EXHIBIT 10.5.3
AGREEMENT OF LEASE made as of this 4th day of October, 1996,
between SPARTAN MADISON CORP., a Delaware corporation, having an address c/o
HRO International Ltd., Tower 56, 126 East 56th Street, New York, New York
10022, Attention: Tenant Services (hereinafter referred to as "Landlord")
and INVESTMENT TECHNOLOGY GROUP, INC., a Delaware corporation, having an
address at 900 Third Avenue, New York, New York (hereinafter referred to as
"Tenant").
W I T N E S S E T H:
The parties hereby covenant and agree as follows:
ARTICLE 1
RENT
1.01. (a) Landlord hereby leases and Tenant hereby rents from
Landlord the entire fourth (4th) floor of the Building as shown on the plan
annexed hereto as Schedule A (hereinafter referred to as the "DEMISED
PREMISES") in the building (hereinafter referred to as the "BUILDING")
located on the land (hereinafter referred to as the "LAND") described in
Schedule B annexed hereto (the Land and the Building being hereinafter
referred to as the "PROPERTY") together with the non-exclusive right for
Tenant and its subtenants, employees, agents, licensees and invitees to use
the customary appurtenances to the demised premises (e.g., the Building
entrance, the lobby, elevators, corridors, loading docks and berths, toilets
on the 4th floor of the Building and other public and service areas), for a
term (hereinafter referred to as the "TERM") commencing on the "COMMENCEMENT
DATE" and ending on the "EXPIRATION DATE" (as said terms are defined in
Article 2 hereof) unless the Term shall sooner cease and terminate as
hereinafter provided.
(b) Subject to the provisions of Section 1.05 hereof,
Tenant agrees to pay to Landlord a fixed annual rent (hereinafter referred to
as the "fixed annual rent") at the following rates:
(i) ONE MILLION SIX HUNDRED FIFTY-FOUR THOUSAND
FORTY-EIGHT and no/l00 ($1,654,048.00) DOLLARS per annum
for the period beginning on the Rent Commencement Date
and ending on the last day of the month immediately
preceding the month in which occurs the fifth (5th)
anniversary of the Rent Commencement Date;
(ii) ONE MILLION SEVEN HUNDRED EIGHTY-EIGHT THOUSAND ONE
HUNDRED SIXTY and no/l00 ($l,788,160.00) DOLLARS per
annum for the period beginning on the first (lst) day of
the month in which occurs the fifth (5th) anniversary of
the Rent Commencement Date and ending on the last day of
the month immediately preceding the month in which occurs
the tenth (10th) anniversary of the Rent Commencement
Date; and
(iii) ONE MILLION NINE HUNDRED TWENTY-TWO THOUSAND TWO
HUNDRED SEVENTY-TWO AND no/100 ($1,922,272.00) DOLLARS
per annum for the period beginning on the first day of
the month in which occurs the tenth (10th) anniversary of
the Rent Commencement Date and ending on the Expiration
Date.
Such fixed annual rent shall be due and payable in equal monthly installments
in advance on the first day of each calendar month during the Term, at the
office of Landlord or such other place as Landlord may designate, without any
setoff or deduction whatsoever, except such setoffs or deductions as are
specifically referred to in this Lease. The first full month's installment
of fixed annual rent shall be paid by Tenant to Landlord upon the execution
of this Lease. The first full month's installment of fixed annual rent shall
be deposited in a segregated money market interest bearing account, selected
by Landlord in its sole discretion, and such interest shall be refunded to
Tenant within ten (l0) days after the Rent Commencement Date. Should the
Rent Commencement Date fall on any day other than the first day of a month,
then the fixed annual rent for such month shall be prorated on a per diem
basis.
1.02. Tenant shall pay the fixed annual rent and all additional
rent payable hereunder promptly when due without notice or demand therefor
and without any abatement, deduction or setoff for any reason whatsoever,
except as may be expressly provided in this Lease. Fixed annual rent and
Tenant's Tax Payments and Tenant's Expense Payments, as defined in Article 3
hereof and all other additional rent, shall be paid by wire transfer of
immediately available federal funds to Landlord or its designee or shall be
paid by good and sufficient check (subject to collection) drawn on a major
money center bank (e.g., Citibank, N.A., Bank of America, Ameritrust
(Cleveland, Ohio)). Tenant shall be permitted to make such foregoing
payments on First Interstate Bank of L.A. or Wells Fargo provided that Tenant
shall submit such payments sufficiently in advance so that they shall clear
(i.e., funds shall be available to Landlord) no later than a check from a
major money center bank would clear. All sums, other than fixed annual rent,
payable by Tenant hereunder shall be deemed additional rent and shall be
payable within twenty (20) days following demand unless other payment dates
are hereinafter provided. Landlord shall have the same rights and remedies
(including, without limitation, the right to commence a summary proceeding)
for a default in the payment of additional rent following any required notice
and the expiration of applicable cure periods as for a default in the payment
of fixed annual rent notwithstanding the fact that Tenant may not then also
be in default in the payment of fixed annual rent.
1.03. (a) If Tenant shall fail to pay when due (i) any
installment of fixed annual rent or (ii) any additional rent (including,
without limitation, any installment of Tenant's Tax Payment or Expense
Payment, as such terms are defined in Article 3 hereof) when due and such
failure shall continue for five (5) Business Days, Tenant shall pay interest
on such amounts at the Interest Rate (as such term is defined in Article 22
hereof), from the last day of such five-Business Day period to the date the
same is paid to Landlord, and such interest shall be deemed additional rent.
With respect to the first two (2) failures to make such payments during such
5 Business Day period within any l2-month period during the Term, such
interest payment shall not be due unless Landlord shall have given Tenant a
notice of such failure to pay (which notice may be given by personal
delivery) and Tenant shall continue to fail
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to make the payment in question to Landlord within three (3) days after the
giving of such notice.
(b) The provisions of this Section 1.03 are in addition to
other remedies available to Landlord for non-payment of fixed annual rent or
additional rent.
1.04. If any of the fixed annual rent or additional rent payable
under this Lease shall be or become uncollectible, reduced or required to be
refunded because of any Legal Requirement (as such term is defined in Article
22 hereof), Tenant shall enter into such agreement(s) and take such other
legally permissible steps as Landlord may reasonably request to permit
Landlord to collect the maximum rents which from time to time during the
continuance of such Legal Requirement may be legally permissible and not in
excess of the amounts reserved therefor under this Lease. Upon the
termination of such Legal Requirement, (a) the rents hereunder shall be
payable in the amounts reserved herein for the periods following such
termination and (b) Tenant shall pay to Landlord, to the maximum extent
legally permissible, an amount equal to (i) the rents which would have been
paid pursuant to this Lease but for such Legal Requirement less (ii) the
rents, if any, paid by Tenant during the period such Legal Requirement was in
effect.
1.05. The fixed annual rent payable pursuant to Section 1.01(b)
hereof shall be abated for the period (the "Rent Abatement Period") beginning
on the Commencement Date and ending on December 31, 1997. The day following
the expiration of the Rent Abatement Period is hereinafter called the "Rent
Commencement Date."
ARTICLE 2
COMMENCEMENT OF TERM
2.01. (a) The "Commencement Date" of the Term shall be October 1,
1996.
(b) The "Expiration Date" of the Term shall be the last
day of the month in which occurs the fifteenth (15th) anniversary of the Rent
Commencement Date.
2.02. (a) Tenant has examined the demised premises and agrees to
accept same in the condition and state of repair existing as of the date
hereof subject to normal wear and tear and understands and agrees that
Landlord shall not be required to perform any work, supply any materials or
incur any expense to prepare the demised premises for Tenant's occupancy,
subject to the provisions of Article 43 hereof. Landlord shall, at Landlord's
cost, use best efforts to complete the punchlist work set forth on Schedule Q
annexed hereto ("Punchlist Work") on or before November 15, 1996 (subject to
delays for Force Majeure Causes and Tenant's Delay). If Landlord shall fail
to complete the Punchlist Work on or before November 15, 1996, subject to
extensions by reason of Force Majeure Causes and Tenant's Delay, and such
failure shall actually delay the commencement or performance of Tenant's
Work, then the Rent Commencement Date shall be extended on a day-for-day
basis for each day of actual delay in the performance or commencement of
Tenant's Work caused by such failure. For purposes hereof, "Landlord's Work"
shall mean the Base Building work in the demised premises as shown on the
plans and drawings specified on Schedule N annexed hereto and the delivery
to Tenant of Form ACP-5 with respect to asbestos removal in the demised
premises.
2.03. If the completion of the Punchlist Work shall be delayed by
reason of any Tenant's Delay, as hereinafter defined, then the Punchlist Work
shall be deemed substantially completed on the date when Punchlist Work would
have been so substantially completed but for such Tenant's Delay.
If a delay in the substantial completion of the Punchlist Work or
any substantial portion of such delay is the result of Force Majeure Causes,
and such delay would not have occurred but for Tenant's Delay, such delay
shall be deemed to be Tenant's Delay.
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For purposes hereof, "TENANT'S DELAY" shall mean any delay in the
substantial completion of Punchlist Work caused by any of: (i) any request
by Tenant that Landlord delay the completion of the Punchlist Work, (ii) any
negligent or wrongful act of Tenant or its officers, agents, representatives,
servants or contractors, or (iii) any other act or omission of Tenant, which
actually causes a delay in the substantial completion of the Punchlist Work.
Landlord shall provide written notice to Tenant of any circumstances
constituting Tenant's Delay within two (2) Business Days after Landlord
becomes aware of same and the number of days of Tenant Delay expected to
result therefrom, to the extent such time period can reasonably be estimated
in advance (and if Landlord fails to give such notice within such two (2)
Business Day period, such circumstances shall not constitute Tenant's Delay
until from and after the date Landlord so notifies Tenant).
2.04 Landlord represents that, to the best of its knowledge, there
are no asbestos containing materials contained in the tenant areas of the
demised premises which would be in violation of any currently existing
Federal, state or local laws, regulations or ordinances, or which would
prevent or delay Tenant from commencing Tenant's Work or any future
alterations in the demised premises; provided, however, to the extent that
there are any asbestos containing materials contained in the tenant areas of
the demised premises which would be in violation of any currently existing
federal, state or local laws, regulations or ordinances, or which would
prevent or delay Tenant from commencing Tenant's Work or any future
alterations in the demised premises, then Tenant shall give notice thereof to
Landlord, and as Tenant's sole remedy, Landlord shall remove, encapsulate or
abate such asbestos containing materials in accordance with applicable Legal
Requirements. For each day that Tenant is prevented from commencing or is
delayed in completing Tenant's Work or any future alterations in the demised
premises by reason of such removal, encapsulation or abatement by Landlord,
then Tenant shall receive a per diem credit against the fixed annual rent
next due hereunder.
2.05. Landlord represents that Landlord's Work and the Punchlist
Work (i) shall be and has been performed in a good and workerlike manner in
accordance with the plans annexed hereto as Schedule N hereof, (ii) complies
with all Legal Requirements, and (iii) shall be and has been paid for in full
by Landlord so that no lien or other encumbrance shall be filed against the
demised premises on account thereof. In addition Landlord guarantees
Landlord's Work and the Punchlist Work for a period of one (1) year from the
Commencement Date against defective workmanship and materials.
ARTICLE 3
ADJUSTMENTS OF RENT
3.01. A. For purposes hereof, the following definitions shall apply:
(a) The term "Base Tax" shall mean one-half of the sum
of the Taxes for the Tax Years commencing July l, l996 and July 1, 1997.
(b) The term "Tax Year" shall mean each period of
twelve months which includes any part of the Term which now or hereafter is
or may be duly adopted as the fiscal year for real estate tax purposes of the
City of New York.
(c) The term "Taxes" shall mean (i) all real estate
taxes, assessments, governmental levies, municipal taxes, county taxes or
(provided same are in the nature of real estate taxes and are imposed on
building owners by virtue of their ownership of real property) any other
governmental charge, general or special, ordinary or extraordinary,
unforeseen as well as foreseen, of any kind or nature whatsoever including,
without limitation, the Grand Central Partnership Business Improvement
District Assessment (but excluding penalty charges or interest charges which
are imposed by reason of late payment [as distinguished from interest charges
which are imposed where certain taxes may be paid in installments]), which are
or may be assessed, levied or imposed upon all or any part of the Property and
the sidewalks, plazas or streets adjacent thereto (other than any occupancy or
rent tax payable by Tenant pursuant to Section 3.03), and levied against
Landlord and/or the Property under the laws of the United States, the City or
State of New York, or any
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political subdivision thereof, but excluding any franchise, income,
succession, capital levy, gross receipt, transit, profit, gift, transfer,
capital stock, foreign ownership or control, mortgage recording, inheritance
or estate taxes payable by Landlord or Landlord's estate, except to the
extent set forth in the next sentence of this subsection 3.0l A(c) or any
taxes or fees payable on air or development rights, excess zoning rights or
similar rights acquired by Landlord after the date hereof; and (ii) any
customary expenses incurred by Landlord, including payments to unaffiliated
attorneys, accountants and appraisers, in contesting any of the items set
forth in clause (i) of this sentence, or the assessed valuations of all or
any part of the Property, to the extent such expenses are customarily
incurred in connection with such contests but excluding any abatements,
refunds or rebates made thereof. If due to a future change in the method of
taxation or in the taxing authority, a new or additional real estate tax, or
a franchise, income, transit, profit, or other tax or governmental
imposition, however designated, including, without limitation any tax, excise
or fee measured by or payable with respect to any rent, shall be levied
against Landlord, and/or the Property, in substitution in whole or in part
for any tax which would constitute "Taxes", such tax or imposition shall be
deemed for the purposes hereof to be included within the term "Taxes",
provided that any such "Taxes" imposed on rents or income from the Property
shall be calculated as if the Property were the only asset of Landlord and
Landlord's only income were from the Property. If any general or special
assessments are imposed or levied and it shall be permissible to pay same in
installments, then for purposes of inclusion within Taxes under this Lease,
same shall be deemed to be included in the greatest number of such
installments permitted by law and Tenant shall be responsible only for
Tenant's Tax Share of those installments becoming due and payable during the
Term. If Tenant shall dispute the propriety of including any item in Taxes,
Tenant shall give Landlord notice thereof and if Landlord and Tenant are
unable to resolve such dispute within thirty (30) days thereafter, either
party may submit same to arbitration pursuant to the provisions of Article 37
hereof. Pending the determination of such dispute, Tenant shall pay Tenant's
Tax Payment in accordance with the Escalation Statement that Tenant is
disputing, without prejudice to Tenant's position.
(d) The term "Tenant's Tax Share" shall mean 6.2252%,
calculated as a fraction, the numerator of which is 44,704, reflecting the
number of rentable square feet which Landlord and Tenant agree comprises the
demised premises and 718,110, reflecting the number of rentable square feet
which Landlord and Tenant agree comprises the rentable square footage of the
office and retail area of the Building. If the physical size of the rentable
area of the Building shall increase, Tenant's Tax Share shall be
appropriately recalculated.
(e) The term "Escalation Statement" shall mean a
statement setting forth the amount payable by Tenant for a specified Tax Year
or Operating Year (as defined in Section 3.02 hereof), as the case may be, or
for some portion thereof pursuant to this Article 3.
B. Tenant shall pay to Landlord as additional rent for
each Tax Year from and after the Tax Year commencing July 1, 1997 a sum equal
to Tenant's Tax Share of the amount by which the Taxes for such Tax Year
exceed the Base Tax (hereinafter referred to as "Tenant's Tax Payment").
Landlord shall furnish to Tenant an annual Escalation Statement (subject to
revision as hereinafter provided) for each Tax Year setting forth Tenant's
Tax Payment for such Tax Year. Upon Tenant's written request therefor,
Landlord shall submit to Tenant a copy of the applicable tax bill from the
taxing authorities, if then available and any other information pertaining to
any sums included in Taxes. Tenant's Tax Payment shall be due and payable in
two (2) equal installments, in advance, on the first day of each June and
December of each Tax Year based upon the Escalation Statement furnished with
respect to such Tax Year, until such time as a new Escalation Statement for a
subsequent Tax Year shall become effective. If an annual Escalation
Statement is furnished to the Tenant after the commencement of the Tax Year
to which it relates, then Tenant shall, within thirty (30) days after such
annual Escalation Statement is furnished to Tenant, pay to Landlord an amount
equal to any underpayment of Tenant's Tax Payment theretofore paid by Tenant
for such Tax Year and, in the event of an overpayment by Tenant, Landlord
shall, at Tenant's option, permit Tenant to credit against subsequent rental
payments under this Lease the amount of such overpayment or make payment of
same to Tenant by good and sufficient check (subject to collection) within
thirty (30) days of demand by Tenant. If there shall be any increase or
decrease in Taxes for any Tax Year, whether
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during or after such Tax Year, Landlord shall furnish a revised Escalation
Statement for such Tax Year to Tenant, and Tenant's Tax Payment for such Tax
Year shall be adjusted and paid or credited, as appropriate, in the same
manner as provided in the preceding sentence. If during the Term, Taxes are
required to be paid (either to the appropriate taxing authorities or as tax
escrow payments to the holder of a Superior Instrument (as defined in Section
25.01 hereof) in full or in monthly, quarterly, or other installments, on any
other date or dates than as presently required, then at Landlord's option,
Tenant's Tax Payments shall be correspondingly accelerated or revised so that
said Tenant's Tax Payments are due no more than thirty (30) days prior to the
date payments are due to the taxing authorities or the superior mortgagee or
ground lessor (provided, however, such payment shall be required only if such
holder is not an Affiliate of Landlord and only if such requirement is not
imposed by such holder as a result of a default by Landlord under such
Superior Instrument). Landlord represents that as of the date hereof, there
is no such requirement to currently pay to the holder of a Superior
Instrument such tax payments. As used in this Section 3.02(B), the term
"Affiliate" means an entity which controls, is controlled by or is under
common control with Landlord. The benefit of any discount for any early
payment or prepayment of Taxes shall accrue solely to the benefit of Landlord
and such discount shall not be subtracted from Taxes; provided, however, that
such discount shall be subtracted from Taxes, if, at Landlord's request,
Tenant's Tax Payments are made prior to the above due dates to enable
Landlord to obtain such discount. Landlord shall pay Taxes for any Tax Year
on or before the date on which the Taxes in question shall be due and payable
and all applicable grace periods have expired and all Landlord's rights to
commence or continue any protest, contest or dispute of same prior to payment
shall have expired, or if Landlord shall have commenced such protest, contest
or dispute, then all Landlord's rights of appeal prior to payment shall have
lapsed or been waived.
C. If Landlord shall receive a refund of Taxes for any Tax
Year, Landlord shall notify Tenant of such refund and, at Tenant's option,
permit Tenant to credit against subsequent rental payments under this Lease,
Tenant's Tax Share of the refund, but not in excess of Tenant's Tax Payment
paid for such Tax Year, or make payment by good and sufficient check (subject
to collection) to Tenant within twenty (20) days of demand by Tenant.
D. Nothing contained in this Lease shall obligate Landlord
to bring any application or proceeding seeking a reduction in Taxes or
assessed valuation. Landlord shall use its good faith business judgment to
monitor and, if appropriate in the reasonable business judgment of Landlord,
dispute the amount of Taxes with respect to any Tax Year during the Term,
including bringing an application or proceeding seeking a reduction in Taxes
or the assessed valuation of the Building. Tenant, for itself and its
immediate and remote subtenants and successors in interest hereunder, hereby
waives, to the extent permitted by law, any right Tenant may now or in the
future have to protest or contest any Taxes or to bring any application or
proceeding seeking a reduction in Taxes or assessed valuation or otherwise
challenging the determination thereof.
E. Deleted Prior to Execution.
F. Subject to the provisions of this subsection 3.01(F),
if at any time during the term of this Lease, the assessment of the Property
for real estate tax purposes shall be increased by reason of a "sale" (as
such term is hereinafter defined), and as a consequence of such increased
assessment, real estate taxes are increased over the amount that such real
estate taxes would have otherwise been increased but for such sale, then for
such part of the Term hereof as shall then remain, the portion of any Tax
Payment attributable to the increase in the assessment of the Property that
results as a consequence of such sale (multiplied by the tax rate from time
to time applicable to such increase in assessment) shall be abated (herein
called the "Tax Escalation Abatement"). For purposes hereof, the term "sale"
shall mean: only a voluntary or involuntary sale, exchange or other transfer
of an equity interest in the Land or Building or a lease of the entire Land
and/or Building, or an option or agreement so to do, provided, however, with
respect to the foregoing events, only on condition that the Taxing Authority
(as hereinafter defined) regards same to constitute a sufficient transfer of
a nature which may cause an increase in the actual assessment (appearing on
the assessment roles of the City of New York for the Land
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and/or Building, as finally determined) pursuant to the laws, rules and
regulations or practices of the Taxing Authority then in effect; provided,
however, that any such transaction shall be a sale only if (and to the extent
that) such transaction is treated as a sale or transfer for real estate
purposes which by any law, rule, regulation or practice by the Taxing
Authority then in effect, may give rise to an increase in the subject
property's real estate tax assessment by the Tax Commission of the City of
New York (or any successor agency or department thereto which has the power
to fix or review assessed evaluations) (herein called the "Taxing
Authority"). Notwithstanding anything to the contrary contained herein, in
no event shall a sale be deemed to have occurred unless a New York City Real
Property Transfer Tax Return, a New York State Documentary Stamp Tax filing,
or other similar transfer document shall be required to be filed in the
office where any of the foregoing is filed (or any successor office thereto).
Landlord and Tenant expressly agree that in no event shall the Tax Escalation
Abatement be deemed to include increases in real estate taxes for any other
reason whatsoever, including, without limitation increases of same
attributable in whole or in part to changes in the market value generally for
properties comparable or approximate to the Property or due to changes in the
tax rate or due to any other circumstances or factors other than a sale. To
the extent that all or a portion of any increase in real estate taxes after a
sale may be attributable to such other circumstances or factors, then an
allocation as to the portion attributable to the sale shall be made by
Landlord for the purposes of establishing the Tax Escalation Abatement in
connection therewith. Any dispute regarding such allocation shall, if not
resolved within thirty (30) days after Tenant gives Landlord notice thereof,
be resolved by arbitration pursuant to Article 37 hereof.
3.02. A. For purposes hereof, the following definitions shall apply:
(a) The term "Expense Base Factor" shall mean an amount
equal to the Expenses for the Operating Year 1997.
(b) The term "Operating Year" shall mean each calendar
year which includes any part of the Term, and the term "Base Operating Year"
shall mean the calendar year 1997.
(c) The term "Tenant's Expense Share" shall mean
6.4501% calculated as a fraction, the numerator of which is 44,704,
reflecting the number of rentable square feet which Landlord and Tenant agree
comprises the demised premises and the denominator of which is 693,076,
reflecting the number of rentable square feet which Landlord and Tenant agree
comprises the rentable square footage of the office area of the Building. If
the physical size of the rentable area of the Building shall increase,
Tenant's Expense Share shall be appropriately recalculated.
(d) The term "Expenses" shall mean all expenses
actually incurred by Landlord in accordance with sound management practices
to the extent properly allocable to the Property for the period in question
in accordance with sound accounting principles consistently applied in the
real estate industry with respect to first-class office buildings in midtown
Manhattan in respect of the repair, replacement, maintenance, operation
and/or security of the Property (hereinafter defined), including, without
limitation, (i) salaries, wages, medical, surgical, insurance (including,
without limitation, group life and disability insurance), union and general
welfare benefits, pension benefits, severance and sick day payments, and
other fringe benefits of employees of Landlord, Landlord's affiliates or
agents and their respective contractors (up to and including the senior
building manager, which position Landlord represents does not constitute an
executive position) engaged in such repair, replacement, maintenance,
operation and/or security (excluding, however, unfunded pension or other
benefits accruing prior to any period during which Tenant is required to pay
rent); (ii) payroll taxes, worker's compensation, uniforms and related
expenses (whether direct or indirect) for such employees; (iii) the cost of
fuel, gas, steam, electricity (for areas other than those leased or leasable
to tenants), heat, ventilation, air-conditioning, chilled and condenser
water, water, sewer and other utilities, together with any taxes and
surcharges on, and fees paid to suppliers thereof in connection with the
calculation and billing of, such utilities; (iv) the cost of painting and/or
decorating all areas of the Property, excluding, however, (y) fine arts (as
distinguished from decorative arts), and (z) such costs attributable to any
space contained therein which is demised or available for demise to tenant(s)
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(other than core bathrooms, mechanical rooms and core closets); (v) the cost
of casualty, liability, fidelity, rent and all other insurance regarding the
Property and/or any property on, below or above the Property, and the repair,
replacement, maintenance, operation and/or security thereof provided same is
customarily carried for comparable first-class office buildings in the
midtown area of the Borough of Manhattan; (vi) the cost of all supplies,
tools, materials and, subject to the qualifications in subsections (x) and
(xi), equipment, whether by purchase or rental, used in the repair,
replacement, maintenance, operation and/or security of the Property, and any
sales and other taxes thereon; (vii) intentionally omitted; (viii) the cost
of cleaning, janitorial and security services, including, without limitation,
glass cleaning, snow and ice removal and garbage and waste collection and/or
disposal; (ix) the cost and maintenance of all interior and exterior
landscaping and all temporary exhibitions (other than fine arts) located at
or within the common areas of the Property; (x) the cost of alterations and
improvements made or installed after the Base Operating Year by reason of
Legal Requirements or the requirements of nationally recognized insurance
bodies and all tools and equipment related thereto; (xi) the cost of all
other alterations, repairs, replacements and/or improvements after the Base
Operating Year by Landlord or Landlord's affiliates, at their respective
expense, whether structural or non-structural, and whether or not required by
this Lease, and all tools and equipment related thereto; provided, however,
that if under generally accepted accounting principles consistently applied,
any of the costs referred to in clauses (vi), (x) or this clause (xi) are
required to be capitalized, then such capitalized costs, shall be included in
Expenses only in the following cases ("Permitted Capital Costs"): costs for
items under clause (x) hereof or costs for items which have the effect of
reducing the expenses which otherwise would be included in Expenses, and such
Permitted Capital Costs together with interest thereon at the Prime Rate (as
defined in Section 22.03 hereof) in effect as of December 31 of the year in
which such expenditure is made, shall be amortized or depreciated, as the
case may be, over a period of time which shall be the shorter of: (A) the
useful life of the item in question, as reasonably determined by Landlord; or
(B) ten (10) years; provided, however, that with respect to any capital
improvement and/or any machinery or equipment which is made or becomes
operational, as the case may be, after the Base Operating Year, and which has
the effect of reducing the expenses which otherwise would be included in
Expenses, the amount included in Expenses in any Operating Year until such
improvement and/or machinery or equipment has been fully amortized or
depreciated, as the case may be, shall be the amount of savings, as
reasonably estimated by Landlord, resulting from the installation and
operation of such improvement and/or machinery or equipment; (xii) management
fees; provided, however, that if Landlord or an affiliate of Landlord is the
managing agent of the Building or if no managing agent is employed by
Landlord, then the annual management fee shall be a sum which is not in
excess of the then prevailing rates for management fees in the Borough of
Manhattan for first-class office buildings similar to the Building under
comparable circumstances; (xiii) intentionally omitted; (xiv) all reasonable
costs and expenses of legal, bookkeeping, accounting and other professional
services; and (xv) reasonable fees, dues and other contributions paid by or
on behalf of Landlord or Landlord's affiliates to real estate organizations
such as the Real Estate Board and BOMA (and their successors) to the extent
generally that landlords of first class office buildings in the midtown area
of Manhattan are members thereof or contributors thereto, but same shall, if
paid on behalf of Landlord and Landlord's affiliates, be prorated among the
Building and other buildings owned by Landlord or its affiliates. Subject to
the specific exclusions from "Expenses" set forth in this Section 3.02A, with
respect to any fees, costs, charges or expenses for services or items which
are not expressly included in the foregoing clauses (i) through (xv), same
shall be includible in Expenses if same are properly allocable to the repair,
replacement, maintenance, operation and/or security of the Property, in
accordance with then prevailing customs and practices of the real estate
industry in the midtown area of the Borough of Manhattan, City of New York.
