection with any proceeding to reduce
the assessed valuation of the Building, or in connection with any proceeding
instituted pursuant to Article 14 hereof or for any other reason or purpose
contemplated by this Lease.
ARTICLE 7
REPAIRS
7.01. A. Tenant shall take good care of the demised premises and
the fixtures and appurtenances therein and at its sole cost and expense make all
repairs thereto as and when needed to preserve the same in good working order
and condition. With respect to the Building systems serving the demised
premises, Tenant shall be responsible for (i) repair and maintenance of Tenant's
internal air-distribution system to the point at which the same connects to the
main distribution duct for the demised premises, (ii) repair and maintenance of
the internal electrical system to the panel box serving the demised premises,
and (iii) repair and maintenance of all plumbing fixtures and lines in and
serving the demised premises to the point at which the same join the main
vertical risers of the Building. All such repairs and maintenance with respect
to such Building systems shall be performed by contractors or tradesmen set
forth on the Approved List. As to work which does not involve Building systems,
Landlord hereby agrees not to unreasonably withhold or delay its consent to
Tenant's request for approval of any contractor or tradesman not on the Approved
List, provided Tenant supplies Landlord with reasonable information with respect
to such contractor or tradesman. Except as otherwise provided in Section 9.05
hereof, all damage or injury to the demised premises and to its fixtures
appurtenances and equipment or to the, Building or to its fixtures,
appurtenances and equipment caused by Tenant moving property in or out of the
Building or by installation or removal of furniture, fixtures or other property,
shall be repaired, restored or replaced promptly by Tenant at its sole cost and
expense, which repairs, restorations and replacements shall be, in quality and
class equal to the original work or installations. If Tenant fails to make such
repairs, restoration or replacements, same may be made by Landlord at the
expense of Tenant and such expense shall be collectible as additional rent and
shall be paid by Tenant within 15 days after rendition of a bill therefor.
B. The exterior walls of the Building, the portions of any
window sills outside the windows, and the 'windows are not part of the premises
demised by this Lease and Landlord reserves all rights to such parts of the
Building.
C. Except as provided for in this Lease, Landlord shall
maintain the Building to the extent customary and standard within the real
estate industry for first-class office buildings in midtown Manhattan comparable
to the Building and in connection therewith (but without being limited thereby),
shall keep and maintain in good order and repair the following items, but only
to the extent that such items affect Tenant in the conduct of Tenant's business
and its use and enjoyment of, and access to and from the demised premises: (a)
the lobbies and common corridors of the Building; (b) the roof, exterior, load-
bearing columns, the structural
19
integrity of the slab floors and foundation of the Building; (c) the HVAC,
electric, elevator, plumbing, fire protection and other common Building systems
servicing the demised premises to the point of connection where the same enter
(or connect with the riser, conduit, direct line, or shaft, as the case may be,
that enters) the demised premises; (d) the exterior windows; and (e) the
exterior walls; provided, however, that with respect to all of the foregoing
Landlord shall not be responsible for repair of (and Tenant shall be solely
responsible and liable therefor) any damage, defects or deficiencies thereof
which shall be caused by Tenant's equipment, alterations or installations, or
which shall result from acts or omissions of Tenant, its contractors, employees,
agents, representatives, licensees, subtenants or invitees.
7.02. Tenant shall not place a load upon any floor of the demised
premises exceeding the floor load per square foot area which such floor was
designed to carry and which is allowed by law. If Tenant shall desire a floor
load in excess of that which the affected floors are designed to carry Landlord
agrees (provided Landlord's architects, in their sole discretion, find that the
work necessary to increase such floor load does not adversely affect the
structure of the Building, and further provided that such work will not
interfere with the amount or availability of any space adjoining alongside,
above or below the demised promises, or interfere with the occupancy of other
tenants in the Building), to strengthen and reinforce the same so as to give the
live load desired, provided Tenant shall submit to Landlord the plans showing
the locations of and the desired floor live load for the areas in question, and
provided further, that Tenant shall agree to pay for or reimburse Landlord on
demand for the cost of such strengthening and reinforcement as well as any other
costs to and expenses of Landlord occasioned by or resulting from such
strengthening or reinforcement.
7.03. Business machines and mechanical equipment used by Tenant
which cause vibration, noise, cold or heat that may be transmitted to the
Building structure or to any leased space to such a degree as to be
objectionable to Landlord or to any other tenant in the Building shall be placed
and maintained by Tenant at its expense in settings of cork, rubber or spring
type vibration eliminators sufficient to absorb and prevent such vibration or
noise, or prevent transmission of such cold or heat. The parties hereto
recognize that the operation of elevators, air-conditioning and heating
equipment will cause some vibration, noise, heat or cold which may be
transmitted to other parts of the Building and demised premises. Landlord shall
be under no obligation to endeavor to produce such vibration, noise, heat or
cold, unless (i) such vibration, noise, heat or cold is greater than the
vibration, noise, heat or cold affecting the fifth (5th) floor portion of the
demised premises as of the date hereof and (ii) the same unreasonably interferes
with Tenant's use and occupancy of the demised premises.
7.04. Except as otherwise specifically provided in this Lease,
there shall be no allowance to Tenant for a diminution of rental value and no
liability on the part of Landlord by reason of inconvenience, annoyance or
injury to business arising from the making of any repairs, alterations,
additions or improvements in or to any portion of the Building or the demised
premises or in or to fixtures, appurtenances or equipment thereof. In making any
repairs, alterations, additions or improvements in or to the demised premises
pursuant to this Section
20
7.04, Landlord shall use reasonable efforts, to the extent reasonably
practicable, to minimize interference with Tenants use and occupancy of the
demised premises; provided, however, that Landlord shall have no obligation to
employ contractors or labor at overtime or other premium-pay rates or to incur
any other overtime, costs or expenses whatsoever in the making of such repairs,
alterations, additions or improvements.
ARTICLE 8
REQUIREMENTS OF LAW
8.01. Tenant at Tenant's expense shall comply with all laws,
orders and regulations of federal, state, county and municipal authorities, and
with any direction of any public officer or officers pursuant to law which shall
impose any violation, order or duty upon Landlord or Tenant with respect to the
demised premises, or the use, or occupation thereof, except that Tenant shall
not hereby be under any obligation to comply with any law, order, regulation or
direction of any public authority requiring any structural alteration within the
demised premises, unless such structural alteration is required by reason of (i)
any cause or condition which has been created by or at the insistence of Tenant,
its agents, servants or employers; (ii) Tenant's particular use of the demised
premises; or (iii) the manner of conduct of Tenant's business or operation of
its installations, equipment or other property therein; or (iv) the breach of
any of Tenant's obligations hereunder. With respect to structural alterations
required to comply with laws, orders, regulations or directions of any public
authority for which Tenant is not responsible pursuant to the preceding
sentence, Landlord shall (to the extent that the performance, the roof is
required for Tenant' s use, of the demised premises or access thereto as
contemplated hereby) be, responsible for the performance thereof at Landlord's
cost and expense (subject to recoupment thereof in accordance with Article 3
hereof).
8.02. Notwithstanding the provisions of Section 8.01 hereof,
Tenant, at its own cost and expense, may contest, in any manner permitted by law
(including appeals to a court, or governmental department or authority having
jurisdiction in the matter), the validity or the, enforcement of any
governmental act, regulation or directive with which Tenant is required to
comply pursuant to this Lease, and may defer compliance therewith provided that:
(a) such noncompliance shall not subject Landlord to
criminal prosecution or subject the Land and/or Building to lien or sale;
(b) such noncompliance shall not be in violation of any
fee mortgage, or of any ground or underlying lease or any mortgage thereon;
(c) Tenant shall first furnish to Landlord proof reasonably
satisfactory to Landlord of Tenant's financial capacity to complete and pay
for the required work and to indemnify and protect Landlord against any loss
or injury by reason of such noncompliance; and
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(d) Tenant shall promptly and diligently prosecute such
contest.
Landlord, without expense or liability to it, shall cooperate with
Tenant and execute any documents or pleadings required for such purpose,
provided that Landlord shall reasonably be satisfied that the facts set forth in
any such documents or pleadings are accurate.
ARTICLE 9
INSURANCE, LOSS, REIMBURSEMENT, LIABILITY
9.01. Tenant shall not do or permit to be done any act or thing
upon the demised premises, which will invalidate or be in conflict with New York
standard fire insurance policies covering the Building, and fixtures and
property therein, or which would increase the rate of fire insurance applicable
to the Building to an amount higher than it otherwise would be; and Tenant shall
neither do nor permit to be done any act or thing upon the demised premises
which shall or might subject Landlord to any liability or responsibility for
injury to any person or persons or to property by reason of any business or
operation being carried on within the demised premises; but nothing in this
Section 9.01 shall prevent Tenant's use of the demised premises for the purposes
stated in Article 5 hereof, and Landlord represents that Tenant's use of the
demised premises for the purposes stated in Section 5.01 hereof will not
invalidate or be in conflict with or increase the rate of such New York standard
fire insurance policies.
9.02. If, as a result of any act or omission by Tenant or
violation of this Lease, the rate of fire insurance applicable to the Building
shall be increased to an amount higher that it otherwise would be, then in
addition to any other remedies which Landlord has hereunder for any such
violations of the terms of this Lease, Tenant shall reimburse Landlord for all
increases of Landlord's fire insurance premiums so caused; such reimbursement to
be additional rate payable upon the first day of the month following any outlay
by Landlord for such increased fire insurance premiums. In any action or
proceeding wherein Landlord and Tenant are parties, a schedule or "makeup" of
rates for the Building or demised premises issued by the body making fire
insurance rates for the demised premises, shall be presumptive evidence of the
facts therein stated and of the several items and charges in the fire insurance
rate then applicable to the demised premises.
9.03. Except for any obligation that Landlord may have for repairs
in accordance with the provisions of Section 7.01C hereof, Landlord or its
agents shall not be liable for any injury or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas, electricity, water,
rain or snow or leaks from any part of the Building, or from the pipes,
appliances or plumbing works or from the, roof, street or subsurface or from any
other place or by dampness or by any other cause of whatsoever nature, unless
any of the foregoing shall be caused by or due to the negligence of Landlord,
its agents, servants or employees.
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9.04. Landlord or its agents shall not be liable for any damage
which Tenant may sustain, if at any time any window of the demised premises is
broken or temporarily or permanently (restricted to windows on a lot line, if
permanently) closed, darkened or bricked up for any reason whatsoever, except
only Landlord's arbitrary acts if the result is permanent, and Tenant shall not
be entitled to any compensation therefor or abatement of rent or to any release
from any of Tenant's obligations under this Lease, nor shall the same constitute
an eviction. Landlord shall exercise reasonable efforts, to the extent
reasonably practicable, to minimize the time during which such temporary
closing, darkening or bricking up of such windows shall affect the conduct of
Tenant's business in the demised premises but shall not be obligated in
connection therewith to do any work on an overtime or premium pay basis. Tenant
agrees that Landlord shall be permitted at any time to install film on the
inside of the windows of the Building to reduce the usage of energy in the
Building, provided that such film shall not unreasonably darken such windows or
unreasonably detract from the appearance of the demised premises. Tenant
consents to such installation and agrees that Landlord shall have no liability
with respect to any closing or darkening of the windows of the demised premises
in connection therewith.
9.05. Tenant shall reimburse Landlord for all expenses, damages or
fines incurred or suffered by Landlord, (i) by reason of any breach, violation
or nonperformance by Tenant, or its agents, servants or employees, of -any
covenant or provision of this Lease, or (ii) by reason of damage to persons or
property caused by moving property of or for Tenant in or out of the Building,
or by the installation or removal of furniture or other property of or for
Tenant unless caused by Landlord's negligence or the negligence of Landlord's
agents, employees or contractors, or (iii) by reason of or arising out of the
carelessness, negligence or improper conduct of Tenant, or its agents, servants
or employees, in the use or occupancy of the demised premises. Subject to the
provisions of Section 8.02 hereof, where applicable, Tenant shall have the
right, at Tenant's own cost and expense, to participate in the defense of any
action or proceeding brought against Landlord, and in negotiations for
settlement thereof if, pursuant to this Section 9.05, Tenant would be obligated
to reimburse Landlord for expenses, damages or fines incurred or suffered by
Landlord.
9.06. Tenant shall give Landlord notice in case of fire or
accidents in the demised premises promptly after Tenant is aware of such event.
9.07. Tenant agrees to look solely to Landlord's estate and
interest in the Land and Building (and the proceeds resulting from the sale
thereof, provided Tenant has commenced a legal action or proceeding against
Landlord with respect to such proceeds on or before the date Tenant shall have
been given notice of such sale or such earlier date as Tenant has actual
knowledge thereof), or the lease of the Building, or of the Land and Building,
and the demised premises, for the satisfaction of any right or remedy of Tenant
for the collection of a judgment (or other judicial process) requiring the
payment of money by Landlord, in the event of any liability by Landlord, and no
other property or assets of Landlord and no property of any partner, shareholder
or principal of Landlord shall be subject to levy, execution, attachment, or
other enforcement procedure for the satisfaction of Tenant's remedies under or
with respect to this
23
Lease, the relationship of Landlord and Tenant hereunder, or Tenant's use and
occupancy of the demised premises, or any other liability of Landlord to Tenant.
9.08. (a) Landlord agrees that, if obtainable, it will include in
its fire insurance policies appropriate clauses pursuant to which the insurance
companies (i) waive all right of subrogation against Tenant with respect to
losses payable under such policies and (ii) agree that such policies shall not
be invalidated should the insured waive in writing prior to a loss any or all
right of recovery against any party for losses covered by such policies. But
should any additional premiums be exacted for any such clause or clauses,
Landlord shall be released from the obligation hereby imposed unless Tenant
shall agree to pay such additional premium.
(b) Tenant agrees to include, if obtainable, in its fire
insurance policy or policies on its furniture, furnishings, fixtures and other
property removable by Tenant under the provisions of this Lease appropriate
clauses pursuant to which the insurance company or companies (i) waive the right
of subrogation against Landlord and any tenant of space in the Building with
respect to losses payable under such policy or policies and/or (ii) agree that
such policy or policies shall not be invalidated should the insured waive in
writing prior to a loss any or all right of recovery against any party for
losses covered by such policy or policies. But should any additional premium be
exacted for any such clause or clauses, Tenant shall be released from the
obligation hereby imposed unless Landlord or the other tenants shall agree to
pay such additional premium.
(c) Provided that Landlords' right of full recovery under
its policy or policies aforesaid is not adversely affected or prejudiced
thereby, Landlord hereby waives any and all right of recovery which it might
otherwise have against Tenant, its servants, agents and employees, for loss or
damage occurring to the Building and the fixtures, appurtenances and equipment
therein, to the, extent the same is covered by Landlord's insurance,
notwithstanding that such loss or damage may result from, the negligence or
fault of Tenant, its servants, agents or employees. Provided that Tenant's right
of full recovery under its aforesaid policy or policies is not adversely
affected or prejudiced thereby, Tenant hereby waives any and all right of full
recovery which it might otherwise have against Landlord, its servants, agents
and employees, and against every other tenant in the Building who shall have
executed a similar waiver as set forth in this Section 9.08(c) for loss or
damage to, Tenant's furniture, furnishings, fixtures and other property
removable by Tenant under the provisions hereof to the extent that the same is
covered by Tenant's insurance, notwithstanding that such loss or damage may
result from the negligence or fault of Landlord, its servants, agents or
employees, or such other tenant and the servants, agents or employees thereof.
(d) Landlord and Tenant hereby agree to advise the other
promptly if the clauses to be included in their respective insurance policies
pursuant to subdivisions 9.08(a) and (b) hereof cannot be obtained. Landlord and
Tenant hereby also agree to notify the other promptly of any cancellation or
change of the terms of any such policy which would affect such clauses.
24
9.09. Tenant covenants and agrees to provide on or before the
Commencement Date and to keep in force during the term hereof for the benefit of
Landlord and Tenant a comprehensive general liability insurance policy
protecting Landlord and Tenant against any liability whatsoever, occasioned by
any occurrence on or about the demised premises or any appurtenances thereto.
