1525500015
BES:PAL
FIRST WILLOW, LLC
OFFICE LEASE
MANCHESTER
040297
052197
060497
061697
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LEASE
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FIRST WILLOW, LLC,
Landlord,
And
MANCHESTER EQUIPMENT COMPANY, INC.,
Tenant
Premises
The Fifth (5th) Floor
At
469 Seventh Avenue
New York, New York 10018
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1525500015
BES:PAL
FIRST WILLOW, LLC
OFFICE LEASE
MANCHESTER
040297
052197
060497
061697
TABLE OF CONTENTS TO PRINTED PORTION
STANDARD FORM OF OFFICE LEASE
ARTICLE CAPTION PAGE
1. Rent..............................................1
2. Occupancy.........................................1
3. Tenant Alterations................................1
4. Maintenance and Repairs...........................1
5. Window Cleaning...................................1
6. Requirements of Law, Fire Insurance,
Floor Loads.......................................1
7. Subordination.....................................2
8. Property Loss, Damage Reimbursement
Indemnity.........................................2
9. Destruction, Fire and Other Casualty..............2
10. Eminent Domain....................................2
11. Assignment, Mortgage, Etc.........................2
12. Electric Current..................................2
13. Access to Premises................................2
14. Vault, Vault Space, Area..........................3
15. Occupancy.........................................3
16. Bankruptcy........................................3
17. Default...........................................3
18. Remedies of Owner and Waiver of
Redemption........................................3
19. Fees and Expenses.................................3
20. Building Alterations and Management...............3
21. No Representations by Owner.......................3
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1525500015
BES:PAL
FIRST WILLOW, LLC
OFFICE LEASE
MANCHESTER
040297
052197
060497
061697
22. End of Term......................................4
23. Quiet Enjoyment..................................4
24. Failure to give Possession.......................4
25. No Waiver........................................4
26. Waiver of Trial by Jury..........................4
27. Inability to Perform.............................4
28. Bills and Notices................................4
29. Deleted prior to execution.......................4
30. Captions ................................4
31. Definitions......................................4
32. Adjacent Excavation-Shoring......................4
33. Rules and Regulations............................4
34. Deleted prior to execution.......................5
35. Estoppel Certificate.............................5
36. Successors and Assigns...........................5
Testimonium and Signatures................................5
Acknowledgments...........................................6
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TABLE OF CONTENTS TO RIDER
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ARTICLE CAPTION PAGE
37. TERM; RENTAL.................................. 1
38. ADJUSTMENTS OF RENT........................... 4
39. USE........................................... 10
40. LANDLORD'S WORK............................... 10
41. CONSTRUCTION, GOVERNING LAW; CONSENTS......... 11
42. SUBORDINATION................................. 12
43. LEASE NOT BINDING UNLESS EXECUTED............. 14
44. CONFLICTS..................................... 15
45. ELECTRICITY................................... 15
46. FURTHER PROVISIONS AS TO DEFAULT.............. 17
47. HEAT AND AIR-CONDITIONING..................... 18
48. LANDLORD'S OTHER SERVICES..................... 19
49. SECURITY DEPOSIT.............................. 20
50. PARTIES BOUND................................. 23
51. BROKER........................................ 23
52. HAZARDOUS MATERIALS........................... 24
53. ARBITRATION................................... 24
54. ASSIGNMENT AND SUBLETTING..................... 25
55. INSURANCE..................................... 29
56. TENANT'S CHANGES.............................. 33
57. HOLDING OVER.................................. 36
58. CERTAIN DEFINITIONS AND CONSTRUCTION.......... 36
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1525500015
BES:PAL
FIRST WILLOW, LLC
OFFICE LEASE
MANCHESTER
040297
052197
060497
061697
59. ADDENDUM TO ARTICLE 17.......................... 37
60. NOTICES......................................... 38
EXHIBIT A-FLOOR PLAN OF DEMISED PREMISES.......................... 39
EXHIBIT B-DEFINITIONS............................................. 40
EXHIBIT C-LANDLORD'S WORK......................................... 43
EXHIBIT D-CERTIFICATE OF OCCUPANCY................................ 47
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1525500015
BES:PAL
FIRST WILLOW, LLC
OFFICE LEASE
MANCHESTER
040297
052197
060497
061697
AGREEMENT OF LEASE made as of this 23rd day of June 1997, between FIRST
WILLOW, LLC, a New York limited liability company, having an office at 1110
Second Avenue, New York, New York 10022, party of the first part, hereinafter
referred to as "OWNER" or "LANDLORD" and MANCHESTER EQUIPMENT COMPANY, INC., a
New York corporation having an address at 50 Marcus Boulevard, Hauppauge, New
York, 11788, party of the second party, hereinafter referred to as "TENANT".
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from
Owner the fifth (5th) floor (hereinafter referred to as the "Demised Premises"
or "demised premises" or "Premises"), as shown on the floor plan annexed hereto
as Exhibit A annexed in the building known as 469 Seventh Avenue, New York, New
York 10018 (hereinafter referred to as the "Building"), for the term at an
annual rate as set forth in Article 37 hereof.
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Rent: 1. Tenant shall pay the rent as above and as hereinafter
provided.
Occupancy: 2. Tenant shall use and occupy demised premises for the
purposes set forth in Article 39 and for no other purpose.
TENANT ALTERATION: 3. Tenant shall make no changes in or to the demised premises
of any nature without Owner's prior written consent. Subject to the prior
written consent of Owner, and to the provisions of this article, Tenant, at
tenant's expense, may make alterations, installations, additions or improvements
which are non-structural and which do not affect utility services or plumbing
and electrical lines, in or to the interior of the demised premises by using
contractors or mechanics first approved in each instance by Owner. Tenant shall,
before making any alterations, additions, installations or improvements, at its
expense, obtain all permits, approvals and certificates required by any
governmental or quasi-governmental bodies and (upon completion) certificates of
final approval thereof and shall deliver promptly duplicates of all such
permits, approvals and certificates to Owner and Tenant agrees to carry and will
cause Tenant's contractors and sub-contractors to carry such workman's
compensation, general liability, personal and property damage insurance as Owner
may require. If any mechanic's lien is filed against the demised premises, or
the building of which the same forms a part for work claimed to have been done
for, or materials furnished to, Tenant, whether or not done pursuant to this
article, the same shall be discharged by Tenant within thirty days thereafter,
at Tenant's expense, by payment or filing the bond required by law. All fixtures
and all paneling, partitions, railings and like installations, installed in the
premises at any time, either by Tenant or by Owner on Tenant's behalf, shall
upon installation, become the property of Owner and shall remain upon and be
surrendered with the demised premises unless Owner by notice to Tenant no later
than twenty days prior to the date fixed as the termination of this lease,
elects to relinquish Owner's right thereto and to have them removed by Tenant,
in which event the same shall be removed from the premises by Tenant prior to
the expiration of the lease, at Tenant's expense. Nothing in this Article shall
be construed to give Owner title to or to prevent Tenant's removal of trade
fixtures, moveable office furniture and equipment, but upon removal of such from
the premises or upon removal of other installations as may be required by Owner,
Tenant shall immediately and at its expense, repair and restore the premises to
the condition existing prior to installation and repair any damage to the
demised premises or the building due to such removal. All property permitted or
required to be removed, by Tenant at the end of the term remaining in the
premises after Tenant's removal shall be deemed abandoned and may, at the
election of Owner, either be retained as Owner's property or may be removed from
the premises by Owner, at tenant's expense. See Article 56.
Maintenance and Repairs: 4. Tenant shall, throughout the term of this lease take
good care of the demised premises and the fixtures and appurtenances therein.
Tenant shall be responsible for all damage or injury to the demised premises or
any other part of the building and the systems and equipment thereof, whether
requiring structural or nonstructural repairs caused by or resulting from
carelessness, omission, neglect or improper conduct of Tenant, Tenant's
subtenants, agents, employees, invitees or licensees, or which arise out of any
work, labor, service or equipment done for or supplied to Tenant or any
subtenant or arising out of the installation, use or operation of the property
or equipment of Tenant or any subtenant. Tenant shall also repair all damage to
the building and the demised premises caused by the moving of Tenant's fixtures,
furniture and equipment. Tenant shall promptly make, at Tenant's expense, all
repairs in and to the demised premises for which Tenant is responsible, using
only the contractor for the trade or trades in question, selected from a list of
at least two contractors per trade submitted by Owner. Any other repairs in or
to the building or the facilities and systems thereof for which Tenant is
responsible shall be performed by Owner at the Tenant's expense. Owner shall
maintain in good working order and repair the exterior and the structural
portions of the building, including the structural portions of its demised
premises, and the public portions of the building interior and the building
plumbing, electrical, heating and ventilating systems (to the extent such
systems presently exist) serving the demised premises. Tenant agrees to give
prompt notice of any defective condition in the premises for which Owner may be
responsible hereunder. There shall be no allowance to Tenant for diminution of
rental value and no liability on the part of Owner by reason of inconvenience,
annoyance or injury to business arising from Owner or others making repairs,
alterations, additions or improvements in or to any portion of the building or
the demised premises or in and to the fixtures, appurtenances or equipment
thereof. It is specifically agreed that Tenant shall not be entitled to any
setoff or reduction of rent by reason of any failure of Owner to comply with the
covenants of this or any other article of this Lease. Tenant agrees that
Tenant's sole remedy at law in such instance will be by way of an action for
damages for breach of contract. The provisions of this Article 4 shall not apply
in the case of fire or other casualty which are dealt with in Article 9 hereof.,
Window Cleaning: 5. Tenant will not clean nor require, permit, suffer or allow
any window in the demised premises to be cleaned from the outside in violation
of Section 202 of the Labor Law or any other applicable law or of the Rules of
the Board of Standards and Appeals, or of any other Board or body having or
asserting jurisdiction.
Requirements of Law, Fire Insurance, Floor Loads: 6. Prior to the commencement
of the lease term, if Tenant is then in possession, and at all times thereafter,
Tenant, at Tenant's sole cost and expense, shall promptly comply with all
present and future laws, orders and regulations of all state, federal, municipal
and local governments, departments, commissions and boards and any direction of
any public officer pursuant to law, and all orders, rules and regulations of the
New York Board of Fire Underwriters, Insurance Services Office, or any similar
body which shall impose any violation, order or duty upon Owner or Tenant with
respect to the demised premises, whether or not arising out of Tenant's use or
manner of use thereof, (including Tenant's permitted use), or, with respect to
the building if arising out of Tenant's use or manner of use of the premises or
the building (including the use permitted under the lease). Nothing herein shall
require Tenant to make structural repairs or alterations unless Tenant has, by
its manner of use of the demised premises or method of operation therein,
violated any such laws, ordinances, orders, rules, regulations or requirements
with respect thereto. Tenant may, after securing Owner to Owner's satisfaction
against all damages, interest, penalties and expenses, including, but not
limited to, reasonable attorney's fees, by cash deposit or by surety bond in an
amount and in a company satisfactory to owner, contest and appeal any such laws,
ordinances, orders, rules, regulations or requirements provided same is done
with all reasonable promptness and provided such appeal shall not subject Owner
to prosecution for a criminal offense or constitute a default under any lease or
mortgage under which Owner may be obligated, or cause the demised premises or
any part thereof to be condemned or vacated. Tenant shall not do or permit any
act or thing to be done in or to the demised premises which is contrary to law,
or which will invalidate or be in conflict with public liability, fire or other
policies of insurance at any time carried by or for the benefit of Owner with
respect to the demised premises or the building of which the demised premises
form a part, or which shall or might subject Owner to any liability or
responsibility to any person or for property damage. Tenant shall not keep
anything in the demised premises except as now or hereafter permitted by the
Fire Department, Board of Fire underwriters, Fire Insurance rating Organization
or other authority having jurisdiction, and then only in such manner and such
quantity so as not to increase the rate for fire insurance applicable to the
building, nor use the premises in a manner which will increase the insurance
rate for the building or any property located therein over that in effect prior
to the commencement of Tenant's occupancy. Tenant shall pay all costs, expenses,
fine, penalties, or damages, which may be imposed upon Owner by reason of
tenant's failure to comply with the provisions of this article and if by reason
of such failure the fire insurance rate shall, at the beginning of this lease or
any time thereafter, be higher than it otherwise would be, then Tenant shall
reimburse Owner, as additional rent hereunder, for that portion of all fire
insurance premiums thereafter paid by Owner which shall have been charged
because of such failure by Tenant. In any action or proceeding wherein owner and
Tenant are parties, a schedule or "make-up" of rate for the building or demised
premises issued by the New York Fire Insurance exchange or other body making
fire insurance rates applicable to said premises shall be conclusive evidence of
the facts therein stated and of the several items and charges in the fire
insurance rates then applicable to said premises. Tenant shall not place a load
upon any floor of the demised premises exceeding the floor load per square foot
area which it was designed to carry and which is allowed by law. Owner reserves
the right to prescribe the weight and position of all safes, business machines
and mechanical equipment. Such installations shall be placed and maintained by
Tenant, at Tenant's expense, in settings sufficient in Owner's judgment, to
absorb and prevent vibration, noise and annoyance. See Article 55.
Subordination: 7. This lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or hereafter affect such
leases or the real property of which demised premises are a part and to all
renewals, modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall from time to time execute promptly any certificate that Owner may
request. See Article 42.
Property Loss, Damage Reimbursement Indemnity: 8. Owner or its agents shall not
be liable for any damage to property of Tenant or of others entrusted to
employees of the building, nor for loss of or damage to any property of tenant
by theft or otherwise , nor for any injury or damage to persons or property
resulting from any clause of whatsoever nature, unless caused by or due to the
negligence of Owner, its agents, servants or employees. Owner or its agents will
not be liable for any such damage caused by other tenants or persons in, upon or
about said building or caused by operations in construction of any private,
public or quasi public work. If any time any windows of the demised premises are
temporarily closed, darkened or bricked up (or permanently closed, darkened or
bricked up, if required by law) for any reason whatsoever including, but not
limited to Owner's own acts, Owner shall not be liable for any damage Tenant may
sustain thereby and Tenant shall not be entitled to any compensation therefor
nor abatement or diminution of rent nor shall the same release Tenant from its
obligations hereunder nor constitute an eviction. Tenant shall indemnify and
save harmless Owner against and from all liabilities, obligations damages,
penalties, claims, costs and expenses for which owner shall not be reimbursed by
insurance, including reasonable attorneys fees, paid, suffered or incurred as a
result of any breach by Tenant, Tenant's agents, contractors, employees,
invitees, or licensees, of any covenant or condition of this lease, or the
carelessness, negligence or improper conduct of the Tenant, Tenant's agents,
contractors, employees, invitees or licensees. Tenant's liability under this
lease extends to the acts and omissions of any subtenant, and any agent,
contractor, employee, invitee or licensee of any subtenant. In case any action
or proceeding is brought against Owner by reason of any such claim, Tenant, upon
written notice from Owner, will at Tenant's expense, resist or defend such
action or proceeding by counsel approved by Owner in writing, such approval not
to be unreasonably withheld.
Destruction, Fire and Other Casualty: 9. (a)If the demised premises or any part
thereof shall be damaged by fire or other casualty, Tenant shall give immediate
notice thereof to Owner and this lease shall continue in full force and effect
except as hereinafter set forth. (b) If the demised premises are partially
damaged or rendered partially unusable by fire or other casualty, the damages
thereto shall be repaired by and at the expense of Owner and the rent and other
items of additional rent, until such repair shall be substantially completed,
shall be apportioned from the day following the casualty according to the part
of the premises which is usable. (c) If the demised premises are totally damaged
or rendered wholly unusable by fire or other casualty, then the rent and other
items of additional rent as hereinafter expressly provided shall be
proportionately paid up to the time of the casualty and thenceforth shall cease
until the date when the premises shall have been repaired and restored by Owner
(or sooner reoccupied in part by Tenant then rent shall be apportioned as
provided in subsection (b) above), subject to Owner's right to elect not to
restore the same as hereinafter provided. (d) If the demised premises are
rendered wholly unusable or (whether or not the demised premises are damaged in
whole or in part) if the building shall be so damaged that Owner shall decide to
demolish it or to rebuild it, then, in any such events, Owner may elect to
terminate this lease by written notice to Tenant, given within 90 days after
such fire or casualty, or 30 days after adjustment of the insurance claim for
such fire or casualty, whichever is sooner, specifying a date for the expiration
of the lease, which date shall not be more than 60 days after the giving of such
notice, and upon the date specified in such notice the term of this lease shall
expire as fully and completely as if such date set forth above for the
termination of this lease and Tenant shall forthwith quit, surrender and vacate
the premises without prejudice however, to Landlord's rights and remedies
against Tenant under the lease provisions in effect prior to such termination,
and any rent owing shall be paid up to such date and any payments of rent made
by Tenant which were on account of any period subsequent to such date shall be
returned to Tenant. Unless Owner shall serve a termination notice as provided
for herein, Owner shall make the repairs and restorations under the conditions
of (b) and (c) hereof, with all reasonable expedition, subject to delays due to
adjustment of insurance claims, labor troubles and causes beyond Owner's
control. After any such casualty, Tenant shall cooperate with Owner's
restoration by removing from the premises as promptly as reasonably possible,
all of Tenant's salvageable inventory and moveable equipment, furniture, and
other property. Tenant's liability for rent shall resume five (5) days after
written notice from Owner that the premises are substantially ready for Tenant's
occupancy. (e) Nothing contained hereinabove shall relieve Tenant from liability
that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, including Owner's obligation to restore under
subparagraph (b) above, each party shall look first to any insurance in its
favor before making any claim against the other party for recovery for loss or
damage resulting form fire or other casualty and to the extent that such
insurance is in force and collectible and to the extent permitted by law, Owner
and Tenant each hereby releases and waives all right of recovery with respect to
subparagraphs (b), (d), and (e) above, against the other or any one claiming
through or under each of them by way of subrogation or otherwise. The release
and waiver herein referred to shall be deemed to include any loss or damage to
the demised premises and/ or to any personal property, equipment, trade
fixtures, goods and merchandise located therein. The foregoing release and
waiver shall be in force only if both releasors' insurance policies contain a
clause providing that such a release or waiver shall not invalidate the
insurance. If, and to the extent , that such waiver can be obtained only by the
payment of additional premiums, then the party benefiting from the waiver shall
pay such premium within ten days after written demand or shall be deemed to have
agreed that the party obtaining insurance coverage shall be free of any further
obligations under the provisions hereof with respect to waiver of subrogation.