The term "Expenses", as used and defined under this subsection (d),
shall not, however, include the following items: (1) depreciation and
amortization (except as provided above in this subsection); (2) interest on
and amortization of debts; (3) the cost of tenant improvements made for
tenant(s) of the Building; (4) brokerage commissions and/or other leasing
costs; (5) financing and/or refinancing costs; (6) the cost of any work or
services performed for any tenant(s) of the Building (including Tenant),
whether at the expense of Landlord or Landlord's affiliates or such
tenant(s), to the extent that such work or services are in excess of the work
or
8
services which Landlord or Landlord's affiliates are required to furnish
Tenant under this Lease at the expense of Landlord or Landlord's affiliates;
(7) the cost of any electricity consumed in the Premises or any other space
in the Building demised or available for demise to tenant(s); (8) Taxes and
any amounts specifically excluded from Taxes set forth in this Lease; (9) the
cost of any capital improvements other than Permitted Capital Costs; (l0)
salaries, fringe benefits, and all other compensation for Landlord's, or
Landlord's affiliate's or their respective agent's, employees above the grade
of senior building manager and compensation paid to persons in commercial
concessions operated by Landlord or Landlord's affiliates; (ll) cost of
repairs or replacements incurred by reason of fire or other casualty or
condemnation, except to the extent that the cost thereof is less than the
"deductible" in force under Landlord's insurance policy provided such
deductibles are not substantially higher than the deductibles customarily
carried by landlords of first-class office buildings comparable to the
Building; (l2) advertising and promotional expenditures; (l3) the cost of any
judgment, settlement or arbitration award resulting from any tort liability
of Landlord or its affiliates, agents, contractors or employees and any
attorneys' fees incurred in connection with same; provided, however, that any
portion of any such judgment, settlement or arbitration award which by its
nature would otherwise be an Expense (e.g., the cost of repairs or
maintenance) shall, notwithstanding the foregoing, be included as an Expense;
(l4) any rents or additional rents under superior leases (as described in
Section 25.0l hereof); (l5) any payments under air rights transfers; (l6)
legal fees or expenses incurred in connection with the negotiation of leases
for space in the Building, or of renewals, amendments, financings,
refinancings, or sales or in connection with enforcing the provisions of any
tenant's lease, other than a tenant who is disturbing other tenants in the
Building by reason of such tenant's breach of its lease; (l7) any fee or
other expenditure paid to any corporation or entity related to or affiliated
with Landlord in excess of the amount which would be paid in the absence of
such relationship; (l8) amounts received by Landlord through proceeds of
insurance to the extent the proceeds are compensation for expenses which are
previously included in Expenses hereunder; (19) costs for acquiring or
renting works of fine art (as distinguished from decorative items) displayed
in the public areas of the Building; (20) the cost of any goods or services
furnished to tenants (including Tenant), including any goods and services
hereinabove referred to in this subsection 3.02A(d), to the extent the same
is reimbursed to Landlord other than by reason of escalation-type clauses
similar to this Article 3; (2l) interest or penalties for late payment of any
Expenses or Taxes paid by Landlord including interest and penalties on any
Taxes or surcharges for late payment for fuel, gas, steam, electricity,
water, sewer or other utilities except where such interest or penalties shall
result from a bona fide dispute between Landlord and a vendor or other
creditor; (22) the cost of any workers' services performed or other expenses
incurred in connection with installing, operating and maintaining any
specialty service or facility other than common Building facilities (e.g., a
sky deck, broadcasting facility or any luncheon, athletic or recreational
club); (23) costs incurred in the removal, containment, encapsulation, or
disposal of asbestos or other substances installed by Landlord or Landlord's
predecessors in the Building which prior to the date of this Lease were
deemed by any applicable Federal, State or Municipal law, order, rule or
regulation to be hazardous to health or the environment; (24) costs incurred
in connection with the transfer or disposition of all or any part of the
Building or Land or in any interest therein or in Landlord or any entity
comprising Landlord; (25) the cost of any capital improvements to the
Building which physically increase the usable square foot area thereof except
to the extent same are required to be performed pursuant to Legal
Requirements; (26) any other expenditure which would otherwise be an Expense
to the extent Landlord is reimbursed therefor by condemnation award or
insurance proceeds or by refund, credit, warranty, service contract or
otherwise (other than reimbursement by reason of escalation type clauses in
tenant's leases comparable to this Article 3); (27) any expenses for repairs
or maintenance which are or would have been covered by warranties and service
contracts for the benefit of Landlord; (28) the cost (and taxes thereon) for
hookup, connection, or service for all existing utilities; (29) Landlord's
contribution of any funds or money given to other tenants in cash, by rent
concession, offset or otherwise, or work done for other tenants in connection
with leasing of space in the Building; (30) any expenses which are unique to
the retail space in the Building; and (31) any expenses which are not
includable in Expenses pursuant to the final sentence of the first paragraph
of subsection 3.02A(d) hereof.
9
If any of the foregoing costs and expenses are incurred with
respect to any other property or building in addition to the Building, then
same shall be reasonably allocated.
In determining the amount of Operating Expenses for any Operating
Year (including the Base Operating Year), if less than ninety-five percent
(95%) of the Building rentable area shall have been occupied by tenant(s) at
any time during any such Operating Year, or if Landlord is not furnishing any
particular work or service (the cost of which if performed by Landlord would
constitute an Operating Expense) to a tenant, Expenses shall be determined
for such Operating Year to be an amount equal to the expenses which would
normally be expected to be incurred had ninety-five percent (95%) of the
Building rentable area been occupied throughout such Operating Year or had
Landlord furnished such particular work or service to ninety-five percent
(95%) of the tenants in the Building.
Landlord represents that, as of the date hereof, no lease for
another tenant in the Building contains a definition of Expenses which is
substantially more tenant-favorable than is the foregoing definition.
B. If the Expenses for any Operating Year exceed the
Expense Base Factor, Tenant shall pay to Landlord as additional rent for such
Operating Year an amount equal to Tenant's Expense Share of the excess of the
Expenses for such Operating Year over the Expense Base Factor (hereinafter
referred to as "Tenant's Expense Payment").
C. Landlord shall furnish to Tenant for each Operating
Year an Escalation Statement (subject to revision as hereinafter provided)
setting forth Landlord's reasonable estimate of Tenant's Expense Payment for
such Operating Year. Tenant shall pay to Landlord on the first day of each
month during such Operating Year an amount equal to one-twelfth (1/12) of
Landlord's estimate of Tenant's Expense Payment for such Operating Year. If
Landlord shall furnish such estimate for an Operating Year after the
commencement thereof, then (a) until the first day of the month following the
month in which such estimate is furnished to Tenant, Tenant shall pay to
Landlord on the first day of each month an amount equal to the monthly sum
payable by Tenant to Landlord under this Paragraph C for the last month of
the preceding Operating Year; (b) Landlord shall notify Tenant in the
Escalation Statement containing such estimate whether the installments of
Tenant's Expense Payment previously paid for such Operating Year were more or
less than the installments which should have been paid for such Operating
Year pursuant to such estimate and (i) if there shall be an underpayment,
Tenant shall pay the amount thereof within thirty (30) days after being
furnished with such Escalation Statement or (ii) if there shall be an
overpayment, Tenant shall, at its option, be entitled to either a credit in
the amount thereof against subsequent rental payments under this Lease or to
have Landlord make payment to Tenant in the amount of such overpayment by
good and sufficient check (subject to collection) within thirty (30) days of
being furnished with such Escalation Statement; and (c) on the first day of
the month following the month in which such estimate is furnished to Tenant
and monthly thereafter for the balance of such Operating Year, Tenant shall
pay to Landlord an amount equal to one-twelfth (1/12) of Tenant's Expense
Payment as shown on such estimate. Landlord may at any time and from time to
time (but not more often than twice in any Operating Year) furnish to Tenant
an Escalation Statement setting forth Landlord's revised estimate of Tenant's
Expense Payment for a particular Operating Year and Tenant's Expense Payment
for such Operating Year shall be adjusted and paid or credited, as
applicable, in the same manner as provided in the preceding sentence.
D. After the end of each Operating Year Landlord shall
submit to Tenant an annual Escalation Statement prepared by Landlord setting
forth the Expenses for the preceding Operating Year and the balance of
Tenant's Expense Payment, if any, due to Landlord from Tenant for such
Operating Year. If such annual Escalation Statement shall show that the sums
paid by Tenant under subparagraph 3.02(C) above exceeded Tenant's Expense
Payment for such Operating Year, Tenant shall at its option be entitled to
either a credit in the amount of such excess (plus, in the event the amount
of such overpayments exceed 7 l/2% of the actual Tenant's Expense Payment,
interest at the Prime Rate on the amount which exceeds such actual Tenant's
Expense Payment) against subsequent rental payments under this Lease or to
have Landlord make payment to Tenant in the amount of such excess (together
with interest
10
at the Prime Rate as aforesaid) by good and sufficient check (subject to
collection) within thirty (30) days of delivery of such statement. If such
annual Escalation Statement shall show that the sums so paid by Tenant were
less than Tenant's Expense Payment for such Operating Year, Tenant shall pay
the amount of such deficiency to the Landlord (plus, in the event the amount
of such deficiency exceeds 7 1/2% of the actual Tenant's Expense Payment,
interest at the Prime Rate on the amount which exceeds such actual Tenant's
Expense Payment), within thirty (30) days after being furnished with such
annual Escalation Statement. Notwithstanding the foregoing, in the event
Landlord fails to deliver the annual Escalation Statement referred to in this
subparagraph (D) within six (6) months after the end of any Operating Year,
then, if Tenant shall be entitled to a credit or refund for overpayment as
hereinabove provided, such credit or refund shall include interest at the
Prime Rate on the entire amount of the overpayment.
E. The annual Escalation Statements with respect to Expenses to
be furnished by Landlord as provided above shall be in reasonable detail and
certified by an officer of Landlord as true and complete. Landlord may use
reasonable operating cost allocations and estimates if such allocations or
estimates are required for this Section 3.02.
F. Tenant, upon no less than five (5) days prior notice, may
elect to have Tenant's designated representative who shall be a certified public
accountant, an officer of Tenant, or a real estate professional with substantial
experience in the financial aspects of first-class office building operation in
Manhattan (herein called "Tenant's Audit Representative") examine such of
Landlord's books and records (collectively, "Records") as are relevant to the
Escalation Statement in question and those Escalation Statements for the
preceding Operating Year and any prior Operating Year relevant to the
computation in question and the subsequent Operating Year to the extent same are
relevant, provided any such examination shall be commenced within six (6) months
after Tenant's receipt of an annual Escalation Statement and concluded within
sixty (60) days after the commencement of such examination. In making such
examination, Tenant agrees, and shall cause its Audit Representative to agree,
to keep confidential any and all information contained in the Records except as
disclosed in connection with any arbitration, action, proceeding, or legal
process. In the event that it is determined that the Expenses were overstated
by 10% or more, Landlord shall pay the reasonable cost of the audit by Tenant.
In the event that it is determined that the Expenses were overstated by 5% or
more, then the credit or repayment of such excess to Tenant shall bear interest
at the Prime Rate from the date paid to the date so credited or repaid.
3.03. Tenant shall pay to Landlord, within thirty (30) days after
demand, as additional rent, any occupancy tax or rent tax hereafter enacted,
which Landlord is hereafter required to pay with respect to the demised premises
or this Lease which is in lieu of, or constitutes a modification of, the current
New York City commercial rent tax payable by tenants; provided, however, that
(a) Landlord provides Tenant with written notice of the amount of tax and (b)
Tenant shall not be required to make any such payments to Landlord prior to
thirty (30) days before the same are due and payable to such taxing authorities.
3.04. If the Commencement Date shall be other than the first day
of a Tax Year or an Operating Year or if the date of the expiration or other
termination of this Lease shall be a day other than the last day of a Tax Year
or an Operating Year, then Tenant's Tax Payment and/or Tenant's Expense Payment
for such partial year shall be equitably adjusted taking into consideration the
portion of such Tax Year or Operating Year falling within the Term. Landlord
shall, as soon as reasonably practicable, cause an Escalation Statement with
respect to Taxes for the Tax Year and/or Expenses for the Operating Year in
which the Term expires to be prepared and furnished to Tenant. Such Escalation
Statement shall be prepared as of the expiration date of the Term if such date
is December 31, and if not, as of the first to occur of June 30 or December 31
after the expiration date of the Term. Landlord and Tenant shall thereupon make
appropriate adjustments of amounts then owing.
3.05. In no event shall the fixed annual rent ever be reduced by
operation of this Article 3, but Tenant shall be entitled to the credits against
fixed annual rent and additional rent as specifically provided in this
Article 3. The
11
rights and obligations of Landlord and Tenant under the provisions of
this Article 3 shall survive the termination of this Lease, and payments shall
be made pursuant to this Article 3 notwithstanding the fact that an Escalation
Statement is furnished to Tenant after the expiration or other termination of
the Term, subject to Section 3.06 hereof.
3.06. Landlord's failure to render an Escalation Statement with
respect to any Tax Year or Operating Year shall not prejudice Landlord's right
to thereafter render an Escalation Statement with respect thereto or with
respect to any subsequent Tax Year or Operating Year. Notwithstanding the
foregoing, as to any Tax Year for which Landlord has delivered to Tenant an
Escalation Statement pursuant to Section 3.01B hereof or any Operating Year as
to which Landlord has delivered to Tenant an Escalation Statement pursuant to
Section 3.02D hereof, Tenant shall not be required to pay additional Tenant's
Tax Payment or additional Tenant's Expense Payment, as the case may be, (i.e.,
over and above the amount set forth on such original Escalation Statement) by
reason of Landlord delivering a revised Escalation Statement for such period
unless Landlord delivers such revised Escalation Statement within twelve (12)
months after the end of the Tax Year or Operating Year, as the case may be, as
to which such original Escalation Statement related.
3.07. Each Escalation Statement shall be conclusive and binding
upon Tenant unless within six (6) months after receipt of such Escalation
Statement Tenant shall notify Landlord that it disputes the correctness of such
Escalation Statement, specifying the particular respects in which such
Escalation Statement is claimed to be incorrect. Any dispute relating to any
Escalation Statement, not resolved within 60 days after the giving of such
notice by Tenant, may be submitted to arbitration by either party pursuant to
Article 37 hereof with such arbitration to await the results of Tenant's
examination of Landlord's Records pursuant to subsection 3.02F hereof. Pending
the determination of such dispute, Tenant shall pay additional rent in
accordance with the Escalation Statement that Tenant is disputing, without
prejudice to Tenant's position.
ARTICLE 4
ELECTRICITY
4.01. Landlord agrees that prior to the Commencement Date all
risers, feeders and wiring to furnish electrical service to the demised premises
in accordance with the provisions of the specifications for such electrical
service set forth in Section 4.07 hereof and other conductors and electrical
equipment necessary will be installed in the Building by Landlord to the
electric closet serving the demised premises. After the Commencement Date any
additional risers, feeders or other equipment or service proper or necessary to
supply Tenant's electrical and communication requirements (in excess of the
electrical load set forth in such specifications), upon written request of
Tenant, will be installed by Landlord at the sole cost and expense of Tenant, if
(i) the same will not in Landlord's good faith judgment cause permanent damage
or injury to the Building or the demised premises or cause or create a dangerous
or hazardous condition, repairs or expense or interfere with or disturb other
tenants or occupants, (ii) such installation is practicable in Landlord's
reasonable judgment, taking into consideration the current and future potential
needs for electric service of current and future tenants of the Building other
than Tenant, and (iii) Landlord shall not be obligated to make available to
Tenant more than Tenant's Expense Share of surplus space in the vertical
penetrations of the Building which are used for electrical conduit and risers.
4.02. (a) For the period commencing on the Commencement Date,
Tenant covenants and agrees to contract directly with and to pay directly to
the utility company supplying electric current for the demised premises the
amounts due for such electric current consumed as indicated by meters
installed by Landlord at Landlord's expense, measuring Tenant's consumption
thereof and no other tenant's consumption of electricity.
(b) If permitted by Legal Requirements, Tenant shall have
the right to contract for an alternate power source provided that Tenant shall
notify Landlord at least thirty (30) Business Days in advance of its intention
to contract
12
for same. In the event that Tenant contracts for an alternate power source,
Landlord shall cooperate with Tenant and the alternate power source provider
(at no cost to Landlord unless Tenant agrees to pay any such actual cost
without profit or markup to Landlord), and shall allow Tenant and the
alternate power source provider reasonable access, at no cost to either of
said parties, to the Building's electrical lines, feeders, risers and wiring,
in order to provide the alternate power source, provided and on condition
that such access to the Building's electrical lines, feeders, risers and
wiring shall not in any way diminish electrical service in the Building,
except to a de minimis extent.
4.03. (a) If Tenant leases additional space in the Building and
if, as a result thereof, one meter measures the consumption of electric current
by Tenant and another lessee of space in the Building (i.e., more than two
tenants on a floor), or if there is no meter measuring Tenant's consumption of
electric current for any purpose, including without limitation, base building
air conditioning, ventilating and heating (e.g., more than one tenant on a floor
with respect to base building air conditioning and ventilating) (it being
understood that the foregoing shall not be deemed to permit Landlord to
unilaterally remove Tenant's electrical meter), Tenant agrees to pay to Landlord
or Landlord's designated agent charges for electric current consumed by Tenant
as determined by Landlord's electric consultant in accordance with Section 4.08
hereof. Bills therefor, at the rate charged to Landlord for such electric
current, plus the amount of sales tax imposed thereon by any Governmental
Authority, plus two and one-half percent (2 1/2%) of the total amount thereof
for administration and processing, shall be rendered at such times as Landlord
may elect based upon estimates of Landlord's electric consultant which may be
made from time to time as Landlord deems necessary. Until such time as
Landlord's electrical consultant first makes its estimate as aforesaid (which in
no event shall occur later than ninety (90) days after Landlord recaptures a
portion of the demised premises), Tenant shall pay as its electricity charge
hereunder (exclusive of Common Area Electric (as hereinafter defined)) the sum
of $2.00 per square foot multiplied by the rentable square footage of the
demised premises (the "BASE CHARGE") which shall be payable in equal monthly
installments together with the Tenant's payments of fixed annual rent hereunder
on the first day of each calendar month. In the event Landlord's consultant
shall determine that Tenant's electricity charge should differ from the Base
Charge, Tenant's Base Charge shall be adjusted retroactively at such time as
Landlord's electrical consultant's determination is made. Any deficiency for
such prior period shall be payable within thirty (30) days of demand. Any
excess for such prior period shall be, at Tenant's option, credited in the
amount of such excess against subsequent rental payments under this Lease or
paid to Tenant by good and sufficient check (subject to collection) within
thirty (30) days after such consultant's determination. Tenant shall permit
Landlord's electrical consultant to make surveys in the demised premises from
time to time (but not more than two surveys per year unless Landlord has
reasonable evidence that Tenant has increased its electrical load in the demised
premises) during normal business hours regarding the electrical equipment and
fixtures and the use of electric current therein; provided, however, that such
consultant will endeavor to minimize the disruption of Tenant's business.
Tenant shall have the right to cause Tenant's electrical consultant to make up
to two (2) surveys in the demised premises per year provided Tenant shall
promptly submit a copy of such survey to Landlord. Such surveys by Tenant's
electrical consultant shall be subject to Landlord's right to give a Dispute
Notice in accordance with Section 4.08 hereof. In the event the Tenant occupies
a portion of a floor, with respect to the electric current used (i) to run the
core air conditioning, heating and ventilating system on Tenant's floor,
including without limitation, for purposes of "early morning warm-up" and (ii)
for the lighting of the common areas on Tenant's floor (herein collectively
called "COMMON AREA ELECTRIC"), Landlord shall charge Tenant its proportionate
share of such charge plus sales tax and the two and one-half (2 1/2%) percent
administrative fee referred to above based upon the proportion which the
rentable area of the demised premises bears to the rentable area of the floor.
If Tenant desires to install a submeter to measure electric consumption rather
than by survey as provided for in this subsection 4.03(a), Tenant shall give
Landlord notice to such effect requesting such submeter, and Landlord agrees not
to unreasonably withhold its consent for such submeter provided that (x) Tenant
pays all costs for the installation of such submeter and associated equipment
and lines and (y) Tenant enters into a supplemental agreement reasonably
satisfactory to Tenant providing for the payment of such electricity on a
submetered basis.
13
(b) If Tenant pays for electric current consumed pursuant
to subsection (a) above, Landlord reserves the right to discontinue furnishing
electric energy to Tenant at any time that electric service may be obtained by
Tenant in the demised premises directly from any public utility company or
alternative power source servicing the Building upon sixty (60) days' prior
written notice to Tenant, and from and after the effective date of such
termination, Landlord shall no longer be obligated to furnish Tenant with
electric energy, provided, however that such termination date shall be extended
for such time as is reasonably necessary for Tenant to make arrangements to
obtain electric service directly. If Landlord exercises such right of
termination, this Lease shall remain unaffected thereby (except Tenant will no
longer be required to pay Landlord any charge for electricity pursuant to this
Section 4.03) and shall continue in full force and effect; and thereafter Tenant
shall diligently arrange to obtain electric service directly from the public
utility company or alternative power source servicing the Building, and may
utilize the then existing electric feeders, risers and wiring serving the
demised premises to the extent available and safely capable of being used for
such purpose and only to the extent of Tenant's then authorized connected load.
Landlord shall not be obligated to pay any part of the cost incurred in Tenant's
obtaining direct electric service.
4.04. Tenant's use of electric current in the demised premises
shall not at any time exceed the capacity of any of the electrical conductors
and equipment in or otherwise serving the demised premises as described in
Section 4.07 hereof. Tenant shall not make or perform, or permit the making of
or performing of, any alterations to wiring, installations or other electrical
facilities in or serving the demised premises without the prior consent of
Landlord in each instance, such consent to be granted or denied as provided in
Article 6 hereof. Should Landlord grant any such consent, then all additional
risers or other equipment required therefor shall be installed by Landlord and
the commercially reasonable cost thereof shall be paid by Tenant within thirty
(30) days after receipt of Landlord's written demand therefor, together with any
and all appropriate invoices for such work, or, at Landlord's election, Tenant
shall perform such installation using an electrician approved by Landlord for
work in the Building.
4.05. (a) Subject to the provisions of subsection 34.02 hereof,
to the extent permitted by applicable law, Landlord shall not be liable in any
way to Tenant for any failure or defect in the supply or character of electric
energy furnished to the demised premises by reason of any requirement, act or
omission of the public utility providing the Building with electricity or for
any other reason whatsoever except Landlord's negligence or wilful misconduct;
provided, however, that in no event shall Landlord be liable for consequential
damages arising therefrom.
(b) Except in cases of emergency, Landlord shall notify
Tenant by reasonable advance notice of any required scheduled stoppage of
electricity in the Building. Landlord shall use reasonable efforts to
coordinate any such stoppage with Tenant so as to minimize interference with the
conduct of Tenant's business in the demised premises, but Landlord shall not be
obligated to employ overtime or premium labor therefor except as provided in
Section 7.04 hereof.
4.06. At Tenant's option, Tenant may purchase from Landlord or
Landlord's agent all lighting tubes, lamps, bulbs and ballasts used in the
demised premises and Tenant shall pay Landlord's commercially reasonable charges
for providing and installing same within twenty (20) days after demand as
additional rent.
4.07. Landlord covenants and agrees that 265/460 service of 19.5
watts of electricity connected load per usable square foot (inclusive of
electric energy used in connection with providing base building air conditioning
service to the demised premises and domestic hot water to the common areas of
the floor) shall be available in the electric closet servicing the demised
premises for Tenant's distribution, such distribution to be at Tenant's expense,
in the demised premises. Panels and transformers sufficient to service base
Building HVAC and hot water equipment and core bathrooms and closets, shall be
available but all additional panels and transformers for Tenant's distribution
shall be installed as part of Tenant's Work. In addition, upon prior notice to
Landlord, Tenant may access additional power of up to an additional 19.5 watts
per usable square foot connected load of electricity in accordance with the
provisions of this Lease including without limitation Article 6
14
hereof. Tenant shall not be liable for any Building access or use charge for
such additional power, but Tenant shall be liable for all costs of actual
connection to the Building electric supply, of tying into Tenant's Con Edison
meter, of installing any other additional equipment required for such
additional power and any other actual cost necessary for Tenant to access
such additional power. Tenant covenants and agrees that at no time will the
connected electrical load in the demised premises exceed the foregoing
specifications.
4.08. Any determinations with respect to charges for electricity
on floors occupied by more than one tenant or otherwise which must be made
pursuant to the terms of this Lease shall be made by a reputable, independent
electrical consultant selected by Landlord ("LANDLORD'S ELECTRICAL CONSULTANT").
Any determination made by Landlord's electrical consultant pursuant to or in
connection with this Lease shall be binding and conclusive on Landlord and on
Tenant unless Tenant disputes such determination as hereinafter provided.
Tenant shall have the right to give a notice (the "DISPUTE NOTICE") to Landlord
within ninety (90) days after the date it is notified of any determination by
Landlord's electrical consultant that Tenant has engaged its own electrical
consultant ("TENANT'S ELECTRICAL CONSULTANT") to verify the determination of
Landlord's electrical consultant. If Tenant's electrical consultant and
Landlord's electrical consultant cannot agree within thirty (30) days after the
Dispute Notice, if any, is given on what an appropriate resolution of their
dispute should be, then either party, upon notice to the other, may submit the
issue to arbitration in accordance with the provisions of Article 37 of this
Lease. While such dispute is being resolved, Tenant shall pay such charges and
payments as would be due hereunder if Landlord's electrical consultant's
determination were correct without prejudice to Tenant's position. In the event
it is finally determined that there has been an overpayment by Tenant, such
overpayment shall be credited against future rent payments due from Tenant under
the Lease (or, in the event there are no such future rent payments due
hereunder, such overpayment shall be refunded to Tenant) and in the event of an
underpayment, the amount of such underpayment by Tenant shall be paid by Tenant
to Landlord within thirty (30) days after such determination is made.
ARTICLE 5
USE
5.01. The demised premises shall be used solely as and for
executive and general offices by Tenant and "Tenant's Affiliates" as defined in
Article 11 hereof, and for no other purpose.
5.02. Tenant shall not use or permit the use of the demised
premises or any part thereof in any way which would violate any of the terms and
conditions of this Lease or for any unlawful purposes or in any unlawful manner
or in violation of the Certificate of Occupancy for the demised premises or the
Building, and Tenant shall not permit the demised premises or any part thereof
to be used in any manner or anything to be done, brought into or kept therein
which, in Landlord's reasonable judgment shall impair or adversely affect (i)
the character, reputation or appearance of the Building as a first-class office
building, (ii) any of the Building services or the proper and economic heating,
cleaning, air conditioning or other servicing of the Building or the demised
premises, or (iii) the use of any of the other areas of the Building by, or
occasion discomfort, inconvenience or annoyance to, any of the other tenants or
occupants of the Building which is in excess of that which is customary and
usual in first-class office buildings similar to the Building located in the
midtown area of the Borough of Manhattan.
5.03. If any governmental license or permit (other than a
Certificate of Occupancy for the entire Building or for the demised premises for
use as general and executive offices in a customary manner) 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 to Landlord for inspection.
Tenant shall at all times comply with the terms and conditions of each such
license or permit. Additionally, should Tenant's alterations or Tenant's use of
the demised premises require any modification or amendment of any Certificate of
Occupancy for the Building, Tenant shall, at its
15
expense, take all actions reasonably requested by Landlord in order to
procure any such modification or amendment and shall reimburse Landlord (as
additional rent) for all reasonable costs and expenses Landlord incurs in
effecting said modifications or amendments. The foregoing provisions are not
intended to be deemed Landlord's consent to any alterations or to a use of
the demised premises not otherwise permitted hereunder nor to require
Landlord to effect such modifications or amendments of any Certificate of
Occupancy.