Such policy is to be written by good and solvent insurance companies reasonably
satisfactory to Landlord, and shall be in such limits as Landlord may reasonably
require, and as of the date of this Lease Landlord reasonably requires limits of
liability thereunder of not loss than the amount of Three Million ($3,000,000)
Dollars single limit for bodily or personal injury (including death) and in the
amount of Three Hundred Thousand (S300,000) Dollars in respect of property
damage. Such insurance may be, carried under a blanket policy covering the,
demised premises and other locations of Tenant, if any. Prior to the time such
insurance is first required to be carried by Tenant and thereafter, at least
fifteen (15) days prior to the effective date of any such policy, Tenant agrees
to deliver to Landlord either a duplicate original of the aforesaid policy or a
certificate evidencing such insurance. Said policy or certificate, as the case
may be, shall contain an endorsement that such insurance may not be cancelled
except upon ten (10) days' notice to Landlord Tenant's failure, to provide and
keep in force the aforementioned insurance shall be regarded as a material
default hereunder entitling Landlord to exercise any or all of the remedies
provided in this Lease in the event of Tenant's default.
9.10. Landlord shall maintain at all times during the term of this
Lease (i) a comprehensive general liability insurance policy and (ii) a fire and
property insurance policy in each case with limits customary and standard within
the real estate industry for owners of first-class office buildings in midtown
Manhattan comparable to the Building.
ARTICLE 10
DAMAGE BY FIRE OR OTHER CAUSE
10.01. If the Building or the demised premises shall be partially
or totally damaged or destroyed by fire or other cause, then whether or not the
damage or destruction shall have resulted from the fault or neglect of Tenant,
or its employees, agents, or visitors (and if this Lease shall not have been
terminated as in this Article 10 hereinafter provided), Landlord shall repair
the damage and restore and rebuild the Building and/or the demised premises, at
its expense (without limiting the rights of Landlord under any other provisions
of this Lease), with reasonable dispatch after notice to it of the damage or
destruction; provided, however, that Landlord shall not be required to repair or
replace any of Tenant's property.
10.02. If the Building or the demised premises shall be, partially
damaged or partially destroyed by fire or other cause, then the rents payable
hereunder shall be abated to the extent that the demised premises shall have
been rendered untenantable for the period from the date of such damage or
destruction to the date the damage shall be repaired or restored.
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If the demised premises or a major part thereof shall be totally
(which shall be deemed to include substantially totally) damaged or destroyed or
rendered completely (which shall be deemed to include substantially completely)
untenantable on account of fire or other cause, the rents shall abate as of the
date of the damage or destruction and until Landlord shall repair, restore and
rebuild the Building and the demised promises, provided, however, that should
Tenant reoccupy a portion of the demised promises during the period the
restoration work is taking place and prior to the date that the same are made
completely tenantable, rents allocable, to such portion shall be payable by
Tenant from the date of such occupancy.
10.03. If the Building or the demised premises shall be totally
damaged or destroyed by fire or other cause, or if the Building shall be so
damaged or destroyed by fire or other cause (whether or not the demised premises
are damaged or destroyed) as to require a reasonably estimated expenditure of
more than fifty (50%) percent of the full insurable value of the Building
immediately prior to the casualty, then in either such case Landlord may
terminate, this Lease by giving Tenant notice to such effect within one hundred
eighty (180) days after the date of the casualty. In case of any damage or
destruction mentioned in this Article 10, Tenant may terminate this Lease by
notice to Landlord, if Landlord has not completed the making of the required
repairs and restored and rebuilt the Building and the demised premises within
twelve (12) months from the date of such damage or destruction, or within such
period after such date (not exceeding three (3) month ) as shall equal the
aggregate period Landlord may have been delayed in doing so by adjustment of
insurance, labor trouble, governmental controls, act of God, or any other cause
beyond Landlord's reasonable control.
10.04. No damages compensation or claim shall be payable by
Landlord for inconvenience, loss of business or annoyance, arising from any
repair or restoration of any portion of the demised premises or of the Building
pursuant to this Article 10.
10.05. Tenant, at no expense to Tenant, shall fully cooperate with
Landlord and its insurance companies in connection with the collection by
Landlord of any insurance proceeds (including, without limitation, rent
insurance proceeds) payable in respect of any damage or destruction to the
Building or the demised premises by fire or other casualty and -shall comply
with all reasonable requests of Landlord and its insurance companies in
connection therewith, including, without limitation, the execution of any
affidavits or proofs of loss required by any insurance companies.
10.06. Landlord will not carry separate insurance of any kind on
Tenant's property, and, except as provided by law or by reason of its breach of
any of its obligations hereunder, shall not be obligated to repair any damage
thereto or replace the same. Tenant shall maintain insurance on Tenant's
property, and Landlord shall not be obligated to repair any damage thereto or
replace the same.
10.07. The provisions of this Article 10 shall be considered an
express agreement governing any cause of damage or destruction of the demised
premises by fire or other casualty,
26
and Section 227 of the Real Property Law of the State of New York, providing for
such a contingency in the absence of an express agreement, and any other law of
like import, now or hereafter in force, shall have no application in such case.
ARTICLE 11
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.
11.01. Tenant shall not (a) assign or otherwise transfer this Lease
or the term and estate hereby granted, (b) sublet the demised premises or any
part thereof or allow the same to be used or occupied by others or in violation
of Article 5, or (c) mortgage, pledge or encumber this Lease or the demised
premises or any part thereof in any manner by reason of any act or omission on
the part of Tenant without, in each instance, obtaining the prior consent of
Landlord, except as otherwise expressly provided in this Article 11. Tenant
shall not advertise, or authorize a broker to advertise, for a subtenant or an
assigns, without obtaining the prior consent of Landlord, which consent shall
not be unreasonably withhold or delayed. For purposes of this Article 11, (i)
the transfer of a majority of the issued and outstanding capital stock of any
corporate tenant, or of a corporate subtenant, or the transfer of a majority of
the total interest in any partnership tenant or subtenant, however accomplished,
whether in a single transaction or in a series of related or unrelated
transactions, shall be deemed an assignment of this Lease, or of such sublease,
as the case may be, except that the transfer of the outstanding capital stock of
any corporate tenant, or subtenant, shall be deemed not to include the sale of
such stock by persons or parties, through the "over-the-counter market" or
through any recognized stock exchange, other than those deemed, "insiders"
within the meaning of the Securities Exchange Act of 1934 as amended, (ii) a
takeover agreement shall be deemed a transfer of this Lease, (iii) any person or
legal representative of Tenant, to whom Tenant's interest under this Lease
passes by operation of law, or otherwise, shall be bound by the provisions of
this Article 11, and (iv) a material modification or amendment affecting the
basic terms of a sublease or an extension thereof shall be deemed a sublease.
11.02. Notwithstanding anything to the contrary contained herein,
Landlord's consent shall not be required and the terms and provisions of Section
11.01 hereof shall not be applicable with respect to an assignment of this Lease
or the subletting of all or a portion of the demised premises to any corporation
or other entity which shall be an "affiliate", "subsidiary", or "successor" of
Tenant (as such terms are hereinafter defined), provided and on condition that
(x) (i) in the event of an assignment, the affiliate or subsidiary to Tenant or
transferee has a net worth immediately following such transfer at least equal to
or in excess of the lesser of (A) the net worth of Tenant immediately prior to
such transfer, or (B) the net worth of Tenant as of the date hereof, and (ii) in
the event of a sublease, the affiliate, subsidiary or successor to Tenant or
transferee has reasonably sufficient financial worth considering the financial
obligations under the sublease and, in case of either (A) or (B), proof thereof,
reasonably satisfactory to Landlord, shall be delivered to Landlord at least
(10) days prior to the effective date of such transfer, and (y) such transaction
is for a bona fide business purpose and not, either directly or indirectly,
27
principally for the purpose, of transferring the leasehold created hereby to a
corporation or entity other than an affiliate, subsidiary or successor.
For the purpose of this Section 11.02, an "affiliate" or "subsidiary"
or "successor" of Tenant shall mean the following:
(i) An "affiliate" shall mean any corporation or other
entity which, directly or indirectly, controls or is controlled by or is under
common control with Tenant. For this purpose, "control" shall mean ownership
of a 50% or greater equity interest in and the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and policies of such corporation or other entity;
(ii) "subsidiary" shall mean any corporation not less the
50% of whose outstanding voting stock shall, at the time, be owned directly or
indirectly by Tenant. Any cessation of the affiliate or subsidiary
relationship between Tenant and the entity in question shall constitute an
assignment or subletting, as the case may be, which shall be subject to all of
the terms, provisions and conditions of this Article 11; and
(iii) A "successor" of Tenant shall mean (x) a corporation in
which or with which Tenant is merged or consolidated, in accordance with
applicable statutory provisions for merger or consolidation of corporations,
provided that by operation of law or by effective provisions contained in the
instruments of merger or consolidation, the liabilities of the corporations
participating in such merger or consolidation are assumed by the corporation
surviving such merger or created by such consolidation or (y) a corporation or
other entity to which this Lease is assigned together and in connection with a
transfer of all or substantially all of Tenant's assets.
11.03. Any assignment or transfer, whether made with Landlord's
consent as required by Section 11.01 or without Landlord's consent pursuant to
Section 11.02, shall be made only if, and shall not be effective until, the
assignee shall execute, acknowledge and deliver to Landlord a recordable
agreement, in form and substance reasonably satisfactory to Landlord, whereby
the assignee shall assume the obligations and performance of this Lease and
agree to be bound by and upon all of the covenants, agreements, terms,
provisions and conditions hereof on the part of Tenant to be performed or
observed and whereby the assignee shall agree that the provisions of Section
11.01 hereof shall, notwithstanding such an assignment or transfer, continue to
be binding upon it in the future. Tenant covenants that, notwithstanding any
assignment or transfer, whether or not in violation of the provisions of this
Lease, and notwithstanding the acceptance of fixed annual rent by Landlord from
an assign or transferee or any other party, Tenant shall remain jointly and
severally liable for the payment of the fixed annual rent due and to become due
under this Lease and for the performance of all of the covenants, agreements,
terms, provisions and conditions of this Lease on the part of Tenant to be
performed or observed.
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11.04. The joint and several liability of Tenant and any successor
in interest to Tenant for the due performance of the obligations under this
Lease shall not be discharged, released or impaired in any respect by an
agreement or stipulation made by Landlord or any grantee or assignee of
Landlord, by way of mortgage, or otherwise, extending the time of or modifying
any of the obligations contained in this Lease, or by any waiver or failure of
Landlord to enforce any of the obligations under this Lease, and Tenant and any
successor in interest to Tenant shall continue to be liable hereunder. If any
such agreement or modification operates to increase the obligations of a tenant
under this Lease, the liability under this Section 11.04 of the tenant named in
the Lease, or any of its successors in interest (unless such party shall have
expressly consented in writing to such agreement or modification), shall
continue to be no greater than if such agreement or modification had not been
made. In the event of an assignment, to charge Tenant named in this Lease and
its successors in interest, no demand or notice of any default shall be
required; Tenant and each of its successors in interest hereby expressly waives
any such demand or notice.
11.05. Notwithstanding anything to the contrary contained in this
Article 11, if Tenant desires to assign this Lease or sublet all or part of the
demised premises, Tenant shall give notice thereof to Landlord (herein called
"Tenant's Article 11 Offer Notice "), which notice shall set forth in the case
of a subletting: (a) the area proposed to be sublet, (b) the term of the
proposed subletting and the date the area to be sublet is intended to be vacated
by Tenant, and (c) the rents (hereafter called the "Proposed Rent Rate")
pursuant to which Tenant is willing to enter into a sublease with a third party.
In the case of a proposed assignment, Tenant's Article 11 Offer Notice shall set
forth Tenant's intention to (x) assign the Lease in whole, it being understood
and agreed that partial assignments of the Lease are not permitted hereunder,
(y) the proposed date upon which the demised premises are intended to be vacated
by Tenant, and (z) all financial and other material terms of the proposed
assignment (herein called the "Proposed Assignment Components"). Tenant's
Article 11 Offer Notice shall be, deemed an offer from Tenant to Landlord
whereby Landlord may, at its option, (i)(A) terminate this Lease if the proposed
transaction is an assignment of the Lease or a sublease of all or substantially
all of the demised premises, or (B) accept an assignment of this Lease from
Tenant, and Tenant shall then promptly execute and deliver to Landlord, or
Landlord's designee if so elected by Landlord, an assignment in form reasonably
satisfactory to Landlord's counsel, and the terms of such assignment may, at
Landlord's election, be either (z) the Proposed Assignment Components set forth
in the proposed assignment, or (y) the terms contained in this Lease, or (ii)(A)
terminate this Lease with respect to the space covered by the proposed sublease
if the, proposed transaction is a sublease of part of the demised premises, or
accept a sublease from Tenant with respect to the space covered by the proposed
sublease, and Tenant shall then promptly execute and deliver to Landlord, or
Landlord's designee if so elected by Landlord, a sublease in form reasonably
satisfactory to Landlord's counsel and in compliance with the provisions of
Section 11.11 hereof. Said options may be exercised by Landlord by notice to
Tenant at any time, within thirty (30) days after such Tenant's Article 11
Notice has been received by Landlord, and during such thirty (30) day period
Tenant shall not assign this Lease or sublet such space to any person except
Landlord. In the event that this Lease shall be assigned to Landlord or
Landlord's designee or if the demised
29
premises shall be sublet to Landlord or Landlord's designee pursuant to this
Section 11.05 the provisions of any such sublease or assignment and the
obligations of Landlord and the rights of Tenant with respect thereto shall not
be binding upon or otherwise affect the rights of any holder of a superior
mortgage or of a superior lease unless such holder shall elect by written notice
to Tenant to succeed to the position of Landlord or its design, as the case may
be, thereunder.
11.06. If Landlord exercises its option to terminate this Lease in
the case where Tenant desires either to assign this Lease or sublet all or
substantially all of the demised premises, then, this Lease shall end and expire
on the date that such assignment or sublet was to be effective or commence, as
the case may be, and the fixed annual rent and additional rent shall be paid and
apportioned to such date.
11.07. If Landlord exercises its option to terminate this Lease
with respect to the space covered by Tenant's proposed sublease in any case
where Tenant desires to sublet part of the demised premises, then (a) this Lease
shall end and expire with respect to such part of the demised premises on the
date that the proposed sublease was to commence; and (b) from and after such
date the fixed annual rent and additional rent shall be adjusted, based upon the
proportion that the rentable area of the demised premises remaining bears to the
total rentable area of the demised premises.