Tenant acknowledges that Owner will not carry insurance on Tenant's furniture
and/or furnishings or any fixtures or equipment, improvements, or appurtenances
removable by Tenant and agrees that Owner will not be obligated to repair any
damage thereto or replace the same. (f) Tenant hereby waives the provisions of
Section 227 of the Real Property Law and agrees that the provisions of this
article shall govern and control in lieu thereof.
Eminent Domain: 10. If the whole or any part of the demised premises shall be
acquired or condemned by Eminent Domain for any public or quasi public use or
purpose, then and in that event, the term of this lease shall cease and
terminate from the date of title vesting in such proceeding and Tenant shall
have no claim for the value of any unexpired term of said lease and assigns to
Owner, Tenant's entire interest in any such award. Tenant shall have the right
to make an independent claim to the condemning authority for the value of
Tenant's moving expenses and personal property, trade fixtures and equipment,
provided Tenant is entitled pursuant to the terms of the lease to remove such
property, trade fixture and equipment at the end of the term and provided
further such claim does not reduce Owner's award.
Assignment, Mortgage, Etc.: 11. Tenant, for itself, its heirs, distributees,
executors, administrators, legal representative, successor and assigns,
expressly covenants that is shall not assign, mortgage or encumber this
agreement, nor underlet, or suffer or permit the demised premises or any part
thereof to be used by others, without the prior written consent of Owner in each
instance. Transfer of the majority of the stock of a corporate Tenant or the
majority partnership interest of a partnership Tenant shall be deemed an
assignment. If this lease be assigned, or if the demised premises or any part
thereof be underlet or occupied by anybody other than Tenant, Owner may, after
default by Tenant, collect rent from the assignee, under-tenant or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, underletting, occupancy or collection shall be deemed a waiver of
this covenant, or the acceptance of the assignee, undertenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any further assignment
or underletting. See Article 54.
Electric Current: 12. Rates and conditions in respect to submetering or rent
inclusion, as the case may be, to be added in RIDER attached hereto. Tenant
covenants and agrees that at all times its use of electric current shall not
exceed the capacity of existing feeders to the building or the risers or wiring
installation and Tenant may not use any electrical equipment which in Owner's
opinion, reasonably exercised, will overload such installations or interfere
with the use thereof by other tenants of the building. The change at any time of
the character of electric service shall in no wise make Owner liable or
responsible to Tenant, for any loss, damages or expenses which Tenant may
sustain.
Access to Premises: 13. Owner or Owner's agents shall have the right (but shall
not be obligated) to enter the demised premises in any emergency at any time,
and, at other reasonable times, to examine the same to make such repairs,
replacements and improvements as Owner may deem necessary and reasonably
desirable to the demised premises or to any other portion of the building or
which Owner may elect to perform. Tenant shall permit Owner to use and maintain
and replace pipes and conduits in and through the demised premises and to erect
new pipes and conduits therein provided they are concealed within the walls,
floor, or ceiling. Owner may, during the progress of any work in the demised
premises, take all necessary materials and equipment into said premises without
the same constituting an eviction nor shall the Tenant be entitled to any
abatement of rent while such work is in progress nor to any damages by reason of
loss or interruption of business or otherwise. Throughout the term hereof Owner
shall have the right to enter the demised premises at reasonable hours for the
purpose of showing the same to prospective purchasers or mortgagees of the
building, and during the last six months of the term for the purpose of showing
the same to prospective tenants. if Tenant is not present to open and permit an
entry into the demised premises, Owner or Owner's agents may enter the same
whenever such entry may be necessary or permissible by master key or forcibly
and provided reasonable care is exercised to safeguard Tenant's property, such
entry shall not render Owner or its agents liable therefor, nor in any event
shall the obligations of Tenant hereunder be affected If during the last month
of the term Tenant shall have removed all or substantially all of Tenant's
property therefrom Owner may immediately enter, alter, renovate or redecorate
the demised premises without limitation or abatement of rent , or incurring
liability to Tenant for any compensation and such act shall have no effect on
this lease or Tenant's obligations hereunder.
Vault, Vault Space, Area: 14. No Vaults, vault space or area, whether or not
enclosed or covered, not within the property line of the building is leased
hereunder, anything contained in or indicated on any sketch, blue print or plan,
or anything contained elsewhere in this lease to the contrary notwithstanding.
Owner makes no representation as to the location of the property line of the
building. All vaults and vault space and all such areas not within the property
line of the building, which Tenant may be permitted to use and/or occupy, is to
be used and/or occupied under a revocable license, and if any such license be
revoked, or if the amount of such space or area be diminished or required by any
federal, state or municipal authority or public utility, Owner shall not be
subject to any liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall such revocation, diminution or
requisition be deemed constructive or actual eviction. Any tax, fee or charge of
municipal authorities for such vault or area shall be paid by Tenant.
Occupancy: 15. Tenant will not at any time use or occupy the demised premises in
violation of the certificate of occupancy issued for the building of which the
demised premises are a part. Tenant has inspected the premises and accepts them
as is, subject to the riders annexed hereto with respect to Owner's work, if
any. In any event, Owner makes no representation as to the condition of the
premises and Tenant agrees to accept the same subject to violations, whether or
not of record.
Bankruptcy: 16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be canceled by Owner by the sending of a written
notice to Tenant within a reasonable time after the happening of any one or more
of the following events: (1) the commencement of a case in bankruptcy or
under the laws of any state naming Tenant as the debtor; or (2) the making by
Tenant of an assignment or any other arrangement for the benefit of creditors
under any state statute. Neither Tenant nor any person claiming through or under
Tenant, or by reason of any statute or order of court, shall thereafter be
entitled to possession of the premises demised but shall forthwith quit and
surrender the premises. If this lease shall be assigned in accordance with its
terms, the provisions of the Article 16 shall b e applicable only to the party
then owning Tenant's interest in this lease.
(b) it is stipulated and agreed that in the event of the
termination of this lease pursuant to (a) hereof, Owner shall forthwith,
notwithstanding any other provisions of this lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount equal to the
difference between the rent reserved hereunder for the unexpired portion of the
term demised and the fair and reasonable rental value of the demised premises
for the same period. In the computation of such damages the difference between
any installment of rent becoming due hereunder after the date of termination and
the fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such premises or any
part thereof be re-let by the Owner for the unexpired term of said lease, or any
part thereof, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the amount of rent reserved upon such re-letting
shall be deemed to be the fair and reasonable rental value for the part or the
whole of the premises so re-let during the term of the re-letting. Nothing
herein contained shall limit or prejudice the right of the Owner to prove for
and obtain as liquidated damages by reason of such termination, an amount equal
to the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved, whether
or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
Default: 17. (1) (Not used).
(2) If the notice provided for in (1) hereof shall have been
given, and the term shall expire as aforesaid; then and in any of such events
Owner may without notice, re-enter the demised premises either by force or
otherwise, and dispossess Tenant by summary proceedings or otherwise, and the
legal representative of Tenant or other occupant of demised premises and remove
their effects and hold the premises as if this lease had not been made, and
Tenant hereby waives the service of notice of intention for re-enter or to
institute legal proceedings to that end. If Tenant shall make default hereunder
prior to the date fixed as the commencement of any renewal or extension of this
lease, Owner may cancel and terminate such renewal or extension agreement by
written notice. See Article 59.
Remedies of Owner and Waiver of Redemption: 18. In case of any such default,
re-entry, expiration and/or dispossess by summary proceedings or otherwise, (a)
the rent shall become due thereupon and be paid up to the time of such re-entry,
dispossess and/or expiration. (b) Owner may re-let the premises or any part or
parts thereof, either in the name of Owner or otherwise, for a term or terms,
which may at Owner's option be less than or exceed the period which would
otherwise have constituted the balance of the term of this lease and may grant
concessions or free rent or charge a higher rental than that in this lease,
and/or (c) Tenant or the legal representatives of Tenant shall also pay Owner as
liquidated damages for the failure of Tenant to observe and perform said
Tenant's covenants herein contained, any deficiency between the rent hereby
reserved and/or covenanted to be paid and the net amount, if any, of the rents
collected on account of the lease or leases of the demised premises for each
month of the period which would otherwise have constituted the balance of the
term of this lease. The failure of Owner to re-let the premises or any part or
parts thereof shall not release or affect Tenant's liability for damages. In
computing such liquidated damages there shall be added to the said deficiency
such expenses a Owner may incur in connection with re-letting, such as legal
expenses, reasonable attorneys' fees, brokerage, advertising and for keeping the
demised premises in good order or for preparing the same for re-letting. Any
such liquidated damages shall be paid in monthly installments by Tenant on the
rent day specified in this lease and any suit brought to collect the amount of
the deficiency for any month shall not prejudice in any way the rights of Owner
to collect the deficiency for any subsequent month by a similar proceeding.
owner, in putting the demised premises in good order or preparing the same for
re-rental may, at Owner's option, make such alterations, repairs, replacements,
and/or decorations in the demised premises a Owner, in Owner's sole judgment,
considers advisable and necessary for the purpose of re-letting the demised
premises, and the making of such alterations, repairs, replacements, and/or
decorations shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. owner hall in no event be liable in any way
whatsoever for failure to re-let the demised premises or in the event that the
demised premises are re-let, for failure to collect the rent thereof under such
re-letting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Owner
hereunder. In the vent of a breach or threatened breach by Tenant of any of the
covenants or provisions hereof, Owner shall have the right of injunction and the
right o invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for. Mention in this
lease of any particular remedy, shall not preclude Owner from any other remedy,
in law or in equity. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of Tenant
being evicted or dispossessed for any cause, or in the event of Owner obtaining
possession of demised premises, by reason of the violation by Tenant of any of
the covenants and conditions of this lease, or otherwise.
Fees and Expenses: 19. If Tenant shall default in the observance or performance
of any term or covenant on Tenant's part to be observed or performed under or by
virtue of any of the terms or provisions in any article of this lease, after
notice if required and upon expiration of any applicable grace period if any,
(except in an emergency), then, unless otherwise provided elsewhere in this
lease, Owner may immediately or at any time thereafter and without notice
perform the obligation of Tenant thereunder. if Owner, in connection with the
foregoing or in connection with any default by Tenant in the covenant to pay
rent hereunder, makes any expenditures or incurs any obligations for the payment
of money, including but not limited to reasonable attorneys' fees, in
instituting, prosecuting or defending any action or proceeding, and prevails in
any such action or proceeding then Tenant will reimburse owner for such sums so
paid or obligations incurred with interest and costs. The foregoing expenses
incurred by reason of Tenant's default shall be deemed to be additional rent
hereunder and shall be paid by Tenant to Owner within ten(10) days of rendition
of any bill or statement to Tenant therefor. if Tenant's lease term shall have
expired at the time of making of such expenditures or incurring of such
obligations, such sums shall be recoverable by Owner as damages.
Building Alterations and Management: 20. Owner shall have the right at any time
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, stairs, toilets or other
public parts of the building and to change the name, number or designation by
which the building may be known. There shall be no allowance to Tenant for
diminution of rental value and no liability on the part of Owner by reason of
inconvenience, annoyance or injury to business arising from owner or other
Tenants making any repairs in the building or any such alterations, additions
and improvements. Furthermore, Tenant shall not have any claim against Owner by
reason of Owner's imposition of such controls of the manner of access to the
building by Tenant's social or business visitors as the Owner may deem necessary
for the security of the building and its occupants.
No Representations by Owner: 21. Neither Owner nor Owner's agents have made any
representations or promises with respect to the physical condition of the
building, the land upon which it is erected or the demised premises, the rent,
leases, expenses of operation or any other matter or thing affecting or related
to the premises except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this lease. Tenant has inspected the building and
the demised premises and is thoroughly acquainted with their condition and
agrees to take the same "as is" and acknowledges that the taking of possession
of the demised premises by Tenant shall be conclusive evidence that the said
premises and the building of which the same form a part were in good and
satisfactory condition at the time such possession was so taken, except as to
latent defects. All understandings and agreements heretofore made between the
parties hereto are merged in this contract, which alone fully and completely
expresses the agreement between Owner and Tenant and any executory agreement
hereafter made shall be ineffective to change, modify, discharge or effect an
abandonment of it in whole or in part, unless such executory agreement is in
writing and signed by the part against whom enforcement of the change,
modification, discharge or abandonment is sought. End of Term: 22. Upon
the expiration or other termination of the term of this lease, Tenant shall quit
and surrender to Owner the demised premises, broom clean, in good order and
condition, ordinary wear and damages which Tenant is not required to repair as
provided elsewhere in this lease excepted, and Tenant shall remove all its
property. Tenant's obligation to observe or perform this covenant shall survive
the expiration or other termination of this lease. If the last day of the term
of this Lease or any renewal thereof, falls on Sunday, this lease shall expire
at noon on the preceding Saturday unless it be a legal holiday in which case it
shall expire at noon on the preceding business day.
Quiet Enjoyment: 23. Owner covenants and agrees with Tenant that upon Tenant
paying the rent and additional rent and observing and performing all the terms,
covenants, and conditions, on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the premises hereby demised, subject,
nevertheless, to the terms and conditions of this lease including, but limited
to, Article 31 hereof and to the ground leases, underlying leases and mortgages
hereinbefore mentioned.
Failure to Give Possession: 24. If Owner is unable to give possession of the
demised premises on the date of the commencement of the term hereof, because of
the holding-over or retention of possession of any tenant, undertenant, or
occupants or if the demised premises are located in a building being
constructed, because such building has not been sufficiently complete to make
the premises ready for occupancy or because of the fact that a certificate of
occupancy has not been procured, or for any other reason, Owner shall not be
subject to any liability for failure to give possession on said date and the
validity of the lease shall not be impaired under such circumstances, nor shall
the same be construed in any wise to extend the term of this lease, but the rent
payable hereunder shall be abated (provided Tenant is not responsible for
Owner's inability to obtain possession or complete construction) until after
Owner shall have given Tenant written notice that the Owner is able to deliver
possession on condition required by this lease. If permission is given to Tenant
to enter into the possession of the demises premises or to occupy premises other
than the demised premises prior to the date specified as the commencement of the
term of this lease, Tenant covenants and agrees that such possession and/or
occupancy shall be deemed to be under all the terms, covenants, conditions and
provisions of this lease except the obligation to pay the fixed annual rent set
forth in the preamble to this lease. The provisions of this article are intended
to constitute "an express provision to the contrary" within the meaning of
Section 223-a of the New York Real Property Law.
No Waiver: 25. The failure of Owner to seek redress for violation of, or to
insist upon the strict performance of any covenant or condition of this lease or
of any of the Rules or Regulations, set forth or hereafter adopted by Owner,
shall not prevent a subsequent act which would have originally constituted a
violation from having all the force and effect of an original violation. The
receipt by Owner of rent and/or additional rent with knowledge of the breach of
any covenant of this lease shall not be deemed a waiver of such breach and no
provision of this lease shall be deemed to have been waived by Owner unless such
waiver be in writing signed by Owner. No payment by Tenant or receipt by Owner
of a lesser amount than the monthly rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any endorsement
or statement of any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Owner may accept such check or
payment without prejudice to Owner's right to recover the balance of such rent
or pursue any other remedy in this lease provided. No act or thing done by Owner
or Owner's agents during the term hereby demised shall be deemed an acceptance
of a surrender of said premises, and no agreement to accept such surrender shall
be valid unless in writing signed by Owner. No employee of Owner or Owner's
agent shall have any power to accept the keys of said premises prior to the
termination of the lease and the delivery of keys to any such agent or employee
shall not operate as a termination of the lease or a surrender of the premises.
Waiver of Trial by Jury: 26. It is mutually agreed by and between Owner and
tenant that the respective parties hereto shall and they hereby do waive trial
by jury in any action proceeding or counterclaim brought by either of the
parties hereto against the other (except for personal injury or property damage)
on any matter whatsoever arising out of or in any way connected with this lease,
the relationship of Owner and Tenant, Tenant's use of or occupancy of said
premises, and any emergency statutory or any other statutory remedy. It
is further mutually agreed that in the event Owner commences any proceeding or
action for possession including a summary proceeding for possession of the
premises, Tenant will not interpose any counterclaim of whatever nature or
description in any such proceeding including a counterclaim under Article 4
except for statutory mandatory counterclaims.
Inability to Perform: 27. This Lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenants and agreements hereunder on
part of Tenant to be performed shall in no wise be affected, impaired or excused
because Owner is unable to fulfill any of its obligations under this lease or to
supply or is delayed in supplying any service expressly or impliedly to be
supplied or is unable to make, or is delayed in making any repair, additions,
alterations or decorations or is unable to supply or is delayed in supplying any
equipment, fixtures, or other materials if Owner is prevented or delayed from so
doing by reason of strike or labor troubles or any cause whatsoever including,
but limited to, government preemption or restrictions or by reason of any rule,
order or regulations of any department or subdivision thereof of any government
agency or by reason of the conditions which have been or are affected, either
directly or indirectly, by war or other emergency.