5.04. Tenant shall not use, or suffer or permit anyone to use, the
demised premises or any part thereof, for (a) retail banking, trust company, or
safe deposit business servicing the general public, (b) a savings bank, a
savings and loan association, or a loan company servicing the general public,
(c) the sale of travelers' checks and/or foreign exchange other than incidental
to Tenant's business, (d) a stock brokerage office or for stock brokerage
purposes, in either case as a retail, off-the-street operation which would
substantially increase the traffic flow to and from the demised premises over
customary office-use traffic flow, (e) a restaurant and/or bar and/or the sale
of confectionery and/or soda and/or beverages and/or sandwiches and/or ice cream
and/or baked goods (except if expressly provided otherwise elsewhere in this
Lease and except that the foregoing shall not be deemed to prohibit the
installation and maintenance of vending machines for the sale of food and
beverages to Tenant's employees and visitors provided that the provisions of
Section 21.06(c) of this Lease shall apply with respect thereto), (f) the
business of photographic reproductions and/or offset printing (except that
Tenant may use part of the demised premises for photographic reproductions
and/or offset printing in connection with, either directly or indirectly, its
own business and/or activities), (g) an employment or travel agency, (h) a
school or classroom (other than for training of Tenant's employees), (i) medical
or psychiatric offices, (j) conduct of an auction other than an electronic
auction, (k) gambling activities or (1) the conduct of obscene, pornographic or
similar disreputable activities. Nothing contained in this Section 5.04 will
prohibit Tenant from using, or permitting the use of, the demised premises for
executive, administrative or general offices of the businesses set forth in
clauses (a), (b), (c) or (d) of this Section 5.04. Further, the demised
premises may not be used by (i) an agency, department or bureau of the United
States Government, any state or municipality within the United States or any
foreign government, or any political subdivision of any of them, (ii) any
charitable, religious, union or other not-for-profit organization (other than
not-for-profit corporations of a nature comparable to the Ford Foundation or the
Rockefeller Foundation), or (iii) any tax exempt entity within the meaning of
Section 168(j)(4)(A) of the Internal Revenue Code of 1986, as amended, or any
successor or substitute statute, or rule or regulation applicable thereto (as
same may be amended).
5.05. Landlord represents that the Certificate of Occupancy for
the Building will permit the use of the demised premises for general and
executive offices. Landlord will make no changes in the Building which would
result in a change in the Certificate of Occupancy so as to prevent Tenant from
using the demised premises for general and executive office purposes.
16
ARTICLE 6
ALTERATIONS AND INSTALLATIONS
6.01. To the extent the provisions of Article 42 to this Lease
conflict with the provisions of this Article 6, then, with respect to Tenant's
Work, the provisions of Article 42 hereto shall govern.
Tenant shall make no alterations, installations, additions or
improvements in or to the demised premises (other than purely decorative work in
the nature of interior wall covering, moveable partitions, carpeting and picture
hanging) without Landlord's prior written consent and then only by contractors
or mechanics approved by Landlord which approval shall not be unreasonably
withheld or delayed, provided however, Tenant shall use the contractor
recommended by Landlord with respect to the life-safety and the BMS systems of
the Building, provided such contractor provides its services promptly and at a
commercially reasonable cost. Landlord hereby approves the contractors and
subcontractors listed on Schedule R annexed hereto for the performance of
Tenant's Work provided they shall use only union labor therefor. If Landlord
shall disapprove any contractor or subcontractor proposed by Tenant to perform
work in the demised premises, Landlord shall notify Tenant in writing of such
disapproval specifying the reasonable grounds which are the basis for Landlord's
disapproval which shall be limited to a previous adverse experience between such
contractor or subcontractor and Landlord or Landlord's agents. All such work,
alterations, installations, additions and improvements shall be done at Tenant's
sole expense and at such times and in such manner as Landlord may from time to
time designate in its reasonable judgment except as otherwise set forth in the
applicable Building standard specification governing the performance of Tenant's
improvement work in the Building.
All work in the demised premises except for so-called decorative work
(i.e., wall covering, carpeting, moveable partitions and picture hanging) shall
be done solely in accordance with plans and specifications first approved in
writing by Landlord. To the extent that pursuant to the provisions of this
Lease Landlord's consent to such work shall not be unreasonably withheld or
delayed, then such approval of such plans and specifications shall not be
unreasonably withheld or delayed. If Landlord shall not approve or disapprove
(noting any disapproval with particularity) Tenant's plans and specifications
within ten (10) Business Days after receipt of Tenant's written request for
approval therefor (which ten (10) Business Day period shall be extended by five
(5) Business Days with respect to any review by Landlord's outside consultants),
then Landlord's approval shall be deemed given. Tenant shall pay to Landlord
upon demand, as additional rent, Landlord's reasonable actual out-of-pocket
costs and expenses (including, without limitation, the fees of any architect or
engineer employed by Landlord for such purpose and Tenant agrees to (A) pay
Cosentini Associates' reasonable fee for its review work, and (B) pay Severud
Associates' reasonable fee for its review work) for (i) reviewing said plans and
specifications and (ii) inspecting the alterations to determine whether the same
are being performed in accordance with the approved plans and specifications,
the provisions of any Superior Instruments and all laws and requirements of
public authorities. The foregoing review fees of Cosentini Associates and
Severud Associates shall not be payable by Tenant if in connection with any
alterations in the demised premises Tenant shall employ the services of such
engineering firms to prepare Tenant's engineering drawings. Except to the
extent herein expressly set forth, Landlord shall not impose or be entitled to
any fees, charges or other amounts in connection with Tenant's alterations for
(i) indirect costs, field inspections, coordination or supervision, or (ii) use
of the freight elevator during normal business hours. Tenant agrees that the
mere review or approval by Landlord of any plans and/or specifications with
respect to any alterations is solely for Landlord's benefit, and without any
representation or warranty whatsoever to Tenant with respect to the adequacy,
correctness or efficiency thereof or otherwise; nor shall Landlord incur any
liability, obligation or responsibility to Tenant or any third party by reason
of such review and approval.
Landlord will not unreasonably withhold or delay its consent to
requests for nonstructural alterations, additions and improvements provided they
will not (i) adversely interfere with the operation of the Building; (ii) affect
the exterior or the exterior appearance of the Building; (iii) affect the
structural elements or
17
strength of the Building; or (iv) affect the proper functioning of the
electrical, HVAC, plumbing or mechanical systems of the Building.
In connection with the installation of Tenant's communications and
electrical wiring, Tenant shall have the right to use, on a non-exclusive basis,
its pro rata share of the amount of space in the vertical shafts and risers of
the Building available for such purposes, such proration to be calculated on the
basis of the ratio of the rentable square footage of the demised premises to the
total rentable square footage of the tenantable area serviced by such shafts and
risers.
Any such approved alterations and improvements shall be performed in
accordance with the foregoing and the following provisions of this Article 6:
1. All work shall be done in a good and workmanlike manner.
2. (a) Alterations shall be performed by contractors first
approved by Landlord, subject to the first sentence of Section 6.01
hereof.
(b) Any contractor employed by Tenant to perform any work
permitted by this Lease, and all of its subcontractors, shall agree to
employ only such labor as will not result in jurisdictional disputes
or strikes or cause disruptive disharmony and interference with other
workers employed at the Building. Tenant will inform Landlord in
writing of the names of any contractor or subcontractors Tenant
proposes to use in the demised premises at least five (5) business
days prior to the beginning of work by such contractor or
subcontractors.
(c) Tenant covenants and agrees to pay to the contractor,
as the work progresses, the entire cost of supplying the materials and
performing the work shown on Tenant's approved plans and
specifications, subject only to (i) customary retentions and (ii)
amounts being disputed in good faith, provided that Tenant complies
with its obligations under clause 4 below.
3. All such alterations shall be performed in compliance with
all Legal Requirements (as defined in Article 22 hereof).
4. Tenant shall keep the Building and the demised premises free
and clear of all liens for any work or material claimed to have been
furnished to Tenant or to the demised premises on Tenant's behalf, and
all work to be performed by Tenant shall be done in a manner which
will not unreasonably interfere with or unreasonably disturb other
tenants or occupants of the Building.
5. During the progress of the work to be done by Tenant, said
work shall be subject to inspection by representatives of Landlord who
shall be permitted access and the opportunity to inspect, at all
reasonable times upon reasonable prior notice which may be oral
(provided such inspections shall not unreasonably interfere with such
work), but this provision shall not in any way whatsoever create any
obligation on Landlord to conduct such an inspection or constitute
approval by Landlord of such work or subject Landlord to liability for
the manner of performance.
6. Intentionally Omitted.
7. Prior to commencement of any work costing more than $25,000,
Tenant shall furnish to Landlord certificates evidencing the existence
of:
(a) Worker's compensation insurance covering all persons
employed for such work with statutorily required limits;
(b) Employer's liability coverage including bodily injury
caused by disease with limits of not less than $100,000 per employee;
18
(c) Commercial general liability insurance including but
not limited to completed operations coverage, products liability
coverage, contractual coverage, broad form property damage,
independent contractor's coverage and personal injury coverage naming
(i) Landlord as well as such representatives and consultants of
Landlord as Landlord shall reasonably specify (collectively
"LANDLORD'S CONSULTANTS"), including, but not limited to, as of the
date hereof HRO International, Ltd., as well as Tenant, as additional
insureds, with coverage of not less than $3,000,000 combined single
limit coverage (or such higher limits as Landlord may from time to
time impose in its reasonable judgment); and
(d) Tenant shall require all contractors engaged or
employed by the Tenant to indemnify and hold Tenant, Landlord, and
Landlord's Consultants, including but not limited to, as of the date
hereof HRO International, Ltd., harmless in accordance with the
following clauses or similar clauses of substantially similar import
(with such modifications therein as may be reasonably required from
time to time by reason of a change in the parties constituting
Landlord's Consultants):
"The contractor hereby agrees to the fullest extent permitted by
law to assume the entire responsibility and liability for and
defense of and to pay and indemnify the Landlord, Tenant and HRO
International, Ltd., against any loss, cost, expense, liability
or damage and will hold each of them harmless from and pay any
loss, cost, expense, liability or damage (including, without
limitation, judgments, reasonable attorney's fees, court costs,
and the cost of appellate proceedings), which Landlord and/or
Tenant and/or HRO International, Ltd., incurs because of injury
to or death of any person or on account of damage to property,
including loss of use thereof, or any other claim arising out of,
in connection with, or as a consequence of the performance of the
work by the contractor and/or any acts or omissions of the
contractor or any of its officers, directors, employees, agents,
sub-contractors or anyone directly or indirectly employed by the
contractor or anyone for whose acts the contractor may be liable
as it relates to the scope of this Contract, whether such
injuries to person or damage to property are due or claimed to be
due to any negligence of the Landlord and/or Tenant and/or HRO
International, Ltd., its or their employees or agents or any
other person."
The contractor's insurance shall specifically insure the foregoing
hold harmless provision or any such substantially similar provision.
(e) Such insurance shall be placed with solvent and responsible
companies reasonably satisfactory to the Landlord and licensed or
authorized to do business in the State of New York, and the policies
shall provide that they may not be cancelled without 30 days' prior
notice in writing to the Landlord.
8. Movement of all workers and materials shall only be done at
the direction, the times and in the manner designated by Landlord in
its reasonable judgment consistently applied in accordance with the
Building's alteration procedures. Landlord agrees that it shall
enforce such alteration procedures in a non-discriminatory manner as
against Tenant.
9. If drawings were required by Landlord to perform an
alteration, Tenant will promptly upon the completion of an alteration
deliver to Landlord final complete and updated architectural drawings
of any alterations Tenant has performed or caused to be performed in
the demised premises, and (a) if any alterations by Tenant are then
proposed or in progress, Tenant's drawings and specifications, if any,
for such alterations and (b) if any alterations by Landlord for Tenant
were performed or are then proposed or in progress, the record
drawings
19
(together with drawings showing changes thereto made by Tenant) if
any, or the drawings and specifications, if any, as the case may be,
for such alterations, in Tenant's possession.
6.02. Notice is hereby given that Landlord shall not be liable for
any labor or materials furnished or to be furnished to Tenant upon credit, and
that no mechanic's or other lien for any such labor or materials shall attach to
or affect the reversion or other estate or interest of Landlord in and to the
demised premises. Any mechanic's lien, filed against the demised premises or
the Building for work claimed to have been done for or materials claimed to have
been furnished to Tenant shall be discharged by Tenant at its expense within
thirty (30) days after notice of such filing, by payment, filing of the bond
required by law or otherwise.
6.03. All alterations, installations, additions and improvements
made and installed by Landlord, at its expense, or by Tenant at Landlord's
expense, including, without limitation, all work referred to in Article 42
hereof, shall be the property of Landlord and shall remain upon and be
surrendered with the demised premises as a part thereof at the end of the Term;
provided, however, that Tenant shall have the right to remove such items during
the term of this Lease if such removal is in connection with alterations to the
demised premises which are approved by Landlord pursuant to the terms of this
Article 6.
6.04. (i) All alterations, installations, additions and
improvements made and installed by Tenant, or at Tenant's expense, upon or in
the demised premises which are of a permanent nature and which cannot be removed
without damage to the demised premises or Building including, without
limitation, "TENANT'S WORK", as defined in Article 42 hereof, (ii) any so-called
"RAISED FLOORING" and (iii) any supplementary air conditioning units, including
any distribution system associated therewith, shall become the property of
Landlord at the end of the Term, and shall remain upon and be surrendered with
the demised premises as a part thereof at the end of the Term (and shall not be
removed prior thereto without Landlord's written consent), except that Landlord
shall have the right to serve notice (the "Removal Notice") upon Tenant given at
the time that Landlord provides consent to the plans and specifications for the
alteration in question, that any of such alterations, installations, additions
and improvements, which constitute "SPECIALTY ALTERATIONS," as such term is
hereinafter defined, shall be removed and, in the event of service of such
notice, Tenant will, at Tenant's own cost and expense, remove the same in
accordance with such request, and restore the demised premises to its original
condition, ordinary wear and tear and casualty excepted, and repair any damage
to the demised premises or the Building due to such removal. Landlord shall
have waived its right to give the Removal Notice with respect to such alteration
if Landlord fails to give same together with Landlord's consent to such
alteration. For purposes hereof, "SPECIALTY ALTERATIONS" shall mean
improvements, installations, alterations or additions which, in Landlord's
reasonable judgment, are not standard for general and executive office tenants
in a first class office building, such as, for example, interior elevators,
vaults, atriums, auditoriums, but expressly excluding staircases and the slab
cuts therefor, raised flooring, kitchens and related food preparation and
storage areas, and private dining rooms, cafeterias or bathrooms.
Notwithstanding anything to the contrary contained in this Section 6.04, in no
event shall Tenant be obligated to remove any items which would otherwise
constitute Specialty Alterations and which are located in the demised premises
as of the date of this Lease.
6.05. Where furnished by or at the expense of Tenant all
furniture, furnishings and trade fixtures (exclusive of raised flooring), but
including, without limitation, murals, business machines and equipment,
counters, screens, grille work, cages, partitions, metal railings, closets, free
standing lighting fixtures and equipment, drinking fountains, and any other
moveable property not connected to the demised premises or the Building's
systems and removable without damage to the Building shall remain the property
of Tenant which may at its option remove all or any part thereof at any time
prior to the expiration of the Term. In case Tenant shall decide not to remove
any part of such property, Tenant shall notify Landlord in writing not less than
three (3) months prior to the expiration of the Term, specifying the items of
property which it has decided not to remove. If, within thirty (30) days after
the service of such notice, Landlord shall request Tenant to remove any of the
said property, Tenant shall at its expense remove the same. As to such property
which Landlord does not request Tenant to remove, the same shall be, if left by
Tenant,
20
deemed abandoned by Tenant and thereupon the same shall become the property
of Landlord. Notwithstanding the foregoing, Landlord shall not require
Tenant to remove, or require Tenant to restore the demised premises to its
condition prior to the making of, any improvements constituting an ordinary
office installation which is normal and customary in layout, design and size,
provided Tenant has maintained the same in good order and repair, subject to
ordinary wear and tear.
6.06. If any alterations, installations, additions, improvements
or other property which Tenant shall have the right to remove or be requested by
Landlord to remove as provided in Sections 6.04 hereof (herein in this Section
6.06 called the "PROPERTY") are not removed on or prior to the expiration of the
Term, Landlord shall have the right to remove the property and to dispose of the
same without accountability to Tenant and at the sole cost and expense of
Tenant. In case of any damage to the demised premises or the Building resulting
from the removal of the property (which damage is not caused by Landlord's
negligence or willful misconduct, or the negligence or willful misconduct of
Landlord's agents, employees or servants and provided Landlord acts in a
reasonably prudent fashion in removing any such property) Tenant shall repair
such damage or, in default thereof, shall reimburse Landlord for Landlord's
reasonable cost in repairing such damage. This obligation shall survive any
termination of this Lease.
6.07. Tenant shall keep records of Tenant's alterations,
installations, additions and improvements costing in excess of $25,000, and of
the cost thereof for a period of three (3) years. Tenant shall, within
forty-five (45) days after demand by Landlord, furnish to Landlord copies of
such records if Landlord shall require same in connection with any proceeding to
reduce the assessed valuation of the Building, or in connection with any
proceeding instituted pursuant to Article 14 hereof.
ARTICLE 7
REPAIRS
7.01. Tenant shall, at its sole cost and expense, make such
repairs to the demised premises and the fixtures and appurtenances therein as
are necessitated by the act, omission (where this Lease imposes a duty to act),
occupancy in violation of the terms, provisions or conditions of this Lease, or
negligence of Tenant or by the use of the demised premises in a manner contrary
to the purposes for which same are leased to Tenant, as and when needed to
preserve them in good working order and condition. Notwithstanding the
foregoing to the contrary, Tenant shall be required to make structural repairs
to the demised premises only to the extent that the need for such repairs is
necessitated by the negligence of Tenant or its contractors, agents, or
employees or invitees or by the use of the demised premises in violation of this
Lease or in a manner contrary to the purposes for which same are leased to
Tenant. Except as otherwise provided in Section 9.05 hereof, all damage or
injury to the demised premises and to its fixtures, appurtenances and equipment
caused by Tenant moving property in or out of the Building or by installation or
removal of furniture, fixtures or other property, shall be repaired, restored or
replaced promptly by Tenant at its sole cost and expense, which repairs,
restorations and replacements shall be in quality and class equal to the
original work or installations. Any repairs to the Building structure, portions
of the Building outside the demised premises and the facilities and systems of
the Building for which Tenant is responsible shall be performed by Landlord at
Tenant's commercially reasonable expense. If Tenant fails to make such repairs,
restoration or replacements, same may be made by Landlord at the commercially
reasonable expense of Tenant and such expense shall be collectible as additional
rent and shall be paid by Tenant within thirty (30) days after rendition of a
bill therefor.
The exterior walls of the Building, the portions of any window sills
outside the windows and the windows are not part of the premises demised by this
Lease and Landlord reserves all rights to such parts of the Building (without
limitation to its existing obligations).
7.02. Tenant shall not place a load upon any floor of the demised
premises exceeding the floor load per square foot of area which such floor was
21
designed to carry as set forth below. The floors of the Building are designed
for the following superimposed loading:
Live Load 50 pounds per square foot
Partitions 12 pounds per square foot
Suspended Ceiling
& Mechanical 13 pounds per square foot
-------------------------
Total Tenant Load 75 pounds per square foot
Landlord agrees that Tenant may reinforce floor loads in the demised premises
provided that same is performed in accordance with the terms of this Lease
including without limitation Article 6 hereof and provided further that such
reinforcement of floors within the demised premises is deemed reasonably
necessary by Tenant's engineers or architect and such reinforcement remains
within the cubic area of the demised premises.
7.03. Business machines and mechanical equipment used by Tenant
which cause vibration, noise, cold or heat that may be transmitted to the
Building structure or to any leased space to such a degree as to be
objectionable to Landlord or to any other tenant in the Building, in their
reasonable judgment, shall be placed and maintained by Tenant at its expense in
settings of cork, rubber or spring type vibration eliminators sufficient to
absorb and prevent such objectionable vibration or noise, or prevent
transmission of such objectionable cold or heat. The parties hereto recognize
that the operation of elevators, air conditioning and heating equipment will
cause some vibration, noise, heat or cold which may be transmitted to other
parts of the Building and demised premises. Landlord shall be under no
obligation to endeavor to reduce such vibration, noise, heat or cold beyond what
is customary in current good building practice for buildings of the same
first-class nature as the Building in the midtown area of the Borough of
Manhattan.
7.04. Except as otherwise specifically provided in this Lease,
there shall be no allowance to Tenant for a diminution of rental value and no
liability on the part of Landlord by reason of inconvenience, annoyance or
injury to business arising from the making of any repairs, alterations,
additions or improvements in or to any portion of the Building or the demised
premises or in or to fixtures, appurtenances or equipment thereof. Landlord
shall exercise reasonable diligence so as to minimize any interference with
Tenant's business operations, but shall not be required to perform the same on
an overtime or premium pay basis, unless Tenant is willing to reimburse Landlord
for the difference between the normal, full-time pay basis and overtime or
premium pay basis and the performance of same on such overtime or premium pay
basis is available and reasonably practicable, provided, however, that (i) in
cases where there is work of a disruptive nature such as demolition, core
drilling and similar work lasting for more than an insignificant period of time
or a material interference with Tenant's business or the health or safety of the
occupants of the demised premises are adversely affected or (ii) if an owner of
a first-class office building in Manhattan would customarily perform the nature
of the work involved on an overtime or premium pay basis, then Tenant will not
be obligated to pay for such work on an overtime or premium pay basis if Tenant
requested such work to be performed on an overtime or premium pay basis (unless
such work was necessitated by an improper act or omission of Tenant). The
provisions of the proviso clause in the immediately preceding sentence are
hereinafter called the "OVERTIME PROVISO". All repairs made by Landlord in the
demised premises pursuant to the provisions of this Article 7 shall be performed
in a good and workmanlike manner and all replacements made by Landlord in the
demised premises pursuant to the provisions of this Article 7 shall be at least
equal in quality and class to the original work or installation.
7.05. Landlord will operate the Building in such a manner as is
consistent with the maintenance and repair standards of first-class office
buildings with retail space similar to the Building and located in the midtown
area of the Borough of Manhattan. To the extent that same shall affect Tenant's
use and enjoyment of the demised premises and/or the Building as a first-class
office building in midtown Manhattan, Landlord, at Landlord's cost and expense
subject to recoupment as part of Expenses, shall maintain in good order and
repair the common Building facilities, the roof, the structural components and
exterior of the Building and the
22
structural components of the demised premises, as well as the mechanical,
plumbing, electrical and HVAC systems to the point of entry to the demised
premises in a manner which is consistent with the maintenance standard for
other first-class buildings in the midtown area of the Borough of Manhattan
similar to the Building and Landlord shall make all repairs and replacements
to the Building (as opposed to the demised premises) necessary to Tenant's
use of the demised premises, except to the extent that same are the
obligation of Tenant under this Lease. Landlord shall promptly remove
accumulations of snow and ice from the exterior areas of the Building.
ARTICLE 8
REQUIREMENTS OF LAW
8.01. (a) Tenant shall comply with all Legal Requirements which
shall impose any violation, order or duty upon Landlord or Tenant with respect
to the demised premises, or the use or occupation thereof; provided, however,
the same relates to the demised premises (but only insofar as it relates to the
demised premises and arises out of Tenant's specific manner of use of the
demised premises), or if it relates to another portion of the Building, arises
out of the specific manner of use and occupancy of the demised premises by
Tenant. Notwithstanding the foregoing, Tenant shall not be responsible to
comply with any Legal Requirements to the extent that such compliance is
required (i) as a result of conditions which exist in the demised premises on
the Commencement Date and which then constitute violations of Legal Requirements
to the extent such Legal Requirements are in effect on the Commencement Date or
(ii) as a result of the presence on the Commencement Date of materials in the
Building which as of the Commencement Date are deemed hazardous and which as of
the Commencement Date are required to be removed under Legal Requirements except
to the extent that Tenant shall have installed any such materials in the
Building. To the best of Landlord's knowledge, as of the date hereof, there are
in the demised premises no current violations of Legal Requirements applicable
to the existing condition of the demised premises as of the date hereof which
would adversely affect the commencement or prosecution of Tenant's Work in the
demised premises. Tenant shall pay all the costs, expenses, fines, penalties
and damages which may be imposed upon Landlord by reason of or arising out of
Tenant's failure to fully and promptly comply with and observe the provisions of
this Section. Without limiting the generality of the foregoing, Tenant, at
Tenant's expense, shall cause the demised premises to be fully sprinklered in
accordance with the requirements of the Building Code of The City of New York
and all applicable rules and regulations pertaining thereto and Landlord shall
connect same to the Building system. Landlord shall be responsible, at
Landlord's expense, which shall be includable in Expenses unless specifically
stated otherwise, for compliance with all other Legal Requirements with respect
to the demised premises and the Building common areas to the extent that failure
to comply affects Tenant's use of the demised premises.
(b) Tenant shall be obligated to perform structural work in
the demised premises or work on Building HVAC, plumbing, electrical or
mechanical systems, which, in either case, is required by Legal Requirements,
only if such work:
(A) is required by reason of a condition which has been
created by or at the instance of Tenant,
(B) is attributable to the specific use or manner of
use to which Tenant puts the demised premises other than ordinary office use in
a customary manner, or
(C) is required by a reason of a breach of any of
Tenant's covenants and agreements under this Lease, which remains uncured after
notice by Landlord and the expiration of the applicable cure period.
In all other circumstances Landlord shall perform such structural work, and the
cost thereof shall be included within Expenses pursuant to the provisions of
Article 3 hereof.
(c) For purposes of this Section 8.01 the phrase "TENANT'S
MANNER OF USE" or "THE SPECIFIC USE" or "MANNER OF USE TO WHICH TENANT PUTS
23
THE DEMISED PREMISES", or any other phrase of substantially similar import
shall be construed to include use of the premises as a "PUBLIC ACCOMMODATION"
under the Disabilities Act, as such term is defined in Section 22.04 hereof.
8.02. Notwithstanding the provisions of Section 8.01 hereof,
Tenant, at its own cost and expense, in its name and/or (whenever necessary)
Landlord's name, may contest, in any manner permitted by law (including appeals
to a court, or governmental department or authority having jurisdiction in the
matter), the validity or the enforcement of any Legal Requirements with which
Tenant is required to comply pursuant to this Lease, and may defer compliance
therewith provided that:
(a) such non-compliance shall not subject Landlord or the
holder of any Superior Instrument to criminal prosecution or subject the
Property to unbonded lien or sale (without limiting the application of the
above, Landlord or the holder of any Superior Instrument shall be deemed subject
to prosecution for a crime if Landlord (or the holder of any Superior
Instrument), or its managing agent, or any officer, director, partner,
shareholder or employee of Landlord or its managing agent or the holder of any
Superior Instrument as an individual, is charged with a crime of any kind or
degree whatever, whether by summons or otherwise);
(b) such non-compliance shall not be in violation of any
Superior Instrument. Landlord represents that the existing Superior Instruments
do not prohibit contests in accordance with this Section 8.02;
(c) Tenant shall first deliver to Landlord a surety bond
issued by a surety company of recognized responsibility, or other security
reasonably satisfactory to Landlord, indemnifying and protecting Landlord
against any loss or injury by reason of such non-compliance provided that the
foregoing provisions of this clause (c) shall not bind the Tenant named herein
unless the holder of a Superior Instrument shall require Tenant to provide
security reasonably satisfactory to such holder; and
(d) Tenant shall promptly, diligently and continuously
prosecute such contest.
Landlord, without expense or liability to it, shall cooperate with
Tenant and execute any documents or pleadings required for such purpose,
provided that Landlord shall reasonably be satisfied that the facts set forth in
any such documents or pleadings are accurate.
ARTICLE 9
INSURANCE, LOSS, REIMBURSEMENT, LIABILITY
9.01. Tenant shall not do or permit to be done any act or thing
upon or about the demised premises, which will (i) constitute an exception to
the coverage of which Tenant has received notice provided under Landlord's
applicable insurance policies, (ii) invalidate, or (iii) be in conflict with the
policies covering the Building, and fixtures and property therein, or which
would increase the rate of fire insurance applicable to the Building to an
amount higher than it otherwise would be; and Tenant shall neither do nor permit
to be done any act or thing upon the demised premises which shall or might
subject Landlord to any liability or responsibility for injury to any person or
persons or to property; but nothing in this Section 9.01 shall prevent Tenant's
use of the demised premises for the purposes stated in Article 5 hereof.