11.08. In the event Landlord does not exercise any of its options
pursuant to Section 11.05 hereof and provided that Tenant is not in default of
any of Tenant's obligations under this Lease beyond any applicable grace period,
Landlord's consent to the proposed assignment or sublease shall not be
unreasonably withhold, provided and upon condition that:
(a) Tenant shall request, in writing Landlord's consent to
each subletting or assignment, which request shall be accompanied by (i) a
statement from Tenant listing the items set forth in clauses (a), (b) and (c)
of Section 11.05 hereof with respect to a proposed subletting, or clauses (z),
(y) and (z) of Section 11.05 hereof with respect to a proposed assignment,
which shall demonstrate that the aggregate financial value of the components
of such proposed assignment or such proposed sublease comparable to the
Proposed Rent Rate or the Proposed Assignment Components, as the case may be,
shall be equal to at least ninety (90%) percent of the aggregate financial
value of the Proposed Rent Rate or the Proposed Assignment Components, as the
case may be, set forth in Tenant's Article 11 Offer Notice, and the area
proposed to be sublet and the term of the proposed subletting or the proposed
assignment shall be substantially the same as the Area and term set forth in
Tenant's Article 11 Offer Notice; and that the effective or commencement date
of such transaction shall be at least thirty (30) days after the giving of
such notice; (ii) a statement setting forth in reasonable detail the identity
of the proposed assignee, or subtenant, and the nature of its business and
that its proposed use of the demised premises shall be for general and/or
executive offices; and (iii) a current financial report or annual report with
respect to the proposed assignee or subtenant, including, without limitation,
its most recent financial report. If Landlord shall
30
approve such proposed subtenant or assignee, Tenant shall submit to Landlord
the proposed assignment or sublease prior to the execution thereof. In the
event that Landlord shall request reasonable additional information with
respect to the proposed assignee or subtenant, then Tenant shall promptly
provide such information to Landlord;
(b) the proposed subtenant or assignee is a reputable party whose
financial net worth, credit and financial responsibility is, considering the
responsibilities involved, reasonably satisfactory to Landlord;
(c) the intended use of the demised premises is, in Landlord's
reasonable judgment, in keeping with the standards of the Building;
(d) the proposed subtenant or assignee is not then an occupant of any
part of the Building or a party who dealt with Landlord or Landlord's agent
(directly or through a broker) with respect to space in the Building during
the 6 months immediately preceding Tenant's request for Landlord's consent,
and if Tenant supplies Landlord with a list of proposed assignees or
subtenants, Landlord shall notify Tenant if such proposed assignees or
subtenants would violate the provisions of this clause (d);
(e) all costs incurred with respect to providing reasonably
appropriate means of ingress and egress from the sublet space or to separate
the sublet space from the remainder of the demised premises shall, subject to
the provisions of Article 6 with respect to alterations, installations,
additions or improvements, be borne by Tenant;
(f) each sublease shall specifically state that (i) it is subject to
all the terms, covenants, agreements, provisions, and conditions of this
Lease, (ii) the subtenant or assignee, as the case may be, shall not have the
right to a further assignment thereof or sublease or assignment thereunder, or
to allow the demised premises to be used by others, without the consent of
Landlord in each instance, which consent, Landlord agrees, shall not be
unreasonably withheld or delayed, provided that such subtenant or assignee
shall satisfy the conditions applicable to Tenant in this Article 11 with
respect to subleases and assignments, including affording Landlord rights and
benefits with respect to the proposed assignment or subletting by such
subtenant at least equal to those set forth in Section 11-05 hereof in the
event of a proposed subletting or assignment by Tenant, and that the proposed
assignment or sublease complies with the provisions of this Article 11;
(g) Tenant shall, together with requesting Landlord's consent
hereunder, have paid Landlord any reasonable out-of-pocket costs incurred by
Landlord to review the proposed assignment or subletting including reasonable
attorneys fees incurred by Landlord;
(h) Tenant shall have complied with the provisions in Section 11.05
and Landlord shall not have made any of the elections provided for therein;
31
(i) the proposed subtenant or assignee is not (i) a retail,
off-the-street office or branch of a bank, trust company, safe deposit
business, savings and loan association or loan company; (ii) an employment or
recruitment agency; (iii) a school, college, university or educational
institution whether or not for profit; or (iv) a government or any subdivision
or agency thereof;
(j) in the case of a subletting of a portion of the demised
premises, the portion so sublet shall be regular in shape and suitable in
location and configuration for normal renting purposes;
(k) the proposed assignment shall be for a consideration which
shall reflect the fair market value of the leasehold interest being assigned
(in the case of an assignment) or the proposed subletting shall be at a rental
rate which shall reflect the fair market rental value of the space being
sublet (in case of a subletting) and in no event shall Tenant publicly
advertise or list with brokers at a lower rental rate than Landlord is
charging for comparable, space (however, the foregoing shall not be deemed to
prohibit Tenant from advising a broker of the price for subrental for which
Tenant is prepared to consummate an assignment or sublease);
(l) the form of proposed sublease shall comply with the
applicable provisions of this Article 11; and
(m) the space in question, the term, the rental and other terms
and conditions of the sublease are substantially the same as those contained
in Tenant's Article 11 Offer Notice.
In the event that Tenant's Article 11 Offer Notice sets forth the
information required pursuant to Section 11.08(a) above, Landlord shall approve
or disapprove Tenant's request for Landlord's consent to the proposed assignment
or subletting as soon as practicable and in any event within thirty (30) days
after Landlord's receipt of the request therefor.
11.09.(a) In the event that in connection with Tenant's request
for Landlord's consent pursuant to Section 11.08 hereof, Tenant submits to
Landlord a statement (hereinafter called "Tenant's Statement") pursuant to
Section 11.08(a) with respect to the proposed subletting or assignment set forth
in Tenant's Article 11 Offer Notice and the aggregate, financial value of the
components of such proposed assignment or sublease comparable to the Proposed
Rent Rate, or the Proposed Assignment Components, as the, case may be, is equal
to less than ninety (90%) percent of the aggregate financial value to Tenant of
the Proposed Rent Rate or the Proposed Assignment Components, as the case may
be, set forth in the Tenant's Article 11 Offer Notice, or the area proposed to
be, sublet or the term of the proposed subletting or the proposed assignment are
not substantially the same as the area or term set forth in Tenant's Article 11
Offer Notice, then, in such. event, Tenant's request for consent pursuant to
Section
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11.08 hereof shall be, deemed an offer from Tenant to Landlord as to which
Landlord shall have the options set forth in Section 11.05 hereof.
(b) If Landlord fails to exercise any of its options under
Section 11.05 hereof, and Tenant fails to request Landlord's consent to an
assignment or sublease on the, terms and conditions set forth in Tenant's
Article 11 Offer Notice within one hundred eighty (180) days from the date of
Landlord's response to Tenant's Article 11 Offer Notice, or if Landlord fails to
exercise any of its options under Section 11.05 hereof, and consents to a
proposed assignment or sublease, and Tenant fails to execute and deliver the
assignment or sublease to which Landlord consented within one hundred eighty
(180) days after the giving of such consent, then, in any event, Tenant shall
again comply with all of the provisions and conditions of Article 11 hereof
before assigning this Lease or subletting all or part of the demised premises.
11.10. With respect to each and every sublease, or subletting
authorized by Landlord under the provisions of this Lease, it is further agreed:
(a) No subletting shall be for a term (including any
renewal or extension options contained in the sublease) ending later than one
day prior to the Expiration Date of this Lease;
(b) No sublease shall be valid, and no subtenant shall take
possession of the demised premises or any part thereof, until an executed
counterpart of such sublease (and all ancillary documents executed in connection
with, with respect to or modifying such sublease) has been delivered to
Landlord;
(c) Each sublease shall provide that it is subject and
subordinate to this Lease and to any matters to which this Lease is or shall be
subordinate, and that in the event of termination, reentry or dispossess by
Landlord under this Lease, Landlord may, at its option, take over all of the
right, title and interest of Tenant, as sublessor, under such sublease, and such
subtenant shall, at Landlord's option, attorn to Landlord, except that Landlord
shall not be (I) liable for any previous act or omission of Tenant under such
sublease, (ii) subject to any credit, offset, claim, counterclaim, demand or
defense which such subtenant may have against Tenant, (iii) bound by any
previous modification of such sublease or by any previous prepayment of more
than one, (1) month's rent, (iv) bound by any covenant of Tenant to undertake or
complete any construction of the demised premises or any portion thereof, (v)
required to account for any security deposit of the subtenant other than any
security deposit actually delivered to Landlord by Tenant, (vi) bound by any
obligation to make any payment to such subtenant or grant any credits, except
for services, repairs, maintenance and restoration provided for under the
sublease to be performed after the date of such attornment, (vii) responsible
for any monies owing by Landlord to the credit of Tenant or (viii) required to
remove any person occupying the demised premises or any part thereof.
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11.11. If Landlord should elect to have Tenant execute and deliver
a sublease to Landlord pursuant to Section 11.05 of this Lease, said sublease to
Landlord shall be in a form reasonably satisfactory to Landlord's and Tenant's
counsel and on all the terms contained in this Lease, except that:
(i) The rental terms, if elected by Landlord, may
be either at (x) the Proposed Rent Rate set forth in the proposed sublease, or
(y) the rental terms contained in this Lease on a per rentable square foot
basis, as elected by Landlord in such notice;
(ii) The sublease shall not provide for any work to
be done for the subtenant or for any Initial rent concessions or contain
provisions inapplicable to a sublease, except that in the case of a subletting
of a portion of the demised premises Tenant shall reimburse subtenant for the
cost of erecting such demising walls as are necessary to separate the
subleased premises from the remainder of the demised premises and to provide
access thereto,
(iii) The subtenant thereunder shall have the right
to underlet the subleased premises, in whole or in part, without Tenant's
consent,
(iv) The subtenant thereunder shall have the right
to make, or cause to be made any changes, alterations, decorations, additions
and improvements that subtenant may desire or authorize,
(v) Such sublease shall expressly negate any
intention that any estate created by or under such sublease be merged with any
other estate held by either of the parties thereto,
(vi) Any consent required of Tenant, as lessor under
that sublease, shall be deemed granted if consent with respect thereto is
granted by Landlord,
(vii) There shall be no limitation as to the use of
the sublet premises by the subtenant thereunder,
(viii) Any failure of the subtenant thereunder to
comply with the provisions of said sublease, other than with respect to the
payment of rent to Tenant, shall not constitute a default thereunder or
hereunder if Landlord has consented to such noncompliance, and
(ix) Such sublease shall provide that Tenant's
obligations with respect to vacating the demised premises and removing any
changes, alterations, decorations, additions or improvements made in the
subleased premises shall be limited to those which accrued and related to such
as were made prior to the effective date of the sublease.
34
11.12. If Landlord shall give its consent to any assignment of this
Lease or to any sublease, Tenant shall in consideration therefor, pay to
Landlord, as additional rent:
(i) in the case of an assignment, an amount equal to fifty
(50%) percent of all sums and other considerations paid to Tenant by the
assignee for or by reason of such assignment (including, but not limited to,
sums paid for the sale of Tenant's fixtures, leasehold improvements,
equipment, furniture, furnishings or other personal property, less, in the
case of a sale of any of the foregoing other than leasehold improvements, the
then not unamortized or undepreciated cost thereof determined on the basis of
Tenant's federal income tax returns), less the reasonable brokerage fees and
commissions, advertising fees and attorneys' fees paid by Tenant to
independent third parties in connection with such assignment; and
(ii) in the case of a sublease, fifty (50%) percent of any
rents, additional charge or other consideration payable under the sublease to
Tenant by the subtenant which is in excess of the fixed annual rent and
additional rent accruing during the term of the sublease in respect of the
subleased space (at the rate per square foot payable by Tenant hereunder)
pursuant to the terms hereof (including, but not limited too sums paid for the
sale or rental of Tenant's fixtures, leasehold improvements, equipment,
furniture or other personal property, less, in the case of the sale of any of
foregoing other than leasehold improvements, the then net unamortized or
undepreciated cost thereof determined on the basis of Tenant, federal income
tax returns), less (x) the reasonable brokerage fees and commissions,
advertising fees and attorneys' fees paid by Tenant to independent third
parties in connection with such sublease, and (y) the reasonable costs
incurred by Tenant to segregate the subleased space from the remainder of the-
demised premises and to provide access thereto.
The sums payable under this Section 11.12 shall be paid to Landlord as and when
paid by the subtenant or assignee to Tenant.
11.13. Landlord's consent to any sublease or assignment shall not
be deemed or construed to modify, amend or affect the terms and provisions of
this Lease, or Tenant's obligations hereunder, which shall continue to apply to
the occupants thereof, as if the sublease or assignment had not been made.
Notwithstanding any assignment or sublease, Tenant shall remain fully liable for
the payment of fixed annual rent and additional rents and for the other
obligations of this Lease on the part of Tenant to be performed or observed. In
the event that Tenant defaults in the payment of any rent, Landlord is
authorized to collect any rents due or accruing from any subtenant or other
occupant of the demised premises and to apply the net amounts collected to the
fixed annual rent and additional rent reserved herein, and the receipt of any
such amounts by Landlord from an assignee or subtenant, or other occupant of any
part of the demised promises, shall not be deemed or construed as releasing
Tenant from Tenant's obligations hereunder or the acceptance of that party as a
direct tenant.
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ARTICLE 12
CERTIFICATE Of OCCUPANCY
12.01. Tenant will not at any time use or occupy the demised
premises in violation of the Certificate of Occupancy issued for the Building.
ARTICLE 13
ADJACENT EXCAVATION; SHORING
13.01. If an excavation or other substructure work 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, license to enter upon the demised premises for the purposes of doing
such work as shall be necessary to preserve the wall of or the Building of which
the demised premises form a part from injury or damage and to support the same
by proper foundations without any claim for damages or indemnity against
Landlord, or diminution or abatement of rent.
ARTICLE 14
CONDEMNATION
14.01. In the event that the whole of the demised premises shall be
lawfully condemned or taken in any manner for any public or quasi-public use,
this Lease and the term and estate hereby granted shall forthwith cease and
terminate as of the date of vesting of title. In the event that only a part of
the demised premises shall be so condemned or taken, then, effective as of the
date of vesting of title, the fixed annual rent under Article 1 hereunder and
additional rents under Article 3 hereunder shall be abated in an amount thereof
apportioned according to the area of the demised premises so condemned or taken.
In the event that only a part of the Building shall be so condemned or taken,
then (a) Landlord (whether or not the demised premises be affected) may, at
Landlord's option, terminate this Lease and the term and estate hereby granted
as of the date of such vesting of title by notifying Tenant in writing of such
termination within 60 days following the date on which Landlord shall have
received notice of vesting of title, or (b) if such condemnation or taking shall
be of a substantial part of the demised premises or of a substantial part of the
means of access thereto and the remaining portion of the demised premises shall
not be reasonably sufficient for Tenant to continue the operation of its
business, Tenant may, at Tenant's option, by delivery of notice in writing to
Landlord within thirty (30) days following the date on which Tenant shall have
received notice of vesting of title, terminate this Lease and the term and
estate hereby granted as of the date of vesting of title, or (c) if neither
Landlord nor Tenant elects to terminate this Lease, as aforesaid, this Lease
shall be and remain unaffected by such condemnation or taking, except that the
fixed annual rent payable under Article 1 and additional rents payable under
Article 3 shall be abated to the extent hereinbefore
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provided in this Article 14. In the event that only a part of the demised
premises shall be so condemned or taken and this Lease and the term and estate
hereby granted with respect to the remaining portion of the demised premises are
not terminated as hereinbefore provided, Landlord will, with reasonable
diligence and at its expense, restore the remaining portion of the demised
premises as nearly as practicable to the same condition as it was in prior to
such condemnation or taking.
14.02. In the event of its termination in any of the cases
hereinbefore provided, this Lease and the term and estate hereby granted shall
expire as of the date of such termination with the same effect as if that were
the Expiration Date, and the fixed annual rent and additional rents payable
hereunder shall be apportioned as of such date.
14.03. In the event of any condemnation or taking hereinbefore
mentioned of all or a part of the Building, Landlord shall be entitled to
receive the entire award in the condemnation proceeding, including any award
made for the value of the estate vested by this Lease in Tenant, and Tenant
hereby expressly assigns to Landlord any and all right, title and interest of
Tenant now or hereafter arising in or to any such award or any part thereof, and
Tenant shall be entitled to receive no part of such award.
14.04. It is expressly understood and agreed that the provisions of
this Article 14 shall not be applicable to any condemnation or taking for
governmental occupancy for a limited period.
14.05. In the event of any taking of less than the whole of the
Building which does not result in a termination of this Lease, or in the event
of a taking for a temporary use or occupancy of all or any part of the demised
premises which does not result in a termination of this Lease, Landlord, at its
expense, and whether or not any award or awards shall be sufficient for the
purpose, shall proceed with reasonable diligence to repair, alter and restore
the, remaining parts of the Building and the demised premises to substantially
their former condition to the extent that the same may be feasible and so as to
constitute a complete and tenantable Building and demised premises.
14.06. In the event of a taking or condemnation for a temporary use
or occupancy of all or any part of the demised premises during the term of this
Lease, Tenant shall be entitled, except as hereinafter set forth, to receive,
that portion of the award or payment for such taking or condemnation which
represents compensation for the use and occupancy of the demised premises, for
the taking of Tenant's property and for moving expenses, and Landlord shall be
entitled to receive that portion of such award or payment which represents
reimbursement for the cost of restoration of the demised premises. This Lease
shall be and remain unaffected by such taking or condemnation and Tenant shall
continue to be responsible for all of its obligations hereunder insofar as such
obligations are not affected by such taking or condemnation and shall continue
to pay in full the fixed annual rent and additional rent when due undo this
Lease. If the period of temporary use or occupancy shall extend beyond the
Expiration Date of this Lease, that
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part of the award which represents compensation for the use and occupancy of the
demised premises (or a part thereof) shall be divided between Landlord and
Tenant so that Tenant shall receive so much thereof as represents the period up
to and including such Expiration Date and Landlord shall receive so much thereof
as represents the period after such Expiration Date.
14.07. In the event any part of the demised premises be taken to
effect compliance with any law or requirement of public authority other than in
the manner hereinabove provided in this Article 14, then (i) if such compliance
is the obligation of Tenant under this Lease, Tenant shall not be entitled to
any diminution or abatement of rent or other compensation from Landlord
therefor, but (ii) if such compliance is the obligation of Landlord under this
Lease, the fixed annual rent hereunder shall be reduced and additional rents
under Article 3 shall be adjusted in the same manner as is provided in Section
14.01 according to the reduction in rentable area of the demised premises
resulting from such taking.