Bills and Notices: 28. See Article 60
Services Provided by Owner: 29. See Articles 47 and 48.
Captions: 30. 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 provisions thereof.
Definitions: 31. The term "office", or "offices", wherever used in this lease,
shall not be construed to mean premises used as a store or stores, for the sale
or display, at any time, of goods, wares or merchandise, of any kind, or as a
restaurant, shop, booth, bootblack or other stand, barber shop, or for other
similar purposes or for manufacturing. The term "Owner" means a landlord or
lessor, and 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) of which the demised premises form
a part, so that in the event of any sale or sales of said land and building and
of said lease, or in the event of a lease of said building, or of the land and
building, the said Owner shall b e and hereby is entirely freed and relieved of
all covenants and obligations of Owner hereunder, and it shall be deemed and
construed without further agreement between the parties or their successors in
interest, or between the parties and the purchaser, at any such sale, or the
said lessee of the building, or of the land and building, that the purchaser or
the lessee of the building has assumed and agreed to carry out any and all
covenants and obligations of Owner, hereunder. The words "re-enter" and
"re-entry" as used in this lease are not restricted to their technical legal
meaning. The term "business days" as used in this lease shall exclude Saturdays,
Sundays and all days as observed by the State or Federal Government as legal
holidays and those designated as holidays by the applicable building service
union employees service contract or by the applicable Operating Engineers
contract with respect to HVAC service. Wherever it is expressly provided in this
lease that consent shall not be unreasonably withheld such consent shall not be
unreasonably delayed.
Adjacent Excavation-Shoring: 32. If an excavation shall be made upon land
adjacent to the demised premises, or shall be authorized to made, Tenant shall
afford to the person causing or authorized to cause such excavation, license to
enter upon the demised premises for the purpose of doing such work as said
person shall deem necessary to preserve the wall or the building of which
demised premises form a part from injury or damage and to support the same by
proper foundations without any claim for damages or indemnity against owner, or
diminution or abatement of rent.
Rules and Regulations: 33. Tenant and tenant's servants, employees, agents,
visitors, and licensees shall observe faithfully, and comply strictly with, the
Rules and Regulations and such other and further reasonable Rules and
Regulations as Owner or Owner's agents may from time to time adopt. Notice of
any additional rules or regulations shall be given in such manner as Owner may
elect. In case Tenant disputes the reasonableness of any additional Rule
or Regulations hereafter made or adopted by Owner or Owner's agents, the parties
hereto agree to submit the question of the reasonableness of such Rule or
Regulation for decision to the New York office of the American Arbitration
Association, whose determination shall be final and conclusive upon the parties
hereto. The right to dispute the reasonableness of any additional Rule or
Regulation upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice, in writing upon Owner within fifteen (15) days
after the giving of notice thereof, Nothing in this lease contained shall be
construed to impose upon Owner any duty or obligation to enforce the Rules and
Regulations or terms, covenants or conditions in any other lease, as against any
other tenant and Owner shall not be liable to Tenant for violation of the same
by any other tenant, its servants, employees, agents, visitors or licensees.
Security: 34. See Article 49.
Estoppel Certificate: 35. Tenant, at any time, and from time to time, upon at
least 10 days' prior notice by Owner, shall execute, acknowledge and deliver to
Owner, and/or to any other person, firm or corporation specified by Owner, a
statement certifying that this Lease is unmodified and in full force and effect
(or, if there have been modifications, that the same is in full force and effect
as modified and stating the modifications), stating the dates to which the rent
and additional rent have been paid, and stating whether or not there exists any
default by owner under this Lease, and, if so, specifying each such default.
Successors and Assigns: 36. The covenants, conditions and agreements contained
in this lease shall bind and inure to the benefit of Owner and Tenant and their
respective heirs, distributees, executors, administrators, successors, and
except as otherwise provided in this lease, their assigns. Tenant shall look
only in Owner's estate and interest in the land and building, for the
satisfaction of tenant's remedies for the collection of a judgment (or other
judicial process) against Owner in the event of any default by Owner hereunder,
and no other property or assets of such Owner (or any partner, member, officer
or director thereof, disclosed or undisclosed), shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Tenant's
remedies under or with respect to this lease, the relationship of Owner and
Tenant hereunder, or Tenant's use and occupancy of the demised premises.
A Rider consisting of Articles 37 to 60 and Exhibits A-D is annexed hereto and
made a part hereof.
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and
sealed this lease as of the day and year first above written.
LANDLORD:
FIRST WILLOW, LLC
By: Flatiron Property Corp.
a member
By: ss: Bruce McLean
---------------------
TENANT:
MANCHESTER EQUIPMENT COMPANY, INC.
By: ss: Barry Steinberg
------------------------
Tenant's Employer Identification No.
11-2312854
----------
1525500015
BES:PAL
FIRST WILLOW, LLC
OFFICE LEASE
MANCHESTER
040297
052197
060497
061697
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK) )
On this 26th day of June, 1997, before me personally came Bruce McLean, to
me known, and known to me to be a V.P. of FLATIRON PROPERTY CORP., a
corporation, a managing member in the firm of First Willow, LLC, and the person
described in and who executed the foregoing instrument on behalf of First
Willow, LLC in the name of FLATIRON PROPERTY CORP. and he duly acknowledged to
me that he executed the same on behalf of FLATIRON PROPERTY CORP. for and as the
act and deed of First Willow LLC.
ss: Lisa A. Ross
-----------------
Notary Public
(Notarized)
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On this 20th day of June, 1997, before me personally came Barry R.
Steinberg, to me known, who, being by me duly sworn, did depose and say that he
resides in Suffolk County, State of New York; that he is the President of
MANCHESTER EQUIPMENT COMPANY, INC., the corporation described in and which
executed the foregoing instrument; as TENANT; and that he signed his name
thereto by order of the board of directors of said corporation, by like order.
ss: Joel Rothlein
-----------------
Notary Public
(Notarized)
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TABLE OF CONTENTS TO RIDER
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ARTICLE CAPTION PAGE
37. TERM; RENTAL.................................. 1
38. ADJUSTMENTS OF RENT........................... 4
39. USE........................................... 10
40. LANDLORD'S WORK............................... 10
41. CONSTRUCTION, GOVERNING LAW; CONSENTS......... 11
42. SUBORDINATION................................. 12
43. LEASE NOT BINDING UNLESS EXECUTED............. 14
44. CONFLICTS..................................... 15
45. ELECTRICITY................................... 15
46. FURTHER PROVISIONS AS TO DEFAULT.............. 17
47. HEAT AND AIR-CONDITIONING..................... 18
48. LANDLORD'S OTHER SERVICES..................... 19
49. SECURITY DEPOSIT.............................. 20
50. PARTIES BOUND................................. 23
51. BROKER........................................ 23
52. HAZARDOUS MATERIALS........................... 24
53. ARBITRATION................................... 24
54. ASSIGNMENT AND SUBLETTING..................... 25
55. INSURANCE..................................... 29
56. TENANT'S CHANGES.............................. 33
57. HOLDING OVER.................................. 36
58. CERTAIN DEFINITIONS AND CONSTRUCTION.......... 36
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59. ADDENDUM TO ARTICLE 17.......................... 37
60. NOTICES......................................... 38
EXHIBIT A-FLOOR PLAN OF DEMISED PREMISES.......................... 39
EXHIBIT B-DEFINITIONS............................................. 40
EXHIBIT C-LANDLORD'S WORK......................................... 43
EXHIBIT D-CERTIFICATE OF OCCUPANCY................................ 47
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RIDER ATTACHED LEASE
DATED AS OF JUNE 23, 1997
BY AND BETWEEN
FIRST WILLOW, LLC, AS LANDLORD
AND
MANCHESTER EQUIPMENT COMPANY, INC., AS TENANT
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37. TERM; RENTAL
A. The term of this lease, for which the Demised
Premises are hereby leased, shall commence on the date on which "Landlord's
Work" (as defined in Article 40 hereof) has been substantially completed and
Landlord has given Tenant notice thereof which notice, notwithstanding anything
in this lease to the contrary, may be hand delivered to Tenant (herein referred
to as the "Commencement Date"), and shall end at noon of the last day of the
calendar month in which occurs the day preceding the tenth (10th) anniversary of
the Commencement Date, which ending date is hereinafter referred to as the
"Expiration Date", or shall end on such earlier date upon which said term may
expire or be cancelled or terminated pursuant to any of the conditions or
covenants of this lease or pursuant to law. Promptly following the Commencement
Date the parties hereto (hereinafter sometimes referred to as the "parties")
shall enter into a recordable supplementary agreement fixing the dates of the
Commencement Date and the Expiration Date and if they cannot agree thereon
within fifteen (15) days after Landlord's request therefor, such dates shall be
determined by arbitration in the manner provided in Article 53.
B. The "rents" reserved under this lease, for the
term thereof, shall be and consist of:
(i) "fixed rent" of:
(a) $292,000.00 per annum ($24,333.33
per month) from the Commencement Date through the day next preceding the fifth
(5th) anniversary of the Commencement Date, both dates inclusive; and
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(b) $321,200.00 per annum ($26,766.67 per
month) from the fifth (5th) anniversary of the Commencement Date and continuing
thereafter throughout the remainder of the term of this lease,
all of which shall be payable in equal monthly installments in advance on the
first day of each and every calendar month during the term of this lease (except
that Tenant shall pay, upon the execution and delivery of this lease by Tenant,
the sum of $27,679.17, to be applied against the first rents becoming due under
this lease), and
(ii) "additional rent" con-
sisting of all such other sums of money as shall become due from and payable by
Tenant to Landlord hereunder (for default in payment of which Landlord shall
have the same remedies as for a default in payment of fixed rent),
all to be paid to Landlord at its office, or such other place, or to such agent
and at such place, as Landlord may designate by notice to Tenant, in lawful
money of the United States of America.
C. Tenant shall pay the fixed rent and additional
rent herein reserved promptly as and when the same shall become due and payable,
without demand therefor and without any abatement, deduction or setoff
whatsoever except as expressly provided in this lease.
D. If the Commencement Date occurs on a day other
than the first day of a calendar month or the Expiration Date occurs on a day
other than the last day of a calendar month, the fixed rent for such calendar
month shall be prorated and with respect to the first month, the balance of the
first month's fixed rent theretofore paid shall be credited against the next
monthly installment of fixed rent.
E. Notwithstanding anything in this lease to the
contrary, provided Tenant is not then in default under this lease which default
continues after notice and the expiration of any applicable cure period, Tenant
shall have no obligation to pay the first five (5) full monthly installments of
the fixed rent due after the Commencement Date.
F. If, at any time during the term of this lease,
any requirement of public authority shall have the effect of limiting, for any
period of time, the amount of the rents payable by Tenant, or receivable by
Landlord, under this lease, and the maximum rents so permitted to be paid by
Tenant, or received by Landlord, hereunder shall be less than the rents herein
reserved, then:
(i) throughout the period of
limitation, Tenant shall remain liable for the maximum amount of
rents that is lawfully payable; and
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(ii) if and when the period of
limitation ends, the requirement of public authority imposing such limitation is
repealed, or such limitation is restrained or rendered unenforceable by any
order or ruling of a court of appropriate jurisdiction:
(a) to the extent that the same is not
prohibited by any requirement of public authority, Tenant shall pay to Landlord,
on demand, all amounts that would have been due from Tenant to Landlord during
the period of limitation, but that were not paid because of the requirements of
public authorities; and
(b) thereafter, Tenant shall pay to
Landlord all of the rents reserved under this lease, all of which shall be
calculated as if there had been no intervening period of limitation.
G. Tenant acknowledges that it has no rights to
any development rights, "air rights" or comparable rights appurtenant to the
Land and Building, and consents, without further consideration, to any
utilization of such rights by Landlord and agrees to promptly execute and
deliver any instruments which may be requested by Landlord, including
instruments merging zoning lots, evidencing such acknowledgment and consent. The
provisions of this Section G shall be deemed to be and shall be construed as an
express waiver by Tenant of any interest Tenant may have as a "party in
interest" (as such quoted term is defined in Section 12-10 Zoning Lot of the
Zoning Resolution of the City of New York) in the Land and Building.
H. Notwithstanding anything hereinabove or in this
lease to the contrary, in the event Landlord fails to substantially complete
Landlord's Work and notify Tenant thereof by the date that shall be six (6)
months from the date of this lease (hereinafter referred to as the "Outside
Date") for any reason other than (i) a "Tenant's Delay" (as defined in Exhibit
C, Part D hereof) or (ii) one of the occurrences set forth in Article 27, Tenant
shall be entitled to terminate this Lease by notice (hereinafter referred to as
the "Termination Notice") to Landlord sent within five (5) business days after
the Outside Date (hereinafter referred to as the "Termination Date"). In the
event Tenant sends the Termination Notice as set forth above, this lease shall
terminate and neither party shall have any further rights or obligations
hereunder and said right of termination shall be Tenant's sole remedy for
Landlord's failure to substantially complete Landlord's Work and notify Tenant
thereof by the Outside Date. In the event of such termination, Landlord will
return to Tenant the first months' rent paid to Landlord upon the execution and
delivery of this lease together with the cash security or Letter of Credit
delivered to Landlord pursuant to the provisions of Article 6. If the security
is in the form of Letter of Credit, Landlord will cooperate with Tenant, at
Tenant's expense, to have same cancelled.
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OFFICE LEASE
MANCHESTER
040297
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061697
38. ADJUSTMENTS OF RENT
A. Tax Escalation. For the purpose of Sections
A-F of this Article 38:
(i) "Taxes" shall mean the real
estate taxes and assessments and special assessments imposed upon the Building
and the land upon which same is located (hereinafter referred to as the "Land"
or "land") including, without limitation, any assessments for public improvement
or benefit to the Building or Land or the locality in which the Building is
situated, such as a Business Improvement District taxes and assessments. If at
any time during the term of this lease the methods of taxation prevailing at the
commencement of the term hereof shall be altered so that in lieu of or as an
addition to or as a substitute for the whole or any part of the taxes,
assessments, levies, impositions or charges now levied, assessed or imposed on
real estate and the improvements thereon, there shall be levied, assessed or
imposed (a) a tax, assessment, levy, imposition or charge wholly or partially as
capital levy or otherwise on the rents received therefrom, or (b) a tax,
assessment, levy, imposition or charge measured by or based in whole or in part
upon the Demised Premises and imposed upon Landlord, or (c) a license fee
measured by the rents payable by Tenant to Landlord, then all such taxes,
assessments, levies, impositions or charges, or the part thereof so measured or
based, shall be deemed to be included within the term "Taxes" for the purposes
hereof.
The term "Taxes" shall not include
any income, franchise, excise, profit, transfer, inheritance, capital stock or
other similar tax imposed on Landlord unless, due to a future change in the
method of taxation, an income, franchise, excise, profit, transfer, inheritance,
capital stock or other tax shall be levied against Landlord in substitution for
any tax or increase therein which would otherwise constitute "Taxes", as defined
in the first sentence of paragraph (i), in which event such income, franchise,
excise, profit, transfer, inheritance, capital stock or other tax shall be
deemed to be included in the term "Taxes" but any such income or similar tax
shall be computed as if the Building and the Land were the only property of
Landlord.
(ii) "Base Tax Year" shall mean
fiscal year July 1, 1997-June 30, 1998;
(iii) "Base Tax Rate" shall mean
the Taxes, as finally determined, for the Base Tax Year.
(iv) "Tax Year" shall mean the
fiscal year for which Taxes are levied by the governmental
authority.
(v) "Tenant's Proportionate
Share" shall mean for purposes of this lease and all calculations in connection
herewith, 6.37%, which has been computed on the basis of a fraction, the
numerator of which is the agreed rentable square
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foot area of the Demised Premises as set forth below (which rentable square foot
area is hereinafter sometimes referred to as the "Multiplication Factor") and
the denominator of which is the agreed rentable square foot area of the Building
above grade level as set forth below. The parties agree that the rentable square
foot area of the Demised Premises shall be deemed to be 14,600 square feet and
that the agreed rentable square foot area of the Building shall be deemed to be
229,079 square feet (hereinafter referred to as the "Building Area").
(vi) "Tenant's Projected Share
of Taxes" shall mean the Tax Payment (as hereinafter defined), if any, made by
Tenant for the prior Tax Year divided by twelve (12) and payable monthly by
Tenant to Landlord as additional rent.
B. If the Taxes for any Tax Year shall be more
than the Base Tax Rate, Tenant shall pay, as additional rent for such Tax Year,
an amount equal to Tenant's Proportionate Share of the amount by which the Taxes
for such Tax Year are greater than the Base Tax Rate. (The amount payable by
Tenant is hereinafter referred to as the "Tax Payment"). The Tax Payment and the
Base Tax Rate shall be appropriately prorated, if necessary, to correspond with
that portion of a Tax Year occurring within the Term of this lease. The Tax
Payment shall be payable by Tenant within ten (10) days after receipt of a
demand from Landlord therefor, which demand shall be accompanied by a copy of
the tax bill together with Landlord's computation of the Tax Payment. If the
Taxes for any Tax Year are payable to the taxing authority on an installment
basis, Landlord may serve such demands upon, and the Tax Payment for such Tax
Year shall be payable by Tenant, on a corresponding installment basis.
C. Notwithstanding the fact that the increase in
rent is measured by an increase in taxes, such increase is additional rent and
shall be paid by Tenant as provided herein regardless of the fact that Tenant
may be exempt, in whole or in part, from the payment of any taxes by reason of
Tenant's diplomatic or other tax exempt status or for any other reason
whatsoever.