Notwithstanding anything contained in this Section 9.01 to the contrary, Tenant
shall not incur any liability for any act or thing done upon or about the
demised premises which may invalidate or be in conflict with or result in the
assertion of any defense by the Landlord's or the Building's insurer if such act
or thing done would not have resulted in the same under a customary form of
commercial insurance policy which, pursuant to custom and practice, is generally
maintained in first-class buildings similar to the Building in the midtown area
of the Borough of Manhattan.
9.02. If, as a result of any act or omission by or on the part of
Tenant or violation of this Lease, whether or not Landlord has consented to the
same, the
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rate of "ALL RISK" or other type of insurance maintained by Landlord on the
Building and fixtures and property therein, shall be increased to an amount
higher than it otherwise would be, Tenant shall reimburse Landlord for all
increases of such insurance premiums so caused; such reimbursement to be
additional rent payable within twenty (20) days after demand therefor by
Landlord. If such increase shall have resulted from any act or omission or
breach of lease by another tenant or tenants of the Building which is
comparable to Tenant's act or omission, then the amount of such increase
shall be apportioned among Tenant and all such other tenants. In any action
or proceeding wherein Landlord and Tenant are parties, a schedule or
"MAKE-UP" of rates for the Building or demised premises issued by the body
making fire insurance rates or established by insurance carrier providing
coverage for the Building or demised premises, shall be conclusive evidence
of the facts stated therein including the items and charges taken into
consideration in fixing the "ALL RISK" insurance rate then applicable to the
Building or demised premises.
9.03. Landlord, HRO International, Ltd. or their agents, servants
or employees shall not be liable for any injury or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas, electricity, water,
rain or snow or leaks from any part of the Building, or from the pipes,
appliances or plumbing works or from the roof, street or subsurface or from any
other place or resulting from dampness or resulting from any other cause of
whatsoever nature, unless (but only to the extent) any of the foregoing shall be
caused by or due to the negligence or wilful misconduct of Landlord, HRO
International, Ltd., or their respective agents, servants or employees.
Notwithstanding the preceding provisions of this Section 9.03, Tenant covenants
and agrees that (i) any rights of Tenant to make a claim against Landlord, HRO
International Ltd. or their agents, servants or employees as contemplated
herein shall be subject to the waiver of subrogation provisions set forth in
Article 9.08 of this Lease, and (ii) in no event shall Tenant be entitled to
make a claim for consequential damages or indirect or special damages in the
nature of consequential damages pursuant to this Section 9.03.
9.04. Intentionally omitted.
9.05. Tenant shall reimburse Landlord and HRO International, Ltd.
for all expenses, damages or fines incurred or suffered by Landlord or HRO
International Ltd. by reason of any breach, violation or non-performance by
Tenant, or its agents, servants or employees, of any covenant or provision of
this Lease, or by reason of damage to persons or property caused by moving
property of or for Tenant in or out of the Building, or by the installation or
removal of furniture or other property of or for Tenant, or by reason of or
arising out of the carelessness, negligence or improper conduct of Tenant, or
its agents, servants or employees, in the use or occupancy of the demised
premises. Tenant's liability for such expenses, damages or fines shall be
limited to those caused by any of the reasons set forth in the immediately
preceding sentence, and Tenant shall not be liable hereunder for any
consequential, indirect or special damages. Nothing contained in this Section
9.05 shall be deemed a waiver of Landlord's rights to claim against Tenant for
damages of any nature that Landlord shall prove at law as a result of Tenant's
holding over in the demised premises beyond the Expiration Date or any earlier
cancellation or termination of this Lease except as specifically provided to the
contrary herein. Tenant shall have the right, at Tenant's own cost and expense,
to defend any action or proceeding brought against Landlord or HRO
International, Ltd. and negotiate for settlement thereof and settle any such
action or proceeding if, pursuant to this Section 9.05, Tenant would be
obligated to reimburse Landlord or HRO International, Ltd. for expenses, damages
or fines incurred or suffered by Landlord or HRO International, Ltd. Landlord
and Tenant agree to cooperate in connection with the defense and settlement of
any such action or proceeding. Landlord agrees that it will not settle any such
action or proceeding for which Tenant is obligated to reimburse expenses,
damages or fines hereunder without the prior written consent of Tenant;
provided, however, that in the event Tenant shall not consent to any settlement,
Tenant shall furnish such assurances as Landlord or Landlord's insurer may
reasonably require as to Tenant's financial ability to satisfy any potential
liability in the amount of, or larger than, the amount of such settlement.
9.06. Tenant shall give Landlord notice in case of fire or
accidents in the demised premises promptly after Tenant is aware of such event.
Landlord shall, to
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the extent that Landlord shall have knowledge of same, give Tenant notice in
case of any fire or accident in the demised premises.
9.07. (a) No recourse shall be had on any of Landlord's
obligations hereunder or for any claim based thereon or otherwise in respect
thereof against any incorporator, subscriber to the capital stock, shareholder,
officer or director, past, present or future, of any corporation or any partner
or joint venturer which shall be a partner or joint venturer in Landlord
hereunder or included in the term "LANDLORD" or of any successor of any such
corporation, or against any principal, disclosed or undisclosed, or any
affiliate of any party which shall be a partner of joint venturer in Landlord or
included in the term "LANDLORD," whether directly or through Landlord or through
any receiver, assignee, trustee in bankruptcy or through any other person, firm
or corporation, whether by virtue of any constitution, statute or rule of law or
by enforcement of any assessment or penalty or otherwise, all such liability
being expressly waived and released by Tenant.
(b) Subject to the provisions of Section 22.01 hereof,
Tenant shall look solely to Landlord's estate and interest in the Building
(including, without limitation, (i) Landlord's entire right, title and interest
in the Property; (ii) the rents, issues and profits derived from the Property;
(iii) all consideration received by Landlord from the sale or other disposition
of all or any part of Landlord's right, title and interest in the Property,
provided that Tenant shall have given Landlord notice of Tenant's claim thereto
within ninety (90) days after Tenant shall have received notice of such sale or
disposition; (iv) proceeds of sale received upon execution of any judgment
obtained by Tenant and levy upon the Property; and (v) any available
condemnation awards and insurance proceeds not used or intended to be used for
the restoration of the Property) for the satisfaction of any right of Tenant for
the collection of a judgment or other judicial process or arbitration award
requiring the payment of money by Landlord, and no other property or assets of
Landlord, Landlord's agents, incorporators, shareholders, officers, directors,
partners, principals (disclosed or undisclosed) or affiliates shall be subject
to levy, lien, execution, attachment, or other enforcement procedure for the
satisfaction of Tenant's rights and remedies under or with respect to this
Lease, the relationship of Landlord and Tenant hereunder or under law, or
Tenant's use and occupancy of the demised premises, or any other liability of
Landlord to Tenant hereunder.
9.08. Each party agrees to have included in each of its property
insurance policies (insuring the Building in case of Landlord, and insuring the
property described in clause (y) of Section 9.09 in the case of Tenant, against
loss, damage or destruction by fire or other casualty) a waiver of the insurer's
right of subrogation against the other party during the term of this lease (and
subject to the payment by the other party of any additional premium levied by
the insurance company for such waiver) or, if such waiver should be unobtainable
or unenforceable, (i) an express agreement that such policy shall not be
invalidated if the assured waives the right of recovery against any party
responsible for a casualty covered by the policy before the casualty or (ii) any
other form of permission for the release of the other party. If such waiver,
agreement or permission shall not be, or shall cease to be, obtainable from
either party's then current insurance company, the insured party shall so notify
the other party promptly after learning thereof, and shall use its reasonable
efforts to obtain the same from another insurance company described in Section
9.09 hereof. Each party hereby releases the other party, with respect to any
claim (including a claim for negligence) which it might otherwise have against
the other party, for loss, damage or destruction with respect to its property
occurring during the term of this lease to the extent to which it is, or is
required to be, insured under a policy or policies containing a waiver of
subrogation or permission to release liability, as provided in this Section
9.08. Nothing contained in this Section 9.08 shall be deemed to relieve either
party of any duty imposed elsewhere in this lease to repair, restore or rebuild
or to nullify any abatement of rents provided for elsewhere in this lease.
9.09. Tenant covenants and agrees to provide at its expense on or
before the Commencement Date and to keep in force during the Term naming Tenant
as insured and Landlord and its Agent, HRO International, Ltd., and the "GROUND
LESSOR", as defined in subsection 25.05(b), or any successor in interest
thereto, as additional insureds, (x) a commercial general liability insurance
policy or such successor comparable
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form of coverage in the broadest form then available (hereinafter referred to as
a "LIABILITY POLICY") written on "AN OCCURRENCE BASIS", including, without
limitation, blanket contractual liability coverage, broad form property damage,
independent contractor's coverage and personal injury coverage protecting
Landlord, HRO International, Ltd. and Tenant against any liability whatsoever,
occasioned by any occurrence on or about the demised premises or any
appurtenances thereto and (y) a fire and other casualty policy (a "FIRE POLICY")
insuring the full replacement value of all of the furniture, trade fixtures and
other personal property of Tenant located in the demised premises against loss
or damage by fire, theft and such other risks or hazards as are insurable under
present and future forms of "ALL RISK" insurance policies, and (z) policy of
insurance against loss or damage to the major components of the air conditioning
and/or heating system, flywheels, steam pipes, steam turbines, steam engines,
steam boilers, other pressure vessels, high pressure piping and machinery, if
any, such as are installed by or on behalf of Tenant in the demised premises.
Such policies shall also insure against physical damage to the demised premises
arising out of an accident covered thereunder; such policies are to be written
by good and solvent insurance companies licensed or authorized to do business in
the State of New York reasonably satisfactory to Landlord, 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
such policies shall be in such limits and with such maximum deductibles as
Landlord may reasonably require. As of the date of this Lease, Landlord
reasonably requires limits of liability under (x) the Liability Policy of
$5,000,000 combined single limit per occurrence for bodily or personal injury
(including death) and property damage combined; (y) under the Fire Policy equal
to the value of Tenant's furniture, trade fixtures and other personal property
with a deductible of no more than $5,000.00; provided, however, that Tenant
agrees to waive any rights of recovery against Landlord with respect to losses
payable in an amount equal to the foregoing deductible; and (z) under machinery
insurance for full replacement cost of equipment with a deductible of no more
than $5,000.00; provided, however, that Tenant agrees to waive any rights of
recovery against Landlord with respect to losses payable in an amount equal to
the foregoing deductible. Tenant will furnish Landlord with such information as
Landlord may reasonably request from time to time as to the value of the items
specified in clause (y) above within thirty (30) days after request therefor.
Such insurance may be carried under a blanket policy covering the demised
premises and other locations of Tenant, if any, provided that each such policy
shall in all respects comply with this Article and shall specify (i) that the
portion of the total coverage of such policy that is allocated to the demised
premises is in the amounts required pursuant to this Section 9.09 and (ii) any
sublimits in such blanket policy and such policy shall specify, or Tenant shall
furnish Landlord a written statement from the insurer under such policy that the
protection afforded Tenant under any such blanket policy shall be no less than
that which would have been afforded under a separate policy relating only to the
demised premises. 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 date of any such policy, Tenant agrees to deliver to Landlord a
certificate evidencing such insurance. Said certificate shall contain an
endorsement that such insurance may not be cancelled or materially changed
except upon thirty (30) days' prior written notice to Landlord. Tenant's
failure to provide and keep in force the aforementioned insurance shall be
regarded as a material default hereunder entitling Landlord to exercise any or
all of the remedies provided in this Lease in the event of Tenant's default.
Notwithstanding anything to the contrary contained in this Lease, the carrying
of insurance by Tenant in compliance with this Section shall not modify, reduce,
limit or impair Tenant's obligations and liability under Article 38 hereof.
9.10. Landlord shall maintain in respect of the Building during
the term of this Lease property insurance covering the Building in amounts of
coverage required by the first mortgagee of Landlord's interest on the leasehold
estate in the Property, or, in the event that there is no such first mortgagee
of such interest, then in amounts comparable to the amounts generally required
by institutional fee mortgagees on first class office buildings, comparable to
the Building.
ARTICLE 10
DAMAGE BY FIRE OR OTHER CAUSE
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10.01. If the Building or the demised premises shall be partially
or totally damaged or destroyed by fire or other casualty (and if this Lease
shall not have been terminated as in this Article 10 hereinafter provided),
Landlord shall, with reasonable dispatch after notice to it of the damage or
destruction repair the damage and restore and rebuild the Building and/or the
demised premises.
10.02. If the Building or the demised premises shall be damaged or
destroyed by fire or other casualty, then the rents payable hereunder shall be
abated to the extent that the demised premises shall have been rendered
untenantable (which shall be deemed to include lack of reasonable access to the
demised premises) for the period from the date of such damage or destruction to
the date the damage shall be substantially repaired or restored; provided,
however, that if in Landlord's reasonable judgment such repairs would have been
substantially completed at an earlier date but for Tenant's having failed to
reasonably cooperate with Landlord in effecting such repair (and Landlord shall
have given notice to such effect to Tenant within a reasonable period of time
after Landlord shall have obtained knowledge of such situation), then the
demised premises shall be deemed to have been repaired substantially on such
earlier date and any reduction or abatement shall cease; and provided further,
however, that should Tenant reoccupy a portion of the demised premises during
the period the restoration work is taking place and prior to the date that the
whole of said demised premises are made tenantable, fixed annual rent and
additional rents allocable to such portion shall be payable by Tenant from the
date of such occupancy; provided further, however, that Tenant shall not be
deemed to be occupying the demised premises if Tenant occupies the demised
premises for the purpose of installing and/or testing its equipment, including,
without limitation, its telephone, telecommunications systems, computers and
supplemental HVAC units.
10.03. (a) If the Building shall be so damaged or destroyed by
fire or other casualty (whether or not the demised premises are damaged or
destroyed) as to require a reasonably estimated expenditure made by Landlord or
a reputable contractor designated by Landlord of more than thirty-five percent
(35%) of the full insurable value of the Building immediately prior to the
casualty, then Landlord may terminate this Lease by giving Tenant notice to such
effect within ninety (90) days after the date of the casualty; provided,
however, that Landlord cancels no less than seventy-five percent (75%) of the
other leases then in effect for office space in the Building. Any determination
as to the estimated value of any expenditure necessary to repair the Building or
any portion thereof damaged by fire or other casualty shall be made by a duly
qualified and licensed engineer or architect selected by Landlord, and such
determination shall be subject to arbitration as provided in Article 37 hereof.
In case of any damage or destruction to the demised premises mentioned in this
Article 10 which Landlord is required to repair and restore, Tenant may
terminate this Lease by notice to Landlord if Landlord has not substantially
completed the making of such required repairs and restorations within twelve
(12) months after the date of such damage or destruction, or within such period
after such date (not exceeding three (3) months) as shall equal the aggregate
period Landlord may have been delayed in doing so by Force Majeure Causes (as
defined in Article 34 hereof). If, in the last two years of the term of the
Lease, there is material damage and destruction so that more than thirty-five
(35%) percent of the demised premises is destroyed, and Landlord shall not have
substantially completed the repair and restoration of same within sixty (60)
days after the date of such fire or casualty, then either party shall have the
right to terminate this Lease by notice to the other given within fifteen (15)
days after the expiration of such sixty (60) day period, provided, however that
if Landlord shall have given to Tenant a notice that in the judgment of a
reputable contractor or architect designated by Landlord the damage or
destruction to the demised premises cannot reasonably be repaired within such
sixty (60) day period, then Tenant may terminate this Lease by giving notice to
Landlord within thirty (30) days after receipt of such notice from Landlord (if
such thirty (30) day period shall expire earlier than the foregoing fifteen (15)
day period). If in the last two years of the term of this Lease there is
material damage and destruction so that more than thirty-five (35%) percent of
the Building is destroyed and Landlord shall not have substantially completed
the repair and restoration of same within one hundred twenty (120) days after
the date of such fire or casualty and such destruction shall continue for an
unreasonable period of time to have a material adverse effect on Tenant's use of
the demised premises, then Tenant shall have the right to terminate this Lease
by notice to Landlord given within fifteen (15) days after the expiration of
such 120-day period.
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(b) Within sixty (60) days after the occurrence of any damage or
destruction of the demised premises or access thereto, Landlord shall give
Tenant notice of the date that, in the judgment of a reputable contractor or
architect designated by Landlord, it estimates Landlord shall be able to
substantially complete the required repairs and restorations (the "Anticipated
Completion Date") subject to delays for Force Majeure Causes. If the
Anticipated Completion Date shall be after the date which is twelve (12) months
after the date of such damage or destruction, then Tenant shall have the right,
within thirty (30) days after the notice of the Anticipated Completion Date is
given, to terminate this Lease by giving ten (10) business days' notice of such
termination to Landlord, and on the date occurring ten (10) business days after
the giving of such notice, this Lease will terminate as if such date were the
Expiration Date specified herein. If Tenant does not give such termination
notice within said thirty-day period, then the expiration of the twelve (12)
month restoration and repair period provided for in Section 10.03(a) hereof
shall automatically be deemed extended to the Anticipated Completion Date. In
the event Landlord has performed its obligations but the restoration is not
completed on the Anticipated Completion Date (as extended for Force Majeure
Causes but not exceeding three (3) months), Tenant's sole remedy shall be the
termination right provided in Section 10.03(a) hereof; provided, however, that
if the "Anticipated Completion Date" (as such term is hereinafter defined) shall
be a date occurring after the expiration of such twelve (12) month restoration
and repair period and Tenant shall not have exercised its termination rights set
forth in Section l0.03(b) hereof, then such twelve (12) month restoration and
repair period shall be extended until the occurrence of the Anticipated
Completion Date in accordance with the provisions of Section l0.03(b).
10.04. No damages, compensation or claim shall be payable by
Landlord for inconvenience, loss of business or annoyance arising from any
repair or restoration of any portion of the demised premises or of the Building
pursuant to this Article 10.
10.05. Landlord will not carry separate insurance of any kind on
Tenant's property (including, without limitation, any property of the Tenant
which shall become the property of Landlord as provided in Article 6 hereof),
and, except as provided by law or this Lease, Landlord shall not be obligated to
repair any damage thereto or replace or clean the same, or any other
decorations, installations, equipment or fixtures installed by or for Tenant at
Tenant's expense. Tenant shall maintain such fire and casualty insurance as it
deems advisable, but not less than the limits provided in clause (y) of Section
9.09 hereof. If Tenant shall fail to maintain such insurance after two (2)
Business Days notice from Landlord, Landlord shall have the right (but in no way
shall Landlord be obligated or in any way be adversely affected if Landlord
fails or elects not to do so) to obtain insurance on Tenant's property and the
cost thereof shall be additional rent under this Lease and payable by Tenant to
Landlord on demand.
10.06. The provisions of this Article 10 shall be considered an
express agreement governing any case of damage or destruction of the demised
premises by fire or other casualty, and Section 227 of the Real Property Law of
the State of New York, providing for such a contingency in the absence of an
express agreement, and any other law of like import, now or hereafter in force,
shall have no application in such case.
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ARTICLE 11
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.
11.01. Except as otherwise expressly provided in this Article 11,
Tenant shall not without, in each instance, obtaining the prior consent of
Landlord, (a) assign or otherwise transfer this Lease or the term and estate
hereby granted, (b) sublet all or part of the demised premises or allow the same
to be used or occupied by others or in violation of Article 5, or (c) mortgage,
pledge or encumber this Lease or all or part of the demised premises in any
manner by reason of any act or omission on the part of Tenant. For purposes of
this Article 11, (i) the transfer of a majority of the issued and outstanding
capital stock of any corporate tenant or subtenant, or the transfer of a
majority of the total interest in any other entity (partnership or otherwise)
which is a tenant or subtenant, however accomplished, whether in a single
transaction or in a series of related or unrelated transactions, for the
principal purpose of transferring the leasehold estate of the Tenant hereunder
or of such subtenant shall be deemed an assignment of this Lease, or of such
sublease, as the case may be, (ii) any person or legal representative of Tenant,
to whom Tenant's interest under this Lease passes by operation of law, or
otherwise, shall be bound by the provisions of this Article 11, and (iii) a
material modification, amendment or extension without Landlord's prior written
consent of a sublease previously consented to by Landlord (other than
modifications consisting of changes in mere ministerial or administrative
provisions of such sublease) shall be deemed a new sublease. Tenant agrees to
furnish to Landlord upon demand at any time and from time to time such
information and assurances as Landlord may reasonably request that neither
Tenant, nor any subtenant, shall have violated the provisions of this Section
11.01. The consent of Landlord shall not be required to the use and occupancy
of the demised premises by the Affiliates of the named Tenant or by one or more
other Affiliates of the named Tenant herein simultaneously with the use and
occupancy of the demised premises by the named Tenant, provided that (i) Tenant
shall notify Landlord in writing of any such other Affiliates who intend to
occupy the demised premises at least ten (10) Business Days prior to the
commencement of such occupancy, and, within ten (10) Business Days after written
request from Landlord, Tenant shall furnish Landlord with reasonable evidence of
such other Affiliate relationship, and (ii) such permission with respect to any
such Affiliates shall cease (and the provisions of this Article 11 shall become
applicable) upon the earlier to occur of (X) the date such Affiliate
relationship shall cease, or (Y) the date the named Tenant ceases to occupy the
demised premises. If the provisions of this Article 11 shall become applicable
to any such occupancy by an Affiliate of Tenant described in the immediately
preceding sentence by reason of the cessation of the Affiliate relationship,
then Landlord agrees not to unreasonably withhold its consent to a subletting of
a portion of the demised premises to such party provided such subletting
complies with all of the provisions of Section 11.05 hereof (and such party
shall be deemed to have satisfied the requirement in subsection 11.05(c) hereof
that the nature and character of the proposed subtenant or assignee be
reputable). Landlord hereby consents to a sublease of a portion of the demised
premises not exceeding 5,000 rentable square feet to W&D Securities, Inc.
11.02. The provisions of clauses (a) and (b) of Section 11.01
hereof shall not apply to transactions entered into by Tenant with a corporation
or partnership into or with which Tenant is merged or consolidated or with an
entity to which substantially all of Tenant's assets (and partnership interests
if a partnership), are transferred, or with any corporation or partnership
(hereinafter called "TENANT'S AFFILIATE") which controls, is controlled by or is
under common control with, the Tenant named herein or if Tenant is a
partnership, with a successor partnership, provided (a) such merger,
consolidation or transfer of assets or other transaction is for a good business
purpose and not principally for the purpose of transferring the leasehold estate
created hereby, and (b) the assignee or successor entity has a net worth
computed in accordance with generally accepted accounting principles,
consistently applied, at least equal to or in excess of twenty (20) times the
then-current fixed annual rent under this Lease, which shall be evidenced by
written documentation reasonably satisfactory to Landlord (hereinafter called
the "NET WORTH DOCUMENTATION"). For purposes of this Section 11.02, the term
"CONTROL" shall mean, in the case of a corporation, ownership or voting control,
directly or indirectly, of at least fifty percent (50%) of all the voting stock,
and in case of a joint venture or partnership or similar entity, ownership,
directly or indirectly, of
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at least fifty percent (50%) of all the general or other partnership (or
similar) interests therein.
11.03. Any assignment or transfer, whether made with Landlord's
consent as required by Section 11.01 or without Landlord's consent pursuant
to Section 11.02, shall not be effective unless and until (a) the assignee
shall execute, acknowledge and deliver to Landlord a recordable agreement, in
form and substance reasonably satisfactory to Landlord, whereby the assignee
shall (i) assume the obligations and performance of this Lease and agree to
be personally bound by all of the covenants, agreements, terms, provisions
and conditions hereof on the part of Tenant to be performed or observed on
and after the effective date of any such assignment and (ii) agree that the
provisions of this Article 11 shall, notwithstanding such assignment or
transfer, continue to be binding upon it in the future, and (b) in the case
of an assignment or transfer pursuant to Section 11.02 Tenant or its
successor shall have delivered to Landlord Net Worth Documentation evidencing
the net worth to be at least equal to or in excess of twenty (20) times the
then-current fixed annual rent due hereunder as computed in accordance with
generally accepted accounting principles consistently applied. Tenant
covenants that, notwithstanding any assignment or transfer, whether or not in
violation of the provisions of this Lease, and notwithstanding the acceptance
of fixed annual rent by Landlord from an assignee or transferee or any other
party, Tenant shall remain fully and primarily and jointly and severally
liable for the payment of the fixed annual rent and all additional rent due
and to become due under this Lease and for the performance and observance of
all of the covenants, agreements, terms, provisions and conditions of this
Lease on the part of Tenant to be performed or observed.
11.04. The liability of Tenant, and the due performance by
Tenant of the obligations on its part to be performed under this Lease, shall
not be discharged, released or impaired in any respect by an agreement or
stipulation made by Landlord or any grantee or assignee of Landlord, by way
of mortgage, or otherwise, extending the time of, or modifying any of the
obligations contained in this Lease, or by any waiver or failure of Landlord
to enforce any of the obligations on Tenant's part to be performed under this
Lease, and Tenant shall continue liable hereunder. If any such agreement or
modification operates to increase the obligations of a tenant under this
Lease, the liability under this Lease of the tenant named in the Lease or any
of its successors in interest (unless such party shall have expressly
consented in writing to such agreement or modification) shall continue to be
no greater than if such agreement or modification had not been made.
11.05. In the event Landlord does not exercise its options
pursuant to Section 11.06 hereof to terminate this lease and provided that
Tenant is not then in default of any of Tenant's obligations under this Lease
beyond any applicable notice and opportunity to cure period, if any,
Landlord's consent (which must be in writing) to the proposed assignment or
sublease shall not be unreasonably withheld or delayed, provided and upon
condition that the following conditions are substantially complied with:
(a) Tenant shall furnish Landlord with the name and
business address of the proposed subtenant or assignee, information with
respect to the nature and character of the proposed subtenant's or assignee's
business, or activities, such references and current financial information
with respect to net worth, credit and financial responsibility as are
reasonably required by Landlord (i.e., audited financial statements prepared
by a certified public accountant for the last full prior fiscal year and
unaudited interim statements for the then-current fiscal year) and the
proposed term of the sublease or assignment agreement (provided that Tenant
shall submit an executed counterpart of such sublease or assignment agreement
within five (5) business days after the effective date thereof);
(b) The proposed subtenant or assignee is a reputable
party whose financial net worth, credit and financial responsibility is
reasonably sufficient to fulfill its financial and other obligations under
the sublease or assignment, as the case may be, considering the
responsibilities involved;
(c) The business or activities of the proposed subtenant
or assignee and its intended use of the demised premises are permitted by
Article 5 of this Lease;
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(d) If Landlord then has, or will have within four (4)
months after the Effective Date, as defined in Section 11.06 hereof,
comparable space for a comparable term available for leasing in the Building,
the proposed subtenant or assignee (or any person which, directly or
indirectly, controls, is controlled by, or is under common control with, the
proposed assignee or subtenant if such transaction with such affiliated
entity shall be for the purpose of circumventing the rights of Landlord under
this subsection 11.05(d)), is not then an occupant of any part of the
Building or a party who was engaged in active negotiations with Landlord or
Landlord's agent (directly or through a broker) with respect to space in the
Building at any time during the four (4) months immediately preceding
Tenant's request for Landlord's consent;
(e) All costs incurred with respect to providing
reasonably appropriate means of ingress and egress from the sublet space or
to separate the sublet space from the remainder of the demised premises
shall, subject to the provisions of Article 6 with respect to alterations,
installations, additions or improvements, be borne by Tenant (or such
assignee or subtenant);
(f) Each assignment or sublease shall specifically state
that (i) it is subject to all of the terms, covenants, agreements,
provisions, and conditions of this Lease, (ii) the subtenant or assignee of
the Tenant named herein, as the case may be (and the assignee or undertenant
of such assignee or subtenant), may have the right to further assign or
sublet all or part of the demised premises only in accordance with the terms,
covenants and conditions of this Lease, including, without limitation, this
Article 11, and such subtenant or assignee shall be bound by the obligations
of Tenant under this Article 11, and be subject to the rights of Landlord
under this Article 11, as if such subtenant or assignee were the Tenant
hereunder, and any further assignee or undertenant shall not have the right
to further assign or sublet all or a part of the demised premises, (iii) a
consent by Landlord thereto shall not be deemed or construed to modify, amend
or affect the terms and provisions of this Lease, or Tenant's obligations
hereunder, which shall continue to apply to the premises involved, and the
occupants thereof, as if the sublease or assignment had not been made, (iv)
if Tenant defaults in the payment of any rent, Landlord is authorized to
collect any rents due or accruing from any assignee, subtenant or other
occupant of the demised premises and to apply the net amounts collected to
the fixed annual rent and additional rent due hereunder; and (v) the receipt
by Landlord of any amounts from an assignee or subtenant, or other occupant
of any part of the demised premises shall not be deemed or construed as
releasing Tenant from Tenant's obligations hereunder or the acceptance of
that party as a direct tenant:
(g) Tenant shall together with requesting Landlord's
consent hereunder have paid Landlord any reasonable out-of-pocket costs
incurred by Landlord to review the requested consent including any reasonable
attorney's fees so incurred by Landlord;
(h) The proposed subtenant or assignee is not (i) a
retail bank or trust company, safe deposit business, savings and loan
association or loan company servicing the general public; (ii) employment or
recruitment agency; (iii) school, college, university or educational
institution whether or not for profit; or (iv) a government or any
subdivision or agency thereof;
(i) In the case of a subletting of a portion of the
demised premises, the portion so sublet shall be reasonable and suitable for
renting purposes;
(j) Tenant shall not advertise such assignment or
subletting at a rental rate which is below the effective rental rate then
being charged by Landlord at the time for similar space then available in the
Building (after considering all Landlord concessions and free rent periods),
but nothing herein shall prevent Tenant from consummating such assignment or
subletting at such lower rental rate;
(k) The proposed assignment or sublease shall provide
that it is subject to the Landlord's rights under Section 11.06 hereof.