ARTICLE 15
ACCESS TO DEMISED PREMISES; CHANGES
15.01. Tenant shall permit Landlord to erect, use and maintain
pipes, ducts and conduits in and through the demised premises, provided the same
are installed adjacent to and are placed in box enclosures or concealed behind
walls and ceilings of the demised premises and do not adversely affect (except
to a de minimus extent) the Building systems affecting the demised premises.
Landlord shall to the extent reasonably practicable install such pipes, ducts
and conduits by such methods and at such locations as will not materially
interfere with or impair Tenant's layout or use of the demised premises.
Landlord or its agents or designees shall have the right, upon reasonable prior
notice (except in the case of emergency) to Tenant or any authorized employee of
Tenant at the demised premises, to enter the demised premises, at reasonable
times during business hours, for the making of such repairs or alterations as
Landlord may deem necessary for the Building or which Landlord shall be required
to or shall have the right to make by the provisions of this Lease or any other
lease in the Building or in connection with the removal of asbestos from the
demised premises and, subject to the foregoing, shall also have the right to
enter the demised premises for the purpose of inspecting them or exhibiting them
to prospective purchasers or lessees of the entire Building or to prospective
mortgagees of the fee or of the Landlord's interest in the property of which the
demised premises are a part or to prospective assignees of any such mortgages or
to the holder of any mortgage on the Landlord's interest in the property, its
agents or designees. Landlord shall be allowed to take all material into and
upon the demised premises that may be required for the repairs or alterations
above mentioned as the same is required for such purpose, without the same
constituting an eviction of Tenant in whole or in part, and the rent reserved
shall in no wise abate while said repairs or alterations are being made by
reason of loss or interruption of the business of Tenant because of the
prosecution of any such work. Landlord shall exercise reasonable diligence so as
to minimize the disturbance but nothing contained herein shall be deemed to
require Landlord to perform the same on an overtime or premium pay basis. In
connection with the removal of asbestos from the
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demised premises, Landlord agrees to repair and restore the demised premises to
their condition and state of repair existing as of the commencement of such
asbestos removal. Tenant agrees that, subject to the provisions of Section 9.04
hereof, Landlord shall have the right at any time to install in the Building on
the insides of the windows thereof, a film to reduce the usage of energy in the
Building. Tenant agrees that the foregoing provisions of this Section shall
apply to the installation, maintenance of replacement of such film.
15.02. Landlord reserves the right, without the same constituting
an eviction and without incurring liability to Tenant therefor, to change the
arrangement and/or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairway, toilets or other public parts of the Building;
provided, however, that access to the Building shall not be cut off and that
- -------- -------
there shall be no unreasonable obstruction of access to the demised premises or
unreasonable interference with the use or enjoyment thereof or applicable Legal
Requirements.
15.03. Landlord reserves the right to light from time to time all
or any portion of the demised premises at night for display purposes at
Landlord's sole cost and expense.
15.04. Landlord may, during the (12) months prior to expiration of
the term of this Lease, exhibit the demised premises to prospective tenants at
any reasonable time or times upon reasonable prior notice (except in the case of
an emergency), which notice may be oral, and Landlord shall exercise reasonable
efforts, so as to minimize any interference with the. conduct of Tenant's
business in the demised premises.
15.05. If Tenant shall not be personally present to open and permit
an entry into the demised premises at any time when for any reason an entry
therein shall be urgently necessary by reason of fire or other emergency,
Landlord or Landlord's agents may, if necessary, forcibly enter the same without
rendering Landlord or such agents liable therefor (if during such entry Landlord
or Landlord's agents shall accord reasonable care to Tenant's property) and
without in any manner affecting the obligations and covenants of this Lease.
ARTICLE 16
CONDITIONS Of LIMITATION
16.01. This Lease and the term and estate hereby granted are
subject to the limitation that whenever Tenant shall make an assignment of the
property of Tenant for the benefit of creditors, or shall file a voluntary
petition under any bankruptcy or insolvency law or any involuntary petition
alleging an act of bankruptcy or insolvency shall be filed against Tenant under
any bankruptcy or insolvency law, or whenever a petition shall be filed by or
against Tenant under the reorganization provisions of the United States
Bankruptcy Act or under the provisions of any law of like import, or whenever a
petition shall be filed by Tenant under the arrangement provisions of the United
States Bankruptcy Act or under the provisions of any law of like import or
whenever a permanent receiver of Tenant or of or for the property of Tenant
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shall be appointed, then, Landlord may, (a) at any time after receipt of such
notice of the occurrence of any such event, or (b) if such event occurs without
the acquiescence of Tenant, at any time after the event continues for thirty
(30) days, give Tenant a notice of intention to end the term of this Lease at
the expiration of five (5) days from the date of service of such notice of
intention, and upon the expiration of said five (5) day period, this Lease and
the term and estate hereby granted, whether or not the term shall theretofore
have commenced, shall terminate with the same effect as if that day were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 18.
16.02. This Lease and the term and estate hereby granted are
subject to further limitation as follows:
(a) whenever Tenant shall default in the payment of any installment of
fixed annual rent, or in the payment of any additional rent or any other
charge payable by Tenant to Landlord, on any day upon which same ought to be
paid, and such default shall continue for ten (10) days after Landlord shall
have given Tenant a notice specifying such default, or
(b) whenever Tenant shall do or permit anything to be done, whether by
action or inaction, contrary to any of Tenant's obligations hereunder, and if
such situation shall continue and shall not be remedied by Tenant within
thirty (30) days after Landlord shall have given to Tenant a notice specifying
the same, or, in the case of a happening or default which cannot with due
diligence be cured within a period of thirty (30) days, if Tenant shall not
(i) within said thirty (30) day period advise Landlord of Tenant's intention
to duly institute all steps necessary to remedy such situation, and (ii) duly
institute within said thirty (30) day period, and thereafter diligently and
continuously prosecute to completion all steps necessary to remedy the same,
or
(c) whenever any event shall occur or any contingency shall arise
whereby this Lease or the estate hereby granted or the unexpired balance of
the term hereof would, by operation of law or otherwise, devolve upon or pass
to any person, firm or corporation other than Tenant, except as expressly
permitted by Article 11, or
(d) whenever Tenant shall default in the due keeping, observing or
performance of any covenant, agreement, provision or condition of Article 5
hereof on the part of Tenant to be kept, observed or performed and if such
default shall continue and shall not be remedied by Tenant within five (5)
days after Landlord shall have given to Tenant a notice specifying the same,
or
(e) whenever a default of the kind set forth in Subsection 16(a), (b),
(c) or (d) hereof shall occur and if either (i) Tenant shall cure, after
notice, such default within any applicable grace period or (ii) Landlord
shall, in its sole discretion, permit Tenant to cure, such default after the
applicable grace period has expired, and if a similar
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default shall occur more than three (3) times within the next three hundred
sixty-five (365) days, whether or not such similar default or defaults is or
are cured within the applicable grace period,
then in any of said cases set forth in the foregoing Subsections (a), (b), (c),
(d), and Landlord may give to Tenant a notice of intention to end the term of
this Lease at the expiration of three (3) days from the date of the service of
such notice of intention and upon the expiration of said three (3) days this
Lease and the term and estate hereby granted, whether or not the term shall
theretofore have commenced, shall terminate with the same effect as if that day
were the Expiration Date, but Tenant shall remain liable for damages as provided
in Article 18.
ARTICLE 17
RE-ENTRY BY LANDLORD; INJUNCTION
17.01. If Tenant shall default in the payment of any installment of
fixed annual rent, or of any additional rent, on any date upon which the same
ought to be paid, and if such default shall continue beyond the expiration of
any applicable grace period after Landlord shall have given to Tenant a notice
specifying such default, or if this Lease shall expire as in Article 16
provided, Landlord or Landlord's agents and employees may immediately or at any
time thereafter re-enter the demised premises, or any part thereof, either by
summary dispossess proceedings or by any suitable action or proceeding at law,
without being liable to indictment, prosecution or damages therefrom, to the end
that Landlord may have, hold and enjoy the demised premises again as and of its
first estate and interest therein. The word re-enter, as herein used, is not
restricted to its technical legal meaning. In the event of any termination of
this Lease under the provisions of Article 16 or if Landlord shall re-enter the
demised premises under the provisions of this Article 17 or in the event of the
termination of this Lease, or of re-entry, by or under any summary dispossess or
other proceedings or action or any provision of law by reason of default
hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord the
fixed annual rent and additional rent payable by Tenant to Landlord up to the
time of such termination of this Lease, or of such recovery of possession of the
demised premises by Landlord, as the case may be, and shall also pay to Landlord
damages as provided in Article 18.
17.02. In the event of a breach or threatened breach of Tenant of
any of its obligations under this Lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies or means
of redress to which Landlord may lawfully be entitled at any time and Landlord
may invoke any remedy allowed at law or in equity as if specific remedies were
not provided for herein.
17.03. If this Lease shall terminate under the provisions of
Article 16, or if Landlord shall re-enter the demised premises under the
provisions of this Article 17, or in the event of the termination of this Lease,
or of entry, by or under any summary dispossess or other
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proceeding or action or any provision of law by reason of default hereunder on
the part of Tenant, Landlord shall be entitled to retain all moneys, if any,
paid by Tenant to Landlord, whether as advancement, security or otherwise,but
such moneys shall be credited by Landlord against any fixed annual rent or
additional rent due from Tenant at the time of such termination or re-entry or,
at Landlord's option against any damages payable by Tenant under Articles 16 and
18 or pursuant to law.
17.04. Tenant hereby' expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of Tenant
being evicted or dispossessed for any cause, or in the event of Landlord
obtaining possession of the demised premises, by reason of the violation by
Tenant of any of the covenants and conditions of this Lease or otherwise.
ARTICLE 18
DAMAGES
18.01. If this Lease is terminated under the provisions of Article
16, or if Landlord shall re-enter the demised premises under the provisions of
Article 17, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Tenant' shall pay
to Landlord as damages, at the election of Landlord, either:
(a) a sum which at the time of such termination of this Lease or at
the time of any such re-entry by Landlord, as the case may be, represents the
then present value of the excess, if any, of
(1) the aggregate of the fixed annual rent and the additional
rent payable hereunder which would have been payable by Tenant
(conclusively presuming that additional rent on account of increases in
Taxes and Operating Expenses shall increase, at the average of the rates of
increase thereof previously experienced by Landlord during the period (not
to exceed three (3) years) prior to such termination) for the period
commencing with such earlier termination of this Lease or the date of any
such re-entry, as the case may be, and ending with the Expiration Date, had
this Lease not so terminated or had Landlord not so re-entered the demised
premises, over
(2) the aggregate rental value of the demised premises for the
same period, or
(b) sums equal to the fixed annual rent and the additional rent
payable hereunder which would have been payable by Tenant had this Lease
not so terminated, or had Landlord not so re-entered the demised premises,
payable upon the due dates therefor specified herein following such
termination or such re-entry and until the
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Expiration Date; provided, however, that if Landlord shall re-let the
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demised premises during said period, Landlord shall credit Tenant with the
net rents received by Landlord from such re-letting, such not rents to be
determined by first deducting from the gross rents as and when received by
Landlord expenses incurred in terminating this Lease or in re-entering the
demised premises and in securing possession thereof, as well as the
expenses of re-letting, including altering and preparing the demised
premises for now tenants, brokers' commissions, and all other reasonable
expenses properly chargeable against the demised premises and the rental
thereof; it being understood that any such re-letting may be, for a period
shorter or longer than the remaining term of this Lease; but in no event
shall Tenant be, entitled to receive any excess of such net rents over the
sums payable by Tenant to Landlord hereunder, or shall Tenant be entitled
in any suit for the collection of damages pursuant to this subsection to a
credit. in respect of any net rents from a re-letting, except to the extent
that such net rents are actually received by Landlord. If the demised
premises or any part thereof should be, re-lot in combination with other
space, then proper apportionment on a square foot basis shall be made of
the rent received from such re-letting and of the expenses of re-letting.
If the demised premises or any part thereof be re-let by Landlord for
the unexpired portion of the term of this Lease, or any part thereof, before,
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such re-letting shall, prima facie both fair and
----- -----
reasonable rental value for the demised premises, or part thereof, so re-let
during the term of the re-letting.
18.02. Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be, deemed to require Landlord to
postpone suit until the date when the term of this Lease, would have expired if
it had not been so terminated under the provision of Article 16 or under any
provision of law, or had Landlord not re-entered the demised premises. Nothing
herein contained shall be construed to limit or preclude recovery by Landlord
against Tenant of any sums or damages to which, in addition to the damages
particularly provided above, Landlord may lawfully be entitled by reason of any
default hereunder on the part of Tenant. Nothing herein contained shall be
construed to limit or prejudice the right of Landlord to prove for and obtain as
liquidated damages by reason of the termination of this Lease or re-entry of the
demised premises for the default of Tenant under this Lease, 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 any of the sums referred to
in Section 18.01.
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ARTICLE 19
LANDLORDS RIGHT TO PERFORM TENANT'S OBLIGATIONS
19.01. 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, (a)
Landlord may remedy such default for the account of Tenant, immediately and
without notice in case of emergency, or in any other case only provided that
Tenant shall fail to remedy such default with all reasonable dispatch after
Landlord shall have notified Tenant in writing of such default and the
applicable grace period for curing such default shall have expired; and (b) if
Landlord makes any expenditures or incurs any obligations for the payment of
money in connection with such default including, but not limited to, reasonable
attorneys' fees in instituting, prosecuting or defending any action or
proceeding, such sums or obligations incurred, with interest at the Interest
Rate, shall be deemed to be additional rent hereunder and shall be paid by
Tenant to Landlord upon rendition of a bill to Tenant therefor.
ARTICLE 20
QUIET ENJOYMENT
20.01. Landlord covenants and agrees that subject to the terms and
provisions of this Lease, if, and so long as, Tenant keeps and performs each and
every covenant, agreement, term, provision and condition herein contained on the
part or on behalf of Tenant to be kept or performed, then Tenant's right under
this Lease shall not be cut off or ended before the expiration of the term of
this Lease, subject however, to (i) the obligations of this Lease, and (ii) as
provided in Article 25 hereof with respect to ground and underlying leases and
mortgages which affect this Lease.
ARTICLE 21
SERVICES AND EQUIPMENT
21.01. Landlord shall, at its cost and expense:
(a) Provide necessary elevator facilities on Business Days (as
hereinafter defined in Article 22) during "regular hours" (that is between the
hours of 8:00 A.M. and 6:00 P.M.) and shall have at least one elevator in
Tenant's elevator bank subject to call at all other times. At Landlord's option,
the elevator shall be operated by automatic control or manual control, or by a
combination of both of such methods. Landlord shall provide freight elevator
service to the demised premises at no charge for casual deliveries on a first
come first served basis (i.e., no advance scheduling) during those hours of
Business Days during which freight elevator service is regularly provided.
Freight elevator service shall also be provided to the
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demised premises on a reserved basis at all other times, upon the payment of
Landlord's then established charges therefor which shall be additional rent
hereunder. The use of all elevators shall be on a non-exclusive basis and shall
be subject to Landlord's Freight Elevator Rules and Regulations which in their
current form are annexed hereto as Schedule E.
(b) Maintain and operate the heating system and shall, subject to the
design specifications of the heating system and to energy conservation
requirements of, and voluntary energy conservation programs sponsored by,
governmental authorities, furnish heat (hereinafter called "Heat service") to
the demised premises. Heat service shall be provided, as may be required for
comfortable occupancy of the demised premises during regular hours on Business
Days during the heating season. If Tenant shall require Heat service during
hours other than regular hours or on days other than Business Days (hereinafter
called "After Hours"), Landlord shall furnish such After Hours Heat service upon
reasonable advance notice from Tenant, and Tenant shall pay, on demand,
Landlord's established charges therefor. Landlord's current charge for such
After Hours Heat service is $275.00 per hour per floor, which charge shall be
subject to increases from time to time in the same percentage as increases in
Landlord's costs.