D. Only Landlord shall be eligible to institute
tax reduction or other proceedings to reduce the assessed valuation of the Land
and Building. Should Landlord be successful in any such reduction proceedings
and obtain a rebate or a reduction in assessment for periods during which Tenant
has paid or is obligated to pay Tenant's Proportionate Share of increases in
Taxes then either (i) Landlord shall, in the event a rebate is obtained, return
Tenant's Proportionate Share of such rebate to Tenant after deducting Landlord's
expenses, including without limitation, attorneys' fees and disbursements in
connection with such rebate (such expenses incurred with respect to a rebate or
reduction in assessment being hereinafter referred to as "Tax Expenses"), or,
(ii) if a reduction in assessment is obtained prior to the date Tenant would be
required to pay Tenant's Proportionate Share of
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such increase in Taxes, Tenant shall pay to Landlord, upon written request,
Tenant's Proportionate Share of such Tax Expenses.
E. Commencing with the first Tax Year after
Landlord shall be entitled to receive a Tax Payment, at Landlord's election,
Tenant shall pay to Landlord, as additional rent for the then Tax Year, Tenant's
Projected Share of Taxes. Upon each date that a Tax Payment or an installment on
account thereof shall be due from Tenant pursuant to the terms of Section B
hereof, Landlord shall apply the aggregate of the installments of Tenant's
Projected Share of Taxes then on account with Landlord against the Tax Payment
or installment thereof then due from Tenant. In the event that such aggregate
amount shall be insufficient to discharge such Tax Payment or installment,
Landlord shall so notify Tenant in a demand served upon Tenant pursuant to the
terms of Section B, and the amount of Tenant's payment obligation with respect
to such Tax Payment or installment pursuant to Section B shall be equal to the
amount of the insufficiency. If, however, such aggregate amount shall be greater
than the Tax Payment or installment, 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 next payment of Tenant's
Projected Share of Taxes due hereunder and, if the credit of such payment is not
sufficient to liquidate the entire amount of such excess, Landlord shall then
pay the amount of any difference to Tenant.
F. (i) Anything in this Article
38 to the contrary notwithstanding, in the event that the holder of any mortgage
or the lessor of any superior lease (as such terms are defined in Section A. of
Article 42) shall require advance payments from the Landlord on account of
Taxes, then Tenant will pay Tenant's Proportionate Share of any amounts required
to be paid in advance (but not more often than monthly) by Landlord with the
holder of the superior mortgage or the lessor of the superior lease to the
extent that such payments made by Landlord exceed the Base Tax Rate. Any
payments to be made by Tenant under this Section 38 F(i) shall be made ten (l0)
days prior to the date Landlord is required to make such payments to the holder
of the superior mortgage or the lessor of the superior lease;
(ii) Anything in Sections A
through F to the contrary notwithstanding, in no event whatsoever shall the
fixed rent be reduced below the fixed rent initially set forth in Article 37
hereof as same may be increased by provisions of this lease other than Sections
38A-F.
G. Expense Escalation. For purposes of
Sections G-L of this Article 38:
(i) "Operating Expenses" shall mean any or all expenses incurred by
Landlord in connection with the operation of the Building including all expenses
incurred as a result of Landlord's compliance with any of its obligations
hereunder and such expenses shall include: (a) salaries, wages,
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medical, surgical and general welfare benefits (including group life insurance),
pension payments and other fringe benefits of employees of Landlord engaged in
the operation and maintenance of the Building (The salaries and other benefits
aforesaid of such employees servicing the Building shall be comparable to those
of employees servicing buildings similar to the Building, located in the Borough
of Manhattan.); (b) payroll taxes, worker's compensation, uniforms and dry
cleaning for the employees referred to in subdivision (a); (c) the cost of all
charges for steam, heat, ventilation, air conditioning and water (including
sewer rental) furnished to the Building and/or used in the operation of all of
the service facilities of the Building and the cost of all charges for
electricity furnished to the public and service areas of the Building and/or
used in the operation of all of the service facilities of the Building including
any taxes on any of such utilities; (d) the cost of all charges for rent,
casualty, war risk insurance (if obtainable from the United States government)
and of liability insurance for the Building to the extent that such insurance is
required to be carried by Landlord under any superior lease or superior mortgage
or if not required under any superior lease or superior mortgage then to the
extent such insurance is carried by owners of Buildings comparable to the
Building; (e) the cost of all building and cleaning supplies for the common
areas of the Building and charges for telephone for the Building; (f) the cost
of all charges for management, security, cleaning and service contracts for the
Building (if no managing agent is employed by Landlord, there shall be included
in Operating Expenses a sum equal to 2.5% of all rents and other charges
collected from tenants or other permitted occupants of the Building); (g) the
cost of rentals of capital equipment designed to result in savings or reductions
in Operating Expenses; and (h) the cost incurred in connection with the
maintenance and repair of the Building. Operating Expenses shall not include (1)
administrative wages and salaries; (2) renting commissions; (3) franchise or
income taxes of Landlord; (4) Taxes on the Land and Building; (5) costs of
painting and decorating for any occupant's space; (6) interest and amortization
under mortgages; and (7) expenditures for capital improvements except (A) those
which under generally applied real estate practice are expensed or regarded as
deferred expenses, (B) capital improvements required by law or (C) capital
improvements that are designed to result in a saving in the amount of Operating
Expenses, in any of such cases the cost thereof shall be included in Operating
Expenses for the Operational Year in which the costs are incurred and subsequent
Operational Years, amortized on a straight line basis over the useful life
thereof as determined by generally accepted accounting principles consistently
applied (except that, with respect to a capital improvement which is of the type
specified in clause (C), such cost shall be amortized over such period of time
as Landlord reasonably estimates such savings in Operating Expenses will equal
Landlord's cost for such capital improvement), with an interest factor in any of
such cases equal to two (2%) percent above the prime rate (hereinafter referred
to as the "Base Rate") of The Chase Manhattan Bank (or Citibank, N.A. if The
Chase Manhattan Bank shall not then have an established prime rate; or the prime
rate of any major banking institution doing
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business in New York City, as selected by Landlord, if none of the
aforementioned banks shall be in existence or have an established prime rate) at
the time of Landlord's having incurred said expenditure;
(ii) "Operational Year" shall
mean each calendar year during the Term hereof.
(iii) "Base Operational Year"
shall be calendar year 1998;
(iv) "Operating Expense Base"
shall mean Operating Expenses for the Base Operational Year;
(v) "Tenant's Projected Share
of Operating Expenses" shall mean Tenant's Operating Expense Payment, if any,
for the prior Operational Year divided by twelve (12) and payable monthly by
Tenant to Landlord as additional rent.
If during all or part of the Base Operational Year or any
other Operational Year, Landlord shall not furnish any particular item(s) of
work or service (which would otherwise constitute an Operating Expense
hereunder) to office portions of the Building due to the fact that (A) such
portions are not occupied or leased, (B) such item of work or service is not
required or desired by the tenant of such portion, or (C) such tenant is itself
obtaining and providing such item of work or service, then, for the purposes of
computing Operating Expenses, the amount for such item and for such period shall
be deemed to be increased by an amount equal to the additional costs and
expenses which would reasonably have been incurred during such period by
Landlord if it had at its own expense furnished such item of work or services to
such portion of the Building or to such tenant.
H. After the expiration of the Base Operational
Year, Landlord shall furnish Tenant a statement setting forth the aggregate
amount of the Operating Expenses for the Base Operational Year. After the
expiration of each Operational Year, after the Base Operational Year, Landlord
shall furnish Tenant a statement setting forth the aggregate amount of the
Operating Expenses for such Operational Year. The statement furnished under this
Section H is hereinafter referred to as an "Operating Statement".
I. If the Operating Expenses for any Operational
Year, including the Operational Year in effect on the Commencement Date, shall
be more than the Operating Expense Base, Tenant shall pay, as additional rent
for such Operational Year, an amount equal to Tenant's Proportionate Share of
the amount by which the Operating Expenses for such Operational Year are greater
than the Operating Expense Base. (The amount payable by Tenant is hereinafter
referred to as the "Operating Expense Payment".) The Operating Expense Payment
shall be prorated, if necessary, to correspond with that portion of an
Operational Year occurring within the Term of this lease. The Operating Expense
Payment shall
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be payable by Tenant within ten (10) days after receipt of the Operating
Statement.
J. Commencing with the first Operational Year
after Landlord shall be entitled to receive an Operating Expense Payment, Tenant
shall pay to Landlord as additional rent for the then Operational Year, Tenant's
Projected Share of Operating Expenses. If the Operating Statement furnished by
Landlord to Tenant at the end of then Operational Year shall indicate that
Tenant's Projected Share of Operating Expenses exceeded the Operating Expense
Payment, 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 payment of rent due hereunder; if
such Operating Statement furnished by Landlord to Tenant hereunder shall
indicate that the Operating Expense Payment exceeded Tenant's Projected Share of
Operating Expenses for the then Operational Year, Tenant shall forthwith pay the
amount of such excess to Landlord.
K. Every Operating Statement given by Landlord
pursuant to Section H shall be conclusive and binding upon Tenant unless (i)
within 30 days after the receipt of such Operating Statement Tenant shall notify
Landlord that it disputes the correctness of the Operating Statement, specifying
the particular respects in which the Operating Statement is claimed to be
incorrect, and (ii) if such dispute shall not have been settled by agreement,
shall submit the dispute to arbitration within 90 days after receipt of the
Operating Statement. Pending the determination of such dispute by agreement or
arbitration as aforesaid, Tenant shall within thirty (30) days after receipt of
such Operating Statement, pay additional rent, if due, in accordance with the
Operating Statement and such payment shall be without prejudice to Tenant's
position. If the dispute shall be determined in Tenant's favor, Landlord shall,
on demand, pay Tenant the amount of Tenant's overpayment of rents, if any,
resulting from compliance with the Operating Statement. Landlord agrees to grant
Tenant reasonable access to Landlord's books and records for the purpose of
verifying Operating Expenses incurred by Landlord and to have and make copies of
any and all bills and vouchers relating thereto and subject to reimbursement by
Tenant as herein provided.
L. Landlord's failure during the lease term to
prepare and deliver any of the tax bills, statements, notice or bills set forth
in this Article 38, or Landlord's failure to make a demand, shall not in any way
cause Landlord to forfeit or surrender its rights to collect any of the
foregoing items of additional rent which may have become due during the term of
this lease. Tenant's liability for the amounts due under this Article 38 and
Landlord's obligation to make any payments due to Tenant under this Article 38
shall survive the expiration of the Term.
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39. USE
A. Tenant shall use and occupy the demised
premises for executive and general offices, and for no other purpose.
Notwithstanding the foregoing and subject to the provisions of Sections B and C
of this Article 39, the demised premises may be used for the following
additional uses: a conference facility, sales, training facility, computer
related service and maintenance facility, showroom and demonstration room
facility.
B. If any governmental license or permit shall be
required for the proper and lawful conduct of Tenant's business in the demised
premises, or any part thereof, Tenant, at its expense, shall duly procure and
thereafter maintain such license or permit and submit the same for inspection by
Landlord. Tenant shall at all times comply with the terms and conditions of each
such license or permit.
C. Tenant shall not at any time use or occupy, or
suffer or permit anyone to use or occupy, the demised premises, or do or permit
anything to be done in the demised premises, in violation of the Certificate of
Occupancy for the demised premises or for the Building or in violation of any
superior mortgage or superior lease. A copy of the current Certificate of
Occupancy for the Building is annexed hereto as Exhibit D.
D. Landlord hereby represents to Tenant that the
existing leases for the fourth (4th) and sixth (6th) floors of the Building do
not permit such spaces to be used as a factory and Landlord agrees that during
the term of this lease, it will not permit such floors to be used as a factory.
40. LANDLORD'S WORK
A. Landlord agrees to perform, at Landlord's sole
cost and expense, the work (hereinafter referred to as "Landlord's Work") set
forth on, and in accordance with, the provisions of Exhibit C.
B. Tenant has fully inspected the demised
premises, is fully familiar with the condition thereof and (except for the
performance of the Landlord's Work) agrees to take possession of the demised
premises in their present "as-is" condition. Tenant shall perform all other
necessary or desirable work in connection with preparing the demised premises
for its initial occupancy (hereinafter referred to as "Tenant's Work") at its
sole cost and expense pursuant to the terms of Articles 3 and 56 hereof, as a
Tenant's Change (as defined in Article 56 below).
C. Except as set forth on Exhibit C, Tenant may
not perform any Tenant's Work (or any other work) until after the Commencement
Date has occurred, unless Landlord, in its sole judgment, determines that the
performance of the Tenant's Work will
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not interfere with or delay the completion of the Landlord's Work,
and so notifies Tenant.
D. Landlord's Work shall be deemed substantially
complete notwithstanding the fact that minor or insubstantial details of
construction, mechanical adjustment, or decoration remain to the performed, the
noncompletion of which does not materially interfere with the performance of
Tenant's Work or with Tenant's use of the Demised Premises after the completion
of Tenant's Work. Landlord's Work shall be performed in a workmanlike manner
and, subject to the provisions of Exhibit C, in accordance with laws and/or
requirements of governmental authorities having jurisdiction.
41. CONSTRUCTION, GOVERNING LAW; CONSENTS
A. If any of the provisions of this lease, or the
application thereof to any person or circumstances, shall, to any extent, be
invalid or unenforceable, the remainder of this lease, or the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable, shall not be affected
thereby, and every provision of this lease shall be valid and enforceable to the
fullest extent permitted by law.
B. This lease shall be governed in all respects
by the laws of the State of New York.
C. If Tenant shall request Landlord's consent or
approval pursuant to any of the provisions of this lease or otherwise, and
Landlord shall fail or refuse to give, or shall delay in giving, such consent or
approval, Tenant shall in no event make, or be entitled to make, any claim for
damages (nor shall Tenant assert, or be entitled to assert, any such claim by
way of defense, set-off, or counterclaim) based upon any claim or assertion by
Tenant that Landlord unreasonably withheld or delayed its consent or approval,
and Tenant hereby waives any and all rights that it may have, from whatever
source derived, to make or assert any such claim. Tenant's sole remedy for any
such failure, refusal, or delay shall be an action for a declaratory judgment,
specific performance, or injunction, or for a determination as to whether
Landlord reasonably withheld its consent pursuant to either (i) the Simplified
Procedure For Court Determination of Disputes as set forth in the CPLR ss.3031
et seq. (or any successor thereto), or (ii) arbitration under the Expedited
Procedures provisions (presently Rules 53 through 57, as same may be amended
from time to time) of the American Arbitration Association (or successor
thereto) in the City of New York (and the fees and expenses of such arbitration
shall be borne by the unsuccessful party), and, if Tenant elects either (i) or
(ii) above, the decision shall be final and conclusive on the parties. Such
remedies shall be available only in those instances where Landlord has expressly
agreed in writing not to unreasonably withhold or delay its consent or
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approval or where, as a matter of law, Landlord may not unreasonably withhold
or delay the same.
42. SUBORDINATION
A. For the purposes of this lease, the mortgages
referred to in Article 7 of this lease are herein defined as "superior
mortgages" and the leases referred to in said Article 7 are herein defined as
"superior leases." In the event of any act or omission of Landlord that would
give Tenant the right, immediately or after lapse of a period of time, to cancel
or terminate this lease, or to claim a partial or total eviction, Tenant shall
not exercise such right (i) until it has given written notice of such act or
omission to the holder of each superior mortgage and the lessor of each superior
lease whose name and address shall previously have been furnished to Tenant in
writing and (ii) unless such act or omission shall be one that is not capable of
being remedied by Landlord or such holder or lessor within a reasonable period
of time, until a reasonable period for remedying such act or omission shall have
elapsed following the giving of such notice and following the time when such
holder or lessor shall have become entitled under such superior mortgage or
superior lease, as the case may be, to remedy the same (which reasonable period
shall in no event be less than the period to which Landlord would be entitled
under this lease or otherwise, after similar notice, to effect such remedy),
provided that such holder or lessor shall give Tenant written notice of its
intention to remedy such act or omission and shall, with due diligence, commence
and continue to do so.
B. If the lessor of a superior lease or the holder
of a superior mortgage shall succeed to the rights of Landlord under this lease,
whether through possession or foreclosure action or delivery of a new lease or
deed, then, at the request of the party so succeeding to Landlord's rights
(herein sometimes referred to as the "successor landlord") and upon such
successor landlord's written agreement to accept Tenant's attornment, Tenant
shall attorn to and recognize such successor landlord as Tenant's landlord under
this lease, and shall promptly execute and deliver any instrument that such
successor landlord may reasonably request to evidence such attornment. Upon such
attornment, this lease shall continue in full force and effect as, or as if it
were, a direct lease between the successor landlord and Tenant, upon all of the
terms, conditions and covenants as are set forth in this lease and shall be
applicable after such attornment, except that the successor landlord shall not
be:
(i) liable for any previous act
or omission of Landlord (or its predecessor in interest) under this lease but
should such act or omission continue after such successor landlord shall acquire
title to the Building, successor landlord shall be liable for such act or
omission from and after the date it acquires title to the Building;
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(ii) bound by any previous
modification of this lease, not expressly provided for in this lease, or by any
previous prepayment of more than one month's fixed rent, unless such
modification or prepayment shall have been expressly approved in writing by the
lessor of the superior lease or the holder of the superior mortgage through or
by reason of which the successor landlord shall have succeeded to the rights of
Landlord under this lease;
(iii) responsible for any monies
owing by Landlord to the credit of Tenant;
(iv) subject to any credits,
offsets, claims, counterclaims, demands or defenses which Tenant
may have against Landlord (or its predecessors in interest);
(v) bound by any covenant to
undertake or complete any construction of the Demised Premises or any portion
thereof or pay for or reimburse Tenant for any costs incurred in connection with
such construction;
(vi) required to account for any
security deposit other than any security deposit actually delivered to the
successor landlord;
(vii) bound by any obligation to
make any payment to Tenant or grant or be subject to any credits (except
pursuant to Section 37E), except for services, repairs, maintenance and
restoration provided for under this lease to be performed after the date of
attornment, it being expressly understood, however, that the successor landlord
shall not be bound by an obligation to make payment to Tenant with respect to
construction performed by or on behalf of Tenant at the Demised Premises.