Tenant shall
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have complied with the provisions of said Section 11.06 and Landlord shall
not have made any of the elections provided for therein; and
(l) In the case of a proposed assignment or a subletting
of all or substantially all of the demised premises, the aggregate financial
value to Tenant of the financial components of such proposed assignment or
such proposed sublease shall be equal to at least 95% of the Proposed
Assignment Components or the Proposed Rent Rate, as the case may be, set
forth in Tenant's First Offer Notice, as such terms are defined in Section
11.06 hereof. If the provisions of this clause (l) are not satisfied, then
Tenant's request for consent hereunder shall be deemed an offer from Tenant
to Landlord as to which Landlord shall again have all the rights set forth in
Section 11.06 hereof.
11.06. Should Tenant desire to assign this Lease or to sublet
all or substantially all of the demised premises for a term ending within the
"RECAPTURE PERIOD", as hereinafter defined (other than by an assignment or
sublease permitted by Section 11.02 hereof), Tenant shall, no later than
thirty (30) days prior to the proposed effective date thereof (hereinafter
called the "EFFECTIVE DATE") deliver to Landlord notice thereof (herein
called "TENANT'S FIRST OFFER NOTICE") which notice shall set forth the
Effective Date and in the case of a proposed subletting of all or
substantially all of the demised premises, the following items: the rents,
work contributions, if any, periods of rent free occupancy, if any, the
purchase price of Tenant's fixtures, furniture and equipment and all other
financial terms pursuant to which Tenant is willing to enter into a sublease
with a third party. The amount of such rents less (1) the monetary value of
any such work contributions, periods of free rent and other tenant
concessions and (2) the amount of "TENANT'S COSTS", as hereinafter defined,
which are, or are reasonably anticipated to be, incurred in connection with
such proposed assignment is hereinafter called the "PROPOSED RENT RATE". In
the case of an assignment, Tenant's First Offer Notice shall set forth
Tenant's intention to assign this Lease in whole and all financial and other
material terms of the assignment, including deduction of the amount of
"TENANT'S COSTS", as hereinafter defined, which are, or are reasonably
anticipated to be, incurred in connection with such proposed assignment
(herein collectively called the "PROPOSED ASSIGNMENT COMPONENTS"). For
purposes hereof, the "RECAPTURE PERIOD" shall mean the eighteen (18) month
period immediately preceding the Expiration Date. Landlord shall then have
the right to elect by notice to Tenant given within ten (10) business days
after delivery of Tenant's First Offer Notice to terminate this Lease as of
the Effective Date as if it were the Expiration Date set forth herein, with
respect to a proposed assignment of this Lease or with respect to a proposed
subletting of substantially the entire demised premises. In the event that
Landlord fails to exercise its option under this Section 11.06 and Tenant
fails to execute and deliver an assignment or sublease within two hundred
forty (240) days after Tenant's submission of Tenant's First Offer Notice to
Landlord under this Section 11.06, then in such event Tenant shall again
comply with all the provisions of this Section 11.06 before assigning this
Lease or subletting all or substantially all of the demised premises.
11.07. In connection with any assignment of this Lease or
to any sublease, Tenant shall in consideration therefor pay to Landlord, as
additional rent, 50% of the following amounts:
(a) in the case of an assignment, an amount (herein
called "ASSIGNMENT PROFIT") equal to all sums and other considerations paid
to Tenant by the assignee for or by reason of such assignment (including, but
not limited to, sums paid for the sale of Tenant's fixtures, leasehold
improvements, equipment, furniture, furnishings or other personal property,
less, in the case of a sale thereof, the then net unamortized or
undepreciated cost thereof determined on the basis of Tenant's federal income
tax returns); after deducting therefrom the amount of "TENANT'S COST," as
hereinafter defined; and
(b) in the case of a sublease, an amount (herein called
"SUBLEASE PROFIT") equal to any rents, additional charges or other
consideration paid under the sublease to Tenant by the subtenant which is in
excess of the fixed annual rent and additional rent and other consideration
accruing during the term of the sublease in respect of the subleased space
pursuant to the terms hereof (including, but not limited to, sums paid for
the sale or rental of Tenant's fixtures, leasehold
33
improvements, equipment, furniture or furnishings, 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, which net unamortized amount shall be deducted from the sums
paid in connection with such sale in equal monthly installments over the
balance of the term of the sublease [each such monthly deduction to be in an
amount equal to the quotient of the net unamortized amount, divided by the
number of months remaining in the term of this lease]); after deducting
therefrom the amount of "TENANT'S COST," as hereinafter defined.
(c) For purposes of this Section 11.07, the term
"TENANT'S COST" shall mean the reasonable expenses actually incurred by
Tenant in connection with the assignment and subletting in question for gains
and transfer taxes, brokerage commissions, advertising expenses, attorneys'
fees, any commercially reasonable rent credit or concession or work allowance
and any tenant work performed by Tenant at its expense in connection with
such assignment or subletting, any reasonable lease takeover obligations, any
payments made to Landlord pursuant to Section 11.05 hereof, and any
reasonable promotional expenses incurred by Tenant in connection with such
sublease or assignment based on bills, receipts or other evidence of such
costs reasonably satisfactory to Landlord.
(d) The sums payable under this Section 11.07 shall be
paid to Landlord as and when paid by the assignee or subtenant to Tenant.
11.08. In the case of a proposed assignment of this Lease or a
proposed subletting as to which Landlord shall exercise its termination right
pursuant to Section 11.06 hereof, Landlord shall pay to Tenant, as and when
Tenant would have received same but for Landlord's exercise of its option,
one-half of the amount equal to 95% of any Assignment Profit or Sublease
Profit which Tenant would have received if the transaction set forth in
Tenant's First Offer Notice had been consummated.
ARTICLE 12
PARTNERSHIP TENANT
12.01. If Tenant is a partnership (or is comprised of two (2) or
more persons, individually and/or as co-partners of a partnership) or if
Tenant's interest in this Lease shall be assigned to a partnership (or to two
(2) or more persons, individually and/or as co-partners of a partnership)
pursuant to this article (any such Partnership and such persons are referred
to in this section as "PARTNERSHIP TENANT"), the following provisions of this
Section shall apply to such Partnership Tenant: (a) the liability of each of
the general partners comprising Partnership Tenant shall be joint and
several, (b) each of the general partners comprising Partnership Tenant
hereby consents in advance to, and agrees to be bound by, any written
instrument which may hereafter be executed, changing, modifying or
discharging this Lease, in whole or in part, or surrendering all or any part
of the demised premises to Landlord or renewing or extending this Lease and
by any notices, demands, requests or other communications which may hereafter
be given, by Partnership Tenant or by any of the general partners comprising
Partnership Tenant, (c) any bills, statements, notices, demands, requests or
other communications given or rendered to Partnership Tenant pursuant to the
provisions of this Lease shall be binding upon Partnership Tenant and all
such general partners, (d) if Partnership Tenant shall admit new general
partners, all of such new partners shall, by their admission to Partnership
Tenant, be deemed to have assumed performance of all of the terms, covenants
and conditions of this Lease on Tenant's part to be observed and performed
and (e) upon request from Landlord, Partnership Tenant shall deliver to
Landlord a list of all partners together with their current addresses.
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ARTICLE 13
ADJACENT EXCAVATION - SHORING
13.01. If an excavation or other substructure work shall be made
upon land adjacent to the demised premises, or shall be authorized to be
made, Tenant shall afford to the person causing or authorized to cause such
excavation, license to enter upon the demised premises upon reasonable prior
notice for the purpose of doing such work as shall be necessary to preserve
the wall of or the Building of which the demised premises form a part from
injury or damage and to support the same by proper foundations without any
claim for damages or indemnity against Landlord, or diminution or abatement
of rent, provided (i) neither Tenant's access to the demised premises nor the
services required to be furnished to Tenant are permanently and adversely
affected thereby, and (ii) the person causing or authorized to cause such
excavation shall use reasonable efforts to conduct any entry into the demised
premises permitted under this Section 13.01 and any work performed by such
person under this Section 13.01 in a manner so as to minimize, to the extent
such person is reasonably able, interference with the reasonable operations
of Tenant's business.
ARTICLE 14
CONDEMNATION
14.01. In the event that the whole of the demised premises shall
be lawfully condemned or taken in any manner for any public or quasi-public
use, this Lease and the term and estate hereby granted shall forthwith cease
and terminate as of the date of vesting of title. In the event that only a
part of the demised premises shall be so condemned or taken, then, effective
as of the date of vesting of title, the fixed annual rent under Article 1
hereof and additional rents under Article 3 hereof shall be reduced by the
amounts allocable to the part of the demised premises so taken or condemned.
In the event that only a part of the Building shall be so condemned or taken
and provided the part so taken constitutes thirty-five (35%) percent or more
of the Building and Landlord cancels no less than 75% of other leases then in
effect for office space in the Building, then (a) Landlord (whether or not
the demised premises be affected) may, at Landlord's option, terminate this
Lease and the term and estate hereby granted as of the date of such vesting
of title by notifying Tenant in writing of such termination within sixty (60)
days following the date on which Landlord shall have received notice of
vesting of title, or (b) if such condemnation or taking shall be of a
substantial part of the demised premises (twenty-five percent (25%) or more)
or shall not leave a reasonable means of access thereto, Tenant may, at
Tenant's option, by delivery of notice in writing to Landlord within thirty
(30) days following the date on which Tenant shall have received notice of
vesting of title, terminate this Lease and the term and estate hereby granted
as of the date of vesting of title, or (c) if neither Landlord nor Tenant
elects to terminate this Lease, as aforesaid, this Lease shall be and remain
unaffected by such condemnation or taking, except that the fixed annual rent
payable under Article 1 and additional rents payable under Article 3 shall be
abated to the extent hereinbefore provided in this Article 14.
14.02. In the event of termination of this Lease in any of the
cases hereinbefore provided, this Lease and the term and estate hereby
granted shall expire as of the date of such termination with the same effect
as if that were the Expiration Date, and the fixed annual rent and additional
rents payable hereunder shall be apportioned as of such date and any prepaid
rent or additional rent shall be refunded.
14.03. Except as provided in Section 14.06, in the event of any
condemnation or taking of all or a part of the Building, Landlord shall be
entitled to receive the entire award in the condemnation proceeding,
including any award made for the value of the estate vested by this Lease in
Tenant. Tenant hereby expressly assigns to Landlord any and all right, title
and interest of Tenant now or hereafter arising in or to any such award or
any part thereof, and agrees that it shall not be entitled to receive any
part of such award; provided, however, that Tenant shall be entitled to make
a separate claim for its trade fixtures, furniture and moving expenses.
35
14.04. Subject to Section 14.05 hereof, in the event of any
taking of less than the whole of the Building which does not result in a
termination of this Lease, Landlord, at its expense, shall proceed with
reasonable diligence to repair, alter and restore the remaining parts of the
Building and the demised premises to substantially their former condition to
the extent that the same may be feasible and so as to constitute a complete
and tenantable Building and demised premises.
14.05. In the event any part of the demised premises be taken to
effect compliance with any law or requirement of public authority other than
in the manner hereinabove provided in this Article 14, then, (i) if such
compliance is the obligation of Tenant under this Lease, Tenant shall not be
entitled to any diminution or abatement of rent or other compensation from
Landlord therefor, but (ii) if such compliance is the obligation of Landlord
under this Lease, the fixed annual rent hereunder shall be reduced and
additional rents under Article 3 shall be adjusted in the same manner as is
provided in Section 14.01 according to the reduction in rentable area of the
demised premises resulting from such taking.
14.06. If the whole or any part of the demised premises shall be
taken in condemnation proceedings or by any right of eminent domain for
temporary use or occupancy, the foregoing provisions of this Article shall
not apply and Tenant shall continue to pay, in the manner and at the times
herein specified, the full amounts of fixed annual rent and all additional
rent and other charges payable by Tenant hereunder, and, except only to the
extent that Tenant may be prevented from so doing pursuant to the terms of
the order of the condemning authority, Tenant shall perform and observe all
of the other terms, covenants, conditions and obligations hereof upon the
part of Tenant to be performed and observed, as though such taking had not
occurred. Tenant shall be entitled to receive the entire amount of the
condemnation proceeds (after deducting Landlord's reasonable costs and
expenses, if any, in obtaining same as contemplated herein) (the "NET
PROCEEDS") made for such temporary taking, whether paid by way of damages,
rent or otherwise, unless such period of temporary use or occupancy shall
extend beyond the termination of this Lease, in which case the net proceeds
shall be apportioned between Landlord and Tenant upon receipt thereof as of
the date of termination of this Lease. Tenant shall, upon expiration of any
such period of temporary use or occupancy during the term of this Lease,
restore the demised premises, as nearly as may be reasonably practicable, to
the condition in which the same were immediately prior to such taking. Any
portion of the net condemnation proceeds received by Tenant as compensation
for the cost of restoration of the demised premises shall, if such period of
temporary use or occupancy shall extend beyond the Term, be paid to Landlord
on the date of termination of this Lease to the extent not theretofore
disbursed by Tenant in connection with restoration of the demised premises.
If such temporary condemnation lasts for a period greater than eighteen (18)
months, Tenant shall have the option to terminate this Lease by notice to
Landlord, which termination shall be effective upon such notice.
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ARTICLE 15
ACCESS TO DEMISED PREMISES; CHANGES
15.01. Tenant shall permit Landlord to erect, use and maintain
pipes, ducts and conduits in and through the demised premises, provided the
same are installed adjacent to or concealed behind walls and ceilings of the
demised premises; provided, further, that if installed adjacent thereto, they
shall be completely furred at points immediately adjacent to partitioning,
columns or ceiling, and that when the installation of such pipes, ducts or
conduits shall be completed, such pipes, ducts or conduits shall not reduce
the usable area of the demised premises except to an insignificant degree.
Landlord shall, to the extent practicable, install such pipes, ducts and
conduits by such methods and at such locations as will not interfere with or
impair Tenant's layout or use of the demised premises, except to an
insignificant degree. Landlord or its agents or designees shall have the
right, but only upon reasonable notice (which may be oral) to Tenant or any
authorized employee of Tenant at the demised premises (except in emergency
circumstances), to enter the demised premises, during business hours, (a) for
the making of such repairs or alterations as Landlord may reasonably deem
necessary for the Building or which Landlord shall be required to or shall
have the right to make by the provisions of this Lease or any other lease in
the Building and Landlord shall endeavor to give at least 24-hour advance
notice thereof, if practicable under the circumstances, and (b) for the
purpose of inspecting them or exhibiting them to existing or prospective
purchasers, mortgagees or lessees of all of the Land, Building or Property or
to prospective assignees, agents or designees of any such parties; provided,
however, that if Tenant has any specific reasonable security requirements,
Landlord shall be required to abide by them (including the designation of a
"SECURITY ZONE" with limited access provided that Tenant shall have given
Landlord prior written notice of such requirements and further subject to the
provisions of Section 15.06 hereof). Landlord shall be allowed to take all
material into and upon the demised premises that may be required for the
repairs or alterations above mentioned and shall remove the same at the end
of the day or store same in the demised premises for a period not in excess
of 24 hours, in the event that such 24-hour storage shall not unreasonably
interfere with the conduct of Tenant's business in the demised premises
without the same constituting an actual or constructive eviction of Tenant in
whole or in part, and the rent reserved hereunder shall not abate while said
repairs or alterations are being made by reason of loss or interruption of
the business of Tenant because of the prosecution of any such work. Landlord
shall exercise reasonable diligence so as to minimize the disturbance to
Tenant but nothing contained herein shall be deemed to require Landlord to
perform the same on an overtime or premium pay basis, unless Tenant is
willing to reimburse Landlord for the difference between the normal full-time
pay basis and overtime or premium pay basis and the performance of same on
such overtime or premium pay basis is available and reasonably practicable,
subject to the Overtime Proviso.
15.02. Landlord reserves the right, without the same
constituting an actual or constructive eviction and without incurring
liability to Tenant therefor, to change the arrangement and/or location of
public entrances, passageways, doors, doorways, corridors, elevators,
stairways, toilets and other public parts of the Building; provided, however,
that access to the Building or the demised premises shall not be materially
adversely affected and that there shall be no unreasonable obstruction of
access to the demised premises or unreasonable interference with the use or
enjoyment thereof.
15.03. Landlord may, during the twelve (12) months prior to
expiration of the Term, exhibit the demised premises to prospective tenants
upon reasonable prior notice to Tenant which need not be in writing.
15.04. If Tenant shall not be personally present to open and
permit an entry into the demised premises at any time when for any reason an
entry therein shall be urgently necessary by reason of fire or emergency,
Landlord or Landlord's agents may forcibly enter the same without rendering
Landlord or such agents liable therefor (if during such entry Landlord or
Landlord's agents shall accord reasonable care to the demised premises and
Tenant's property) and without in any manner affecting the obligations and
covenants of this Lease. Landlord will take reasonable steps to secure the
demised premises after any such entry and to promptly notify Tenant of the
same.
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15.05. Landlord, HRO International, Ltd. or their agents shall
not be liable for any damage which Tenant may sustain, if at any time any
window of the demised premises is (i) broken, or (ii) temporarily closed,
darkened or bricked-up for any reasonable purpose, except only Landlord's
arbitrary acts or (iii) permanently closed, darkened or bricked-up if
required by any Legal Requirement and Tenant shall not be entitled to any
compensation therefor or abatement of rent or to any release from any of
Tenant's obligations under this Lease, nor shall the same constitute an
eviction or constructive eviction.
15.06. Landlord acknowledges that by virtue of the nature of
Tenant's business, Tenant may, by reason of certain security and
confidentiality requirements, designate certain portions of the demised
premises to be locked and inaccessible to persons unauthorized by Tenant
("SECURED AREAS"). Landlord therefore agrees that except in cases of
emergency and for routine maintenance normally performed on a scheduled basis
with reasonable advance notice to Tenant (which may be oral), Landlord shall,
notwithstanding anything to the contrary contained herein, have no right of
access to the Secured Areas, provided that (i) Tenant shall deliver floor
plans of the demised premises designating the Secured Areas, (ii) such
designation shall be reasonable in light of Tenant's business and shall be
subject to Landlord's prior written approval, not to be unreasonably withheld
or delayed, and (iii) Landlord shall have no liability for providing cleaning
services to the Secured Areas or any other service that requires access to
the Secured Areas unless Tenant shall provide Landlord with such access to
the Secured Areas for purposes of providing cleaning services at those times
that Landlord shall reasonably designate in accordance with Landlord's
ordinary cleaning schedule.
ARTICLE 16
CONDITIONS OF LIMITATION
16.01. This Lease and the term and estate hereby granted are
subject to the limitation that whenever Tenant shall make an assignment of
the property of Tenant for the benefit of creditors, or if a petition shall
be filed by or against Tenant under any provisions of the United States
Bankruptcy Act or under the provisions of any other bankruptcy or insolvency
law or any law of like import, or whenever a permanent receiver of Tenant or
of or for the property of Tenant shall be appointed, then, Landlord may, (a)
at any time after receipt of notice of the occurrence of any such event, or
(b) if such event occurs without the acquiescence of Tenant, at any time
after the event continues for thirty (30) days (provided such period shall be
extended an additional 120 days if (i) Tenant is current on all rent
obligations and (ii) Tenant is diligently and continuously contesting same),
give Tenant a notice of intention to end the Term of this Lease at the
expiration of five (5) days from the date of service of such notice of
intention, and upon the expiration of said five (5) day period this Lease and
the Term and estate hereby granted, whether or not the Term shall theretofore
have commenced, shall terminate with the same effect as if that day were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 18.
16.02. This Lease and the term and estate hereby granted are
subject to the limitation that:
(a) whenever Tenant shall fail to pay any installment of
fixed annual rent or any additional rent or any other charge payable by
Tenant to Landlord, on the day the same is due and payable pursuant to the
terms hereof, and such default shall continue for ten (10) days after
Landlord shall have given Tenant a notice specifying such default, or
(b) whenever Tenant shall do or permit anything to be
done, whether by action or inaction, contrary to any of Tenant's obligations
hereunder, and if such situation shall continue and shall not be remedied by
Tenant within fifteen (15) days after Landlord shall have given to Tenant a
notice specifying the same, or, in the case of a happening or default which
cannot with due diligence be cured within a period of fifteen (15) days and
the continuation of the period required for cure will not subject Landlord to
the risk of criminal liability (as more
38
particularly described in Article 8 hereof) or termination of any superior
lease or foreclosure of any superior mortgage, if Tenant shall not, (i)
within said fifteen (15) day period advise Landlord of Tenant's intention to
duly institute all steps necessary to remedy such situation, (ii) duly
institute within said fifteen (15) day period, and thereafter diligently and
continuously 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 Article 11, or
(d) whenever Tenant shall abandon the demised premises
(unless as a result of a casualty), or
(e) whenever in case any other lease in the Building
held by Tenant from Landlord shall expire and terminate (whether or not the
term thereof shall then have commenced) as a result of the default of Tenant
thereunder, or
(f) whenever Tenant shall default in the due keeping,
observing or performance of any covenant, agreement, provision or condition
of Sections 5.01, 5.02 or 5.04 hereof on the part of Tenant to be kept,
observed or performed and if such default shall continue and shall not be
remedied by Tenant within three (3) Business Days after Landlord shall have
given Tenant a notice specifying the same, or in the case of such a default,
the cure of which requires affirmative action and not simply the ceasing of
the objectionable activity, and such cure by affirmative action cannot be
completed within such three (3) Business Day period and the continuation of
the period required for such cure will not subject Landlord to the risk of
criminal liability (as more particularly described in Article 8 hereof) or
termination of any superior lease or foreclosure of any superior mortgage, if
Tenant shall not, (i) within said three (3) Business Day period advise
Landlord of Tenant's intention to duly institute all steps necessary to
remedy such situation, (ii) duly institute within said three (3) Business Day
period, and thereafter diligently and continuously 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 to Landlord as shall
reasonably be necessary, then in any of said cases set forth in the foregoing
subsections (a), (b), (c), (d), (e) and (f), Landlord may give to Tenant a
notice of intention to end the Term at the expiration of five (5) days from
the date of the service of such notice of intention, 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.
16.03. (a) If Tenant shall have assigned its interest in this
Lease, and this Lease shall thereafter be disaffirmed or rejected in any
proceeding under the United States Bankruptcy Code or under the provisions of
any Federal, state or foreign law of like import, or in the event of
termination of this Lease by reason of any such proceeding, the assignor or
any of its predecessors in interest under this Lease, upon request of
Landlord given within thirty (30) days after such disaffirmance or rejection
shall (a) pay to Landlord all fixed annual rent and additional rent then due
and payable to Landlord under this Lease to and including the date of such
disaffirmance or rejection and (b) enter into a new Lease as lessee with
Landlord of the demised premises for a term commencing on the effective date
of such disaffirmance or rejection and ending on the Expiration Date, unless
sooner terminated as in such Lease provided, at the same fixed annual rent
and additional rent and upon the then-executory terms, covenants and
conditions as are contained in this Lease, except that (i) the rights of the
lessee under the new Lease, shall be subject to any possessory rights of the
assignee in question under this Lease and any rights of persons claiming
through or under such assignee, (ii) such new Lease shall require all
defaults existing under this Lease to be cured by the lessee with reasonable
diligence, and (iii) such new Lease shall require the lessee to pay all
additional rent which, had this Lease not been disaffirmed or rejected, would
have become due
39
after the effective date of such disaffirmance or rejection with respect to
any prior period. If the lessee shall fail or refuse to enter into the new
Lease within ten (10) days after Landlord's request to do so, then in
addition to all other rights and remedies by reason of such default, under
this Lease, at law or in equity, Landlord shall have the same rights and
remedies against the lessee as if the lessee had entered into such new Lease
and such new Lease had thereafter been terminated at the beginning of its
term by reason of the default of the lessee thereunder.
(b) If pursuant to the Bankruptcy Code Tenant is
permitted to assign this Lease in disregard of the restrictions contained in
Article 11 hereof (or if this Lease shall be assumed by a trustee), the
trustee or assignee shall cure any default under this Lease and shall provide
adequate assurance of future performance by the trustee or assignee including
(a) of the source of payment of rent and performance of other obligations
under this Lease (for which adequate assurance shall mean the deposit of cash
security with Landlord in an amount equal to the sum of one (1) year's fixed
annual rent then reserved hereunder, plus an amount equal to all additional
rent payable under Article 3 for the calendar year preceding the year in
which such assignment is intended to become effective, which deposit shall be
held by Landlord, with interest, for the balance of the term as security for
the full and faithful performance of all of the obligations under this Lease
on the part of Tenant yet to be performed) and that any such assignee of this
Lease shall have a net worth exclusive of good will, computed in accordance
with generally accepted accounting principles, equal to at least ten (10)
times the aggregate of the fixed annual rent reserved hereunder, plus all
additional rent for the preceding calendar year as aforesaid and (b) that the
use of the demised premises shall in no way diminish the reputation of the
Building as a first-class office building or impose any additional burden
upon the Building or increase the services to be provided by Landlord. If
all defaults are not cured and such adequate assurance is not provided within
sixty (60) days after there has been an order for relief under the Bankruptcy
Code, then this Lease shall be deemed rejected, Tenant or any other person in
possession shall vacate the demised premises, and Landlord shall be entitled
to retain any rent or security deposit previously received from Tenant and
shall have no further liability to Tenant or any person claiming through
Tenant or any trustee. If Tenant receives or is to receive any valuable
consideration for such an assignment of this Lease, such consideration, after
deducting therefrom (a) the brokerage commissions, if any, and other expenses
reasonably incurred by Tenant for such assignment and (b) any portion of such
consideration reasonably designed by the assignee as paid for the purchase of
Tenant's property in the demised premises, and (c) gains and transfer taxes
shall be and become the sole exclusive property of Landlord and shall be paid
over to Landlord directly by such assignee. If Tenant's trustee, Tenant or
Tenant as debtor-in-possession assumes this Lease and proposes to assign the
same (pursuant to Title 11 U.S.C. Section 365, as the same may be amended)
to any person, including, without limitation, any individual, partnership or
corporate entity, who shall have made a bona fide offer to accept an
assignment of this Lease on terms acceptable to the trustee, Tenant or Tenant
as debtor-in-possession, then notice of such proposed assignment, setting
forth (x) the name and address of such person, (y) all of the terms and
conditions of such offer, and (z) the adequate assurance to be provided
Landlord to assure such person's future performance under this Lease,
including, without limitation, the assurances referred to in Title 11 U.S.C.