(c) Supply air conditioning (hereinafter referred to as "A/C service")
to the demised premises, subject to the design specifications of the systems
annexed hereto as Schedule F and to energy conservation requirements of, and
voluntary energy conservation programs sponsored by, governmental authorities,
during regular hours of Business Days from May 15 to October 15. If Tenant shall
require A/C service during After Hours, Landlord shall furnish such After Hours
A/C service upon reasonable advance notice from Tenant, and Tenant shall pay, on
demand, Landlord's established charge therefor. Landlord's current charge for
such After Hours A/C service is $325.00 per hour per floor, which charge shall
be subject to increases from time to time in the same percentage as increases in
Landlord's costs. If Tenant's manner of us and occupancy are consistent with the
design specifications of the air-conditioning system (i.e., electrical usage not
----
exceeding 5 watts per square foot of ceiling area, etc.) and, notwithstanding
that the same are not exceeded, the A/C service provided to those portions of
the demised premises located proximately to core facilities is inadequate in
accordance with usual Building Standards, Landlord shall at Landlord's expense
provide such supplemental air-conditioning to the 6th floor Space as may be
required to provide design conditions.
(d) Provide cleaning and janitorial services on Business Days in
accordance with the cleaning specifications annexed hereto as Exhibit C. Tenant
shall pay to Landlord on demand the costs incurred by Landlord for (a) extra
cleaning work in the demised premises required because of (i) misuse or neglect
on the part of Tenant or its employees or visitors, (ii) use of portions of the
demised premises for preparation, serving or consumption of food or beverages,
data processing, or reproducing operations, private lavatories or toilets or
other special purposes requiring greater or more difficult cleaning work than
office areas, (iii) unusual quantity of interior glass surfaces, (iv) non-
Building Standard materials or finishes installed by Tenant or at its request
and (b) removal from the demised premises and the Building of so much of any
refuse and rubbish of Tenant as shall exceed that ordinarily accumulated daily
in the
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routine of business/sales office occupancy. Landlord, its cleaning contractor
and their employees shall have After Hours access to the demised premises and
the free use of light, power and water in the demised premises as reasonably
required for the purpose of cleaning the demised premises in accordance with
Landlord's obligations hereunder.
(e) Furnish water for lavatory and drinking and office cleaning
purposes ("Customary Water Uses"). If Tenant requires, uses or consumes water
for any other purposes, Tenant agrees to Landlord installing a meter or meters
or other means to measure Tenant's water consumption, and Tenant further agrees
to reimburse Landlord for the cost of the meter or meters and the installation
thereof, and to pay for the maintenance of said meter equipment and/or to pay
Landlord's cost of other means of measuring such water consumption by Tenant.
Tenant shall reimburse Landlord for the cost of all water consumed (for other
than Customary Water Uses), as measured by said meter or meters or as otherwise
measured, including sewer rents.
21.02. Any use of the demised premises, or any part thereof, or
rearrangement of partitioning in a manner that interferes with normal operation
of the heat and air-conditioning systems (hereinafter called the systems)
servicing the same, may require changes in such systems. Such changes, when so
occasioned, shall be made by Tenant, at its expense, subject to Landlord's prior
written approval of such changes, which approval shall not be unreasonably
withhold or delayed. Tenant shall not make any change, alteration, addition or
substitution to the air-conditioning system without Landlord's prior written
approval, which may be withhold for any reason.
21.03. If any permit or license shall be required for the operation
of any air-conditioning unit in or serving the demised premises, 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.
21.04. Landlord reserves the right without any liability whatsoever
or except as hereinafter in this Section 21.04 provided, abatement of fixed
annual rent, or additional rent, to stop the heating, air-conditioning,
elevator, plumbing, electric and other systems when necessary by reason of
accident or emergency or for repairs, alterations, replacements or improvements.
Landlord shall use reasonable efforts, to the extent reasonably practicable, to
perform such repairs, alterations, replacements or improvements in a manner
which shall minimize interference with the conduct of Tenant's business and
Tenant's use, occupancy and enjoyment of the demised premises, provided,
however, that Landlord shall have no obligation to employ contractors or labor
at overtime or other premium-pay rates or to incur any other overtime costs or
expenses whatsoever. No such stoppage or interruption shall result in any
liability from Landlord to Tenant or entitle Tenant to any diminution or
abatement of rent or other compensation nor shall this Lease or any of the
obligations of Tenant be affected or reduced by reason of any such stoppage or
interruption; provided, however, that if such stoppage or interruption is not
the result of any act or omission of Tenant or its agents, contractors or
employees and if such interruption renders the demised premises untenantable for
more than seven (7) consecutive Business Days
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("Untenantability Period"), and during such Untenantability Period, Tenant shall
not have been using or occupying the demised premises for the conduct of its
business, and Tenant shall have given Landlord notice thereof, then as Tenant's
sole remedy, fixed rent and additional rent shall abate hereunder from and after
the day following the expiration of such Untenantability Period until the
earlier of such time as the demised premises is rendered tenantable or Tenant
uses or occupies any portion of the demised premises for the conduct of its
business. Neither this Lease nor any of the obligations of Tenant shall
otherwise be affected or reduced by reason of such interruption, curtailment or
suspension.
21.05. Landlord may fix, in its own reasonable discretion taking
into account the security of the Building, at any time and from time to time,
the hours during which and the regulations under which laundry, linen towels,
drinking water, ice or other similar supplies and services to tenants in the
Building are to be furnished or other deliveries (including food and beverages)
are made and Landlord furthermore expressly reserves the right to exclude from
the Building, in its own reasonable discretion taking into account the security
of the Building, any person, firm or corporation attempting to furnish any of
such supplies or services. Nothing contained herein shall be deemed to limit
Tenant's rights utilizing its own employees to obtain or furnish the foregoing.
It is also understood that Tenant or regular office employees of Tenant who are
not employed by any supplier of such food or beverages or by any person, firm or
corporation engaged in the business of purveying such food or beverages, may
personally bring food or beverages into the Building for consumption within the
demised premises by employees of Tenant, but not for resale to or for
consumption by any other tenant. Landlord may fix in its absolute discretion, at
any time and from time to time, the hours during which, and the regulations
under which, foods and beverages may be brought into the Building by persons
other than the regular employees of Tenant.
21.06. Tenant agrees to employ such office maintenance contractors
as Landlord may from time to time designate, for all waxing, polishing, lamp
replacement, cleaning and maintenance work in the demised premises, provided
that the quality thereof and the charges therefor are reasonably comparable to
that of other contractors. Tenant shall not employ any other contractor without
Landlord's prior written consent.
21.07. Landlord will not be required to furnish any other services,
except as otherwise provided in this Lease.
ARTICLE 22
DEFINITIONS
22.01. The term "Landlord" as used in this Lease means only the
owner, 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),
so that in the event of any transfer of title to said Land and Building or said
lease, or in the event of a lease of the Building, or of the Land and Building,
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upon notification to Tenant of such transfer or lease the said transferor
Landlord shall be and hereby is entirely freed and relieved of all future
covenants, obligations and liabilities of Landlord hereunder, and it shall be
deemed and construed as a covenant running with the land without further
agreement between the parties or their successors in interest, or between the
parties and the transferee of title to said Land and Building or said lease, or
the said lessee of the Building, or of the Land and Building, that the
transferee or the lessee has assumed and agreed to carry out any and all such
covenants, obligations and liabilities of Landlord hereunder.
22.02. The term "Business Days" as used in this Lease shall exclude
Saturdays, Sundays and all days observed by the Federal, State or local
government as legal holidays as well as all other days recognized as holidays
under applicable union contracts.
22.03. "Interest Rate" shall mean a rate per annum equal to the
lesser of (a) 2% above the commercial lending rate announced from time to time
by Chemical Bank (New York, New York), as its prime rate for ninety (90) day
unsecured loans, or (b) the maximum applicable legal rate, if any.
22.04. "Legal Requirements" shall mean laws, statutes and
ordinances (including building codes and zoning regulations, and ordinances) and
the orders, rules, and 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 or Building or the
demised premises or any part thereof, or the sidewalks, curbs or areas adjacent
thereto and all requirements, obligations and conditions of all instruments of
record on the date of this Lease.
ARTICLE 23
INVALIDITY OF ANY PROVISION
23.01. If any term, covenant, condition or provision of this Lease
or the application thereof to any circumstance or to any person, firm or
corporation shall be invalid or unenforceable to any extent, the remaining
terms, covenants, conditions and provisions of this Lease or the application
thereof to any circumstances or to any person, firm or corporation other than
those as to which any terms, covenant, condition or provision is held invalid or
unenforceable, shall not be affected thereby and each remaining term, covenant,
condition and provision of this Lease shall be valid and shall be enforceable to
the fullest extent permitted by law.
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ARTICLE 24
BROKERAGE
24.01. Tenant covenants, represents and warrants that Tenant hat
had no dealings or communications with any broker, or agent other than Cushman &
Wakefield, Inc. (which is representing Landlord) and Julien J. Studley, Inc.
(which is acting as broker only with respect to the 6th Floor Space) in
connection with the consummation of this Lease, and Tenant covenants and agrees
to pay, hold harmless and indemnify Landlord from and against any and all cost,
expense (including reasonable attorneys' fees) or liability for any
compensation, commissions or charges claimed by any broker or agent, other than
the brokers set forth in this Section 24.01, with respect to this Lease or the
negotiation thereof. Landlord covenants, represents and warrants that Landlord
has had no dealings or communications with any broker or agent purporting to
represent either Tenant or Landlord in connection with this Lease except the
brokers named in this Section 24.01 and Landlord covenants and agrees to pay,
hold harmless and indemnify Tenant from and against any and all cost, expense
(including reasonable attorneys' fees) or liability for any compensation,
commissions or charges resulting from a breach of the foregoing representation.
Landlord agrees to pay the brokers named in this Section 24.01 any commissions
which may be due to such brokers in connection with this Lease pursuant to
separate agreements.
ARTICLE 25
SUBORDINATION
25.01. Subject to the provisions of Section 25.05 hereof, this
Lease is and shall be subject and subordinate to all ground or underlying leases
which may now or hereafter affect the real property of which the demised
premises forms a part and to all mortgages which may now or hereafter affect
such leases or such real property, and to all renewals, modifications,
replacements and extensions thereof. The provisions of this Section 25.01 shall
be self operative and no further instrument of subordination shall be required.
In confirmation of such subordination, Tenant shall promptly execute and deliver
at its own cost and expense any instrument, in recordable form if required, that
Landlord, the lessor of any such ground or underlying lease or the holder of any
such mortgage or any of their respective successors in interest may request to
evidence such subordination. Any lease to which this Lease is, at the time
referred to, subject and subordinate, is sometimes herein called "Superior
Lease" and the lessor of a Superior Lease or its successor in interest, at the
time referred to, is sometimes herein called "Superior Lessor"; and any mortgage
to which this Lease is, at the time referred to, subject and subordinate, is
sometimes herein called "Superior Mortgage" and the holder of a Superior
Mortgage or its successor in interest, at the time referred to, is sometimes
herein called "Superior Mortgagee". As of the date hereof there are no Superior
Leases and the only Superior Mortgage to which this Lease is subject and
subordinate is that certain Mortgage and Security Agreement dated March 30, 1990
between Asahi International, Ltd., as mortgagee, and Landlord, as mortgagor.
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25.02. In the event of a termination of any ground or underlying
lease, or if the interests of Landlord under this Lease are transferred by
reason of, or assigned in lieu of, foreclosure or other proceedings for
enforcement of any mortgage, or if the holder of any mortgage acquires a lease
in substitution therefor, then Tenant under this Lease will, at the option to be
exercised in writing by the lessor under such ground or underlying lease or such
mortgagee or purchaser, assignee or lessee, as the case may be, either (i)
attorn to it and will perform for its benefit all the terms, covenants and
conditions of this Lease on Tenant's part to be performed with the same force
and effect as if said lessor, such mortgagee or purchaser, assignee or lessee,
were the landlord originally named in this Lease, or (ii) enter into a new lease
with said lessor or such mortgagee or purchaser, assignee or lessee, as
landlord, for the remaining term of this Lease, and otherwise on the same terms
and conditions and with the same options, if any, then remaining. The foregoing
provisions of clause (i) of this Section 25.02 shall enure to the benefit of
such lessor, mortgagee, purchaser, assignee or lessee, shall be self operative
upon the exercise of such option, and no further instrument shall be required to
give effect to said provisions. Tenant, however, upon demand of any such lessor,
mortgagee, purchaser, assignee or lessee agrees to execute, from time to time,
instruments in confirmation of the foregoing provisions of this Section 25.02,
satisfactory to any such lessor, mortgagee, purchaser, assignee or lessee,
acknowledging such attornment and setting forth the terms and conditions of its
tenancy.
25.03. Anything herein contained to the contrary notwithstanding,
under no circumstances shall the aforedescribed lessor under the ground lease or
mortgagee or purchaser, assignee or lessee, as the case may be, whether or not
it shall have succeeded to the interests of the landlord under this Lease, be:
(a) liable for any act, omission or default of any prior landlord
(however the foregoing shall not be deemed to exculpate such successor from
its own defaults to the extent that a preexisting default shall continue after
the succession contemplated hereby and after such additional period as might
reasonably be required for the cure thereof assuming reasonable diligence); or
(b) subject to any offsets, claims or defenses which Tenant might have
against any prior landlord; or
(c) bound by any rent or additional rent which Tenant might have paid
to any prior landlord for more than one month in advance or for more than
three months in advance where such rent payments are payable at intervals of
more than one month; or
(d) bound by any modification, amendment or abridgment of the Lease,
or any cancellation or surrender of the same, made without its prior written
approval.
25.04. If, in connection with the financing of the Building, a
Superior Mortgagee shall request reasonable modifications in this Lease as a
condition of approval thereof, Tenant
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shall not unreasonably withhold, delay or defer making such modifications,
provided that same does not (i) conflict with Tenant's use of the demised
premises as permitted hereunder; (ii) increase Tenant's obligations (including
financial obligations) hereunder (except to a de minimis extent), or (iii)
decrease Tenant's rights hereunder (except to a de minimis extent).
25.05. (a) Landlord shall make a reasonable effort to obtain for
Tenant from the holder of the existing Superior Mortgage affecting the Building,
an agreement (hereinafter called a "Non-Disturbance Agreement") on the usual
form of such holder providing in substance that so long as Tenant is not in
default of any of its obligations under this Lease beyond applicable grace
periods, Tenant's occupancy of the demised premises shall not be disturbed
notwithstanding foreclosure of such existing Superior Mortgage. If Landlord
fails to obtain a Non-Disturbance Agreement signed by such existing Superior
Mortgagee within forty-five (45) days after the date hereof, then Tenant may
(during the five (5) day period occurring after such forty-five (45) day
period), upon ten (10) days' written notice, terminate this Lease, and if
Landlord fails to furnish such Non-Disturbance Agreement during such ten (10)
day notice period, this Lease shall terminate upon expiration of such ten (10)
day notice period. Landlord shall be deemed to have fulfilled its obligations
hereunder by submitting to Tenant a Non-Disturbance Agreement on the foregoing
form, signed by such existing Superior Mortgagee. If Tenant fails within twenty
(20) days after submission of the Non-Disturbance Agreement to countersign and
return the same, Landlord or such existing Superior Mortgages, as the case may
be, may, without liability hereunder or further obligation under this Section
25.05, declare such Non-Disturbance Agreement null and void. If Tenant exercises
its option to terminate this Lease as provided in this Section 25.05(a), then,
notwithstanding the provisions of Article 47 hereof, the Existing Lease shall
once again be deemed in full force and effect as between the parties hereto.
(b) With respect to future Superior Mortgages and future Superior
Leases which may be executed on or after the date of this Lease, the
subordination of this Lease thereto pursuant to, the provisions of Section 25.01
hereof shall be conditioned upon the execution and delivery by and between
Tenant and any such Superior Mortgagee or Superior Lessor of a Non-Disturbance
Agreement on the customary form of such Superior Mortgagee or Superior Lessor
which shall provide in substance that so long as no default exists hereunder
beyond any applicable grace period, Tenant shall not be disturbed in its
possession of the demised premises pursuant to the provisions of this Lease.
Tenant agrees to execute such Non-Disturbance Agreements and return same to
Landlord within ten (10) days after Landlord's written request therefor. If
Tenant shall fail to execute, acknowledge and return any such Non-Disturbance
Agreements within such ten (10) day period, then (x) the provisions of Section
25.01 shall apply, and (y) this Lease shall be subordinate to such future
Superior Mortgages or future Superior Leases, as the case may be, pursuant to
the terms and conditions of the Lease and such Non-Disturbance Agreement shall
at Landlord's option and upon notice to Tenant be deemed void.