C. If, in connection with obtaining financing or
refinancing for the Building of which the Demised Premises form a part, or
Landlord's estate and interest therein, a lender shall request reasonable
modifications to this lease as a condition to such financing or refinancing,
Tenant will not withhold, delay or defer its consent thereto, provided that such
modifications do not increase the obligations of Tenant hereunder (except,
perhaps, to the extent that Tenant may be required to give notices of any
defaults by Landlord to such lender and/or permit the curing of such defaults by
such lender together with the granting of such additional time for such curing
as may be required for such lender to get possession of the Building or
Landlord's interest therein) or materially adversely affect the leasehold
interest hereby created. In no event shall a requirement that the consent of any
such lender be given for any modification of this lease or, subject to the
provisions of this lease for any assignment or sublease, be deemed to materially
adversely affect the leasehold interest hereby created.
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D. Notwithstanding anything to the contrary set
forth in Article 7 or this Article 42,, this lease shall be subject and
subordinate to (i) any superior mortgages now existing or made by Landlord
subsequent to the date hereof and (ii) any superior leases now existing or
entered into by Landlord subsequent to the date hereof provided that Landlord
shall obtain a Subordination, Non-Disturbance and Attornment Agreement
(hereinafter referred to as an "SNDA") for the benefit of Tenant from the holder
of such superior mortgage or from the lessor under such superior lease which
SNDA shall be in form and content then utilized by such holder or lessor, shall
not increase Tenant's obligations or reduce Tenant's rights under this lease,
and which shall contain, in substance, the provisions set forth in the
subsections (a) and (b) below:
(a) From the lessor under a superior
lease:An agreement, for the benefit of Tenant, to the effect, inter alia, that
as long as Tenant is not in default in the payment of fixed rent or additional
rent or any other term, covenant or condition of this lease and provided Tenant
attorns to such lessor under the terms and provisions of this lease, (1) its
rights as Tenant hereunder shall not be affected or terminated, (2) its
possession of the Demised Premises shall not be disturbed, (3) no action or
proceeding shall be commenced to remove or evict Tenant, and (4) this lease
shall at all times continue in full force and effect notwithstanding the
termination or expiration of the superior lease, prior to the expiration or
termination of this lease.
(b) From the holders of superior
mortgages:An agreement, for the benefit of Tenant, to the effect, inter alia,
that as long as Tenant is not in default in the payment of fixed rent or
additional rent or any other term, covenant or condition of this lease, (1) its
rights as Tenant hereunder shall not be terminated and (2) the possession of
Tenant shall not be disturbed by the mortgagee or by any proceedings on the debt
which any such superior mortgage secures or by virtue of a right or power
contained in any such superior mortgage or the bond or note secured thereby and
(3) that any sale at foreclosure will be subject to this lease.
E. Landlord represents that as of the date of
execution hereof, (i) there are no existing superior mortgages other than a
mortgage held by Credit Suisse First Boston Mortgage Capital LLC and (ii) there
are no existing superior leases.
43. LEASE NOT BINDING UNLESS EXECUTED
Submission by Landlord of this lease for execution by Tenant shall
confer no rights nor impose any obligations on either party unless and until
both Landlord and Tenant shall have executed this lease and duplicate originals
thereof shall have been delivered to the respective parties.
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44. CONFLICTS
In the event of any conflict between the provisions of this Rider and
the printed portion of this lease, the provisions of this Rider shall control.
45. ELECTRICITY
A. (i) The Building is equipped
with risers, feeders and wiring to furnish electric service to the Demised
Premises. Additionally a meter system will be furnished and installed by
Landlord, as part of Landlord's Work, to measure the amount of "Usage" (as
defined in Section B(i)) solely to the Demised Premises. Where more than one
meter measures the amount of Usage, Usage through each meter shall be computed
and billed separately in accordance with the provisions of this Article 45;
(ii) Any additional risers,
feeders or other equipment or service proper or necessary to supply Tenant's
electrical requirements, will, upon written request of Tenant, 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, repairs or
expense or interfere with or disturb other tenants or occupants.
Rigid conduit only will be allowed.
B. For purposes of Sections B and C:
(i) "Usage" shall mean Tenant's
actual usage of electricity in the Demised Premises as measured by the aforesaid
metering system for each calendar month or such other period as Landlord shall
determine during the term of this lease and shall include the quantity and peak
demand (kilowatt hours and kilowatts) and all applicable taxes, surcharges,
demand charges, energy charges, fuel adjustment charges, time of day charges and
other adjustments made from time to time by the public utility company supplying
electric current to the Building or any governmental authority having
jurisdiction;
(ii) "Landlord's Rate" shall
mean the service classification (including all applicable taxes, surcharges,
demand charges, energy charges, fuel adjustment charges, time of day charges and
other sums payable in respect thereof) pursuant to which Landlord purchases
electric current for the Building from the public utility company supplying
electric current to the Building;
(iii) "Basic Cost" shall mean
the product of (a) Usage multiplied by (b) Landlord's Rate.
(iv) "Tenant's Cost" shall mean
an amount equal to the sum of (a) the Basic Cost plus (b) ten (10%)percent
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of the Basic Cost for Landlord's overhead and expenses in connection with
submetering.
C. Landlord shall, from time to time but not more
often than monthly, furnish Tenant with an invoice indicating the period during
which the Usage was measured and the amount of Tenant's Cost payable by Tenant
to Landlord for such period. Within five (5) days after receipt of each such
invoice, Tenant shall pay the amount of Tenant's Cost set forth thereon to
Landlord as additional rent. In addition, if any tax is imposed upon Landlord by
any municipal, state or federal agency or subdivision with respect to the
purchase or sale of electrical energy supplied to Tenant hereunder, Tenant
covenants and agrees that, where permitted by law, Tenant's Proportionate Share
of such taxes shall be passed on to, included in the bill to and paid by, Tenant
to Landlord, as additional rent.
D. Landlord shall not in anywise be liable or
responsible to Tenant for any loss or damage or expense which Tenant may sustain
or incur if either the quantity or character of electric service is changed or
is no longer available or suitable for Tenant's requirements.
E. In no event shall Tenant use or install any
fixtures, equipment or machines the use of which in conjunction with other
fixtures, equipment and machines in the Demised Premises would result in an
overload of the electrical circuits servicing the Demised Premises.
F. Tenant covenants and agrees that at all times
its use of electric current shall never exceed the capacity of the then existing
feeders to the Building or the risers or wiring installation. After the original
installation thereof by Landlord, Tenant shall furnish, install and replace, as
required, all lighting tubes, lamps, bulbs and ballasts required in the Demised
Premises, at Tenant's sole cost and expense. All lighting tubes, lamps, bulbs
and ballasts so installed shall become Landlord's property upon the expiration
or sooner termination of this lease.
G. In the event the metering system installed in
the Demised Premises for the measurement of electricity consumption in the
Demised Premises or any alternative submetering system installed by Landlord at
a later date, becomes prohibited from use, then Landlord, at its expense, may
cause an independent electrical engineer chosen by Landlord or an electrical
consulting firm selected by Landlord (hereinafter referred to as the "Electrical
Consultant") to survey and determine Usage in, and Basic Cost for, the Demised
Premises from time to time, at least once per twelve (12) month period, and the
Electrical Consultant shall make such determination using criteria generally
accepted in the Metropolitan New York City area and Landlord's Rate in effect at
the time, and shall include the quantity and peak demand, for all electricity
consumed by Tenant, plus ten (l0%) percent of the Basic Cost for Landlord's
expenses and administration fees. Subject to the provisions of Section H below,
the determination
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made by the Electrical Consultant shall be binding on both Landlord and Tenant
and such amount shall be deemed Tenant's Cost.
H. Notwithstanding anything in Section G to the
contrary, Tenant shall have the right as hereinafter provided, to contest any
amounts determined by the Electrical Consultant pursuant to Section G as shall
be due to Landlord as a result of any such survey. In the event that Tenant
fails to send a written notice (hereinafter referred to as an "Objection
Notice") to Landlord within thirty (30) days after the date of the Electrical
Consultant's notice containing said Usage and Basic Cost, such notice shall
become conclusive and binding upon Tenant. If Tenant disputes any such notice by
sending an Objection Notice within the time and in the manner hereinbefore
provided, then Tenant shall, at its sole cost and expense, have the right to
engage an electrical engineer or electrical consulting firm (hereinafter
referred to as "Tenant's Consultant") who shall promptly make a survey
(hereinafter referred to as the "Disputing Survey") indicating Tenant's
electrical usage in the Demised Premises. In the event that Landlord and Tenant
are unable to agree on the amount of Usage and Basic Cost within thirty (30)
days after the date Tenant furnishes Landlord with a copy of the Disputing
Survey, then the Electrical Consultant and Tenant's Consultant shall select a
mutually acceptable electrical engineer or electrical consulting firm
(hereinafter referred to as the "Third Consultant") within ten (l0) days after
the expiration of such thirty (30) day period. The Electrical Consultant and
Tenant's Consultant shall submit the dispute to the Third Consultant and the
determination by the Third Consultant shall be conclusive and binding upon
Landlord and Tenant. During the pendency of any such dispute, Tenant shall pay
to Landlord the amount set forth in the Electrical Consultant's notice until the
dispute is finally determined in accordance with the provisions of this Section
and, in the event that such final determination is less than the amount set
forth in the Electrical Consultant's notice, Landlord shall, at Tenant's
election, refund to Tenant the amount of such excess payment or credit any such
excess against any amounts then due or becoming due to Landlord under this
lease. The cost of the Third Consultant shall be borne equally by Landlord and
Tenant.
46. FURTHER PROVISIONS AS TO DEFAULT
A. If Tenant is late in making any payment due to
Landlord from Tenant under this lease for ten (10) or more days, then interest
shall become due and owing to Landlord on such payment from the date upon which
it was due, which interest shall be computed at the following rates:
(i) for an individual or partnership tenant, computed at the maximum lawful
rate of interest;
(ii) for a corporate tenant, computed at the greater of (a) one and 25/100
(1.25%) percent per month or (b) two (2%) percent per annum over the Base
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Rate as defined in Section 38(G)(i) but in no event in excess of the maximum
lawful rate of interest chargeable to corporations in the State of New York.
B. Bills for any expenses incurred by Landlord in
connection with any performance by it for the account of Tenant, and bills for
all costs, expenses and disbursements of every kind and nature whatsoever,
including reasonable counsel fees, involved in collecting or endeavoring to
collect the fixed rent or additional rent or any part thereof or enforcing or
endeavoring to enforce any rights against Tenant, under or in connection with
this lease, or pursuant to law, including any such cost, expense and
disbursement involved in instituting and prosecuting summary proceedings, as
well as bills for any property, material, labor, or services provided,
furnished, or rendered, by Landlord to Tenant at Tenant's request, may be sent
by Landlord to Tenant monthly, or immediately, at Landlord's option, and shall
be due and payable in accordance with the terms of such bills.
47. HEAT AND AIR-CONDITIONING
A. 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, ventilation or air-conditioning systems
(hereinafter referred to as the "systems") servicing the same, may require
changes in such systems. Such changes, so occasioned, shall be made by Tenant,
at its expense, subject to Landlord's prior written approval of such changes,
which approval may be withheld for any reason. Tenant shall not make any change,
alteration, addition or substitution to the system providing heating,
ventilating and air-conditioning without Landlord's prior written approval,
which may be withheld for any reason.
B. Landlord, at its expense, shall maintain and
operate the systems (inclusive of the package air-conditioning unit serving the
Demised Premises) and subject to energy conservation requirements of
governmental authorities, shall furnish heat and ventilating (hereinafter
collectively referred to as the "service") in the demised premises during
"regular hours" (that is between the hours of 8:00 A.M. and 6:00 P.M.) of
"business days" (which term is used herein to mean all days except Saturdays,
Sundays and days now or hereafter observed by the Federal or New York State
government as legal holidays and those now or hereafter designated by the
applicable building service union employees service contract or by the
applicable Operating Engineers contract) as may be required for comfortable
occupancy of the demised premises. If Tenant shall require heating or
ventilating service at any other time (hereinafter referred to as "after
hours"), Landlord shall furnish such after hours service upon reasonable advance
notice from Tenant, and Tenant shall pay on demand Landlord's cost.
Air-conditioning shall be provided to the Demised Premises by means of the
packaged air-conditioning units servicing the Demised Premises which may be
operated by Tenant, at Tenant's option, at any time, seven (7) days per week,
twenty-four (24) hours per day. All
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electricity used in connection with such packaged air-conditioning units shall
be supplied in accordance with, and shall be subject to, all of the terms,
covenants and conditions in Article 45 hereof.
48. LANDLORD'S OTHER SERVICES
A. Landlord, at its expense, shall provide public
elevator service by elevators serving the floor on which the demised premises
are situated during regular hours of business days, and shall have at least one
passenger elevator operating at all other times.
B. Notwithstanding anything in this lease to the
contrary, Tenant shall, at its sole cost and expense, cause the Demised Premises
to be cleaned in a manner reasonably satisfactory to Landlord, utilizing a
cleaning contractor approved by Landlord, which approval shall not be
unreasonably withheld or delayed. Tenant shall, at its sole cost and expense,
store, receive and transport all refuse and rubbish from the Demised Premises in
compliance with all present and future laws, orders, rules and regulations of
any governmental or quasi-governmental authority having jurisdiction thereof and
shall deposit such refuse and rubbish on a daily basis in a location in the
Building designated by Landlord.
C. Landlord, at its expense, and on Tenant's
request, shall maintain the original listings on the Building directory of the
names of Tenant, Tenant's subsidiaries and the names of any of their officers
and employees, provided that the names so listed shall not take up more than six
(6) lines on the Building directory. In the event Tenant shall require
additional or substitute listings on the Building directory, Landlord shall, to
the extent space for such additional or substitute listing is available,
maintain such listings and Tenant shall pay to Landlord an amount equal to
Landlord's reasonable charge for such listings.
D. Landlord reserves the right, without any
liability to Tenant (except as otherwise expressly provided in this lease), to
stop operating any of the heating, ventilating, air conditioning, electric,
sanitary, elevator, or other building systems serving the demised premises, and
to stop the rendition of any of the other services required of Landlord under
this lease, whenever and for so long as may be necessary by reason of accidents,
emergencies, strikes, or the making of repairs or changes that Landlord is
required by this lease or by law to make or in good faith deems necessary, by
reason of difficulty in securing proper supplies of fuel, steam, water,
electricity, labor, or supplies, or by reason of any other cause beyond
Landlord's reasonable control.
E. Landlord shall furnish hot and cold water to
the Demised Premises through the presently existing facilities.
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F. Except as provided in Articles 47 and 48,
Landlord shall have no responsibility or obligation for the rendition of any
services or utilities to Tenant or to the Demised Premises.
G. Landlord agrees that the Building will be
maintained in its present condition, normal wear and tear excepted. Landlord
further agrees that it shall continue to provide the services it is responsible
to provide to Tenant pursuant to the provisions of this lease at the same level
as presently provided.
49. SECURITY DEPOSIT
A. Tenant has deposited with Landlord the sum of
$140.000.0, either in cash or by Letter of Credit as provided in Section C
hereof, as security for the faithful performance, observance and compliance with
all of the terms, covenants and conditions of this lease on Tenant's part to
perform, observe or comply with. Tenant agrees that, in the event that Tenant
defaults in respect of any of such terms, covenants or conditions of this lease
(including, without limitation, the payment of any installment of fixed rent or
any amount of additional rent), Landlord may use, apply, or retain the whole or
any part of the cash security so deposited or may notify the Issuing Bank (as
such term is defined in Section C hereof) and thereupon receive all of the
monies represented by the said Letter of Credit and use, apply, or retain the
whole or any part of such proceeds, or both, as the case may be, to the extent
required for the payment of any fixed rent, additional rent, or any other sums
as to which Tenant is in default, or for any sum that Landlord may expend or may
be required to expend by reason of any such default (including any damages or
deficiency accrued before or after summary proceedings or other re-entry by
Landlord). In the event that Landlord applies or retains any portion or all of
such cash security or proceeds of such Letter of Credit, or both, as the case
may be, the amount not so used, applied or retained shall continue to be treated
as Tenant's security deposit, and Tenant shall restore the amount so applied or
retained within five (5) days after Landlord's demand therefor, so that, subject
to the provisions of Section F, at all times, the amount deposited shall be
$140,000.00. In the event that Tenant shall fully and faithfully comply with all
of the terms, provisions, covenants and conditions of this lease, that portion,
if any, of the cash security or Letter of Credit, or both, as the case may be,
not used, applied or retained shall be returned to Tenant after the Expiration
Date and after delivery of possession of the entire demised premises to
Landlord, in accordance with, and subject to, the applicable provisions of this
lease.
B. To the extent Tenant has deposited with
Landlord a cash security, Landlord agrees to deposit same into an interest
bearing account in a bank or savings and loan association to be selected, from
time to time, by Landlord in its sole discretion. Landlord agrees, further to
hold said security in such an account for the entire term of this lease,
subject, however, to the terms of Section A above with respect to the use,
application
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or retention of such security. To the extent permitted by law, Tenant agrees
that Landlord shall be entitled to receive and retain, as an administrative
expense, a sum equal to one (1%) percent per annum upon such security, and
Landlord shall have the right to withdraw such sum from time to time as Landlord
shall determine in is sole discretion. The balance of the interest earned on
such security shall, provided Tenant is not then in default under this lease,
and to the extent that same shall not be used, applied or retained pursuant to
the terms of Section A above, be paid to Tenant upon the request of Tenant, but
not more than once during any calendar year of the term of this lease. Unless
and until such interest shall be paid to Landlord and Tenant as herein provided,
the same shall be held as a part of the security deposited by Tenant, subject
to, and in accordance with, the terms of Section A above. Landlord shall not be
required to credit any security with the interest for any period during which
Landlord does not receive interest thereon.