Section 365(b)(3) (as the same may be amended), shall be given to Landlord by
the trustee, Tenant or Tenant as debtor-in-possession no later than twenty
(20) days after receipt by the trustee, Tenant or Tenant as
debtor-in-possession of such offer, but in any event no later than ten (10)
days prior to the date that the trustee, Tenant or Tenant as
debtor-in-possession shall make application to a court of competent
jurisdiction for authority and approval to enter into such assignment and
assumption, and Landlord shall thereupon have the prior right and option, to
be exercised by notice to the trustee, Tenant or Tenant as
debtor-in-possession, given at any time prior to the effective date of such
proposed assignment, to accept an assignment of this Lease upon the same
terms and conditions and for the same consideration, if any, as the bona fide
offer made by such person, less any brokerage commissions which may be
payable out of the consideration to be paid by such person for the assignment
of this Lease.
16.04. If at any time Tenant shall have paid, within the
applicable grace periods contained in this Lease, any sum of money claimed by
Landlord to be due from Tenant hereunder and shall have accompanied such
payment with a written reservation of rights under this Section 16.04 with
respect thereto together with a brief statement
40
of the reason for such reservation, Tenant, provided it does so within thirty
(30) days after so paying any such sum, shall have the right (i) to give
notice to Landlord of any dispute Tenant shall have with respect to the sum
so paid which notice shall set forth the particulars of such dispute and (ii)
if such dispute shall not have been resolved within sixty (60) days after
such notice, to institute an appropriate judicial action or proceeding (or an
arbitration proceeding, in any instance where arbitration is expressly
provided for by the express provisions of this Lease) for the recovery of
such disputed sum, or any part thereof which Tenant shall have paid. If it
shall be finally judicially determined by judicial decision from which the
time to appeal shall have expired (or by final determination of the
arbitrator, as the case may be) that there shall have been no obligation on
the part of Tenant to pay such disputed sum, or any part thereof, Landlord
shall promptly repay to Tenant any such sum or so much thereof as Tenant
shall not have been required to pay under the provisions of this Lease.
ARTICLE 17
RE-ENTRY BY LANDLORD; INJUNCTION
17.01. If Tenant shall fail to pay any installment of fixed
annual rent, or of any additional rent, or any other charge payable by Tenant
to Landlord on the date the same is due and payable, and if such default
shall continue for ten (10) days after Landlord shall have given to Tenant a
notice specifying such default, or if this Lease shall terminate as in
Article 16 provided, Landlord or Landlord's agents and employees may
immediately or at any time thereafter re-enter the demised premises, or any
part thereof, either by summary dispossess proceedings or by any suitable
action or proceeding at law, without being liable to indictment, prosecution
or damages therefrom. The word re-enter, as herein used, is not restricted
to its technical legal meaning.
17.02. In the event of a breach or threatened breach by Landlord
or Tenant of any of its obligations under this Lease, Landlord or Tenant
shall also have the right of injunction. The special remedies to which
Landlord may resort hereunder are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which Landlord may
lawfully be entitled at any time and Landlord may invoke any remedy allowed
at law or in equity as if specific remedies were not provided for herein.
17.03. If this Lease shall terminate under the provisions of
Article 16, or if Landlord shall re-enter the demised premises under the
provisions of this Article 17, or in the event of the termination of this
Lease, or of re-entry by or under any summary dispossess or other proceeding
or action or any provision of law by reason of default hereunder on the part
of Tenant, then (a) Tenant shall thereupon pay to Landlord the fixed annual
rent and additional rent payable by Tenant to Landlord up to the time of such
termination of this Lease, or of such recovery of possession of the demised
premises by Landlord, as the case may be, and shall also pay to Landlord
damages as provided in Article 18, and (b) Landlord shall be entitled to
retain all moneys, if any, paid by Tenant to Landlord, whether as advance
rent, security or otherwise, but such moneys shall be credited by Landlord
against any fixed annual rent or additional rent due from Tenant at the time
of such termination or re-entry or, at Landlord's option against any damages
payable by Tenant under Articles 16 and 18 or pursuant to law.
17.04. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of
Tenant being evicted or dispossessed for any cause, or in the event of
Landlord obtaining possession of the demised premises, by reason of the
violation by Tenant of any of the covenants and conditions of this Lease or
otherwise.
41
ARTICLE 18
DAMAGES
18.01. If this Lease is terminated under the provisions of
Article 16, or if Landlord shall re-enter the demised premises under the
provisions of Article 17, or in the event of the termination of this Lease,
or of re-entry by or under any summary dispossess or other proceeding or
action or any provision of law by reason of default hereunder on the part of
Tenant, Tenant shall pay to Landlord as liquidated damages, at the election
of Landlord, either
(a) a sum which at the time of such termination of this
Lease or at the time of any such re-entry by Landlord, as the case may be,
represents the then value of the excess, if any, of the amount computed under
clause (l) below in excess of the amount computed under clause (2) below
discounted to the then present value using a discount rate of the then
current Federal five (5) year Treasury Note:
(1) the aggregate of the fixed annual rent and the additional
rent payable hereunder which would have been payable by Tenant
(conclusively presuming the additional rent to be the same as was
payable for the year immediately preceding such termination except
that additional rent on account of increases in Real Estate Taxes and
Expenses shall be presumed to increase at the average of the rates of
increase thereof previously experienced by Landlord during the period
(not to exceed three (3) years) prior to such termination) for the
period commencing with such earlier termination of this Lease or the
date of any such re-entry, as the case may be, and ending with the
Expiration Date, had this Lease not so terminated or had Landlord not
so re-entered the demised premises, over
(2) the aggregate rental value of the demised premises for the
same period, or
(b) sums equal to the fixed annual rent and the
additional rent payable hereunder which would have been payable by Tenant had
this Lease not so terminated, or had Landlord not so re-entered the demised
premises, payable upon the due dates therefor specified herein following such
termination or such re-entry and until the Expiration Date; provided,
however, that if Landlord shall re-let the demised premises during said
period, Landlord shall credit Tenant with the net rents received by Landlord
from such re-letting, such net rents to be determined by first deducting from
the gross rents as and when received by Landlord from such re-letting, the
reasonable expenses incurred or paid by Landlord in terminating this Lease or
in re-entering the demised premises and in securing possession thereof, as
well as the reasonable and customary expenses of re-letting, including
altering and preparing the demised premises for new tenants, reasonable
brokers' commissions, reasonable legal fees, and all other reasonable
expenses properly chargeable against the demised premises and the rental
thereof; it being understood that any such re-letting may be for a period
shorter or longer than the remaining term of this Lease. In no event shall
Tenant be entitled to receive any excess of such net rents over the sums
payable by Tenant to Landlord hereunder for the period of such re-letting, or
shall Tenant be entitled in any suit for the collection of damages pursuant
to this subsection to a credit in respect of any net rents from a re-letting,
except to the extent that such net rents are actually received by Landlord.
If the demised premises or any part thereof should be re-let in combination
with other space, then proper apportionment on a square foot basis shall be
made of the rent received from such re-letting and of the expenses of
re-letting. If the demised premises or any part thereof be re-let by
Landlord for the unexpired portion of the term of this Lease, or any part
thereof, before presentation of proof of such damages to any court,
commission or tribunal, the amount of rent payable pursuant to such
re-letting shall, prima facie, be the fair and reasonable rental value for
the demised premises, or part thereof, so re-let during the term of the
re-letting.
18.02. Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the Term would have expired if it had not been
so terminated under
42
the provisions of Article 16, or under any provision of law, or had Landlord
not re-entered the demised premises. Nothing herein contained shall be
construed to limit or preclude recovery by Landlord against Tenant of any
sums or damages to which, in addition to the damages particularly provided
above, Landlord may lawfully be entitled by reason of any default hereunder
on the part of Tenant.
18.03. In the event of the termination of this Lease, for
purposes of computing damages hereunder, damages shall be increased to
include the pro rata portion of the initial abatement of rentals as provided
in Section l.05 hereof allocable to the remaining balance of the Term
prorated over the Term.
18.04. In addition, if this Lease is terminated under the
provisions of Article 16 hereof, or if Landlord shall, reenter the demised
premises under the provisions of Article 17 hereof, Tenant agrees that within
thirty (30) days following such re-entry:
(a) the demised premises then shall be in the condition
in which Tenant has agreed to surrender the same to Landlord at the
expiration of the term hereof;
(b) Tenant shall have performed prior to any such
termination any covenant of Tenant contained in this Lease for the making of
any alterations or for restoring or rebuilding the demised premises or the
Building, or any part thereof; and
(c) for the breach of any covenant of Tenant set forth
above in this Section 18.04, Landlord shall be entitled immediately, without
notice or other action by Landlord, to recover, and Tenant shall pay, as and
for liquidated damages therefor, the cost of performing such covenant (as
reasonably estimated by an independent contractor selected by Landlord).
ARTICLE 19
LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS
19.01. If Tenant shall default in the observance or performance
of any term or covenant on Tenant's part to be observed or performed under
any of the terms or provisions of this Lease, (a) Landlord may remedy such
default for the account of Tenant, immediately and without notice in case of
emergency, or in any other case if Tenant shall fail to remedy such default
with all reasonable dispatch after Landlord shall have notified Tenant in
writing of such default and the applicable grace period for curing such
default shall have expired; and (b) if Landlord makes any reasonable
expenditures or incurs any obligations (reasonable where voluntarily
incurred) for the payment of money in connection with such default including,
but not limited to, reasonable attorneys' fees in instituting, prosecuting or
defending any action or proceeding, such sums paid or obligations incurred,
with interest at the Interest Rate, shall be deemed to be additional rent
hereunder and shall be paid by Tenant to Landlord within five (5) days after
rendition of a bill to Tenant therefor. The provisions of this Article 19
shall survive the expiration or other termination of this Lease.
19.02 In the event Landlord shall default in the performance of
any obligation of Landlord under this Lease to perform any service to or make
any repair or alteration in the demised premises and such default shall continue
for a period in excess of thirty (30) days following the giving of written
notice by Tenant to Landlord (or, (A) if such default is of a nature that it
cannot reasonably be cured within such 30-day period, if Landlord shall fail to
commence the cure within such 30-day period and thereafter diligently pursue
such cure to completion or (B) if such default is of an emergency nature, then
such thirty (30) day period shall be reduced to a reasonable period given the
circumstances of the default), and if such default shall materially impair
Tenant's ability to use the demised premises for the conduct of its business,
then, to the extent (and only to the extent) that such default can be cured by
the performance of work entirely within the demised premises which is of a scope
that the performance of such work by Tenant would not affect the structural
43
elements of the Building or any portion of any Building system outside the
demised premises, Tenant may perform such work on Landlord's behalf on
condition that Tenant shall have given Landlord at least ten (10) days prior
notice (which may be incorporated into Tenant's original thirty (30) day
notice) of its intent to do so and Landlord's failure thereafter to cure or
initiate the cure of such default provided, however, that if such default is
of an emergency nature, then such ten (10) day notice period shall be reduced
to a reasonable period given the circumstances of the default. Any such work
performed by Tenant shall be performed in accordance with and subject to all
of the terms, covenants and conditions of this Lease except that Landlord's
consent to Tenant's plans and specifications for such work and to the
contractors performing such work shall be deemed given if Landlord shall not
have responded to Tenant's request therefor within three (3) business days
after receipt of such request. In addition, Tenant shall perform any such
work in a prudent and economical manner. Landlord shall reimburse Tenant,
within thirty (30) days after delivery of an invoice therefor, for the actual
out-of-pocket expenses reasonably incurred by Tenant in performing such work.
ARTICLE 20
QUIET ENJOYMENT
20.01. Landlord covenants and agrees that subject to the terms and
provisions of this Lease, if, and so long as, Tenant shall not be in default
under this Lease after notice and the expiration of any applicable grace period
of any covenant, agreement, term, provision and condition herein contained on
the part or on behalf of Tenant to be kept or performed, then Tenant (and any
person claiming by, through or under Tenant only during periods when this Lease
is in full force and effect) may quietly enjoy the demised premises during the
Term without hindrance by Landlord or any person claiming through or under
Landlord subject however, to: (i) the obligations of this Lease, and (ii) the
provisions of Article 25 hereof with respect to Superior Instruments which
affect this Lease. This covenant shall be construed as a covenant running with
the Land, and is not, nor shall it be construed as, a personal covenant of
Landlord, except to the extent of Landlord's interest in the Property and only
so long as such interest shall continue, and thereafter Landlord shall be
relieved of all liability hereunder and this covenant shall be binding only upon
subsequent successors in interest of Landlord's interest in the Property, to the
extent of their respective interests, as and when they shall acquire the same,
and so long as they shall retain such interest.
ARTICLE 21
SERVICES AND EQUIPMENT
21.01. Subject to the provisions of Section 21.05, so long as this
Lease remains in effect, Landlord shall:
(a) Provide passenger elevator facilities on business days
from 8:00 a.m. to 6:00 p.m. and shall have at least one passenger elevator
servicing the demised premises subject to call at all other times in sufficient
amounts to transport traffic to and from the demised premises in a reasonably
timely manner. At Landlord's option, the elevators shall be operated by
automatic control or by manual control, or by a combination of both of such
methods. Landlord shall provide freight elevator service to the demised
premises at no charge on a first-come first-served basis (i.e., no advance
scheduling) during Business Hours of Business Days. Freight elevator service
shall also be provided to the demised premises on a reserved basis at all other
times, upon the payment of Landlord's then established customary charges
therefor which shall be additional rent hereunder. As of the date hereof, the
established charge for after-hours or weekend freight elevator use is $90 per
hour plus the overtime charge for supervisory labor, subject to increases from
time to time based on actual increases in Landlord's costs. The use of all
elevators shall be on a non-exclusive basis and shall be subject to the Rules
and Regulations. In connection with Tenant's use of the freight elevators,
Tenant shall have non-exclusive access to the loading bays, docks and hallways
servicing the freight elevators in accordance with the Rules and Regulations.
44
(b) Maintain in good repair the Base Building air
conditioning, heating and ventilating systems including without limitation the
Base Building interior air-conditioning units and the fan coil units in the
peripheral system serving the demised premises. Such air conditioning, heating
and ventilation systems will function when seasonably required (subject to the
design criteria, including occupancy and connected electric load design
criteria) in accordance with the specifications annexed hereto as Schedule 0
hereof. The Base Building interior air-conditioning units shall be activated by
use of a telephone dial access number which Landlord shall provide and may be
activated by Tenant as required on a 24-hour, 7-day per week basis, and Tenant
shall not incur additional charges in respect of the operation thereof (i)
except as set forth in Article 4 hereof with respect to the electricity consumed
to operate same, and (ii) except to the extent the costs of operation thereof
are included within Expenses. The fan coil units in the peripheral system
serving the demised premises shall be operated by Landlord when seasonably
required on Business Days from 7:00AM to 6:00PM.
Landlord has informed Tenant that the windows of the demised
premises and the Building are sealed, and that the demised premises may become
uninhabitable and the air therein may become unbreathable during the hours or
days when the aforesaid systems do not function automatically as described
herein or when Tenant does not activate the core air conditioning system or
request overtime service for the perimeter zone. Any use or occupancy of the
demised premises under the conditions set forth in the immediately preceding
sentence shall be at the sole risk, responsibility and hazard of Tenant, and
Landlord shall have no responsibility or liability therefor. Such condition of
the demised premises shall not constitute nor be deemed to be a breach or a
violation of this Lease or of any provision thereof, nor shall it be deemed an
actual or constructive eviction nor shall Tenant claim or be entitled to claim
any abatement of rent nor make any claim for any damages or compensation by
reason of such condition of the demised premises. Tenant shall cause and keep
entirely unobstructed all the vents, intakes, outlets and grilles, at all times
and shall comply with and observe all regulations and requirements prescribed by
Landlord for the proper functioning of the heating, ventilating and
air-conditioning systems. Nothing contained herein shall be deemed to require
Landlord to furnish at Landlord's expense such electric energy as is required to
operate the air conditioning, heating and ventilating systems serving the
demised premises and on the floor of the demised premises and subject to the
provisions of Article 4 hereof, all such electric energy shall be furnished to
Tenant at Tenant's cost and expense; provided however that electric to operate
the perimeter fan coil system is not serviced through Tenant's direct electric
meter but rather through the Building common area electric meter. If Tenant
shall require air-conditioning from the Base Building interior air-conditioning
units during the hours or days when the core system does not function
automatically as described herein, Tenant shall have the responsibility of
activating the core air-conditioning system by use of the core air-conditioning
telephone system (which will be activated by use of a telephone dial access
number which Landlord shall provide). If Tenant shall require overtime heating
or air-conditioning service through the perimeter fan coil system at times when
same is not furnished by Landlord as hereinabove set forth, the Tenant shall
give Landlord reasonable advance notice thereof and Tenant shall pay therefor
Landlord's then standard charge as additional rent hereunder, which is $350 per
hour, as of the date hereof, subject to increases from time to time. Such charge
shall be prorated among Tenant and any other tenants of the Building which shall
request such overtime service during any time that Tenant shall also have
requested such service.
Landlord will at Tenant's request and at no cost to Tenant, supply
condenser water sufficient to operate the supplemental air-conditioning units
shown on Tenant's plans for Tenant's Work to be installed and connected to the
Building system in the demised premises in accordance with the provisions of
this Lease. After the completion of Tenant's Work, Tenant shall be entitled to
receive additional condenser water in an amount not to exceed Tenant's Expense
Share of the surplus Building condenser water allocated for tenant usage. In the
event Tenant installs supplementary air-conditioning units serving the demised
premises, Tenant covenants and agrees, at its sole cost and expense, to maintain
in full force and effect for so long as such air-conditioning unit remains in
the Building, a maintenance agreement for the periodic maintenance of such unit
on customary terms with a contractor reasonably acceptable to Landlord and to
furnish a copy of said contract and all
45
extensions thereof to Landlord within ten (10) days after demand. Landlord
shall perform routine testing and maintenance of such Building condenser
water tower and shall give Tenant reasonable prior notice of such testing.
Landlord shall cooperate with Tenant in order to schedule such testing so as
to minimize material interference with the conduct of Tenant's business. In
addition, Landlord shall permit Tenant to penetrate the facade of the
Building for the purposes of installing louvers for supplemental air-cooled
air-conditioning units installed in the demised premises provided and on
condition that:
(i) Tenant shall elect only one (l) of the two lites of glass on the north
side of the Building designated on Schedule P annexed hereto to be replaced
for the installation of such louvers, i.e., the easternmost or westernmost
lite, and
(ii) such installation shall be performed in accordance with the
provisions of this Lease, including without limitation, Articles 6 and 42
hereof.
(c) (i) Provide the cleaning and janitorial services
described on Schedule F annexed hereto on business days. Tenant shall pay to
Landlord within twenty (20) days after demand the costs commercially reasonably
incurred by Landlord for (x) extra cleaning work in the demised premises
required because of (i) carelessness, misuse or neglect on the part of Tenant or
its subtenants or its or their employees or visitors, (ii) interior glass
partitions or unusual quantity of interior glass surfaces and (iii) non-building
standard materials or finishes installed by Tenant or at its request requiring
above-Building standard cleaning standards or methods, and, (y) removal from the
demised premises and the Building of any refuse and rubbish of Tenant in excess
of that ordinarily accumulated in business office occupancy, including, without
limitation, kitchen refuse, or at times other than Landlord's standard cleaning
times, and (z) the use of the demised premises by Tenant other than during
Business Hours on Business Days to the extent such use results in excess costs.
Landlord shall only be required to provide Building-standard office cleaning
services to any portions of the demised premises used for preparation, serving
or consumption of food or beverages, training rooms, data processing or
reproducing operations, private lavatories or toilets or other special purposes
requiring greater or more difficult cleaning work than office areas and Tenant
agrees (subject to the following sentence), at Tenant's expense, to retain
Landlord's cleaning contractor to perform such above-Building standard office
cleaning services cleaning. With respect only to those supplemental cleaning
services described on Schedule I annexed hereto, Tenant shall be permitted to
engage a contractor selected by Tenant as may be approved by Landlord, such
approval not to be unreasonably withheld or delayed (hereinafter called
"TENANT'S CONTRACTOR") to perform said cleaning service, provided, however, that
prior to engaging any Tenant's Cleaning Contractor, Tenant shall notify Landlord
in writing of its intention to do so, which notice shall include Tenant's
Cleaning Contractor's estimated charge (hereinafter called "TENANT'S BID") to
Tenant for performing such service. Landlord shall, within ten (10) days after
receipt of Tenant's notice, notify Tenant either that (x) Landlord elects to
require Tenant to use, at Tenant's sole cost and expense, a cleaning contractor
designated by Landlord to perform such service, in which event Tenant shall not
be permitted to engage Tenant's Cleaning Contractor for such purpose, or (y)
that Landlord consents to Tenant's use of Tenant's Cleaning Contractor for such
purpose, provided, however, that Landlord shall not be permitted to proceed
under clause (x) above unless the reasonable estimate of the cost to Tenant of
performing such work by Landlord's contractor is less than 105% of Tenant's Bid
and unless Landlord's contractor can perform such cleaning service substantially
within the time period and in substantially the same manner as would Tenant's
Cleaning Contractor. Landlord shall have no liability to Tenant for any
security or theft problems which may arise in the demised premises as a result
of the presence of Tenant's Cleaning Contractor;
(ii) Landlord, its cleaning contractor and their
respective employees shall have access to the demised premises after 6:00 p.m.
and before 8:00 a.m. and shall have the right to use, without charge therefor,
all light, power and water in the demised premises reasonably required to clean
the demised premises as required under this subsection 21.01(c).
(iii) Tenant shall not clean, nor require,
permit, suffer or allow any windows in the demised premises to be cleaned, from
the outside in violation of Section 202 of the Labor Law, or any other
applicable law.
46
(d) Furnish adequate hot water for lavatory purposes and
adequate cold water for drinking, pantry and office cleaning purposes and for
the functioning of the sprinkler system ("CUSTOMARY WATER"). If Tenant
requires, uses or consumes water for any other purposes, Tenant agrees that
Landlord may install a meter or meters or other means to measure Tenant's water
consumption, and Tenant further agrees to reimburse Landlord for the reasonable
cost of the meter or meters and the installation thereof, and to pay for the
reasonably necessary maintenance of said meter equipment and/or to pay
Landlord's reasonable cost of other means of measuring such water consumption by
Tenant. Tenant shall reimburse Landlord for the cost of all water consumed in
excess of Customary Water, as measured by said meter or meters or as otherwise
measured, including sewer rents.
21.02. Landlord reserves the right, except as otherwise set forth
in the Lease, without any liability whatsoever, or abatement of fixed annual
rent, or additional rent, to stop the heating, air conditioning, elevator,
plumbing, electric and other systems when necessary by reason of accident or
emergency or for repairs, or alterations, replacements or improvements, provided
that except in case of emergency, Landlord will notify Tenant in advance, if
possible, of any such stoppage and, if ascertainable , its estimated duration,
and will proceed diligently with the work necessary to resume such service as
promptly as possible and in a manner so as to minimize interference with the
Tenant's use and enjoyment of the demised premises, but Landlord shall not be
obligated to employ overtime or premium labor therefor, unless Tenant is willing
to reimburse Landlord for the difference between the normal full-time pay basis
and overtime or premium pay basis and the performance of same on such overtime
or premium pay basis is available and reasonably practicable, provided, however,
that Landlord agrees that if an owner of a first-class office building in
Manhattan would customarily perform the nature of the work involved on an
overtime or premium pay basis, then Tenant will not be obligated to pay for such
work on an overtime or premium pay basis if Tenant requested such work to be
performed on an overtime or premium pay basis (unless such work was necessitated
by an act or omission of Tenant), and further subject to the Overtime Proviso.
21.03. Tenant agrees to employ such office maintenance contractor
as Landlord may from time to time designate, for all waxing, polishing, lamp
replacement, cleaning (other than those cleaning services Landlord is obligated
to furnish) and maintenance work in the demised premises, provided that, with
respect to Landlord's designated contractor, the quality thereof and the charges
therefor are reasonably comparable to that of other similar contractors. Tenant
shall not employ any other contractor without Landlord's prior written consent
which consent shall not be unreasonably withheld or delayed.
21.04. Landlord will not be required to furnish any other services,
except as otherwise provided in this Lease.
21.05. In addition to any remedies which Landlord may have under
this Lease, and without reducing or adversely affecting any of Landlord's rights
and remedies contained elsewhere in this Lease, if, after the earlier of: (i)
the expiration of the Rent Abatement Period or (ii) the substantial completion
of Tenant's Work, there shall be a monetary default hereunder by Tenant which
shall not have been remedied within the applicable grace period, Landlord shall
not be obligated to furnish to Tenant or the demised premises any services
outside of Business Hours on Business Days unless Tenant shall prepay Landlord
for same; and the discontinuance of any one or more such services shall be
without liability by Landlord to Tenant and shall not reduce, diminish or
otherwise affect any of Tenant's covenants and obligations under this Lease.
21.06. Landlord shall not unreasonably withhold its consent to the
installation in the demised premises by Tenant at Tenant's sole cost and expense
of one or more Dwyer Units or other forms of warming pantry (which may include a
microwave and refrigerator) together with a lunchroom unit provided that:
(a) the use thereof shall be confined to Tenant's
officers, Tenant's employees and business invitees;
47
(b) the operation thereof shall not involve the
installation of any flues or other ventilation equipment or facilities, and
shall not cause any food, cooking or other odors to emanate from the demised
premises to other parts of the Building; and
(c) Tenant shall from time to time engage such
extermination services as shall be necessary to maintain the demised premises
free of rats, mice, roaches and other insects or vermin.
2l.07. Tenant shall have 24-hour access to the demised premises,
seven (7) days per week, subject to Force Majeure Causes and the reasonable
maintenance and security procedures of Landlord at the Building. Landlord shall
continue to provide concierge services in the Building substantially in the
manner currently provided on business days during business hours. The Building
shall be manned 24 hours per day, seven (7) days per week by such concierge or a
Building security guard.
21.08. Tenant shall be entitled to as many listings as it desires
in the list of tenants of the Building retained by the Building concierge.
ARTICLE 22
DEFINITIONS
22.01. The term "LANDLORD" as used in this Lease means only the
owner, or the mortgagee in possession, for the time being of the Land and
Building (or the holder of the tenant's interest in a lease of the Building or
of the Land and Building), so that in the event of any transfer of title to said
Land and Building or said lease, or in the event of a lease of the Building, or
of the Land and Building, upon notification to Tenant of such transfer or lease
the said transferor landlord shall be and hereby is entirely freed and relieved
of all future covenants, obligations and liabilities of Landlord hereunder, and
it shall be deemed and construed as a covenant running with the land without
further agreement between the parties or their successors in interest, or
between the parties and the transferee of title to said Land and Building or
said lease, or the said lessee of the Building or of the Land and Building, that
the transferee or the lessee, as applicable, has assumed and agreed to carry out
any and all such covenants, obligations and liabilities of Landlord hereunder.
22.02. The term "BUSINESS DAYS" or "BUSINESS DAYS" as used in this
Lease shall exclude Saturdays, Sundays and all days observed as legal holidays
and defined as Public Holidays in the Official Directory of the City of New York
as well as all other days recognized as holidays under applicable union
contracts.
22.03. "INTEREST RATE" shall mean a rate per annum equal to the
lesser of (a) two percent (2%) above the so-called "PRIME RATE" of Republic
National Bank (herein called the "PRIME RATE"), as publicly announced from time
to time or if Republic National Bank shall cease to exist or cease to announce
such rate, any similar rate designated by Landlord which is publicly announced
from time to time by any other bank in the City of New York having combined
capital and surplus in excess of ONE HUNDRED MILLION and 00/l00 ($100,000,000)
DOLLARS or (b) the maximum rate of interest, if any, which Tenant may legally
contract to pay.