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ARTICLE 26
CERTIFICATE OF TENANT
26.01. Tenant agrees, at any time and from time to time, as
requested by Landlord, upon not less than ten (10) Business Days' prior notice,
to execute and deliver to Landlord 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), certifying the dates to which the fixed annual rent and
additional rent have been paid; and stating whether or not, to the best
knowledge of Tenant, Landlord is in default in performance of any of its
obligations under this Lease, and, if so, specifying each such default of which
Tenant may have knowledge, it being intended that any such statement delivered
pursuant hereto may be relied upon by others with whom Landlord may be dealing.
26.02. Tenant agrees that, except for the first month's rent
hereunder, it will pay no rent under this Lease more than thirty (30) days in
advance of its due date, if so restricted by any existing or future ground lease
or mortgage to which this Lease is subordinated or by an assignment of this
Lease to the ground lessor or the holder of such mortgage, and, in the event of
any act or omission by Landlord, Tenant will not exercise any right to terminate
this Lease or to remedy the default and deduct the cost thereof from rent due
hereunder until Tenant shall have given written notice of such act or omission
to the ground lessor and to the holder of any mortgage on the fee or the ground
lease who shall have furnished such lessor's or holder's last address to Tenant,
and until a reasonable period for remedying such act or omission shall have
elapsed following the giving of such notices, and following the time when such
lessor or holder shall have the right pursuant to such superior instrument to
cure the same, during which time such lessor or holder shall have the right, but
shall not be obligated, to remedy or cause to be remedied such act or omission.
Tenant shall not exercise any right pursuant to this Section 26-02 if the holder
of any mortgage or such aforesaid lessor commences to cure such aforesaid act or
omission within a reasonable time and diligently prosecutes such cure
thereafter.
ARTICLE 27
LEGAL PROCEEDINGS; WAIVER OF JURY TRIAL.
27.01. Landlord and Tenant do hereby waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the demised premises, and/or any other claims (except claims for
bodily injury or damage to physical property), and any emergency statutory or
any other statutory remedy. It is further mutually agreed that in the event
Landlord commences any summary proceeding for non-payment of rent, Tenant will
not interpose and does hereby waive the right to interpose any counterclaim of
whatever nature or description in
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any such proceeding, unless Tenant's failure to interpose such a counterclaim
would otherwise bar Tenant from asserting such counterclaim in a separate action
or proceeding.
ARTICLE 28
SURRENDER OF PREMISES
28.01. Upon the expiration or other termination of the term of this
Lease, Tenant shall quit and surrender to Landlord the demised premises, broom
clean, in good order and condition, ordinary wear and tear and damage by fire,
the elements or other casualty excepted, and Tenant shall remove all of its
property as herein provided. Tenant's obligation to observe, or perform this
covenant shall survive the expiration or other termination of the term of this
Lease but if Landlord shall fail to assert a claim under this Section 28.01
within one (1) year after the Expiration Date the same shall be deemed to have
been waived.
ARTICLE 29
RULES AND REGULATIONS
29.01. Tenant and Tenant's servants, employees and agents shall
observe faithfully and comply strictly with the Rules and Regulations set forth
in Schedule 8 attached hereto and made part hereof entitled "Rules and
Regulations" and such other and further reasonable Rules and Regulations as
Landlord or Landlord's agents may from time to time adopt; provided, however,
-----------------
that in case of any conflict or inconsistency between the provisions of this
Lease and of any of the Rules and Regulations as originally or as hereafter
adopted, the provisions of this Lease shall control. Reasonable written notice
of any additional Rules and Regulations shall be given to Tenant.
Nothing in this Lease contained shall be construed to impose upon
Landlord any duty or obligation to enforce the Rules and Regulations or the
terms, covenants or conditions in any other lease, against any other tenant of
the Building, and Landlord shall not be liable to Tenant for violation of the
same by any other tenant, its servants, employees, agents, visitors or
licensees. Landlord shall not enforce any of the Rules and Regulations against
Tenant in an unfairly discriminatory manner.
ARTICLE 30
CONSENTS AND APPROVALS
30.01. Wherever in this Lease Landlord's consent or approval is
required, if Landlord shall delay or refuse such consent or approval, Tenant in
no event shall be entitled to make, nor shall Tenant make, any claim, and Tenant
hereby waives any claim, for money damages (nor shall Tenant claim any money
damages by way of setoff, counterclaim or defense)
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based upon any claim or assertion by Tenant that Landlord unreasonably withhold
or unreasonably delayed its consent or approval. Tenant's sole remedy shall be
an action or proceeding to enforce any such provision, for specific performance,
injunction or declaratory judgment. In no event shall the foregoing be deemed to
exculpate Landlord from liability for claims for damages if the Landlord shall
be found by final Judgment from which all further appeal has been exhausted, in
withholding or delaying a consent or approval, despite its agreement not to do
so unreasonably, to have acted maliciously or in bad faith.
ARTICLE 31
NOTICES
31.01. 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 law or governmental regulation, either by Landlord to Tenant or by Tenant to
Landlord, shall be in writing. Unless otherwise required by such law or
regulation, 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 postpaid wrapper, in a
United States Government general or branch post office, or official depository
within the exclusive care and custody thereof, addressed to either party, at its
address set forth on page 1 of this Lease. After Tenant shall occupy the demised
premises, the address of Tenant for notices, demands, consents, approvals or
disapprovals shall be the Building. Either party may, by notice as aforesaid,
designate a different address or addresses for notices, demands, consents,
approvals or disapprovals. Copies of any notices to Tenant shall be sent to
Christy & Viener, 620 Fifth Avenue, New York, New York 10020-2402, Attention:
Richard B. Salomon, Esq.
31.02. In addition to the foregoing, either Landlord or Tenant may,
from time to time, request in writing that the other party serve a copy of any
notice or demand, consent approval or disapproval, or statement, on one other
person or entity designated in such request, such service to be effected as
provided in Section 31.01 hereof.
ARTICLE 32
NO WAIVER
32.01. No agreement to accept a surrender of this shall be valid
unless in writing signed by Landlord. No employee of Landlord or of Landlord's
agents shall have any power to accept the keys of the demised premises prior to
the termination of this Lease. The delivery of keys to any employee of Landlord
or of Landlord's agent shall not operate as a termination of this Lease or a
surrender of the demised premises. In the event of Tenant at any time desiring
to have Landlord sublet the demised premises for Tenant's account, Landlord or
Landlord's agents are authorized to receive said keys for such purpose without
releasing Tenant from any of the obligations under this Lease. The failure of
Landlord to seek redress for violation of, or to insist
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upon the strict performance of, any covenant or condition of this Lease or any
of the Rules and Regulations set forth herein, or hereafter adopted by Landlord,
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 Landlord of rent with knowledge of the breach of any covenant of this
Lease shall not be deemed a waiver of such breach. The failure of Landlord to
enforce any of the Rules and Regulations set forth herein, or hereafter adopted,
against Tenant and/or any other tenant in the Building shall not be deemed a
waiver of any such Rules and Regulations, provided that Landlord does not
enforce any such Rules and Regulations against Tenant in an unfairly
discriminatory manner. No provision of this Lease shall be deemed to have been
waived by Landlord, unless such waiver be in writing signed by Landlord. No
payment by Tenant or receipt by Landlord of a lesser amount than the monthly
rent herein stipulated shall be deemed to be other than on the account of the
earliest stipulated rent, nor shall any endorsement or payment of rent be deemed
an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such rent or
pursue any other remedy in this Lease provided.
32.02. This Lease contains the entire agreement between the
parties, 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.
ARTICLE 33
CAPTIONS
33.01. 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.
ARTICLE 34
INABILITY TO PERFORM
34.01. If, by reason of (1) strike, (2) labor troubles, (3)
governmental preemption in connection with a national emergency, (4) any rule,
order or regulation of any governmental agency, (5) conditions of supply or
demand which are affected by war or other national, state or municipal
emergency, or any other cause constituting force majeure or (6) any cause beyond
Landlord's reasonable control (excluding lack of funds), Landlord shall be
unable to fulfill its obligations under this Lease or shall be unable to supply
any service which Landlord is obligated to supply, Landlord shall have no
liability in connection therewith and this Lease and Tenant's obligation to pay
rent hereunder shall in no wise be affected, impaired or excused except as
otherwise set forth in Section 21.04 hereof.
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ARTICLE 35
NO REPRESENTATIONS BY LANDLORD
35.01. Landlord or Landlord's agents have made no representations
or promises with respect to the Building or demised premises except as herein
expressly set forth.
ARTICLE 36
NAME OF BUILDING
36.01. Landlord shall have the full right at any time to name and
change the name of the Building and to change the designated address of the
Building. The Building may be named after any person, firm, or otherwise,
whether or not such name is, or resembles, the name of a tenant of the Building.
ARTICLE 37
RESTRICTIONS UPON USE
37.01. It is expressly understood that no portion of the demised
premises shall be used as, or for (i) the retail, off-the-street operation of a
bank, trust company, savings bank, industrial bank, savings and loan association
or personal loan bank (or any branch office or public accommodation of any of
the foregoing), or (ii) a public stenographer or typist, barber shop, beauty
shop, beauty parlor or shop, telephone or telegraph agency, telephone or
secretarial service, messenger service, travel or tourist agency, employment
agency, public restaurant or bar, commercial document reproduction or offset
printing service, public vending machines, retail, wholesale or discount shop
for sale of merchandise, retail service shop, labor union, school or classroom,
governmental or quasi-governmental bureau, department or agency, including an
autonomous governmental corporation, a firm whose principal business is real
estate brokerage, or a company engaged in the business of renting office or desk
space.
ARTICLE 38
ARBITRATION
38.01 In each case specified in this Lease in which resort to
arbitration shall be required, such arbitration (unless otherwise specifically
provided in other Sections of this Lease) shall be in New York City in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association and the provisions of this Lease. The decision and award of the
arbitrators shall be in writing, shall be final and conclusive on the parties,
and counterpart copies thereof shall be delivered to each of the parties. In
rendering such decision and awards, the arbitrators. shall not add to, subtract
from or otherwise modify the provisions of this Lease.
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Judgment may be had or the decision and award of the arbitrators so rendered in
any court of competent jurisdiction.
ARTICLE 39
INDEMNITY
39.01. Tenant shall indemnify, defend and save Landlord, its
agents, and employees and any mortgages of Landlord's interest in the Land
and/or the Building and any lessor under any superior lease harmless from and
against any liability or expense arising from the use or occupation of the
demised promises by Tenant or anyone in the demised promises with Tenant's
permission, or from any breach of this Lease by Tenant. Landlord shall
indemnify, defend and save Tenant, its agents and employees harmless from and
against any liability or expense arising from (x) the negligent use of the
public areas of the Building located outside of the demised premises by Landlord
or its employees or agents or (y) the negligent performance of any repair,
operation or maintenance in the demised premises by Landlord or its employees or
agents.
ARTICLE 40
MEMORANDUM OF LEASE
40.01. Tenant shall, at the request of Landlord execute and deliver
a statutory form of memorandum of this Lease for the purpose of recording, but
said memorandum of this Lease shall not in any circumstances be deemed to modify
or to change any of the provisions of this Lease. In no event shall Tenant
record this Lease.
ARTICLE 41
SECURITY
41.01. Tenant has deposited with Landlord upon execution hereof the
sum of $175,000.00 as security for the faithful performance and observance by
Tenant of the terms, provisions, covenants and conditions of this Lease; it is
agreed that in the event Tenant defaults in respect of any of the terms,
provisions, covenants and conditions of this Lease, including, but not limited
to, the payment of fixed annual rent and additional rent, Landlord may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any fixed annual rent and additional rent or any
other sum as to which Tenant is in default or for any sum which Landlord may
expend or may be required to expend by reason of Tenant's default in respect of
any of the terms, provisions, covenants and conditions of this Lease, including
but not limited to, any damages or deficiency accrued before or after summary
proceedings or other re-entry by Landlord. 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
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after the date fixed as the end of the Lease and after delivery of entire
possession of the demised premises to Landlord. In the event of a sale of the
Land and Building or leasing of the Building, of which the demised premises form
a part, Landlord shall have the right to transfer the security to the vendee or
lessee and Landlord shall thereupon be released by Tenant from all liability for
the return of such security and Tenant agrees to look solely to the new landlord
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
landlord. 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 Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance. In the
event Landlord applies or retains any portion or all of the security deposited,
Tenant shall forthwith restore the amount so applied or retained so that at all
times except as provided in the following sentence the amount deposited shall be
$175,000.00. On the date occurring thirty (30) days prior to the expiration of
the abatement period (as defined in Section 1.5 hereof) the, security to be
retained by Landlord hereunder shall be increased to $350,000.00 and Tenant
shall on or before such date provide Landlord with such additional funds as may
be necessary to maintain the security deposit at such amount. The cash security
required to be maintained under this Lease shall be hold in an interest-bearing
account, the interest on which, less an administration fee in the amount of one
(1%) percent per annum of the principal amount thereof, shall be paid to Tenant
annually.
41.02. In lieu of the cash security deposit provided for in Section
41.01 hereof Tenant may deliver to Landlord and, shall, except as otherwise
provided herein, maintain in effect at all times during the term hereof, an
irrevocable letter of credit, in form and substance reasonably satisfactory to
Landlord in the amount of the security deposit required hereunder issued by a
banking corporation satisfactory to Landlord and having its principal place of
business or its duly licensed branch or agency in the State of Now York. Such
letter of credit shall have an expiration date no earlier than the first
anniversary of the date of issuance thereof and shall be automatically renewed
from year to year unless terminated by the issuer thereof by notice to Landlord
given not less than 45 days prior to the expiration thereof. Except as
otherwise provided herein, Tenant shall, throughout the term of this Lease
deliver to Landlord, in the event of the termination of any such letter of
credit, replacement letters of credit in lieu thereof (each such letter of
credit and such extensions or replacements thereof, as the case may be, is
hereinafter referred to as a "Security Letter") no later than 45 days prior to
the expiration date of the preceding Security Letter. The term of each such
Security Letter shall be not less than one year and shall be automatically
renewable from year to year as aforesaid. If Tenant shall fail to obtain any
replacement of a Security Letter within the time limits set forth in this
Section 41.2, Landlord may draw down the full amount of the existing Security
Letter and retain the same as security hereunder.
41.03. In the event Tenant defaults in respect to any of the terms,
provisions, covenants and conditions of this Lease, including, but not limited
to, the payment of fixed annual rent and additional rent, Landlord may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any fixed annual rent and additional rent or
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any other sum as to which Tenant is in default or for any sum which Landlord may
expend or may be required to expend by reason of Tenant's default in respect of
any of the terms, provisions, covenants, and conditions of this Lease, including
but not limited to, any damages or deficiency accrued before or after summary
proceedings or other re-entry by Landlord. To insure that Landlord may utilize
the security represented by the Security Letter in the manner, for the purpose,
and to the extent provided in this Article 41, each Security Letter shall
provide that the full amount thereof may be drawn down by Landlord upon the
presentation to the issuing bank of Landlord's sight draft drawn on the issuing
bank.
41.04. In the event that Tenant defaults in respect of any of the
terms, provisions, covenants and conditions of the Lease and Landlord utilizes
all or any part of the security represented by the Security Letter but does not
terminate this Lease as provided in Article 16 hereof, Landlord may, in.
addition to exercising its rights as provided in Section 41.3 hereof, retain the
unapplied and unused balance of the principal amount of the Security Letter as
security for the faithful performance and observance by Tenant thereafter of the
terms, provisions, and conditions of this Lease, and may use, apply, or retain
the whole or any part of said balance to the extent required for payment of
fixed annual rent, additional rent, or any other sums as to which Tenant is in
default or for any sum which Landlord may expend or be required to expend by
reason of Tenant's default in respect of any of the terms, covenants, and
conditions of this Lease. In the event Landlord applies or retains any portion
or all of the security delivered hereunder, Tenant shall forthwith restore the
amount so applied or retained so that at all times the amount deposited shall be
not less than the security required by this Article 41.