C. In lieu of a cash deposit, Tenant may deliver
to Landlord as such security, a clean, irrevocable, transferable (without cost
to Landlord) and unconditional Letter of Credit issued by and drawn upon any
commercial bank reasonably acceptable to Landlord (hereinafter referred to as
the "Issuing Bank") with offices for banking purposes in the City of New York
and having a net worth of not less than One Hundred Million and 00/100
($100,000,000.00) Dollars, which Letter of Credit shall have a term of not less
than one year, be in form and content satisfactory to Landlord, be for the
account of Landlord and, subject to the provisions of Section F, be in the
amount of $140,000.00. The Letter of Credit shall provide that:
(a) The Issuing Bank shall pay to
Landlord or its duly authorized representative an amount up to the face amount
of the Letter of Credit upon presentation of only the Letter of Credit and a
sight draft in the amount to be drawn;
(b) The Letter of Credit shall be deemed
to be automatically renewed, without amendment, for consecutive periods of one
year each, unless the Issuing Bank sends written notice (hereinafter referred to
as the "Non-Renewal Notice") to Landlord by certified or registered mail, return
receipt requested, not less than thirty (30) days next preceding the then
expiration date of the Letter of Credit, that it elects not to have such Letter
of Credit renewed;
(c) Landlord, after its receipt of the
Non-Renewal Notice, shall have the right, exercisable by a sight draft only, to
receive the moneys represented by the Letter of Credit (which moneys shall be
held by Landlord as a cash deposit pursuant to the terms of this Article pending
the replacement of such Letter of Credit) (and Landlord shall have such right
regardless of whether the Letter of Credit expressly gives Landlord such right);
and
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(d) In the event of a sale or the
transfer of the Land or the Building, or Landlord's interest in any of the
foregoing, or a leasing by Landlord or any of the foregoing or Landlord's
interest therein, the Letter of Credit shall be transferable by Landlord as
provided in Section D below, at no cost or expense to Landlord and Tenant shall
be notified of any such transfer.
. In the event of a sale or transfer of the land
or the Building, or the then Landlord's interest in the land or the Building, or
a leasing by the then Landlord of the land or the Building or of Landlord's
interest therein, Landlord shall have the right, at no cost or expense to
Landlord, to transfer or assign such cash security or Letter of Credit, or both,
as the case may be, to the vendee, transferee or lessee, and Landlord shall
notify Tenant, by certified mail, return receipt requested, of such sale,
transfer or lease, together with the name and address of such vendee, transferee
or lessee who shall acknowledge, in writing, receipt of such security, and
Landlord shall thereupon be released by Tenant from all liability for the return
of such cash security or Letter of Credit. In such event, Tenant agrees to look
solely to the new landlord for the return of said cash security or Letter of
Credit. It is agreed that the provisions hereof shall apply to every transfer or
assignment made of said cash security or Letter of Credit to a new Landlord.
E. Tenant covenants that it will not assign or
encumber, or attempt to assign or encumber, such cash security or Letter of
Credit, and that neither Landlord nor its successors or assigns shall be bound
by any such assignment, encumbrance, attempted assignment, or attempted
encumbrance.
F. (i) Notwithstanding anything in
this Article 49 to the contrary, if, on the fifth (5th) anniversary of the
Commencement Date, Tenant is not in default under this lease, which default
continues after notice and the expiration of any applicable cure period, Tenant
may upon notice to Landlord (hereinafter referred to as the "Security Reduction
Notice") request that Landlord return to Tenant $40,000.00 of the cash security
deposited by Tenant pursuant to Section 49A or, if Tenant has provided a letter
of credit, exchange the then existing Letter of Credit for a new Letter of
Credit in the amount of $100,000.00 and otherwise meeting the requirements of
Section 49B.
(ii) Provided Tenant is not in
default under the lease, which default continues after notice and the expiration
of any applicable cure period, on the date Landlord receives the Security
Reduction Notice and on the date payment is to be made to Tenant or the existing
Letter of Credit is to be exchanged, Landlord will return to Tenant the sum of
$40,000.00 out of the cash security or exchange the then existing Letter of
Credit for the new Letter of Credit as set forth in Section 49F(i).
G. Notwithstanding anything in this Article
49 to the contrary, the security required to be deposited hereunder
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may be a combination of cash security and Letter of Credit provided that the
total amount thereof aggregates the total security to be maintained hereunder
and such components of the combined security otherwise comply with the
requirements of this Article 49.
50. PARTIES BOUND
A. If Landlord shall be an individual, joint
venture, tenancy in common, partnership, unincorporated association, or other
unincorporated aggregate of individuals and/or entities or a corporation, Tenant
shall look only to such Landlord's estate and property in the building (or the
proceeds thereof) and, where expressly so provided in this lease, to offset
against the rents payable under this lease, for the satisfaction of Tenant's
remedies for the collection of a judgment (or other judicial process) requiring
the payment of money by Landlord in the event of any default by Landlord
hereunder, and no other property or assets of such Landlord or any partner,
member, officer, or director thereof, disclosed or undisclosed, shall be subject
to levy, execution, or other enforcement procedure for the satisfaction of
Tenant's remedies under or with respect to this lease, the relationship of
Landlord and Tenant hereunder, or Tenant's use or occupancy of the demised
premises.
B. If there shall be more than one person named
as tenant herein, then all such persons shall be deemed to be joint tenants in
the leasehold estate demised hereby, with joint and several liability hereunder.
C. Landlord hereby represents that it is the fee
owner of the Land and Building.
51. BROKER
A. Tenant covenants, warrants and represents that
there were no brokers or finders except Edward S. Gordon Company, Inc.
(hereinafter referred to as "Broker") instrumental in consummating this lease,
and that no conversations or negotiations were had by Tenant with any brokers or
finders except the Broker concerning the renting of the demised premises. Tenant
agrees to hold Landlord harmless against any claims for a brokerage commission
or consultation fees arising out of any conversations or negotiations had by
Tenant with any brokers or finders except for the Broker.
B. Based upon the foregoing representation,
Landlord has agreed to pay, pursuant to separate agreements, a brokerage
commission to the Broker.
C. Landlord covenants, warrants and represents
that there were no brokers or finders except the Broker instrumental in
consummating this lease, and that no conversations or negotiations were had by
Landlord with any brokers or finders except the Broker concerning the renting of
the demised premises. Landlord agrees to hold Tenant harmless against any claims
for a
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brokerage commission or consultation fees arising out of any conversations or
negotiations had by Landlord with any brokers or finders including the Broker.
52. HAZARDOUS MATERIALS
Tenant shall not cause or permit "Hazardous Materials" (as defined
below) to be used, transported, stored, released, handled, produced or installed
in, on or from the Demised Premises or the Building. The term "Hazardous
Materials" shall, for the purposes hereof, mean any flammable, explosive or
radioactive materials, hazardous wastes, hazardous and toxic substances or
related materials, asbestos or any material containing asbestos, or any other
substance or material, as now or hereafter defined as a hazardous material or a
hazardous substance by any federal, state or local law, ordinance, rule or
regulation, now or at any time hereafter in effect, including, without
limitation, the Comprehensive Environmental Response Compensation and Liability
Act of 1980, as amended, the Hazardous Materials Transportation Act, as amended,
the Resource Conservation and Recovery Act, as amended, and in the regulations
adopted and publications promulgated pursuant to each of the foregoing. In the
event of a breach of the provisions of this Article, Landlord shall, in addition
to all of its rights and remedies under this lease and pursuant to law, require
Tenant to remove any or all of such Hazardous Materials from the Demised
Premises or the Building in the manner prescribed for such removal by all
requirements of law. Tenant acknowledges that Landlord has made no
representation, warranty, covenant or agreement with respect to the existence,
removal, encapsulation or other treatment or remediation of Hazardous Materials,
and that Landlord shall not in any way be liable for the existence of any
Hazardous Materials or be obligated to remove, encapsulate or otherwise treat or
remediate same. The provisions of this Article shall survive the expiration or
sooner termination of this lease.
53. ARBITRATION
A. Either party may request arbitration of any
matter in dispute with respect to which arbitration is expressly provided in
this lease as the appropriate remedy. The party requesting arbitration shall do
so by giving notice to that effect to the other party, and both parties shall
promptly thereafter jointly apply to the American Arbitration Association (or
any organization successor thereto) in the City and County of New York for the
appointment of a single arbitrator.
B. The arbitration shall be conducted in
accordance with the then prevailing rules of the American Arbitration
Association (or any organization successor thereto) in the City and County of
New York and, subject to the terms of the immediately succeeding sentence,
judgment on the award rendered by the arbitrator may entered in any court having
jurisdiction thereof. In rendering such decision and award, the arbitrator shall
not add to, subtract from, or otherwise modify the provisions of this lease.
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C. If, for any reason whatsoever, a written
decision and award of the arbitrator shall not be rendered within sixty (60)
days after the appointment of such arbitrator, then, at any time thereafter
before such decision and award shall have been rendered, either party may apply
to the Supreme Court of the State of New York or to any other court having
jurisdiction and exercising the functions similar to those now exercised by such
court, by action, proceeding, or otherwise (but not by a new arbitration
proceeding) as may be proper to determine the question in dispute consistently
with the provisions of this lease.
D. All the expenses of the arbitration shall be
borne by the parties equally.
54. ASSIGNMENT AND SUBLETTING
A. If Tenant shall, at any time or times during
the term of this lease, desire to assign this lease or sublet all or part of the
demised premises, Tenant shall give notice thereof to Landlord, which notice
shall be accompanied by: (i) a conformed or photostatic copy of the proposed
assignment or sublease, the effective or commencement date of which shall be not
less than sixty (60) nor more than ninety (90) days after the giving of such
notice; (ii) a statement setting forth, in reasonable detail, the identity of
the proposed assignee or subtenant, the nature of its business and its proposed
use of the demised premises; and (iii) current financial information with
respect to the proposed assignee or subtenant, including its most recent
financial report.
B. In the event that Tenant complies with the
provisions of Section A of this Article 54 and provided that Tenant is not in
default of any of Tenant's obligations under this lease after notice and the
expiration of any applicable grace period, Landlord's consent (which must be in
writing and in form reasonably satisfactory to Landlord) to the proposed
assignment or sublease shall not be unreasonably withheld or delayed provided
that Tenant has complied with the following conditions:
(i) in Landlord's reasonable
judgment, the proposed assignee or subtenant is engaged in such a business, and
the demised premises, or the relevant part thereof, will be used in such a
manner, that: (x) is limited to the use expressly permitted under this lease or
a similar use; and (y) such similar use will not violate any negative covenant
as to use contained in any other lease of space in the Building about which
Tenant has been informed following its request to Landlord for such information.
Landlord represents that the use of the demised Premises by Tenant for the
purposes set forth in Section 39A does not violate any negative covenant as to
use contained in any other lease for space in the Building;
(ii) the proposed assignee or
subtenant is a reputable person of good character and with sufficient financial
worth considering the responsibility involved, and Landlord has been furnished
with reasonable proof thereof;
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(iii) neither (i) the proposed
assignee or sublessee nor (ii) any person that, directly or indirectly,
controls, is controlled by, or is under common control with, the proposed
assignee or sublessee or any person who controls the proposed assignee or
sublessee, is then an occupant or tenant of any part of the building;
(iv) the proposed assignee or
sublessee is not a person with whom Landlord is then, or shall have been during
the previous six (6) month period, negotiating to lease space in the building;
(v) the proposed sublease shall
be in form reasonably satisfactory to Landlord and shall comply
with the applicable provisions of this Article;
(vi) there shall not be more
than three (3) entities (excluding entities controlled by Tenant),
including Tenant, occupying the demised premises;
(vii) the rental and other terms
and conditions of the sublease are the same as those contained in
the proposed sublease furnished to Landlord pursuant to Section A;
(viii) Tenant shall reimburse
Landlord on demand for any reasonable costs that may be incurred by Landlord in
connection with said assignment or sublease, including, without limitation, the
reasonable costs of making investigations as to the acceptability of the
proposed assignee or subtenant and reasonable legal costs incurred in connection
with the review of any term sheet, proposed assignment or sublease or any
documentation in connection therewith and in the preparation of any
documentation in connection with any request for consent, whether or not
granted;
(ix) Tenant shall not have: (a)
advertised or publicized in any way the availability of the demised premises
without prior notice to, and approval by, Landlord, which approval Landlord
agrees not to unreasonably withhold, nor shall any listing or advertisement
advertise the demised premises for subletting at a proposed rental less than the
fixed rent and additional rent at which Landlord is then offering to lease other
space in the building;
(x) the sublease shall not
allow use of the demised premises or any part thereof: (a) as a restaurant,
luncheonette, or otherwise for the preparation and/or sale of food for on or off
premises consumption; (b) as a discount store; (c) as a multiple tenancy store;
(d) by a foreign or domestic governmental agency; (e) as a betting parlor or
gambling casino; or (f) by a utility company; and
(xi) the sublease shall not
provide for an option on behalf of the subtenant thereunder to extend or renew
the term of such sublease.
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C. Each subletting pursuant to this Article 54
shall be subject to all of the covenants, agreements, terms, provisions and
conditions contained in this lease. Notwithstanding any such subletting and/or
acceptance of rent or additional rent by Landlord from any subtenant, Tenant
shall and will remain fully liable for the payment of the fixed rent and
additional rent due, and to become due, hereunder, for the performance of all of
the covenants, agreements, terms, provisions and conditions contained in this
lease on the part of Tenant to be performed and for all acts and omissions of
any licensee, subtenant, or any other person claiming under or through any
subtenant that shall be in violation of any of the obligations of this lease,
and any such violation shall be deemed to be a violation by Tenant. Tenant
further agrees that, notwithstanding any such subletting, no other and further
subletting of the demised premises by Tenant, or any person claiming through or
under Tenant (except as provided in Section K of this Article 54), shall, or
will be, made, except upon compliance with, and subject to, the provisions of
this Article. If Landlord shall decline to give its consent to any proposed
assignment or sublease, or if Landlord shall exercise any of its options under
Section B, Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all losses, liabilities, damages, costs and expenses (including
reasonable counsel fees) resulting from any claims that may be made against
Landlord by the proposed assignee or subtenant or by any brokers or other
persons claiming a commission or similar compensation in connection with the
proposed assignment or sublease.
D. With respect to each and every sublease or
subletting, it is agreed that:
(i) no subletting shall be for
a term ending later than one day prior to the expiration date of this lease;
(ii) 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 has been delivered to
Landlord; and
(iii) each sublease shall
provide that it is subject and subordinate to this lease and to the matters to
which this lease is or shall be subordinate, and that, in the event of
termination, re-entry, or dispossess by Landlord under this lease, Landlord may,
at its option, take over all of the right, title and interest of Tenant as
sublandlord under such sublease, and such subtenant shall, at Landlord's option,
attorn to Landlord pursuant to the then executory provisions of such sublease,
except that Landlord shall not (x) be liable for any previous act or omission of
Tenant under such sublease, (y) be subject to any offset, not expressly provided
in such sublease, that theretofore accrued to such subtenant against Tenant or
(z) be bound by any previous modification of such sublease or by any previous
prepayment of more than one month's fixed rent or any additional rent then due.
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E. Any assignment or transfer shall be made only
if, and shall not be effective until, the assignee shall execute, acknowledge
and deliver to Landlord an agreement, in form and substance satisfactory to
Landlord, whereby the assignee shall assume all of the obligations of this lease
on the part of Tenant to be performed or observed and whereby the assignee shall
agree that the provisions contained in Section A shall, notwithstanding such
assignment or transfer, continue to be binding upon it in respect of all future
assignments and transfers. The original named Tenant covenants that,
notwithstanding any assignment or transfer, whether or not in violation of the
provisions of this lease, and notwithstanding the acceptance of fixed rent
and/or additional rent by Landlord from an assignee, transferee, or any other
party, the original named Tenant shall remain fully liable for the payment of
the fixed rent and additional rent and for the other obligations of this lease
on the part of Tenant to be performed or observed.
F. 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 50% 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 (excluding any equipment intended for sale to the general public in
Tenant's business), furniture, furnishings or other personal property, less, in
the case of a sale thereof, the then net unamortized or undepreciated cost
thereof determined on the basis of Tenant's federal income tax returns) and less
the reasonable costs (hereinafter referred to as the "Assignment Expenses") paid
by Tenant for alteration costs (or contributions in lieu thereof), advertising,
brokerage or consulting fees or commissions and legal fees in connection with
such assignment; and
(ii) in the case of a sublease,
an amount equal to 50% of any rents, additional charge or other consideration
payable under the sublease to Tenant by the subtenant which is in excess of the
fixed 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 to, sums
paid for the sale or rental of Tenant's fixtures, leasehold improvements,
equipment (excluding any equipment intended for sale to the general public in
Tenant's business), furniture or other personal property, less, in the case of
the sale thereof, the then net unamortized or undepreciated cost thereof
determined on the basis of Tenant's federal income tax returns) and less the
reasonable costs (hereinafter referred to as the "Subletting Expenses") paid by
Tenant for alteration costs (or contributions in lieu thereof), advertising,
brokerage or consulting fees or commissions and legal fees in connection with
such subletting. The sums payable under Sections 54(F)(i) and (ii) shall be paid
to Landlord as and when
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paid by the assignee or subtenant, as the case may be, to Tenant and upon the
execution and delivery of such assignment or sublease, as the case may be,
Tenant shall provide to Landlord a statement of the Assignment Expenses or
Subletting Expenses, as the case may be, certified as correct by an officer or
principal of Tenant.