22.04. "LEGAL REQUIREMENTS" shall mean laws, statutes and
ordinances including building codes and zoning regulations and ordinances and
the orders, rules, regulations, directives and requirements of all federal,
state, county, city and borough departments, bureaus, boards, agencies, offices,
commissions and other subdivisions thereof, or of any official thereof, or of
any other governmental, public or quasi-public authority, whether now or
hereafter in force, which are applicable to the Land or Building or the demised
premises or any part thereof, or the sidewalks, curbs or areas adjacent thereto
including, without limitation, The Americans with Disabilities Act, Public Law
101-336, 42 U.S.C. Sections 12101 et seq. (herein called the "DISABILITIES
ACT"), and all requirements, obligations and conditions of all instruments of
record on the date of this Lease, subject, with respect to Superior Instruments,
to the provisions of Article 25 hereof.
48
ARTICLE 23
INVALIDITY OF ANY PROVISION
23.01. If any term, covenant, condition or provision of this Lease
or the application thereof to any circumstance or to any person, firm or
corporation shall be invalid or unenforceable to any extent, the remaining
terms, covenants, conditions and provisions of this Lease shall not be affected
thereby and each remaining term, covenant, condition and provision of this Lease
shall be valid and shall be enforceable to the fullest extent permitted by law.
ARTICLE 24
BROKERAGE
24.01. Tenant covenants, represents and warrants that Tenant has
had no dealings or negotiations with any broker or agent other than Landlord's
leasing agent, if any, and Newmark & Company Real Estate Inc., in connection
with the consummation of this Lease. Landlord and Tenant covenant and agree to
pay, hold harmless and indemnify each other from and against any and all cost,
expense (including reasonable attorneys' fees and court costs), loss and
liability for any compensation, commissions or charges claimed by any broker or
agent, other than the brokers specifically set forth in this Section 24.01, with
respect to this Lease or the negotiation thereof if such claim or claims by any
such broker or agent are based in whole or in part on dealing with the
indemnifying party or its representatives. Landlord agrees to pay to Landlord's
leasing agent and Newmark & Company Real Estate Inc. such compensation,
commissions or charges to which they are entitled pursuant to a separate
agreement between said broker and Landlord.
ARTICLE 25
SUBORDINATION
25.01. This Lease is and shall be subject and subordinate to all
ground or underlying leases which may now or hereafter affect the Land or the
Building and to all mortgages which may now or hereafter affect such leases, the
Land or the Building, and to all renewals, refinancings, modifications,
replacements and extensions thereof (hereinafter called "SUPERIOR INSTRUMENTS").
The subordination set forth in the immediately preceding sentence shall be
effective with respect to future Superior Instruments (other than Superior
Interests affecting the fee interest in the Property) only on condition that the
holder of such future Superior Instrument shall agree in writing with Tenant
that so long as this Lease is in full force and effect and Tenant shall not be
in default after the giving of any required notice and the lapse of any required
grace period, such holder shall not cut off Tenant's rights under this Lease or
at law or disturb Tenant's possession of the demised premises or disturb the
right of possession of any persons claiming through or under Tenant during any
period when this Lease is in full force and effect. Each party agrees to
execute and deliver to the other party an agreement confirming same in the form
customarily used by such holder within fifteen (l5) business days after request
to do so provided that such form shall not contain provisions which are more
onerous to Tenant than the provisions of Schedules G and H hereof. Tenant
agrees that the form of Schedules G and H annexed hereto are acceptable to
Tenant. If Tenant shall fail to so execute, acknowledge and return such
non-disturbance agreement as above provided, then such future Superior
Instrument shall be deemed to be superior to this Lease notwithstanding the fact
that the holder and Tenant have not executed and exchanged a non-disturbance
agreement. The provisions of this Section 25.01 shall be self-operative and no
further instrument of subordination shall be required, except as expressly
provided herein.
25.02. In the event of a termination of any ground or underlying
lease, or if the interests of Landlord under this Lease are transferred by
reason of, or assigned in lieu of, foreclosure or other proceedings for
enforcement of any mortgage, or if the holder of any mortgage acquires a lease
in substitution therefor, then Tenant under this Lease will, at the option to be
exercised in writing by the holder
49
of any such Superior Instrument to which this Lease is subject and
subordinate or any superior purchaser, assignee or lessee, as the case may
be, either (i) attorn to it and will perform for its benefit all the terms,
covenants and conditions of this Lease on Tenant's part to be performed with
the same force and effect as if it were the landlord originally named in this
Lease, or (ii) enter into a new lease with it for the remaining term of this
Lease and otherwise on the same terms and conditions and with the same
options, if any, then remaining, including, without limitation the Rent
Abatement Period. The foregoing provisions of clause (i) of this Section
25.02 shall enure to the benefit of such holder of a Superior Instrument,
purchaser, assignee or lessee, shall be self-operative upon the exercise of
such option, and no further instrument shall be required to give effect to
such option, and no further instrument shall be required to give effect to
said provisions. Tenant, however, upon demand of any such holder of a
Superior Instrument, purchaser, assignee or lessee agrees to execute, from
time to time, instruments in confirmation of the foregoing provisions of this
Section 25.02, reasonably satisfactory to any such holder of a Superior
Instrument, purchaser, assignee or lessee, acknowledging such attornment and
setting forth the terms and conditions of its tenancy.
25.03. Anything herein contained to the contrary notwithstanding,
under no circumstances shall any such holder of a Superior Instrument,
purchaser, assignee or lessee, as the case may be (who is not an affiliate of
Landlord) whether or not it shall have succeeded to the interests of the
landlord under this Lease, be
(a) liable for any act, omission or default of any prior
landlord; provided, however that the foregoing provisions of this clause (a)
shall not be deemed to exculpate any successor to the interests of Landlord from
the obligation to cure any conditions in the Building which continue to give
rise to default after the date such successor acquired its interest; or
(b) subject to any offsets, claims or defenses which the
Tenant might have against any prior landlord which accrued prior to the date
that it acquired its interest; or
(c) bound by any rent or additional rent which Tenant might
have paid to any prior landlord for more than one month in advance (other than
the first month's rent and additional rent paid pursuant to the escalation
provisions of the Lease); or
(d) bound by any modification, amendment or abridgment of
the Lease, or any cancellation or surrender of the same, made after it acquired
its interest without its prior written approval except for any of same to be
entered into pursuant to the terms of this Lease; or
(e) obligated to do or complete any work in the demised
premises pursuant to Article 2 and the Work Agreement of this Lease or otherwise
be obligated to prepare the demised premises for occupancy in accordance with
the provisions of this Lease.
25.04. If, in connection with the financing of the Building, the
holder of any mortgage shall request reasonable modifications in this Lease as a
condition of approval thereof, Tenant will not unreasonably withhold, delay or
defer making such modifications provided the same do not (i) increase the fixed
annual rent or additional rents payable by Tenant, (ii) reduce the term hereof,
(iii) extend the term hereof or (iv) otherwise adversely affect the rights or
increase the obligations of Tenant hereunder in any material respect.
25.05. (a) Landlord shall request that the "MORTGAGEE", as such
term is defined in Article 39 hereof, enter into a non-disturbance agreement
substantially in the form annexed hereto as Exhibit G, and Tenant agrees to
execute such non-disturbance agreement concurrently with the execution of this
Lease. Landlord shall use reasonable efforts to obtain such a non-disturbance
agreement. If the Mortgagee shall fail to enter into such non-disturbance
agreement within ten (10) Business Days after the date hereof, then Tenant may
elect by written notice to Landlord given within fifteen (15) Business Days
after the expiration of such ten (10) Business Day period, to cancel this Lease,
and if the Mortgagee shall not enter into
50
such non-disturbance agreement within ten (10) days after the giving of such
notice, then this Lease shall terminate as of the expiration of such 10-day
period.
(b) Landlord shall request that Bank of New York,
successor in interest to the Irving Trust Company, Trustee under the Last
Will and Testament of Harold D. Uris, Deceased, for the benefit of Ruth Uris
(hereinafter called the "GROUND LESSOR"), as landlord under that certain
lease dated January 26, l989 with Landlord as tenant, enter into a
non-disturbance agreement substantially in the form annexed hereto as Exhibit
H, and Tenant agrees to execute such non-disturbance agreement concurrently
with the execution of this Lease. Landlord shall use reasonable efforts to
obtain such a non-disturbance agreement. If the Ground Lessor shall fail to
enter into such non-disturbance agreement within ten (10) Business Days after
the date hereof, then Tenant may elect by written notice to Landlord given
within fifteen (l5) Business Days after the expiration of such ten (10)
Business Day period, to cancel this Lease, and if the Ground Lessor shall not
enter into such non-disturbance agreement within ten (l0) days after the
giving of such notice, then this Lease shall terminate as of the expiration
of such ten (l0) day period.
25.06 (a) Landlord represents that as of the date hereof the
following is a comprehensive list of all Superior Instruments:
(i) a certain mortgage, as modified by a certain Mortgage
Modification Agreement, dated as of June 20, 1991 between Mortgagee
and Landlord's predecessor in interest and a further Project Loan
Agreement, dated December 20, 1991 between Mortgagee and Landlord,
(ii) a certain ground lease dated January 26, 1989 between
Ground Lessor and Landlord's predecessor in interest,
(iii) a certain Consolidation, Extension and Modification of
Mortgages, dated as of September 9, 1986 between the Comptroller of
the State of New York as Trustee of the New York State Common
Retirement Fund and Ground Lessor.
(b) Landlord represents that as of the date hereof all the
Superior Instruments are in full force and effect and Landlord has received no
notices of defaults thereunder which have remained uncured beyond the applicable
grace period set forth in the applicable Superior Instrument.
ARTICLE 26
CERTIFICATE OF TENANT
26.01. (a) Tenant shall, without charge, at any time and from time
to time, within twenty (20) days after request by Landlord or the holder of a
Superior Instrument, as the case may be, execute, acknowledge and deliver to
Landlord, the holder of a Superior Instrument or any other person, firm or
corporation specified by Landlord, a written instrument (an "ESTOPPEL
CERTIFICATE") substantially in the form attached hereto as Schedule D-1 or such
other form as may be reasonably required by the holder of any Superior
Instrument with such changes therein as may be required in order not to make the
same misleading in any material respect. Prior to taking occupancy of the
demised premises, and as a condition precedent thereto, Tenant shall execute,
acknowledge and deliver such an estoppel certificate to Landlord.
(b) Landlord agrees upon request to provide Tenant with a
statement in the form annexed hereto as Schedule D-2 certifying that this Lease
is unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), certifying the Commencement Date, Expiration Date and the dates
to which the fixed annual rent and additional rent as billed, have been paid,
stating whether or not, to the best knowledge of Landlord, Tenant is in default
in performance of any of its obligations under this Lease; provided, however,
that Landlord shall be required to deliver an Estoppel Certificate to Tenant not
more than once per l2-month period and only if such Estoppel Certificate is
required in connection with a bona fide business
51
purpose, such as a corporate reorganization or a sale of Tenant's assets or
in connection with a permitted sublease or assignment, where, in any such
event, estoppel certificates are customarily required from landlords by third
parties having an interest in such transaction.
26.02. Tenant agrees that, except for the first month's rent
hereunder, it will pay no rent under this Lease more than thirty (30) days in
advance of its due date, if so restricted by any existing or future Superior
Instrument or by an assignment of this Lease to the holder of such Superior
Instrument, and, in the event of any act or omission by Landlord which would
give Tenant the right to terminate this Lease (other than the right to terminate
this Lease pursuant to Articles 43, 44 or 45 hereof), Tenant will not exercise
such right until Tenant shall have first given written notice of such act or
omission to the holder of any Superior Instrument who shall have furnished such
holder's last address to Tenant, and until a reasonable period for remedying
such act or omission shall have elapsed following the giving of such notices
(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), during which time such holder shall have the right, but
shall not be obligated, to remedy or cause to be remedied such act or omission.
Tenant further agrees not to exercise any such right (other than the right to
terminate this Lease pursuant to Article 43, 44 or 45 hereof) if the holder of
any such Superior Instrument commences to cure such act or omission within a
reasonable time after having received notice thereof and diligently prosecutes
such cure thereafter.
ARTICLE 27
LEGAL PROCEEDINGS; WAIVER OF JURY TRIAL
27.01. Landlord and Tenant hereby waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way in
connection with this Lease, the relationship of Landlord and Tenant, Tenant's
use or occupancy of the demised premises, and/or any other claims (except claims
for personal injury or property damage), and any emergency statutory or any
other statutory remedy. It is further mutually agreed that in the event
Landlord commences any summary proceeding for non-payment of rent, Tenant will
not interpose and does hereby waive the right to interpose any counterclaim of
whatever nature or description in any such proceeding unless failure to
interpose the counterclaim would result in a waiver thereof, and failure to
interpose any other such counterclaim shall not be deemed a waiver thereof.
With respect to "NON-PAYMENT PROCEEDINGS" (as hereinafter defined), Tenant shall
reimburse Landlord upon demand for all reasonable costs and expenses (including
reasonable attorneys' fees and disbursements and court costs) incurred by
Landlord in connection with such Non-Payment Proceedings (other than costs and
expenses incurred by Landlord in defending any counterclaim which Tenant is
permitted hereunder to raise therein as to which the provisions of the
penultimate sentence of this Section 27.01 shall govern). All such amounts
shall be deemed to be additional rent and shall be collectible in the same
manner as provided in Section 1.02 hereof. With respect to any legal
proceedings or actions other than Non-Payment Proceedings which shall be
commenced by either Landlord or Tenant as a result of a breach by the other
party of its covenants under this Lease, the party which shall prevail in any
such proceeding or action, shall be entitled to collect from the non-prevailing
party, reasonable attorneys' fees incurred by the prevailing party in any such
action or proceeding. For the purposes of this Article 27, the term
"NON-PAYMENT PROCEEDINGS" shall mean a summary proceeding commenced by Landlord
against Tenant for non-payment of fixed annual rent or Tenant's Tax Payments or
Tenant's Expense Payments.
52
ARTICLE 28
SURRENDER OF PREMISES
28.01. Upon the expiration or other termination of the Term, Tenant
shall quit and surrender to Landlord the demised premises, broom clean, in good
order and condition, ordinary wear and tear and damage by fire, the elements or
other casualty and conditions which Landlord is obligated to repair excepted,
and Tenant shall remove all of its property as herein provided. Tenant's
obligation to observe or perform this covenant shall survive the expiration or
other termination of the Term.
28.02. If Tenant shall, without the written consent of Landlord,
hold over after the expiration of the Term, and if Landlord shall then not
proceed to remove Tenant from the demised premises in the manner permitted by
law, such tenancy shall be deemed a month-to-month tenancy, which tenancy may be
terminated as provided by applicable law. During such tenancy, Tenant agrees to
(a) pay to Landlord, each month, the greater of the fair market rental value for
the demised premises or one hundred twenty (120%) percent of the fixed annual
rent payable by Tenant for the last month of the Term and (b) be bound by all of
the terms, covenants and conditions herein specified.
ARTICLE 29
RULES AND REGULATIONS
29.01. Tenant and Tenant's servants, employees and agents shall
observe faithfully and comply strictly with the Rules and Regulations set forth
in Schedule E attached hereto and made part hereof entitled "RULES AND
REGULATIONS" and such other and further reasonable Rules and Regulations as
Landlord or Landlord's agents may from time to time adopt provided, however,
that in case of any conflict or inconsistency between the provisions of this
Lease and of any of the Rules and Regulations as originally or as hereafter
adopted, the provisions of this Lease shall control. Reasonable written notice
of any additional Rules and Regulations shall be given to Tenant in writing.
Nothing in this Lease contained shall be construed to impose upon
Landlord any duty or obligation to enforce the Rules and Regulations or the
terms, covenants or conditions in any other lease, against any other tenant of
the Building, and Landlord shall not be liable to Tenant for violation of the
same by any other tenant, its servants, employees, agents, visitors or
licensees. Except in cases of emergency or where required by Legal
Requirements, no new rule or regulation shall be binding on Tenant until
Landlord gives Tenant at least ten (l0) days prior written notice thereof.
Landlord agrees not to enforce any Rule or Regulation against Tenant which it is
not enforcing generally vis-a-vis the tenants of the Building.
ARTICLE 30
CONSENTS AND APPROVALS
30.01. (a) Wherever in this Lease Landlord's consent or approval
is required, if Landlord shall delay or refuse such consent or approval, Tenant
in no event shall be entitled to make, nor shall Tenant make, any claim, and
Tenant hereby waives any claim, for money damages (nor shall Tenant claim any
money damages by way of set-off, counterclaim or defense) based upon any claim
or assertion by Tenant that Landlord unreasonably withheld or unreasonably
delayed its consent or approval unless it is determined in a court of competent
jurisdiction by a final, unappealable determination that Landlord has acted in
bad faith or with malicious intent. Except as aforesaid, Tenant's sole remedy
shall be an action or proceeding to enforce any such provision, for specific
performance, injunction or declaratory judgment, and such remedy shall be
available only in those cases where Landlord has expressly agreed in writing not
to unreasonably withhold its consent or where as a matter of law Landlord may
not unreasonably withhold its consent.
53
(b) If Tenant disputes the reasonableness of Landlord's
decision to refuse to consent or approve any item for which Landlord has agreed
expressly in this Lease not to unreasonably withhold or delay its consent or
approval in accordance with provisions of this Lease, then such dispute shall be
settled and finally determined by arbitration in the City of New York in
accordance with the following provisions hereof. Within five (5) Business Days
next following the giving of any notice by Tenant to Landlord stating that it
wishes such dispute to be so determined, Landlord and Tenant shall each give
notice to the other setting forth the name and address of an arbitrator
designated by the party giving such notice. If either party shall fail to give
notice of such designation within said five (5) Business Days, then the
arbitrator to be chosen by such party shall be chosen in the same manner as
hereinafter provided for the appointment of the third arbitrator in the case
where the two arbitrators chosen hereunder are unable to agree upon such
appointment. The two arbitrators shall designate a third arbitrator. If the
two arbitrators shall fail to agree upon the designation of a third arbitrator
within five (5) Business Days after the designation of the second arbitrator,
then either party may apply to the American Arbitration Association or any
successor organization thereto ("AAA") for the designation of such arbitrator;
provided, however, nothing contained herein shall be construed to require
submission of any dispute to the AAA. All arbitrators shall be persons who
shall have had at least ten (10) years experience in the business of appraising
or managing real estate or acting as real estate agents or brokers in the
Borough of Manhattan and shall be related to neither Landlord nor Tenant. The
three arbitrators shall conduct such hearings as they deem appropriate, making
their determination in writing and give notice to Landlord and Tenant of their
determination within seven (7) Business Days, if at all possible, after the
designation of the third arbitrator; the concurrence of any two of said
arbitrators shall be binding upon Landlord and Tenant. Any award of the
arbitrators shall be limited to a determination as to whether Landlord acted
reasonably in withholding any such consent or approval. Judgment upon any award
rendered in any arbitration held pursuant to this subsection 30.01(b) may be
entered in any court having jurisdiction. However, the determination in any
arbitration held pursuant to this subsection 30.01(b) shall be final and binding
upon Landlord and Tenant, whether or not a judgment shall be entered in any
court. Each party shall pay its own counsel fees and expenses, if any, in
connection with any arbitration under this subsection 30.01(b), each party shall
pay the fees and expenses of the one of the two original arbitrators appointed
by or for such party and the fees and expenses of the third arbitrator shall be
borne by the parties equally.
ARTICLE 31
NOTICES
31.01. Any notice or demand, consent, approval or disapproval, or
statement (collectively called "NOTICES") required or permitted to be given by
the terms and provisions of this Lease, or by any law or governmental
regulation, either by Landlord to Tenant or by Tenant to Landlord, shall be in
writing and unless otherwise required by such law or regulation, shall be sent
by (i) United States mail postage prepaid as registered or certified mail,
return receipt requested, (ii) by nationally recognized overnight courier
service (such as Federal Express) with receipt requested, or (iii) personally
delivered with written receipt. Any Notice shall be addressed to Landlord and
Tenant, as follows:
If to Landlord
Spartan Madison Corp.
c/o HRO International Ltd.
Tower 56
l26 East 56th Street
New York, New York l0022
Attention: Larry Jay Wyman
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and if to Tenant as follows:
Investment Technology Group, Inc.
900 Third Avenue
New York, New York 10022
Attention: James Lynch, General Counsel
with a copy to:
Morgan, Lewis & Bockius
101 Park Avenue
New York, New York 10178
Attention: Chester P. Lee, Esq.
(except that after Tenant shall occupy the demised premises, Tenant's address,
unless Tenant shall give notice to the contrary, shall be the Building). By
giving the other party at least ten days prior written notice, either party may,
by Notice given as above provided, designate a different address or addresses
for Notices.
Notwithstanding anything herein to the contrary, Notices from Tenant
to Landlord regarding overtime services may be given by telephone with hand
delivered written confirmation to follow within a reasonable period of time.
31.02. Any Notice shall be deemed given upon receipt or in the case
of refusal to receive, as of the date of such refusal.
31.03. In addition to the foregoing, either Landlord or Tenant may,
from time to time, request in writing that the other party serve a copy of any
Notice on one other person or entity designated in such request, such service to
be effected as provided in Section 31.01 hereof.
ARTICLE 32
NO WAIVER
32.01. No agreement to accept a surrender of this Lease shall be
valid unless in writing signed by Landlord. No employee of Landlord or of
Landlord's agents shall have any power to accept the keys of the demised
premises prior to the termination of this Lease. The delivery of keys to any
employee of Landlord or of Landlord's agent shall not operate as a termination
of this Lease or a surrender of the demised premises. In the event of Tenant
at any time desiring to have Landlord sublet the premises for Tenant's account,
Landlord or Landlord's agents are authorized to receive said keys for such
purpose without releasing Tenant from any of the obligations under this Lease.
The failure of either Landlord or Tenant to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this Lease
or any of the Rules and Regulations set forth herein, or hereafter adopted by
Landlord, shall not prevent a subsequent act, which would have originally
constituted a violation, from having all the force and effect of an original
violation. The receipt by Landlord of rent with knowledge of the breach of any
covenant of this Lease shall not be deemed a waiver of such breach. The failure
of Landlord to enforce any of the Rules and Regulations set forth herein, or
hereafter adopted, against Tenant and/or any other tenant in the Building shall
not be deemed a waiver of any such Rules and Regulations. No provision of this
Lease shall be deemed to have been waived by Landlord or Tenant, unless such
waiver be in writing signed by Landlord or Tenant. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly rent herein stipulated
shall be deemed to be other than on the account of the earliest stipulated rent,
nor shall any endorsement or statement on any check or any letter accompanying
any check or payment of rent be deemed an accord and satisfaction, and Landlord
may accept such check or payment without prejudice to Landlord's right to
recover the balance of such rent or pursue any other remedy in this Lease
provided.
32.02. This Lease contains the entire agreement between the
parties, and any executory agreement hereafter made shall be ineffective to
change, modify, discharge or effect an abandonment of it in whole or in part
unless such executory
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agreement is in writing and signed by the party against whom enforcement of
the change, modification, discharge or abandonment is sought.
ARTICLE 33
CAPTIONS
33.01. The captions are inserted only as a matter of convenience
and for reference, and in no way define, limit or describe the scope of this
Lease nor the intent of any provision thereof.
ARTICLE 34
INABILITY TO PERFORM
34.01. If, by reason of (1) strike, (2) labor troubles, (3)
governmental pre-emption in connection with a national emergency, (4) any rule,
order or regulation of any governmental agency, (5) conditions of supply or
demand which are affected by war or other national, state or municipal
emergency, or any other cause, (6) fire or other casualty subject to the
provisions of Article 10 hereof, (7) adjustment of insurance claims subject to
the provisions of Article 10 hereof, (8) acts of God, or (9) any other cause
beyond Landlord's reasonable control (it being agreed, however, that lack of
funds shall not be deemed a cause beyond Landlord's reasonable control)
(collectively hereinafter referred to as "FORCE MAJEURE CAUSES"), Landlord shall
be unable to fulfill its obligations under this Lease or shall be unable to
supply any service which Landlord is obligated to supply, this Lease and
Tenant's obligation to pay rent hereunder shall in no wise be affected, impaired
or excused. Landlord will use reasonable efforts in order to alleviate such
condition promptly, but shall not be required to employ any overtime or premium
time labor in order to do so unless Tenant is willing to reimburse Landlord for
the difference between the normal full-time pay basis and overtime or premium
pay basis, and the performance of such work on an overtime or premium pay basis
is available and reasonably practicable. If Tenant has ceased conducting
business in the demised premises because of such condition, then Landlord shall
use best efforts to alleviate such condition promptly.
34.02. Notwithstanding anything to the contrary contained in
Section 34.01 above, but subject to any additional limitations elsewhere imposed
in this Lease, to the extent that Tenant is precluded from using the demised
premises for a period in excess of fifteen (15) consecutive days in any one
instance because Landlord is not fulfilling its obligations under this Lease or
is not supplying any service which Landlord is obligated to supply hereunder and
provided Tenant does not occupy all or substantially all such space for the
ordinary conduct of business during such period (the presence in the demised
premises of a skeleton crew for purposes solely of computer functioning shall
not be deemed to be occupancy for such purposes), and provided further that such
failure shall not have resulted from the negligence or wilful acts of Tenant or
its officers, contractors, licensees, agents, employees, guests or visitors, or
from Force Majeure Causes, the fixed annual rent payable hereunder and
additional rent payable under Article 3 hereof shall be abated for the period of
time commencing on the 1st day following the date Tenant was precluded from
using the demised premises by reason of such failure until the earlier of such
time as Tenant reoccupies the demised premises or such time as such obligation
is fulfilled or service restored.
If the conditions set forth in the immediately preceding
sentence shall continue for three hundred sixty-five (365) consecutive days,
then Tenant may, at Tenant's option, terminate this Lease by giving thirty (30)
days' prior notice thereof within ten (10) Business Days after the expiration of
such three hundred sixty five (365) day period and if Tenant shall give such
notice, then this Lease shall terminate upon the expiration of such thirty (30)
day period, unless Tenant reoccupies the demised premises or such obligations
fulfilled or service restored during such thirty (30) day period. If such
conditions shall continue for sixty (60) consecutive days, then Tenant shall
have the right to request in writing from Landlord the date that Landlord
reasonably estimates that Landlord is capable of fulfilling such obligation or
restoring such service. Landlord shall reasonably
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promptly give Tenant written notice of such estimated date. If such
estimated date shall not fall within the aforesaid three hundred sixty five
(365) day period, then Tenant may terminate this Lease by written notice
given to Landlord within ten (10) business days after receipt of Landlord's
estimated date, and this Lease shall terminate on the date occurring thirty
(30) days after the giving of Tenant's notice, unless Landlord shall have
fulfilled such obligation or restored such service within such thirty (30)
day period.
34.03. If by reason of Force Majeure Causes, Tenant shall be unable
to fulfill its obligations under this Lease, other than obligations to pay rent
or additional rent hereunder, then to the extent that such inability shall
continue by reason of such Force Majeure Causes, Tenant shall not be deemed to
be in default of this Lease; and this Lease and Landlord's obligations hereunder
shall in no wise be affected, impaired or excused. In no event shall the
inability to pay any sum of money be deemed a Force Majeure Cause, and for the
purposes of the application for Tenant's benefit, Force Majeure Causes shall
include, in lieu of clause (9) set forth in Section 34.01 hereof, any cause, in
addition to the causes set forth in clauses (1) through (8) of Section 34.01
hereof, beyond Tenant's reasonable control.
ARTICLE 35
NO REPRESENTATIONS BY LANDLORD
35.01. Landlord or Landlord's agents have made no representations
or promises with respect to the Building or demised premises except as herein
expressly set forth.
ARTICLE 36
NAME OF BUILDING
36.01. Landlord shall have the full right at any time to name and
change the name of the Building and to change the designated address of the
Building. The Building may be named after any person, firm, or otherwise,
whether or not such name is, or resembles, the name of a tenant of the Building.
Landlord shall provide Tenant with no less than thirty (30) days advance written
notice of any change in the designated name or address of the Building, and
Landlord shall reimburse Tenant for any reasonable costs incurred by Tenant in
amending its business stationery by reason of such change.