41.05. If Tenant shall fully and faithfully comply with all of the
terms, provisions, covenants and conditions of this Lease, the security or any
balance thereof to which Tenant is entitled shall be returned or paid over to
Tenant after the date fixed as the end of the Lease and after delivery of entire
possession of the demised premises to Landlord. In the event of a sale,
transfer or leasing of Landlord's interest in the Building whether or not in
connection with a sale, transfer or leasing of the Land, Landlord shall have the
right to transfer any interest it may have in the Security Letter to the vendee
or lessee and Landlord shall thereupon be released by Tenant from all liability
for the return of such Security Letter, and Tenant agrees to look solely to the
new landlord for the return of said Security Letter; and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
Security Letter to a now landlord. 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 Landlord nor its successors or assigns shall be
bound by any such assignment, encumbrance, attempted assignment or attempted
encumbrance. In the event of a sale of the Building, Landlord shall have the
right to require Tenant to deliver a replacement Security Letter naming the new
landlord as beneficiary and, if Tenant shall fail to timely deliver the same, to
draw down the existing Security Letter and retain the proceeds as security
hereunder until a replacement Security Letter is delivered.
41.06. Provided that Tenant is not then in default of its
obligations under this Lease on the sixth (6th) anniversary of the Commencement
Date, the security which Tenant is
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obligated to maintain hereunder shall be reduced to $175,000.00 for the
remainder of the term of this Lease. If Tenant is at such time in default and
thereafter cures such default within the grace period, after notice, provided
herein, then promptly after Tenant effects such cure the reduction provided
herein shall take effect.
ARTICLE 42
MISCELLANEOUS
42.01. Irrespective of the place of execution or performance, this
Lease shall be governed by and construed in accordance with the laws of the
State of Now York.
42.02. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted.
42.03. Except as otherwise expressly provided in this Lease, each
covenant apartment, obligation or other provision of this Lease on Tenant's part
to be performed shall be deemed and construed as a separate and independent
covenant of Tenant, not dependent on any other provision of this Lease.
42.04. All terms and words used in this Lease, regardless of the
number or gender in which they are used, shall be deemed to include any other
number and any other gender as the context may require.
42.05. Time shall be of the essence with respect to the exercise of
any option granted under this Lease.
42.06. Except as otherwise provided herein, whenever payment of
interest is required by the terms hereof it shall be at the Interest Rate.
42.07. If the demised premises or any additional space to be
included within the demised premises shall not be available for occupancy by
Tenant on the specific date hereinbefore designated for the commencement of the
term of this Lease or for the inclusion of such space for any reason whatsoever,
then this Lease shall not be affected thereby but, in such case, said specific
date shall be deemed to be postponed until the date when the demised premises or
such additional space shall be available for occupancy by Tenant, and Tenant
shall not be entitled to possession of the demised premises or such additional
space until the same are available for occupancy by Tenant; provided, however,
-------- -------
that Tenant shall have no claim against Landlord, and Landlord shall have no
liability to Tenant by reason of any such postponement of said specific date,
and the parties hereto further agree that any failure to have the demised
promises or such additional space available for occupancy by Tenant on said
specific date or on the Commencement Date shall in no wise affect the
obligations of Tenant hereunder nor shall the same be construed in any wise to
extend the term of this Lease and furthermore, this Section 42.7
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shall be deemed to be an express provision to the contrary of Section 223a of
the Real Property Law of the State of New York and any other law of like import
now or hereafter in force.
42.08. In the event that Tenant is in arrears in payment of fixed
annual rent or additional rent hereunder, Tenant waives Tenant's right, if any,
to designate the items against which any payments made by Tenant are to be
credited, and Tenant agrees that Landlord may apply any payments made by Tenant
to any items it sees fit, irrespective of and notwithstanding any designation or
request by Tenant as to the items against which any such payments shall be
credited.
42.09. This Lease shall not be, binding upon Landlord or Tenant
unless and until it is signed by both Landlord and Tenant and a signed copy
thereof is delivered to both parties.
42.10. Tenant shall not occupy any space in the Building (by
assignment, sublease or otherwise) other than the demised promises, except with
the prior written consent of Landlord in each instance.
42.11. Intentionally omitted.
42.12 (a) In the event this Lease, is not renewed or extended
or a new lease is not entered into between the parties, and if Tenant shall then
hold over after the expiration of the term of this Lease, and if Landlord shall
then not proceed to remove Tenant from the demised premises in the manner
permitted by law (or shall not have given written notice to Tenant that Tenant
must vacate the demised promises) irrespective of whether or not Landlord
accepts rent from Tenant for a period beyond the Expiration Date, the parties
hereby agree that Tenant's occupancy of the demised premises after the
expiration of the term shall be under a month-to-month tenancy commencing on the
first day after the expiration of the term, which tenancy shall be upon all of
the terms set forth in this Lease except Tenant shall pay on the first day of
each month of the holdover period as fixed annual rent, an amount equal to the
higher of (i) an amount equal to one and one-half times one-twelfth of the sum
of: (a) the fixed annual rent and additional rent payable by Tenant during the
last year of the term of this lease (i.e., the year immediately prior to the
holdover period) or (ii) an amount equal to the then market rental value for the
demised premises as shall be established by Landlord giving notice to Tenant of
Landlord's good faith estimate of such market rental value. Tenant may dispute
such market rental value for the demised promises as estimated by Landlord by
giving notice to Landlord within but in no event after ten days after the giving
of Landlord's notice to Tenant (as to the giving of which notice to Landlord,
time shall be deemed of the essence). Enclosed with such notice, Tenant shall be
required to furnish to Landlord a certified opinion of a reputable New York
licensed real estate broker having leasing experience in the Borough of
Manhattan, for a period of not less than ten (10) years setting forth said
broker's good faith opinion of the market rental value of the demised premises.
If Tenant and Landlord are unable to resolve any such dispute as to the market
rental value, for the demised premises then an independent arbitrator who shall
be a real estate broker of similar qualification's and shall be selected from a
listing of
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not loss than three (3) brokers furnished by the Real Estate Board of New York,
Inc. to Tenant and Landlord (at the request of either Landlord or Tenant). If
Landlord and Tenant are unable to agree upon the se1ection of the individual
arbitrator from such listing, then the first arbitrator so listed by the Real
Estate Board of New York, Inc. shall be conclusively presumed to have been
selected by both Landlord and Tenant and the decision of such arbitrator shall
be conclusive and binding upon the parties as to the market rental value for the
demised premises. Pending the determination of the market rental value of the
demised premises upon the expiration of the term of this lease, Tenant shall pay
to Landlord as fixed annual rent an amount computed in accordance with clauses
(1) or (ii) of this subsection 42.12(a) (as Landlord shall then elect), and upon
determination of the market rental value of the demised promises in accordance
with the preceding provisions hereof appropriate adjustments and payments. shall
be effected. Further, Landlord shall not be required to perform any work,
furnish any materials or make any repairs within the demised promises during the
holdover period. It is further stipulated and agreed that if Landlord shall, at
any time after the expiration of the original term or after the expiration of
any term created thereafter, proceed to remove Tenant from the demised promises
as a holdover, the fixed annual rent for the use and occupancy of the demised
promises during any holdover period shall be calculated in the same manner as
set forth above in this Section 42.12. In addition to the foregoing, Landlord
shall be entitled to recover from Tenant any losses or damages arising from such
holdover, excluding consequential damages, except to the extent of consequential
damages arising out of any new leases executed by Landlord with respect to the
demised premises or any portion thereof.
(b) Notwithstanding anything to the contrary contained in this lease,
the acceptance of any rent paid by Tenant pursuant to subsection 42.12(a) hereof
shall not preclude Landlord from commencing and prosecuting a holdover or
summary eviction proceeding, and the preceding sentence shall be deemed to be an
"agreement expressly providing otherwise" within the meaning of Section 232-c of
the Real Property Law of the State of New York.
(c) If Tenant shall hold-over or remain in possession of any portion
of the demised premises beyond the Expiration Date, Tenant shall be subject not
only to summary proceeding and all damages related thereto, but also to any
damages arising out of any lost opportunities (and/or new leases) by Landlord to
re-let the demised premises (or any part thereof). All damages to Landlord by
reason of such holding over by Tenant may be the subject of a separate action
and need not be assorted by Landlord in any summary proceedings against Tenant.
ARTICLE 43
EXTENSION OF TERM
43.01. Tenant, at Tenant's solo option, shall have the right to
extend the term of this Lease for an additional term (hereinafter called the
"Extension Term") commencing on the
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day following the expiration of the initial term of this Lease (hereinafter
referred to as the "Commencement Date of the Extension Term"); and expiring on
the last day of the month preceding the month in which shall occur the fifth
(5th) anniversary of the Commencement Date of the Extension Term, upon Tenant's
written notice to Landlord (hereinafter referred to as the "Extension Notice"),
given no later than the day occurring twelve (12) months prior to the expiration
of the initial term of this Lease, time being of the essence with respect to the
giving of the Extension Notice, provided that:
(a) Tenant shall not be in default after the expiration of any
applicable grace period under this Lease either as of the time of the giving of
the Extension Notice or the Commencement Date of the Extension Term, and
(b) Tenant or Tenant's affiliates shall, as of the giving of the
Extension Notice and as of the Commencement Date of the Extension Term, be in
actual occupancy of not less than sixty-seven (67%) percent of the rentable
square foot area of the demised premises (including any additional space in the
Building hereinafter leased by Tenant).
43.02. The fixed annual rent payable by Tenant to Landlord during
the Extension Term shall be ninety-five percent (95%) of the fair market rent
for the demised promises as determined by Landlord and set forth in a written
notice to Tenant, which determination shall be as of the date occurring six (6)
months prior to the expiration of the initial term (such date is hereinafter
sometimes called the "Determination Date") and which determination shall be made
within a reasonable period of time after the occurrence of the Determination
Date. For the purposes of determining the fair market rent for the Extension
Term pursuant to this Article 43, the base periods for escalation purposes shall
be the same as those set forth in Article 3 hereof.
43.03. (a) (i) In the event that Tenant gives the Extension
Notice in accordance with the provisions of Section 43.1 hereof and Tenant
disputes the amount of the fair market rent, then Tenant may initiate the
arbitration process provided for herein by giving notice to that effect to the
Landlord, and Tenant shall specify in such notice the name and address of the
person designated to act as an arbitrator on its behalf. Within twenty (20) days
after the designation of such arbitrator, Landlord shall give notice to Tenant
specifying the name and address of the person designated to act as an arbitrator
on its behalf. If Landlord fails to notify Tenant of the appointment of its
arbitrator within the time above specified, then the appointment of the second
arbitrator shall be made in the same manner as hereinafter provided for the
appointment of a third arbitrator in a case where the two arbitrators appointed
hereunder and the parties are unable to agree upon such appointment. The two
arbitrators so chosen shall meet within ten (10) days after the second
arbitrator is appointed and if, within thirty (30) days after the second
arbitrator is appointed, the two arbitrators shall not agree, they shall
together app9int a third arbitrator. In the event of their being unable to agree
upon such appointment within sixty (60) days after the appointment of the second
arbitrator, the third arbitrator shall be selected. by the parties themselves if
they can agree thereon within a further period of ten (10) days. If, the
parties do not so agree, then either party, on behalf of both and on notice to
the other may request
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such appointment by the American Arbitration Association (or organization
successor thereto) in accordance with its rules then prevailing or if the
American Arbitration Association (or such successor organization) shall fail to
appoint said third arbitrator within ten (10) days after such request is made,
then either party may apply on notice to the other, to the Supreme Court, Now
York County, New York (or any other court having jurisdiction and exercising
functions similar to those now exercised by said Court) for the appointment of
such third arbitrator.
(ii) In determining the fair market rent under this Section 43.3,
the arbitrators shall take into account all relevant factors based on the
following assumptions, (A) that the standard work letter or work credit, if
any, then being offered to office tenants of the Building is being offered to
Tenant even though it is not actually offered, (B) that other concessions and
allowances then being given by landlords of comparable office buildings to
tenants entering into now office leases in New York City are being given to
tenant even though same is not actually given, and (C) that brokerage
commissions payable in connection with such new leases are being incurred by
Landlord even though same are not actually incurred.
(b) Each party shall pay the fees and expenses of the one of the two
original arbitrators appointed by or for such party, and the fees and expenses
of the third arbitrator and all other expenses (not including the attorneys'
fees, witness fees and similar expenses of the parties which shall be borne
separately by each of the parties) of the arbitration shall be borne by the
parties equally.
(c) The majority of the arbitrators shall determine the fair market
rent of the demised premises and render a written certified report of their
determination to both Landlord and Tenant within sixty (60) days of the
appointment of the first two arbitrators or sixty (60) days from the appointment
of the third arbitrator if such third arbitrator is appointed pursuant to this
Article 43.
(d) Each of the arbitrators selected as herein provided shall have at
least ten (10) years' experience in the leasing and renting (as broker, agent or
owner) of office space in first-class office buildings in New York County.
(e) Prior to such determination by the arbitrators of the amount of
the fair market rent to be paid during the Extension Term, Tenant shall pay the
amount determined by Landlord to be ninety-five percent (95%) of the fair market
rent for the Extension Term and when the determination has actually been made,
an appropriate retroactive adjustment shall be made as of the Commencement Date
of the Extension Term.
43.04. Except as provided in Section 43.2 hereof, Tenant's
occupancy of the demised premises during the Extension Term shall be on the same
terms and conditions as are in effect immediately prior to the expiration of the
initial term of this Lease, provided, however, Tenant shall have no further
right to extend the term of this Lease pursuant to this Article 43 and
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Tenant shall not be entitled to any rental abatement provided in Article 1
hereof or any Work Credit provided in Article 46 hereof.
43.05. If Tenant does not timely send the Extension Notice pursuant
to provisions of Section 43.1 hereof, this Article 43 shall have no force or
effect and shall be deemed deleted from this Lease. Time shall be of the
essence with respect to the giving of the Extension Notice. The termination of
this Lease during the initial term hereof shall also terminate and render void
any option or right on Tenant's part to extend the term of this Lease pursuant
to this Article 43 whether or not such option or right shall have theretofore
been exercised.
43.06. If this Lease is renewed for the Extension Term, then
Landlord or Tenant can request the other party hereto to execute an instrument
in form for recording setting forth the exercise of Tenant's right to extend the
term of this Lease and the last day of the Extension Term.
43.07. If Tenant exercises its right to extend the term of this
Lease for the Extension Term pursuant to this Article, the phrases "the term of
this Lease" or "the term hereof" as used in this Lease, shall be construed to
include, when practicable, the Extension Term and "Expiration Date" shall mean
the last day of the Extension Term and "Expiration Date" shall mean the last day
of the Extension Term.
ARTICLE 44
RIGHT OF FIRST OFFERING
44.01. For purposes of this Lease, the term "First Offering Space"
shall mean a portion of rentable space in the Building consisting of the balance
of the sixth (6th) floor not included in the demised premises and the entire
fourth (4th) floor.
44.02. Provided Tenant is not in default under the terms and
conditions of this Lease after the expiration of any applicable grace period
either as of the date of the giving of "Tenant's First Notice"' or the "First
Offering Space Inclusion Date" (as such terms are hereinafter defined), if at
any time during the term of this Lease the First Offering Space shall become
available for leasing to anyone other than the existing tenant thereof or any
subsidiary or affiliate thereof (hereinafter called the "Current Tenant") then
Landlord, before offering such First Offering Space to anyone other than the
Current Tenant, shall offer to Tenant, subject to the provisions of this Article
44, the right to include the entire First Offering Space then offered to Tenant
within the demised promises upon all the terms and conditions of this Lease
(including the provisions of Articles 3 and 4 hereof with the base year periods
specified in Article 3, but excluding Articles 2 and 46 hereof), except that:
(i) the fixed annual rent with respect to the First Offering Space
shall be at. the rate of ninety-five (95%) percent of the fair market rent
(based upon all relevant factors, including without limitation, the fact that
the base year periods specified in
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Article 3 shall not change) for the First Offering Space, which shall be
determined by Landlord as of the date (hereinafter called the "First Offering
Space Determination Date") occurring 30 days prior to the First Offering Space
Inclusion Date (as such term is hereinafter defined) and shall be set forth in
a written notice to Tenant, but in no event shall such fixed annual rent
applicable to the First Offering Space be less than the product obtained by
multiplying (A) the monthly amount of fixed annual rent (determined on a
rentable square foot basis) for the last full calendar month prior to the
First Offering Space Inclusion Date (as hereinafter defined) computed on an
annualized basis without giving effect to, any abatement, credit or offset in
effect, by (B) 12, and by (C) the amount of rentable square feet included
within the First Offering Space (hereinafter called the "First Offering Space
Escalated Rent"); and
(ii) Effective as of the First Offering Space Inclusion Date for
purposes of calculating the additional rent payable pursuant to Article 3
allocable to the First Offering Space, (y) Tenant's Proportionate Share
attributable to the First Offering Space shall be deemed to be the fraction,
expressed as a percentage, the numerator of which shall be the number of
rentable square feet included within the First Offering Space, and the
denominator of which shall be 764,800, and W Tenant's Tax Proportionate Share
attributable to the First Offering Space shall be deemed to be the fraction,
expressed as a percentage, the numerator of which shall be the number of
rentable square feet included within the First Offering Space, and the
denominator of which shall be 825,815.