G. If Tenant is a corporation, the provisions of
Article 11 shall apply to a transfer (by one or more transfers) of a majority of
the stock of Tenant, as if such transfer of a majority of the stock of Tenant
were an assignment of this lease; but said provisions and the provisions of
Section F above shall not apply to, and Landlord's consent shall not be required
in connection with, transactions with a corporation (i) into, or with which,
Tenant is merged or consolidated, (ii) to which substantially all of Tenant's
assets are transferred; or (iii) that controls, is controlled by, or is under
common control with Tenant ("control" having the meaning set forth in Paragraph
(p) of Exhibit B), provided that, in the events of a transaction set forth in
(i) or (ii): (x) the successor to Tenant has a net worth, computed in accordance
with generally accepted accounting principles, at least equal to the greater of
(1) the net worth of Tenant immediately prior to such merger, consolidation, or
transfer or (2) the net worth of Tenant herein named on the date of this lease;
and (y) proof satisfactory to Landlord of such net worth shall have been
delivered to Landlord at least ten (l0) days prior to the effective date of any
such transaction.
H. The joint and several liability of Tenant and
any immediate or remote successor in interest to Tenant, and the due performance
of the obligations of this lease on Tenant's part to be performed or observed,
shall not be discharged, released, or impaired in any respect by any agreement
or stipulation made by Landlord extending the time of, or modifying any of the
obligations of, this lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this lease.
I. The listing of any name other than that of
Tenant, whether on the doors of the demised premises, on the building directory,
if any, or otherwise, shall not operate to vest any right or interest in this
lease or in the demised premises, nor shall it be deemed to be the consent of
Landlord to any assignment or transfer of this lease, to any sublease of the
demised premises, or to the use or occupancy thereof by others.
55. INSURANCE
A. Tenant shall not violate, or permit the
violation of, any condition imposed by the standard fire insurance policy then
issued for office buildings in the Borough of Manhattan, City of New York, and
shall not do, permit anything to be done, keep, or permit anything to be kept,
in the demised premises that would: (i) subject Landlord to any liability or
responsibility for personal injury, death, or property damage; (ii) increase the
fire or other casualty insurance rate on the building or the property therein
over the rate that would otherwise then be
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in effect (unless Tenant pays the resulting premium as provided in Section F of
this Article 55); or (iii) result in insurance companies of good standing
refusing to insure the building or any of such property in amounts reasonably
satisfactory to Landlord.
B. Tenant covenants to provide on or before the
Commencement Date and to keep in force during the term hereof the following
insurance coverage:
(i) A comprehensive policy of
liability insurance containing an omnibus named insured provision naming
Landlord as an additional insured protecting Landlord and Tenant against any
liability whatsoever occasioned by accident on or about the Demised Premises or
any appurtenances thereto. The limits of liability of such policy shall not be
less than Five Million ($5,000,000.00) Dollars combined single limit coverage on
a per occurrence basis, including property damage. Such policy shall contain a
contractual liability coverage endorsement with respect to Tenant's
indemnification obligations under this lease. Such insurance may be carried
under a blanket policy covering the Demised Premises and other locations of
Tenant, if any, provided such policy contains an endorsement (a) naming Landlord
as an additional insured, (b) specifically referencing the Demised Premises and
(c) guaranteeing a minimum limit available for the Demised Premises equal to the
limits of liability required under this lease.
(ii) Fire and Extended coverage
in an amount adequate to cover the cost of replacement of all personal property,
fixtures, furnishing and equipment, including Tenant's Work located in the
Demised Premises.
All such policies shall be issued by companies of recognized responsibility
licensed to do business in New York State and rated by Best's Insurance Reports
or any successor publication of comparable standing and carrying a rating of A+
VIII or better or the then equivalent of such rating, and all such policies
shall contain a provision whereby the same cannot be cancelled or modified
unless Landlord and any additional insureds are given at least thirty (30) days
prior written notice of such cancellation or modification.
Prior to the time such insurance is first required to be carried by Tenant
and thereafter, at least fifteen (15) days prior to the expiration of any such
policies, Tenant shall deliver to Landlord either duplicate originals of the
aforesaid policies or certificates evidencing such insurance together with a
certified copy of the endorsement naming Landlord as an additional insured,
together with evidence of payment for the policy. If Tenant delivers
certificates as aforesaid, Tenant, upon reasonable prior notice from Landlord,
shall make available to Landlord at the Demised Premises duplicate originals of
such policies from which Landlord may make copies thereof, at Landlord's cost.
Tenant's failure to provide and keep in force the aforementioned insurance
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shall be regarded as a material default hereunder, entitling Landlord to
exercise any or all of the remedies as provided in this lease in the event of
Tenant's default. In addition, in the event Tenant fails to provide and keep in
force the insurance required by this lease, at the times and for the durations
specified in this lease, Landlord shall have the right, but not the obligation,
at any time and from time to time, and without notice, to procure such insurance
and or pay the premiums for such insurance in which event Tenant shall repay
Landlord within five (5) days after demand by Landlord, as additional rent, all
sums so paid by Landlord together with any costs or expenses incurred by
Landlord in connection therewith without prejudice to any other rights and
remedies of Landlord under this lease.
C. Landlord and Tenant shall each endeavor to
secure an appropriate clause in, or an endorsement upon, each fire or extended
coverage policy obtained by it and covering the Building, the Demised Premises
or the personal property, fixtures and equipment located therein or thereon,
pursuant to which the respective insurance companies waive subrogation or permit
the insured, prior to any loss, to agree with a third party to waive any claim
it might have against said third party. The waiver of subrogation or permission
for waiver of any claim hereinbefore referred to shall extend to the agents of
each party and its employees and, in the case of Tenant, shall also extend to
all other persons and entities occupying or using the Demised Premises in
accordance with the terms of this lease. If and to the extent that such waiver
or permission can be obtained only upon payment of an additional charge then,
except as provided in the following two paragraphs, the party benefiting from
the waiver or permission shall pay such charge upon demand, or shall be deemed
to have agreed that the party obtaining the insurance coverage in question shall
be free of any further obligations under the provisions hereof relating to such
waiver or permission.
In the event that Landlord shall be unable at any time to
obtain one of the provisions referred to above in any of its insurance policies,
at Tenant's option Landlord shall cause Tenant to be named in such policy or
policies as one of the assureds, but if any additional premium shall be imposed
for the inclusion of Tenant as such as assured, Tenant shall pay such additional
premium upon demand. In the event that Tenant shall have been named as one of
the assureds in any of Landlord's policies in accordance with the foregoing,
Tenant shall endorse promptly to the order of Landlord, without recourse, any
check, draft or order for the payment of money representing the proceeds of any
such policy or any other payment growing out of or connected with said policy
and Tenant hereby irrevocably waives any and all rights in and to such proceeds
and payments.
In the event that Tenant shall be unable at any time
to obtain one of the provisions referred to above in any of its insurance
policies, Tenant shall cause Landlord to be named in such policy or policies as
one of the assureds, but if any additional premium shall be imposed for the
inclusion of Landlord as such an
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assured, Landlord shall pay such additional premium upon demand or Tenant shall
be excused from its obligations under this paragraph with respect to the
insurance policy or policies for which such additional premiums would be
imposed. In the event that Landlord shall have been named as one of the assureds
in any of Tenant's policies in accordance with the foregoing, Landlord shall
endorse promptly to the order of Tenant, without recourse, any check, draft or
order for the payment of money representing the proceeds of any such policy or
any other payment growing out of or connected with said policy and Landlord
hereby irrevocably waives any and all rights in and to such proceeds and
payments.
Subject to the foregoing provisions of this Section
C of Article 55, and insofar as may be permitted by the terms of the insurance
policies carried by it, each party hereby releases the other with respect to any
claim (including a claim for negligence) which it might otherwise have against
the other party for loss, damages or destruction with respect to its property by
fire or other casualty (including rental value or business interruption, as the
case may be) occurring during the term of this lease.
D. If, by reason of a failure of Tenant to comply
with the provisions of Article 6 or Section A of Article 55, the rate of fire
insurance with extended coverage on the Building or equipment or other property
of Landlord shall be higher than it otherwise would be, Tenant shall reimburse
Landlord, on demand, for that part of the premiums for fire insurance and
extended coverage paid by Landlord because of such failure on the part of
Tenant.
E. Landlord may, from time to time, require that
the amount of the insurance to be provided and maintained by Tenant under
Section B of Article 55 hereof be increased so that the amount thereof
adequately protects Landlord's interest but in no event in excess of the amount
that would be required by other tenants conducting similar business in similar
sized space in first-class office buildings in the borough of Manhattan.
F. If any dispute shall arise between Landlord and
Tenant with respect to the incurrence or amount of any additional insurance
premium referred to in Section C of Article 55, the dispute shall be determined
by arbitration.
G. A schedule or make up of rates for the Building
or the Demised Premises, as the case may be, issued by the New York Fire
Insurance Rating Organization or other similar body making rates for fire
insurance and extended coverage for the premises concerned, shall be conclusive
evidence of the facts therein stated and of the several items and charges in the
fire insurance rate with extended coverage then applicable to such premises.
H. Each policy evidencing the liability insurance
to be carried by Tenant under this lease shall contain a clause that such policy
and the coverage evidenced thereby shall be
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primary with respect to any policies carried by Landlord, and that any coverage
carried by Landlord shall be excess insurance.
(I) It is acknowledged that solely for purposes of
insurance required to be procured by Tenant under this lease, that Landlord and
Tenant each have insurable interests in and to betterments and improvements,
including Landlord's Work as defined in Exhibit C. Moreover, Landlord has agreed
and undertaken to perform the improvements referred to in Exhibit C as
Landlord's Work at Landlord's expense and Landlord's costs will, in effect, be
recouped through the rents to be paid by Tenant hereunder. As such, Tenant's
interest in the betterments and improvements shall be a leasehold interest only
and shall be insurable as such, and Landlord's interests in the betterments and
improvements shall be a fee interest and insurable as such. Landlord and Tenant
agree to cooperate with each other in adjusting any claim made by the other
under any policy of insurance providing insurance for betterments and
improvements including, but not limited to, acknowledging the interest of the
other and providing access to the Demised Premises for claims adjusting
purposes. In addition, Tenant shall retain an insurable leasehold interest in
any additional betterments an improvements directly purchased by Tenant and not
provided as part of Landlord's Work. Notwithstanding anything herein to the
contrary, nothing herein shall be construed to give Tenant the right to any
abatement, setoff, or other reduction in rent or additional rent, of any kind
whatsoever, as a result of any change, modification, destruction, damage,
deterioration, wear and tear or obsolescence of such betterments and
improvements.
56. TENANT'S CHANGES
A. (a) Tenant may, from time to time during
the term of this lease and at its sole expense, make such alterations,
additions, installations, substitutions, improvements and decorations
(hereinafter collectively referred to as "changes" and, as applied to changes
provided for in this Article 56, "Tenant's Changes" in and to the demised
premises (excluding structural changes and changes that affect any of the
Building's systems or services, for which Landlord's prior written approval
shall be required in all instances, which approval may be withheld by Landlord
in its sole and absolute discretion), as Tenant may reasonably consider
necessary for the conduct of its business therein, on the following conditions:
(i) the outside appearance or
strength of the Building, or of any of its structural parts, shall
not be affected;
(ii) no part of the Building
outside of the demised premises shall be physically affected;
i) the proper functioning
of any of the mechanical, electrical, sanitary and other
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service systems of the Building shall not be adversely affected, and the usage
of such systems by Tenant shall not be increased;
(iv) in performing the work
involved in making such changes, Tenant shall observe, and be bound by, all of
the conditions and covenants contained in this Article 56;
(v) before proceeding with any
change (except for decorations that do not affect the mechanical, electrical,
sanitary and/or other service systems), Tenant shall submit to Landlord, for
Landlord's approval, not to be unreasonably withheld or delayed, plans and
specifications for the work to be done and the name of the contractor or major
sub-contractors performing such work. Landlord may, as a condition of its
consent, require Tenant to make revisions in and to the plans and specifications
and to post a bond or other security reasonably satisfactory to Landlord to
insure the completion of such change; and
(vi) Tenant shall not make any
change, alteration, addition or substitution to the air-conditioning system
without Landlord's prior written approval, which may be withheld for any reason.
B. Tenant shall, at its expense, obtain all
necessary governmental permits and certificates for the commencement and
prosecution of Tenant's Changes, and, upon completion, for final approval
thereof, and shall cause Tenant's Changes to be performed in compliance
therewith, as well as with all applicable laws and requirements of public
authorities and all applicable requirements of insurance bodies, in a good and
workmanlike manner, using new materials and equipment of a quality and class at
least equal to the original installations in the Building. Tenant's Changes
shall be performed in such a manner as not to unreasonably interfere with or
delay, and (unless Tenant shall indemnify Landlord therefor to the latter's
reasonable satisfaction) as not to impose any additional expense upon Landlord
in, the maintenance or operation of the Building. Throughout the performance of
Tenant's Changes, Tenant shall, at its expense, carry, or cause to be carried by
Tenant's contractor, worker's compensation insurance in statutory limits and
general liability insurance for any occurrence in or about the Building as set
forth in Article 55 hereof. All such insurance policies shall name Landlord and
its agents as parties insured, be in such limits as Landlord may reasonably
prescribe and be placed with insurers reasonably satisfactory to Landlord.
Tenant shall furnish Landlord with satisfactory evidence that such insurance is
in effect at or before the commencement of Tenant's Changes and, on request, at
reasonable intervals thereafter during the continuance of Tenant's Changes. If
any of Tenant's Changes shall involve the removal of any fixtures, equipment, or
other property in the demised premises, such fixtures, equipment, or other
property shall be promptly replaced, at Tenant's expense, with new fixtures,
equipment, or other property (as the case may be) of like utility and at least
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equal value unless Landlord shall otherwise expressly consent in writing, and
Tenant shall, upon Landlord's request, store and preserve, at Tenant's sole cost
and expense, any such fixtures, equipment, or property so removed and shall
return same to Landlord upon the expiration or sooner termination of this lease.
All Tenant's Changes shall be performed by contractors approved by Landlord,
which approval shall not be unreasonably withheld or delayed. Landlord will upon
request of Tenant furnish to Tenant a list of approved contractors containing
not less than four (4) approved contractors.
C. Tenant shall, at its expense and with diligence
and dispatch, procure the cancellation or discharge of all notices of violation
arising from, or otherwise connected with, Tenant's Changes that shall be issued
by the Department of Buildings or any other public or quasi-public authority
having or asserting jurisdiction. Tenant shall defend, indemnify and save
Landlord harmless from and against any and all mechanic's and other liens filed
in connection with Tenant's Changes, including the liens of any security
interest in, conditional sales of, or chattel mortgages upon, any materials,
fixtures, or articles so installed in and constituting part of the demised
premises, and against all costs, expense and liabilities incurred in connection
with any such lien, security interest, conditional sale, or chattel mortgage or
any action or proceeding brought thereon. Tenant, at its expense, shall procure
the satisfaction or discharge of all such liens within fifteen (15) days after
Landlord makes written demand therefor. However, nothing herein contained shall
prevent Tenant from contesting, in good faith and at its own expense, any such
notice of violation, provided that Tenant shall comply with the provisions of
Article 6 hereof.
D. Tenant agrees that the exercise of its rights
pursuant to the provisions of this Article 56 shall not be done in a manner that
would: (i) create any work stoppage, picketing, labor disruption, or dispute;
(ii) violate Landlord's union contracts affecting the land and/or Building; or
(iii) interfere with the business of Landlord or any Tenant or occupant of the
Building. In the event of the occurrence of any condition described above
arising from Tenant's exercise of any of its rights pursuant to the provisions
of this Article 56, Tenant shall, immediately upon notice from Landlord, cease
the manner of exercise of such right giving rise to such condition. In the event
that Tenant fails to cease such manner of exercise of its rights as aforesaid,
Landlord, in addition to any rights available to it under this lease and
pursuant to law, shall have the right to injunction without notice. With respect
to Tenant's Changes, Tenant shall make all arrangements for, and pay all
expenses incurred in connection with, use of the freight elevators servicing the
demised premises which use shall be on an after hours basis. Tenant shall be
charged for use of the freight elevators for after hours use of the freight
elevator at the then standard Building charge therefor which presently is $75.00
per hour (with a minimum of four (4) hours if requested on other than business
days or for a period commencing after 6:00 p.m. on business days) which amount
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shall be increased as Landlord's actual out-of-pocket costs for such after hours
freight elevator service increase. All amounts due from Tenant hereunder shall
be paid as additional rent within fifteen (15) days from receipt of bills
therefor.
E. Notwithstanding anything in Article 3 to the
contrary, Landlord will not unreasonably withhold its consent to (a)
alterations, installations, additions or improvements to the interior of the
Demised Premises by Tenant which are non-structural and which do not affect any
of the Building systems or plumbing or electrical lines.
57. HOLDING OVER
Tenant acknowledges that possession of the demised premises must be
surrendered to Landlord at the expiration or sooner termination of the term of
this lease. Tenant agrees to indemnify and save Landlord harmless against all
liabilities, costs, suits, demands, charges, and expenses of any kind or nature,
including attorneys' fees and disbursements, resulting from a delay by Tenant in
so surrendering the demised premises, including, without limitation, any claims
made by any succeeding tenant founded on such delay. The parties recognize and
agree that the damage to Landlord resulting from any failure by Tenant to timely
surrender possession of the demised premises as aforesaid will be extremely
substantial, will exceed the amount of fixed rent and additional rent
theretofore payable hereunder and will be impossible of accurate measurement.