44.03. Such offer shall be made by Landlord to Tenant in a written
notice (hereinafter called the "First Offer Notice"') which offer shall specify
the fixed annual rent payable with respect to the First offering Space,
determined in accordance with the provisions of Section 44.02 hereof.
44.04. Tenant may accept the offer set forth in the First Offer
Notice by delivering to Landlord an unconditional acceptance (hereinafter called
"'Tenant's First Notice") of such offer within fifteen (15 days after delivery
by Landlord of the First Offer Notice to Tenant. Such First Offering Space shall
be added to and included in the demised premises on the later to occur (herein
called the "'First Offering Space Inclusion Date"') of (i) the day that Tenant
exercises its option as aforesaid, or (ii) the date such First Offering Space
shall become available for Tenant's possession. Time shall be of the essence
with respect to the giving of Tenant's First Notice.
44.05. If Tenant does not accept (or fails to timely accept) an
offer made by Landlord pursuant to the provisions of this Article 44 with
respect to the First Offering Space, Landlord shall be under no further
obligation to Tenant with respect to the first Offering Space or this Article
44.
44.06. In the event that Tenant disputes the amount of the fair
market rent specified in the First Offer Notice, then at any time on or before
the date occurring thirty (30)
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days after Tenant has received the First Offer Notice, and provided that Tenant
shall have given Tenant's First Notice, Tenant may initiate the arbitration
process set forth in Sections 43-03(a), (b), (c) and (d) hereof.
44.07. If Tenant fails to initiate the arbitration process within
the aforesaid thirty (30) day period, time being of the essence, then Landlord's
determination of the fixed annual rent set forth in the First Offer Notice shall
be conclusive. In the event Landlord notifies Tenant that the fixed annual rent
for the First Offering Space shall be the first Offering Space Escalated Rent,
then the provisions of Section 44.05 hereof shall be inapplicable.
44.08. In the event the Tenant initiates the aforesaid arbitration
process and, is of the first Offering Space Inclusion Date, the amount of the
fair market rent has not been determined, Tenant shall pay the amount determined
by Landlord to be ninety-five (95%) percent of the fair market rent for the
First Offering Space, which determination of fair market rent shall be made
considering the relevant factors and discount set forth in Section 43.03(a)(ii),
and when the determination has actually been made, an appropriate retroactive
adjustment shall be made as of the First Offering Space Inclusion Date.
44.09. The provisions of this Article 44 shall be effective only
if, on the date on which Tenant accepts possession of the First Offering Space,
the Tenant named herein and only such Tenant is in actual occupancy of sixty-
seven (67%) percent of the demised premises (including any additional space in
the Building hereafter leased by Tenant).
44.10. Tenant agrees to accept the First Offering Space in its
condition and state of repair existing as of the First Offering Space Inclusion
Date and understands and agrees that Landlord shall not be required to perform
any work, supply any materials or incur any expense to prepare such space for
Tenant's occupancy.
44.11. The fixed annual rent for the First Offering Space as
determined pursuant to this Article 44 shall be subject to periodic increases
for any period during the term of this Lease for which such fixed annual rent
would otherwise be less (on a per rentable square foot basis) than the fixed
annual rent payable pursuant to Section 1.01 hereof (on a per rentable square
foot basis) for such period, so that the fixed annual rent payable during such
periods with respect to the First Offering Space shall be equal (on a per
rentable square foot basis) to the fixed annual rent payable pursuant to Section
1.01 hereof during such periods.
ARTICLE 45
LAYOUT AND FINISH.
45.01. Tenant hereby covenants and agrees that Tenant will, at
Tenant's own cost and expense, make and complete the work and installations in
and to the demised promises set
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forth below in a good and workerlike manner to the extent customary and standard
with the real estate industry for first class office buildings in midtown
Manhattan comparable to the Building.
Tenant, at Tenant's expense, shall prepare a final plan or final set of plans
and specifications (which said final plan or final set of plans, as the case may
be, and specifications are hereinafter called the "final plan") which shall
contain complete information and dimensions necessary for the construction and
finishing of the demised premises and for the engineering in connection
therewith. The final plan shall be submitted by Tenant to Landlord on or before
Juno 30, 1993 for Landlord's written approval which written approval shall not
be unreasonably withhold or delayed. Tenant shall promptly reimburse Landlord
upon demand for any reasonable out-of-pocket costs And expenses incurred by
Landlord or independent third parties in connection with Landlord's review of
Tenant's final plan. Landlord shall incur no liability, obligations or
responsibility to Tenant or any third party by reason of such review. If
Landlord shall disapprove the, final plan, Landlord shall set forth its reasons
for such disapproval and itemize those portions of the final plan so
disapproved. Landlord shall not be doomed unreasonable in withholding its
consent to the extent that the, final plan prepared by Tenant pursuant hereto
involves the performance, of work or the installation in the demised promises of
materials or equipment which do not equal or exceed Building Standard quality.
If Tenant in its submission to Landlord of its final plans make specific
reference to the following time limitation and the consequences of Landlord's
failure to respond, then, Landlord's failure to respond to Tenant's submission
within two, (2) weeks after the later of (i) its receipt thereof or (ii) the
date that Landlord executes this Lease and delivers copies thereof to Tenant,
shall be deemed approval.
In accordance with the final plan, Tenant, at Tenant's expense, will
make and complete in and to the demised premises (hereinafter Sometimes called
the "'Work Area") the work and installations (hereinafter called "Tenant's
Work") specified in the final plan. Tenant shall perform Tenant's Work in
accordance with such rules and regulations as Landlord may from time to time
designed governing the performance. of tenant improvement work in the Building.
Tenant agrees that Tenant's Work will be, performed with the, least possible
disturbance to other occupants of the, Building and the structural and
mechanical parts of the Building and Tenant will, at its own cost and expense
leave, all structural and mechanical parts of the Building which shall or may be
affected by Tenant's Work in good and workmanlike operating condition. Tenant,
in performing Tenant's Work will, at its own cost and expense, promptly comply
with all laws, rules and regulations of all public authorities having
jurisdiction in the Building with reference, to Tenant's Work. Tenant shall not
do or fail to do- any act which shall or may render the Building of which the
demised premises are a part, liable to any mechanic's lien or other lien and if
any such lien or liens be filed against the Building of which the demised
premises are a part, or against Tenant's Work, or any part thereof, Tenant will,
at Tenant's own cost and expense, promptly remove, the same of record within
thirty (30) days after the filing of such lion or lions; or in -default thereof,
Landlord may cause any such lien or liens to be removed of record by payment of
bond or otherwise, an Landlord may elect, and Tenant will reimburse Landlord for
all costs and expenses incidental to the removal of any such lien or
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liens incurred by Landlord. Tenant shall indemnify and save harmless Landlord of
and from all claims, counsel fees, loss, damage and expenses whatsoever by
reason of any lions, charges or payments of any kind whatsoever that may be
incurred or become chargeable against Landlord or the Building of which the
demised promises are a part, or Tenant's Work or any part thereof, by reason of
any work done or to be, done or materials furnished or to bo furnished to or
upon the demised premises in connection with Tenant's Work. Tenant hereby
covenants and agrees to indemnify and save harmless Landlord of and from all
claims, counsel fees, lose, damage and expenses whatsoever by reason of any
injury or damage, howsoever caused, to any person or property occurring prior to
the completion of Tenant's Work or occurring after such completion, as a result
of anything done, or omitted in connection therewith or arising out of any fine,
penalty or imposition or out of any other matter or thing connected with any
work done or to be done or materials furnished or to be furnished in connection
with Tenant's Work. At any and all times during the progress of Tenant's Work,
Landlord, at Landlord's sole cost and expense, shall be entitled to have a
representative or representatives on the site to inspect Tenant's Work and such
representative or representatives shall have free and unrestricted access to any
and every part of the demised premises; provided, however, that any such
representative shall use reasonable efforts, to the extent reasonably
practicable, to minimize any interference with the performance of Tenant's Work.
Tenant shall advise Landlord in. writing of Tenant's general contractor and
subcontractors who are to do Tenant's Work, and such general contractor and
subcontractors shall be subject to Landlord's prior written approval in advance;
such contractors shall, to the extent permitted by law, use employees for
Tenant's Work who will work harmoniously with other employees on the job.
Annexed hereto as Schedule D is a list of general contractors and subcontractors
which have been approved by Landlord for the performance of Tenant's Work.
Tenant shall at Tenant's sole cost and expense file all necessary
architectural plans and obtain all necessary approvals and permits in connection
with Tenant's Work being performed by it pursuant to this Article 45.
45.02. The following conditions shall also apply to Tenant's Work:
(a) all Tenant's Work shall be of material, manufacture, design,
capacity and light colors at least equal to Building Standard;
(b) Tenant, at Tenant's expense shall (i) file all required
architectural, mechanical and electrical drawings and obtain all necessary
permits,-and (ii) furnish and perform all engineering and engineering drawings
in connection with Tenant's Work. Tenant shall obtain Landlord's approval of
the drawings referred to in (i) and (ii) hereof;
(c) Tenant shall use, in connection with the preparation of Tenant's
plans and specifications, an architect who shall be licensed in the City and
State of New York, and such plans and specifications shall be approved by (and
all engineering required to be performed in connection therewith shall be
performed by) an engineering
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firm approved by Landlord, which engineering firm shall likewise be licensed
in the City and State of New York;
(d) Prior to the commencement of Tenant's Work Tenant shall furnish to
Landlord certificates evidencing the existence of (i) workmen's compensation
insurance, covering all persons employed for such work, and (ii) reasonable
comprehensive general liability and property damage insurance naming Landlord,
its designees, and Tenant as insureds with coverage of at least $3,000,000
single limit;
(e) Tenant shall complete Tenant's Work on or before December 31,
1993; and
(f) Notwithstanding anything to the contrary contained herein,
Landlord shall have no liability to Tenant and this Lease shall not be
affected if Tenant is unable to obtain a building permit or other necessary
approval for the performance of Tenant's Work.
45.03. Tenant shall be responsible for removal of Tenant's refuse
and rubbish during the period that Tenant's Work is, in progress in the demised.
premises. .
45.04. Landlord shall, at Tenant's written request, cooperate in
all reasonable respects with Tenant in the performance by Tenant of Tenant's
Work in preparing the demised premises for Tenant's occupancy and Landlord shall
instruct its employees and contractors to render such assistance and to
cooperate with Tenant's employees, representatives and contractors provided that
to the extent that Landlord shall incur any expense in so cooperating or in
rendering such assistance, Tenant shall reimburse Landlord for such expense as
additional rent hereunder.
45.05. Intentionally omitted.
45.06. Tenant acknowledges and agrees. that, notwithstanding
anything in the Lease to the contrary, Landlord have, no responsibility
whatsoever for the installation or proper functioning of, or cost of correcting,
any portion of Tenant's Work and Tenant shall boar the entire responsibility and
liability therefor.
ARTICLE 46
TENANT'S WORK CREDIT
46.01. (a) Landlord shall allow Tenant a credit not to exceed the
amount of ONE MILLION NINE HUNDRED EIGHTY-SEVEN THOUSAND SIX RUN RED EIGHTY and
00/100 ($1,987,680.00) DOLLARS (hereinafter called the, "'Work Credit"), which
credit shall be applied solely against the cost and expense incurred in
connection with the performance
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of Tenant's Work set forth in Article 45 hereof, including so called "soft
costs" such as the architectural and engineering fees incurred by Tenant for the
preparation of the final plan and decorating and consulting fees provided such
soft costs do not exceed in the aggregate fifteen (15%) percent of the Work
Credit disbursed hereunder. In the event that the cost and expense, of Tenant's
Work shall exceed the amount of the Work Credit, Tenant shall be, entirely
responsible for such excess. In the event that the cost and expense, of Tenant's
Work shall be less than the mount of the Work Credit, then the amount of the
Work Credit shall- be reduced accordingly. The Work Credit shall be payable to
Tenant upon written requisition in installments as Tenant's Work progresses, but
in no event more frequently than monthly. Prior to the payment -of any such
installment, (except in the, case of clause (1) the first such installment)
Tenant shall deliver to Landlord a written requisition for disbursement which
shall be accompanied by (1) proof of payment of the invoices for the Tenant's
Work as, to which Landlord made the previous disbursement, (2) invoices for the
Tenant's Work performed since the last disbursement and a certificate signed by
Tenant's architect certifying that the Tenant's Work represented by the
aforesaid invoices has been satisfactorily completed in accordance with the
final plan, (3) partial lien waivers by contractors, subcontractors and all
materialmen for all such work if then available and for work covered by the
prior disbursement, and (4) with respect to the final disbursement of the Work
Credit, all Building Department sign-offs, inspection certificates and any
permits required to be issued by any governmental entities having jurisdiction
thereover with respect to all of Tenant's Work. Within fifteen (15) business
days after final completion of Tenant's work, Tenant shall submit to Landlord
(i) a general release or final lion waivers from all contractors and
subcontractors performing Tenant's Work acknowledging payment for Tenant's Work
and releasing Tenant from all liability or payment for any Tenant's Work, or a
payment bond of a surety company licensed to do business in the State of Now
York for one and one-half times the full contract price of such Tenant's Work
not covered by such general releases or final lien waivers, and (ii) a
certificate signed by Tenant's architect certifying that Tenant's Work has been
completed in accordance with-tho final plan.
(b) At any and all times during the progress of Tenant's Work,
representatives of Landlord shall have the right of access to the demised
premises and inspection thereof and shall have the right to withhold all or any
portion of the Work Credit as shall equal the cost of correcting any portions of
Tenant's Work which shall not have been performed in a good and workmanlike
manner; provided, however, that Landlord shall incur no liability, obligation or
responsibility to Tenant or any third party by reason of such access and
inspection except to the extent of Landlord's negligence or willful misconduct.
ARTICLE 47
EXISTING LEASE
47.01. Tenant and Landlord are currently parties to a lease dated
September 20, 1985 (hereinafter the "Existing Lease") with respect to the
portion of the demised premises located on the fifth (5th) floor which shall
terminate on the Commencement Date of this Lease;
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provided, however, that any obligation of Tenant for the payment of rent or
additional rent or the performance, of any obligation under such Existing Lease
which accrues prior to the Commencement Date of this Lease shall constitute an
obligation under this Lease the non-payment or non-performance, for which
Landlord shall have all of the remedies provided herein.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed
this Lease as of the day and year first above written.
ATTEST: THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, Landlord
/s/ By: /s/
- ----------------------- ----------------------------
ATTEST: INTEREP NATIONAL RADIO SALES,
INC., Tenant
/s/ By: /s/
- ------------------------ ----------------------------
Tenant's Federal Tax Identification Number is 13-Z885151.
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STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 20th of May, 1993, before me personally came Terry McHugh, to
me known who, being by me duly sworn, did depose and say that he resides at 25
Battery Place, Backing Ridge, NJ, that he is the Vice President of THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation, the
corporation described in and which executed the foregoing instrument as
Landlord; and that he signed his name thereto by order of the Board of Directors
of said corporation.
/s/ Florence A. Ires
-----------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 10th day of May, 1993, before me personally came Patrick M.
Healy, to me known, being duly sworn by me, did depose and say that he resides
at 17 Albert Road, Allendale, NJ 07101, that he is the EVP and CEO of INTEREP
NATIONAL RADIO SALES, INC., a New York corporation, the corporation mentioned
in, and which executed the foregoing instrument and that he signed his name
thereto by order of the Board of Directors of said corporation.
/s/ Carrolyn Sarr
--------------------------------
Notary Public
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