Tenant, therefore, agrees that if possession of the demised premises is not
surrendered to Landlord within twenty-four (24) hours after the date of the
expiration or sooner termination of the term of this lease, then Tenant shall
pay to Landlord, as liquidated damages, a sum equal to two (2) times the per
diem fixed rent and additional rent which was payable during the calendar month
preceding the calendar month in which the term ended for each day Tenant holds
over and fails to deliver possession of the demised premises. Nothing herein
contained shall be deemed to permit Tenant to retain possession of the demised
premises after the expiration or sooner termination of the term of this lease.
Landlord, by availing itself of the rights and privileges granted by this
provision and the acceptance of the liquidated damages, shall not be deemed to
have waived any of its rights and privileges granted in other provisions of this
lease, and the rights granted in this Article shall be considered in any event
as in addition to and not in exclusion of such other rights and privileges. The
aforesaid provisions of this Article shall survive the expiration or sooner
termination of the term of this lease.
58. CERTAIN DEFINITIONS AND CONSTRUCTION
A. For the purposes of this lease and all
agreements supplemental to this lease, unless the context otherwise requires the
definitions set forth in Exhibit B annexed hereto shall be utilized.
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B. The various terms which are italicized and
defined in other Articles of this lease or are defined in Exhibits annexed
hereto, shall have the meanings specified in such other Articles and such
Exhibits for all purposes of this lease and all agreements supplemental thereto,
unless the context shall otherwise require.
59. ADDENDUM TO ARTICLE 17
The following is added to the Lease as Section 17.1:
"This lease and the term and estate hereby granted are
subject to the limitation that:
(a) whenever Tenant shall default in the
payment of any installment of fixed rent, or in the payment of any additional
rent or any other charge payable by Tenant to Landlord, on any day upon which
the same ought to be paid, and such default shall continue for ten (10) days
after Landlord shall have given Tenant a notice in accordance with Article 60
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 in accordance with Article 60 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 and the continuance of which for the period required
for cure will not subject Landlord to the risk of criminal liability or
termination of any superior lease or foreclosure of any superior mortgage, 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, (ii) duly institute within said thirty (30) day period, and
thereafter diligently prosecute to completion all steps necessary to remedy the
same and (iii) complete such remedy within such time after the date of the
giving of said notice of Landlord as shall reasonably be necessary; 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 Articles 11 and 54; or
(d) whenever Tenant shall abandon the
Demised Premises (unless as a result of a casualty),
then in any of said cases set forth in the foregoing Subsections (a), (b), (c)
and (d), Landlord may give to Tenant a notice of intention to end the term of
this lease at the expiration of five (5) days from the date of the service of
such notice of intention,
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and upon the expiration of said five (5) 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."
60. NOTICES
A. Except for rent bills and emergency repair
notices (which may be hand-delivered or sent via facsimile machine and shall be
deemed given upon receipt) any notice, statement, demand or other communication
required or permitted to be given, rendered or made by either party to the
other, pursuant to this lease or pursuant to any applicable law or requirement
of public authority, shall be in writing (whether or not so stated elsewhere in
this lease) and shall be deemed to have been properly given, rendered or made,
if sent by registered or certified mail, return receipt requested, addressed to
the other party at the address hereinabove set forth (except that after the
Commencement Date, Tenant's address, unless Tenant shall give notice to the
contrary, shall be the Building), or sent via nationally recognized overnight
courier providing for receipted delivery and shall be deemed to have been given,
rendered or made (a) if so mailed, on the day so mailed, unless mailed outside
of the State of New York, in which case it shall be deemed to have been given,
rendered or made on the expiration of the normal period of time for delivery of
mail from the post-office of origin to the post-office of destination and (b) if
sent via nationally recognized overnight courier, on the date of receipt. Either
party may, by notice as aforesaid, designate a different address or addresses
for notices, statements, demands or other communications intended for it.
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- - - - - - - - - - - - - - - - - - - - - - -
EXHIBIT A
FLOOR PLAN OF DEMISED PREMISES
- - - - - - - - - - - - - - - - - - - - - - -
Follows Immediately
(Floor plan attached)
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- - - - - - - - - - - - - - - - - - - - - - -
EXHIBIT B
DEFINITIONS
- - - - - - - - - - - - - - - - - - - - - - -
(a) The term "mortgage" shall include an
indenture of mortgage and deed of trust to a trustee to secure an issue of
bonds, and the term "mortgagee" shall include such a trustee.
(b) The terms "include", "including" and
"such as" shall each be construed as if followed by the phrase "without being
limited to".
(c) The term "obligations of this lease",
and words of like import, shall mean the covenants to pay rent and additional
rent under this lease and all of the other covenants and conditions contained in
this lease. Any provision in this lease that one party or the other or both
shall do or not do or shall cause or permit or not cause or permit a particular
act, condition, or circumstance shall be deemed to mean that such party so
covenants or both parties so covenant, as the case may be.
(d) The term "Tenant's obligations
hereunder", and words of like import, and the term Landlord's obligations
hereunder, and words of like import, shall mean the obligations of this lease
which are to be performed or observed by Tenant, or by Landlord, as the case may
be. Reference to performance of either party's obligations under this lease
shall be construed as "performance and observance".
(e) Reference to Tenant being or not
being "in default hereunder", or words of like import, shall mean that Tenant is
in default in the performance of one or more of Tenant's obligations hereunder,
or that Tenant is not in default in the performance of any of Tenant's
obligations hereunder, or that a condition of the character described in Section
25.01 has occurred and continues or has not occurred or does not continue, as
the case may be.
(f) References to Landlord as having "no liability to Tenant" or "being
without liability to Tenant", shall mean that Tenant is not entitled to
terminate this lease, or to claim actual or constructive eviction, partial or
total, or to receive any abatement or diminution of rent, or to be relieved in
any manner of any of its other obligations hereunder, or to be compensated for
loss or injury suffered or to enforce any other kind of liability whatsoever
against Landlord under or with respect to this lease or with respect to Tenant's
use or occupancy of the Demised Premises.
(g) The term laws and/or requirements of public authorities and words of
like import shall mean laws and
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ordinances of any or all of the Federal, state, city, county and borough
governments and rules, regulations, orders and/or directives of any or all
departments, subdivisions, bureaus, agencies or offices thereof, or of any other
governmental, public or quasi-public authorities, having jurisdiction in the
premises, and/or the direction of any public officer pursuant to law.
(h) The term "requirements of insurance"
bodies and words of like import shall mean rules, regulations, orders and other
requirements of the New York Board of Fire Underwriters and/or the New York Fire
Insurance Rating Organization and/or any other similar body performing the same
or similar functions and having jurisdiction or cognizance of the Building
and/or the Demised Premises.
(i) The term "repair" shall be deemed to
include restoration and replacement as may be necessary to achieve and/or
maintain good working order and condition.
(j) Reference to "termination of this
lease" includes expiration or earlier termination of the term of this lease or
cancellation of this lease pursuant to any of the provisions of this lease or to
law. Upon a termination of this lease, the term and estate granted by this lease
shall end at noon of the date of termination as if such date were the date of
expiration of the term of this lease and neither party shall have any further
obligation or liability to the other after such termination (i) except as shall
be expressly provided for in this lease, or (ii) except for such obligation as
by its nature or under the circumstances can only be, or by the provisions of
this lease, may be, performed after such termination, and, in any event, unless
expressly otherwise provided in this lease, any liability for a payment which
shall have accrued to or with respect to any period ending at the time of
termination shall survive the termination of this lease.
(k) The term "in full force and effect"
when herein used in reference to this lease as a condition to the existence or
exercise of a right on the part of Tenant shall be construed in each instance as
including the further condition that at the time in question no default on the
part of Tenant exists, and no event has occurred which has continued to exist
for such period of time (after the notice, if any, required by this lease), as
would entitle Landlord to terminate this lease or to dispossess Tenant.
(l) The term "Tenant" shall mean Tenant
herein named or any assignee or other successor in interest (immediate or
remote) of Tenant herein named, while such Tenant or such assignee or other
successor in interest, as the case may be, is in possession of the Demised
Premises as owner of the Tenant's estate and interest granted by this lease and
also, if Tenant is not an individual or a corporation, all of the persons, firms
and corporations then comprising Tenant.
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(m) Words and phrases used in the
singular shall be deemed to include the plural and vice versa, and nouns and
pronouns used in any particular gender shall be deemed to include any other
gender.
(n) The rule of "ejusdem generis" shall not
be applicable to limit a general statement following or referable to an
enumeration of specific matters to matters similar to the matters specifically
mentioned.
(o) All references in this lease to
numbered Articles, numbered Sections and lettered Exhibits are references to
Articles and Sections of this lease, and Exhibits annexed to (and thereby made
part of) this lease, as the case may be, unless expressly otherwise designated
in the context.
(p) The terms "control" shall mean (i)
ownership of more than fifty (50%) percent of all the voting stock of a
non-publically traded corporation or more than fifty (50%) percent of all the
legal and equitable interest in any other non-publically traded entity and (ii)
with respect to a publically traded corporation or entity, the possession of the
power to direct or cause the direction of the management and policies of such
corporation or entity through the ownership of voting securities or interests or
by contract or otherwise.
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EXHIBIT C
LANDLORD'S WORK
- - - - - - - - - - - - - - - - - - - - - - -
PART A: 1. Tenant has submitted to Landlord and Landlord hereby approves the
detailed architectural working drawings and specifications for Landlord's Work
sealed by Tenant's licensed architect, and the electrical, mechanical, plumbing,
sprinkler and engineering plans based upon such detailed architectural working
drawings and specifications set forth in Part E hereof(such drawings,
specifications and plans are hereinafter collectively referred to as the "Work
Plans").
2. The Work Plans shall comply with and conform to the plans
of the Building filed with the Department of Buildings of the City of New York,
and with all rules, regulations and/or other requirements of any governmental
department having jurisdiction over the preparation of the Demised Premises.
Landlord shall file all necessary architectural plans, together with any
mechanical plans and specifications, in such form (building notice, alteration,
or other form) as may be necessary, with the appropriate governmental agencies.
Any changes required by any governmental department affecting the completion of
the Demised Premises shall be described in detail to Tenant (prior to their
implementation) and provided (i) Tenant agrees in writing to their
implementation (which agreement shall not be unreasonably withheld or delayed),
or (ii) such governmental department requires such changes be implemented in a
particular manner designated by such governmental department, Landlord shall
notify Tenant thereof and the same shall be complied with by Landlord in the
completion of the Demised Premises and shall not be deemed to be a violation of
the Work Plans or any provisions of this Exhibit C. In the event Tenant does not
agree to the implementation of any such change (which agreement shall not be
unreasonably withheld or delayed) where such governmental department has not
required that such change be implemented in a particular manner designated by
such governmental department, Landlord and Tenant shall cooperate in revising
the Work Plans in a manner acceptable to both parties and the applicable
governmental agency. The granting by Landlord of its approval to the Work Plans
shall in no manner constitute or be deemed to constitute a judgment or
acknowledgment by Landlord as to their legality or compliance with governmental,
quasi-governmental or other requirements.
3. Tenant shall have the right to make changes from time to
time in the Work Plans subsequent to the approval thereof by submitting to
Landlord revised plans and specifications (herein referred to as the
"Revisions"). All Revisions shall be subject to Landlord's prior written
approval, which shall not be unreasonably withheld or delayed. In the event any
Revisions increase the cost of the Landlord's Work above the cost of performing
same in
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accordance with the approved Work Plans, provided Landlord gave written notice
of the estimated amount of such increase to Tenant prior to implementing such
Revisions and Tenant gave written approval of such amount to Landlord within
four (4) business days of receipt of such notice, or failed to respond within
such period, Tenant shall be deemed to have approved such amount and such
increase shall be paid by Tenant. If Tenant disapproves the estimated cost of
any Revision within four (4) days of receipt of such estimated cost from
Landlord, Landlord shall have no obligation to perform such Revision.
Additionally, in the event any Revisions delay the substantial completion of
Landlord's Work, (provided Landlord notified Tenant in writing prior to the
implementation of such Revisions as to the estimated delay to be caused thereby)
Landlord's Work shall be deemed substantially completed as the date it would
otherwise have been completed but for such Revisions.
4. All amounts payable by Tenant pursuant to this Exhibit C
shall be paid by Tenant within ten (10) business days after the submission to
Tenant of statements, bills or invoices and reasonable back-up materials with
respect thereto. Such statements, bills or invoices shall be conclusive and
binding on Tenant unless Tenant shall notify Landlord within such ten (10)
business day period that it disputes the correctness thereof, specifying the
particular respects in which the statement, bill or invoice is claimed to be
incorrect. Pending the resolution of such dispute by agreement between the
parties or otherwise, Tenant shall pay all amounts due in accordance with the
statement, bill or invoice, but such payment shall be without prejudice to
Tenant's right to dispute same. If the dispute shall be resolved in Tenant's
favor, Landlord shall, within ten (10) business days, pay Tenant the amount of
the overpayment, if any, resulting from Tenant's compliance with such statement,
bill or invoice.
PART B: 1. Landlord shall provide the materials and install and complete same
and prepare the Demised Premises for Tenant's occupancy (hereinafter referred to
as "Landlord's Work") in accordance with the approved Work Plans at Landlord's
sole cost and expense except as set forth in Part A, Paragraph 3 above. Tenant
shall be entitled to the benefit of any warranties and guaranties given to
Landlord in connection with Landlord's Work. Notwithstanding anything herein to
the contrary, as part of Landlord's Work, Landlord shall, to the extent
required, make all repairs to the air-conditioning system servicing the Demised
Premises so that same is in good working order on the Commencement Date.
PART C: Tenant's Performance of Items of Tenant's Work:
- ------- -----------------------------------------------
1. Landlord shall permit Tenant and its agents to enter upon
the Demised Premises prior to the Commencement Date so that Tenant or its agents
or architect may examine Landlord's Work and may perform Tenant's Work (as
defined in Article 40) utilizing its own contractors, (to be first approved in
writing by Landlord which approval shall not be unreasonably withheld or
delayed) and in
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accordance with plans and specifications as approved in writing by Landlord
(which approval shall not be unreasonably withheld or delayed). The approved
contractors performing Tenant's Work may perform Tenant's Work at the same time
that Landlord's contractors are working in the Demised Premises, provided,
however, that (a) Landlord's Work shall have reached a point at which, in
Landlord's reasonable judgment, the performance of Tenant's Work will not delay
or hamper Landlord in the completion of the same and (b) Tenant and its
contractors shall work in harmony and shall not interfere with Landlord or
Landlord's contractors. Landlord may, at any time, deny access to the Demised
Premises to Tenant and/or to any of its contractors in the event that Landlord
shall, in its reasonable discretion, determine that the performance or manner of
performance of Tenant's Work interferes with, delays, hampers, or prevents
Landlord from proceeding with the completion of Landlord's Work at the earliest
possible time. In connection with the foregoing sentence, within twenty-four
(24) hours after Landlord's direction (which need not be given in writing and
may be given by Landlord or its agents or contractors to Tenant or its agents or
contractors), Tenant shall, and cause its contractors to, withdraw from the
Building and the Demised Premises and cease all work being performed by it or on
its behalf by any person, firm, or corporation (other than Landlord). Tenant
shall pay to Landlord, as additional rent, within ten (10) days after submission
to Tenant of a statement therefor, an amount equal to all costs incurred by
Landlord in connection with such early entry by Tenant.
2. In the event that Tenant or its contractor shall be
permitted to enter upon the Demised Premises prior to the Commencement Date
pursuant to the terms of paragraph 1 above, such entry shall be deemed to be
upon all of the terms, provisions and conditions of the Lease, except as to the
covenant to pay fixed rent and additional rent. In connection therewith, Tenant
and/or its contractors shall provide to Landlord, and shall maintain at all
times during the performance of any Tenant's Work, Builder's Risk, worker's
compensation, public liability and property damage insurance policies, all of
which shall contain limits, be with companies and be in form as required
pursuant to Article 55 of the Lease. Certificates of the same shall be furnished
to Landlord before Tenant or its contractors commence to perform Tenant's Work.
Landlord shall not be liable in any way for any injury, loss or damage that may
occur to any of Tenant's or Tenant's contractors' decorations, fixtures,
installations, supplies, materials, or equipment prior to the Commencement Date
unless due to the negligence or wilful misconduct of Landlord or its agents or
contractors (it being understood and agreed that Landlord has no obligation to
secure same or take any action with respect thereto). Except as set forth in the
preceding sentence, any such entry by Tenant and/or its contractors being at
their sole risk.
PART D: Delays Caused By Tenant; Additional Expenses:
- ------- ---------------------------------------------
Tenant has been advised of the importance to Landlord of completing
Landlord's Work in an expeditious manner and of the financial loss to Landlord
that would result from a delay in such
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completion. If Tenant, or persons within Tenant's control, cause an actual delay
in the progress or completion of Landlord's Work by (i) submitting one or more
Revisions to Landlord (provided Landlord gives Tenant notice as to the delay
such Revisions would cause pursuant to Part A Paragraph 5 above); or (ii)
otherwise interfering with, or delaying, Landlord's completion of Landlord's
Work (any such delay set forth in (i) or (ii) above being herein referred to as
a "Tenant's Delay"), then the date of substantial completion of Landlord's Work
shall be deemed to be the date upon which Landlord's Work would have been
substantially completed but for Tenant's Delay.
PART E: Work Plans:
- ------- -----------
Follows immediately.
(Site plans and project plans attached)
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EXHIBIT D
CERTIFICATE OF OCCUPANCY
- - - - - - - - - - - - - - - - - - - - - - -
(Follows immediately)
(Certificate attached)
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