ARTICLE 37
ARBITRATION
37.01. In each case specified in this Lease in which resort to
arbitration shall be required, such arbitration (unless otherwise specifically
provided in other Sections of this Lease) shall be in New York County, New York
in accordance with the Commercial Arbitration Rules of the American Arbitration
Association (or its successor) and the provisions of this Lease. The decision
and award of the arbitrators shall be in writing, shall be final and conclusive
on the parties, and counterpart copies thereof shall be delivered to each of the
parties. In rendering such decision and awards, the arbitrators shall not add
to, subtract from or otherwise modify the provisions of this Lease. Judgment
may be had on the decision and award of the arbitrators so rendered in any court
of competent jurisdiction.
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ARTICLE 38
INDEMNITY
38.01. (a) Subject to the terms of Article 9 hereof, relating to
waivers of subrogation, Tenant shall indemnify and defend Landlord (including
Landlord's shareholders, officers, directors, partners, joint venturers and
agents) and save it harmless from and against any and all liability, damages,
costs or expenses, including reasonable attorneys' fees, (i) arising from any
improper act, omission (where this Lease imposes a duty to act), or negligence
of Tenant or its officers, contractors, licensees, agents, employees, guests,
invitees, or visitors in or about the demised premises or the Building, or
(ii) arising from any accident, injury, or damage, howsoever and by whomsoever
caused, to any person or property, occurring within the demised premises.
Tenant's liability for such expenses, damages or fines shall be limited to those
caused by any of the reasons set forth in the immediately preceding sentence,
and Tenant shall not be liable hereunder for any consequential, special or
indirect damages. Nothing contained in this Section 38(a) shall be deemed a
waiver of Landlord's rights to claim against Tenant for damages of any nature
that Landlord shall prove at law as a result of Tenant's holding over in the
demised premises beyond the Expiration Date or any earlier cancellation or
termination of this Lease except as specifically provided to the contrary
herein. This provision shall not be construed to make Tenant responsible for
loss, damage, liability or expense resulting from any accident, injury, or
damage, howsoever and by whomsoever caused, to any person or property, occurring
within the demised premises if (but only to the extent) caused by the negligence
or wilful act of Landlord, or its officers, contractors, licensees, agents,
employees, or invitees.
(b) Subject to the terms of Article 9 hereof relating to
waivers of subrogation, Landlord shall indemnify and defend Tenant (including
Tenant's shareholders, officers, directors, partners, joint venturers and
agents) and save Tenant harmless from and against any and all liability,
damages, costs or expenses (including reasonable attorneys' fees and expenses)
arising from any negligence or willful misconduct of Landlord or its officers,
employees or agents; provided, however, that this indemnity shall in no event
cover liability for consequential damages or for special or indirect damages in
the nature of consequential damages.
ARTICLE 39
APPROVAL OF MORTGAGEE
39.01. This Lease is conditioned on Landlord obtaining the approval
of this Lease (hereinafter referred to as "Approval") by the holder of the
mortgage dated as of June 20,1991 between The First National Bank of Boston, as
mortgagee and Landlord as mortgagor (hereinafter called the "Mortgagee").
Landlord will use reasonable efforts to obtain the Approval.
39.02. In the event Landlord has not obtained the Approval within
ten (10) Business Days after the date hereof, Landlord or Tenant shall have the
right to terminate this Lease within fifteen (l5) business days after the
expiration of such ten (10) Business Day period, upon written notice given to
the other party within such fifteen (l5) business day period, time being of the
essence with respect to the giving of such notice, and this Lease shall
terminate upon the expiration of ten (10) days after the date of such notice
unless prior to the expiration of said ten (10) day period, said approval shall
have been obtained; in which such event such notice shall be deemed null and
void and of no force or effect.
39.03. In the event the Mortgagee notifies Landlord that it will
not give the Approval, then Landlord, shall promptly notify Tenant and upon the
giving of such notice, this Lease shall terminate.
39.04. In the event of the termination of this Lease pursuant to
Sections 39.02 or 39.03 hereof, and upon such termination, all further
obligations of the parties hereunder shall end and neither Landlord nor Tenant
shall have any liability to the other, except Landlord shall refund any pre-paid
rent and/or security deposit to Tenant.
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ARTICLE 40
RIGHT OF FIRST OFFERING
40.01. (a) For purposes of this Lease, the "First Offering Space"
shall mean the three portions of the fifth (5th) floor of the Building,
delineated as Portions A, B and C and shown on the floor plan annexed hereto as
Schedule M. Tenant acknowledges that Portion A of the First Offering Space,
which Landlord and Tenant hereby agree shall be deemed to contain 12,726
rentable square feet, is currently occupied by Josephthal, Lyon & Ross, Inc.
(hereinafter called "Josephthal") pursuant to a lease with Landlord of which the
date set forth therein for the expiration of such lease is July 31, 1998, that
Portion B of the First Offering Space, which Landlord and Tenant hereby agree
shall be deemed to contain 15,524 rentable square feet, is currently occupied by
Fox-Pitt, Kelton, Inc. (hereinafter called "Fox-Pitt") pursuant to a lease with
Landlord of which the date set forth therein for the expiration of such lease is
June 30, 2003, and that Portion C of the First Offering Space, which Landlord
and Tenant hereby agree shall be deemed to contain 16,230 rentable square feet,
is currently occupied by LDDS Communications, Inc. (hereinafter called "LDDS")
pursuant to a lease with Landlord of which the date set forth therein for the
expiration of such lease is August 31, 2008. Each of the foregoing leases
contains an option on the part of the tenant thereof to extend the term of the
lease for an additional five year term from the current expiration date. Each of
the foregoing tenants is required to give written notice to Landlord exercising
its option prior to the current expiration date of its lease on or before the
following deadline dates: Josephthal, six (6) months prior to 7/31/98; Fox-Pitt:
twelve (12) months prior to 6/30/03 and LDDS: twelve (12) months prior to
8/31/08. Josephthal, Fox-Pitt and LDDS and their respective successors, assigns
and affiliates are hereinafter sometimes collectively called the "Existing
Tenants".
(b) Provided Tenant is not in default under the terms and
conditions of this Lease either as of the date of the giving of "Tenant's First
Notice" or the "First Offering Space Inclusion Date" (as such terms are
hereinafter defined), if at any time during the term of this lease Portion A
and/or Portion B and/or Portion C of the First Offering Space shall become, or
are anticipated to become, available for leasing, then Landlord, before offering
such First Offering Space to anyone, shall offer to Tenant the right to include
such First Offering Space within the demised premises upon all the terms and
conditions of this lease (other than the provisions of Sections 1.05 and
Articles 2 and 43 hereof), except that:
(A) the fixed annual rent with respect to such First
Offering Space shall be the fair market rent for such First
Offering Space (assuming base years and base factors as set forth
in Article 3 hereof) which shall be determined by Landlord and
shall be set forth in a written notice to Tenant.
(B) Effective as of the First Offering Space Inclusion Date
applicable to such First Offering Space for purposes of
calculating Tenant's Tax Payment and Tenant's Expense Payment
allocable to the First Offering Space, Tenant's Tax Share and
Tenant's Expense Share attributable to the First Offering Space
shall be as follows:
Tenant's Tenant's
Tax Share Expense
Share
Portion A 1.7721% 1.8362%
Portion B 2.1618% 2.2400%
Portion C 2.289% 2.372%
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Such offer shall be made by Landlord to Tenant in a written notice
(hereinafter called the "First Offer Notice") which offer shall designate the
space being offered and shall contain Landlord's estimate of the date that such
First Offering Space shall become available for Tenant's occupancy (the
"Anticipated Inclusion Date"). The First Offer Notice may not be given by
Landlord earlier than twelve (12) months prior to the Anticipated Inclusion
Date. Landlord shall specify in the First Offer Notice the fixed annual rent
payable with respect to such First Offering Space as determined by Landlord in
accordance with the provisions of Section 40.01(b) hereof.
40.02. (a) Tenant may accept the offer set forth in the First
Offer Notice by delivering to Landlord an unconditional acceptance (hereinafter
called "Tenant's First Notice") of such offer within thirty (30) days after
delivery by Landlord of the First Offer Notice to Tenant. Such First Offering
Space shall be added to and included in the demised premises on the date such
First Offering Space shall actually become available for Tenant's possession
(herein called the "First Offering Space Inclusion Date"), or on the date that
Tenant gives Tenant's First Notice, if such First Offering Space is then
available. Time shall be of the essence with respect to the giving of Tenant's
First Notice.
(b) If Tenant does not accept (or fails to timely
accept) an offer made by Landlord pursuant to the provisions of this Article
40 with respect to the First Offering Space designated in the First Offer
Notice, Landlord shall be under no further obligation with respect to such
space by reason of this Article 40 but Tenant's rights with respect to any
other First Offering Space shall not be affected), and Tenant shall have
forever waived and relinquished its right to such First Offering Space, and
Landlord shall at any and all times thereafter be entitled to lease such
First Offering Space to others at such rental and upon such terms and
conditions as Landlord in its sole discretion may desire whether such rental
terms, provisions and conditions are the same as those offered to Tenant or
more or less favorable, and Tenant shall, within twenty (20) days after
Landlord's request therefor, deliver an instrument in form reasonably
satisfactory to Landlord confirming the aforesaid waiver, but no such
instrument shall be necessary to make the provisions hereof effective.
40.03. If any First Offering Space shall not be available for
Tenant's occupancy on the Anticipated Inclusion Date for any reason including
the holding over of the prior tenant, then Landlord and Tenant agree that the
failure to have such First Offering Space available for occupancy by Tenant
shall in no way affect the validity of this Lease or the inclusion of such First
Offering Space in the demised premises or the obligations of Landlord or Tenant
hereunder, nor shall the same be construed in any way to extend the term of this
Lease, and for the purpose of this Article 40 the First Offering Space Inclusion
Date shall be deferred to and shall be the date such First Offering Space is
available for Tenant's occupancy unleased and free of tenants or other
occupants. The provisions of this Section 40.03 are intended to constitute "an
express provision to the contrary" within the meaning of Section 223-a of the
New York Real Property Law. Notwithstanding the provisions of this Section
40.03 to the contrary, if any First Offering Space shall not be available for
Tenant's occupancy on the Anticipated Inclusion Date because of the holding over
of the prior tenant, than Landlord shall, within ninety (90) days of the
commencement of such holdover, commence a holdover proceeding against such
tenant and if Landlord shall not have delivered such First Offering Space to
Tenant on or before the date occurring six (6) months after the commencement of
such holdover, then if Tenant shall give thirty (30) days prior written notice
to Landlord within ten (10) Business Days after the expiration of such six (6)
month period, then Tenant's First Notice as to such First Offering Space shall
be deemed rescinded and of no further force or effect on the thirtieth (30th)
day after the giving of such notice unless Landlord shall deliver such First
Offering Space to Tenant within such thirty (30) day notice period.
40.04. (a) In the event that Tenant disputes the amount of the
fair market rent as determined by Landlord and specified in Landlord's notice
thereof to Tenant, then at any time on or before the date occurring thirty (30)
days after Tenant has received such notice thereof from Landlord provided that
Tenant shall have given Tenant's First Notice, Tenant may initiate the
arbitration process provided for in Section Article 46 of this Lease, and such
provisions shall apply to the determination of fair market rent for the First
Offering Space. If Tenant fails to initiate the
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arbitration process within the aforesaid thirty (30) day period, time being
of the essence, then Landlord's determination of the fixed annual rent set
forth in Landlord's notice thereof shall be conclusive.
(b) In the event Tenant initiates the aforesaid arbitration
process and as of the First Offering Space Inclusion Date the amount of the fair
market rent has not been determined, Tenant shall pay the amount determined by
Landlord to be the fair market rent for the demised premises and when the
determination has actually been made, an appropriate retroactive adjustment
shall be made as of the First Offering Space Inclusion Date. In the event that
such determination shall result in an overpayment by Tenant of any fixed annual
rent, such overpayment shall be paid by Landlord to Tenant promptly after such
determination.
40.05. The provisions of this Article 40 shall be effective only
if, upon both the First Offering Space Determination Date and the date on which
Tenant accepts possession of the First Offering Space the Tenant named herein
(or any successors thereto by merger, consolidation or sale) and only such
Tenant is in actual occupancy of eighty (80%) percent of the demised premises
(other than the First Offering Space in question).
40.06. Tenant agrees to accept the First Offering Space in its
condition and state of repair existing as of the First Offering Space Inclusion
Date and understands and agrees that Landlord shall not be required to perform
any work, supply any materials or incur any expense to prepare such space for
Tenant's occupancy. Landlord agrees to be responsible for repairing any damage
to such First Offering Space caused by the vacating therefrom by the prior
tenant thereof.
40.07. The termination of this Lease during the original term of
this Lease shall also terminate and render void all of Tenant's options or
elections under this Article 40 whether or not the same shall have been
exercised; and nothing contained in this Article shall prevent Landlord from
exercising any right or action granted to or reserved by Landlord in this Lease
to terminate this Lease. None of Tenant's options or elections set forth in
this Article 40 may be severed from this Lease or separately sold, assigned or
transferred.
40.08. Notwithstanding any language to the contrary contained in
this Article 40, the rights granted to Tenant hereunder shall be at all times
subject to the election of any Existing Tenant of the First Offering Space to
extend the term of its lease with respect thereto, regardless of whether such
election is made pursuant to any provision included within said lease.
ARTICLE 41
MISCELLANEOUS
41.01. Irrespective of the place of execution or performance, this
Lease shall be governed by and construed in accordance with the laws of the
State of New York.
41.02. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted.
41.03. Except as otherwise expressly provided in this Lease, each
covenant, agreement, obligation or other provision of this Lease on Tenant's
part to be performed shall be deemed and construed as a separate and independent
covenant of Tenant, not dependent on any other provision of this Lease.
41.04. All terms and words used in this Lease, regardless of the
number or gender in which they are used, shall be deemed to include any other
number and any other gender as the context may require.
41.05. Time shall be of the essence with respect to the exercise of
any option on the part of Tenant to extend the term of this Lease.
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41.06. Except as otherwise provided herein whenever payment of
interest is required by the terms hereof it shall be at the Interest Rate.
41.07. Intentionally deleted.
41.08. In the event that Tenant is in arrears in payment of fixed
annual rent or additional rent hereunder, Tenant waives Tenant's right, if any,
to designate the items against which any payments made by Tenant are to be
credited, and Tenant agrees that Landlord may apply any payments made by Tenant
to any items it sees fit, irrespective of and notwithstanding any designation or
request by Tenant as to the items against which any such payments shall be
credited.
41.09. All Schedules referred to in this Lease are hereby
incorporated in this Lease by reference.
41.10. The covenants, conditions and agreements contained in this
Lease shall bind and inure to the benefit of Landlord and Tenant and their
respective heirs, distributees, executors, administrators, successors, and
except as otherwise provided in this Lease, their assigns.
41.11. No remedy or election hereunder shall be deemed exclusive
but shall, whenever possible, be cumulative with all other remedies at law or in
equity.
41.12. Under no circumstances shall Tenant record a copy of this
Lease or a memorandum of this Lease without Landlord's prior written consent.
41.13. It is understood and agreed that this Lease is submitted to
Tenant on the understanding that it shall not be considered an offer and shall
not bind Landlord in any way whatsoever until (i) Tenant has duly executed and
delivered duplicate originals to Landlord, and (ii) Landlord has executed and
delivered one of said fully executed originals to Tenant.
41.14. With respect to any equipment which Tenant shall be
permitted to install and operate in the demised premises including, without
limitation, supplemental air conditioning equipment, Tenant shall at Tenant's
expense, obtain and maintain all permits, licenses and other authorizations
which are required by Legal Requirements in order to install, maintain and
operate such equipment in the demised premises.
41.15. Tenant acknowledges that it has no rights to any development
rights, "AIR RIGHTS" or comparable rights appurtenant to the Property, 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, provided same does not prevent occupancy of the
demised premises by Tenant. The provisions of this Section 41.15 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.
41.16. Tenant and Landlord each represents and warrants that this
Lease has been duly authorized, executed and delivered by the representing party
and constitutes the legal, valid and binding obligation of such party with
customary exception to such representation as to enforceability of this Lease
for unanticipated bankruptcy.
41.17. This Lease may be executed in any number of counterparts,
each of which shall, when executed, be deemed to be an original and all of which
shall be deemed to be one and the same instrument.
ARTICLE 42
LAYOUT AND FINISH
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42.01. Tenant hereby covenants and agrees that Tenant will, at Tenant's
own cost and expense, and in a good and workmanlike manner, make and complete
the work and installations in and to the demised premises set forth below in
such manner so that the demised premises will be executive and general offices
of a standard consistent with the nature and quality of the Building.
Tenant, at Tenant's expense, shall prepare a final plan or final set
of plans and specifications (which said final plan or final set of plans, as the
case may be, and specifications are hereinafter called the "final plan"), and in
accordance with the final plan, Tenant, at Tenant's expense, will make and
complete in and to the demised premises the work and installations (hereinafter
called "Tenant's Work") specified in the final plan. Tenant shall perform
Tenant's Work in accordance with the provisions of Article 6 hereof and with the
applicable Building-standard specifications governing the performance of tenant
improvement work in the Building, a copy of which has been previously delivered
to Tenant. The final plan shall be submitted by Tenant to Landlord for
Landlord's written approval, which approval shall not be unreasonably withheld
or delayed. Tenant shall promptly reimburse Landlord upon demand for any
reasonable out-of-pocket costs and expenses incurred by Landlord in connection
with Landlord's review of Tenant's final plan. If Landlord shall disapprove the
final plan, Landlord shall set forth its reasons for such disapproval and
itemize those portions of the final plan so disapproved. Landlord shall not be
deemed unreasonable in withholding its consent to the extent that the final plan
prepared by Tenant pursuant hereto involves the performance of work or the
installation in the demised premises of materials or equipment which do not
equal or exceed the standard of quality adopted by Landlord for the Building.
In the event Landlord shall fail to initially respond to Tenant's request for
approval of Tenant's final plan within ten (10) business days after receipt
thereof then Landlord shall be deemed to have given its approval. After
Landlord shall have approved Tenant's final plans and Tenant shall resubmit any
portion of the final plans for Landlord's approval after making non-material
modifications thereof, the 10 business day period set forth in the preceding
sentence shall be reduced to five (5) business days.
Tenant agrees that Tenant's Work will be performed with the least
possible disturbance to the occupants of other parts of the Building and to the
structural and mechanical parts of the Building and Tenant will, at its own cost
and expense leave all structural and mechanical parts of the Building which
shall or may be affected by Tenant's Work in good and workmanlike operating
condition. Without limiting the generality of the foregoing provisions of this
paragraph, if Tenant shall request consent to reinforce the flooring of the
demised premises and Landlord shall consent thereto, such consent shall be
conditioned on Tenant's performance of such reinforcement work in accordance
with Landlord's reasonable rules, regulations and procedures with respect
thereto, including, without limitation, reasonable procedures to prevent
interference with the use and occupancy of the Building by the tenants occupying
space below the demised premises, such as advance notice, use of overtime labor,
sufficient insurance and other reasonable procedures.
42.02. The following conditions shall also apply to Tenant's Work:
(a) all Tenant's Work shall be of material, manufacture, design and
capacity at least equal to the standard adopted by Landlord for the Building
(hereinafter called "Building Standard");
(b) Tenant, at Tenant's expense shall (i) file all required
architectural, mechanical and electrical drawings and obtain all necessary
permits, including, without limitation, BN Approvals and (prior to occupancy)
the Form TR-1 sign-off and the required sprinkler sign-offs from the New York
City Department of Buildings, and (ii) furnish and perform all engineering and
engineering drawings in connection with Tenant's Work. Landlord agrees to sign
Tenant's BN Application promptly upon receipt thereof and prior to reviewing
Tenant's final plans for approval provided and on condition that it is expressly
understood and agreed by Tenant that such signing of Tenant's BN Application is
being done purely as an accommodation for Tenant in order to expedite the
commencement of Tenant's Work, and shall not in any way whatsoever constitute
nor shall same be construed as Landlord's approval of Tenant's final plans as to
which Landlord shall reserve its review rights in accordance with the following
sentence, and furthermore Tenant agrees that if Landlord shall disapprove
Tenant's final plans in any respect, Tenant shall file a modified BN
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Application reflecting the changed conditions on the final plans required in
order to obtain Landlord's approval thereof. Tenant shall obtain Landlord's
approval of the final set of drawings referred to in (i) and (ii) hereof,
which approval shall not be unreasonably withheld, and Landlord agrees to
respond to such request for approval within ten (10) Business Days after
receipt thereof.
(c) Notwithstanding anything to the contrary set forth in this Lease
or the Building specifications governing the performance of tenant improvement
work in the Building, Tenant shall be permitted to use engineering firms for
mechanical and electrical engineering with respect to the preparation of
Tenant's engineering drawings in connection with Tenant's Work, who are approved
in writing by Landlord, such approval not to be unreasonably withheld or
delayed, provided that such engineering drawings are reviewed and approved by
the firm of Cosentini Associates (in the case of mechanical and electrical
engineering) and Severud Associates (in the case of structural engineering).
Tenant shall pay all reasonable out-of-pocket costs incurred in connection with
such engineering, including, without limitation, the fees and expenses of the
aforementioned firms for review of engineering drawings.
(d) All contractors and subcontractors used by Tenant to perform
Tenant's Work shall be approved in writing by Landlord in advance pursuant to
the provisions of Article 6 hereof; provided, however, that:
(i) Tie-ins to the Building's BMS system will be performed by
the currently designated BMS contractor for the Building, and all
class E system tie-ins will be performed by the current Building
electrician, provided such contractors' rates are commercially
reasonable.
(ii) In connection with the performance of Tenant's Work, Tenant
shall request that Lehr Construction submit a bid for general
contractor.
(e) All Tenant-installed piping, conduit and cabling in the Building
communications closet, electrical closet and MER room will be color coded per
the Building coding plan. Such color coding may be effected by enamel painting
in accordance with Landlord's Building Standard procedures therefor. All blinds
are to be Building Standard only, furnished at Tenant's expense.
42.03. It is understood that of the services to be furnished by Landlord
referred to in Article 21 hereof, Landlord shall not furnish any cleaning
services until Tenant commences occupancy of the demised premises for the
conduct of its business. Tenant shall be responsible for removal of Tenant's
refuse and rubbish during the period that Tenant's Work is in progress in the
demised premises. Landlord agrees that a functioning wet column shall be
available in the demised premises during the performance of Tenant's Work.
42.04. Landlord shall, at Tenant's written request, cooperate in all
reasonable respects with Tenant in the performance by Tenant of Tenant's Work in
preparing the demised premises for Tenant's occupancy including, without
limitation, signing forms and applications, where necessary for filing, and
Landlord shall instruct its employees and contractors to render such assistance
and to cooperate with Tenant's employees, representatives and contractors
provided that to the extent that Landlord shall incur any reasonable expense in
so cooperating or in rendering such assistance, Tenant shall reimburse Landlord
for such reasonable expense as additional rent hereunder. Landlord shall also
cooperate, at no expense to Landlord, in making the Building architect, Cooke &
Associates, available for consultation with Tenant and its representatives, at
Tenant's sole cost and expense.
42.05. Landlord agrees that in connection with the plumbing for Tenant's
pantry in the demised premises, Tenant shall be provided a path for required
plumbing under the slab to an existing drain on the 4th floor, selected by
Landlord, and the condition of such path shall not require the removal or
encapsulation of asbestos under Legal Requirements prior to the commencement of
Tenant's plumbing work under such slab.
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ARTICLE 43
TENANT'S CREDIT
43.01. (a) Landlord shall allow Tenant an allowance in the amount of
Two Million Eleven Thousand Six Hundred Eighty and 00/100 ($2,011,680) Dollars
(herein called the "Work Credit"), which Work Credit shall be applied against
the cost and expense of the construction work performed by Tenant in connection
with Tenant's Work in the demised premises and Tenant's actual and reasonable
out-of-pocket expenses incurred for architectural, engineering, design and other
professional fees and relocation costs. In the event that the cost and expense
of Tenant's Work shall exceed the amount of the Work Credit, Tenant shall be
entirely responsible for such excess. In the event that the cost and expense of
Tenant's Work shall be less than the amount of the Work Credit, then Tenant
shall be permitted to credit the amount of such difference against installments
of fixed annual rent next becoming due hereunder, provided, however, that in no
event shall the amount of such credit against fixed annual rent exceed $670,560
(i.e., $15.00 prsf). The Work Credit shall be payable by Landlord to Tenant
upon written requisition to Landlord in installments as Tenant's Work
progresses, but no more frequently than monthly. The amount of each such
installment shall be an amount equal to the product obtained by multiplying 90%
of the Work Credit by a fraction, the numerator of which is equal to the actual
costs paid by Tenant for completed portions of Tenant's Work referenced in such
requisition (as evidenced by paid or incurred invoices delivered to Landlord in
accordance with the next sentence) and the denominator of which is the total
estimated cost of Tenant's Work, which estimate shall be made, and certified to,
by Tenant's architect in good faith based on the final plan. Prior to the
payment of any such installment of the Work Credit, Tenant shall deliver to
Landlord a written request for such disbursement which shall be accompanied by:
(i) invoices for Tenant's Work performed since the last disbursement, (ii) a
certificate signed by Tenant's architect and an officer of Tenant certifying
that Tenant's Work represented by the aforesaid invoices has been satisfactorily
completed in accordance with the final plans, and (iii) partial lien waivers
from the contractors or subcontractors who shall have performed any such work
releasing Tenant from all liability for same. The 10% balance of the amount of
the Work Credit shall be payable to Tenant after the completion of Tenant's Work
upon submission of all Buildings Department signoffs, inspection certificates
and any permits required to be issued by any governmental entities having
jurisdiction thereover. Such payment shall be due ten (10) Business Days after
Tenant submits its requisition with accompanying documentation as hereinbefore
set forth in the preceding sentences.
(b) At any and all times during the progress of Tenant's Work,
representatives of Landlord shall have the right of access to the demised
premises and inspection thereof and shall have the right to withhold all or any
portion of the Work Credit as shall equal the cost of correcting any portions of
Tenant's Work which shall not have been performed in a manner reasonably
satisfactory to Landlord; provided, however, that Landlord shall incur no
liability, obligation or responsibility to Tenant or any third party by reason
of such access and inspection and provided further that Landlord's inspection
shall not interfere with the performance of Tenant's Work except to a de minimis
extent.
ARTICLE 44
EMERGENCY GENERATOR
44.01. Subject to the terms, provisions and conditions of this
Lease, Tenant shall have the right at Tenant's sole cost and expense but without
additional charge by way of increased rent to tie into the Building tenant
emergency generator to supply emergency electricity to the demised premises not
to exceed one hundred fifty (150) kilovolt amperes (KVA) of such emergency
generator's capacity. Landlord shall perform routine testing and maintenance of
such generator and shall give Tenant reasonable prior notice of such testing.
Landlord shall cooperate with Tenant in order to schedule such testing and
maintenance so as to minimize material interference with the conduct of Tenant's
business.
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ARTICLE 45
TENANT'S ANTENNA
45.01. Landlord agrees that, subject to all laws, ordinances,
statutes, rules and regulations of all governmental authorities having
jurisdiction thereof, and further subject to the conditions and limitations
hereinafter stipulated, during the term of this Lease, Tenant, at Tenant's sole
cost and expense, may install on a portion of the rooftop of the Building of
approximately fifty (50) square feet, and thereafter maintain, repair, and
operate one or more satellite antenna or other communications devices
(hereinafter collectively referred to as the "ANTENNA"), provided and on
condition that: (i) the size and dimensions of the antenna and any reasonably
required support structures as well as the location of the portion of the
rooftop for such installation shall be subject to Landlord's prior consent
(which shall not be unreasonably withheld provided the size thereof shall not
exceed fifty (50) feet); (ii) no such equipment shall extend higher than the
parapet of the roof of the Building; (iii) the installation and position of such
antenna and reasonably required support structures shall comply with Legal
Requirements; (iv) the installation of any electrical or communications lines
(hereinafter referred to as "WIRING") and related equipment in connection with
the installation and operation of the antenna, as well as the manner and
location (i.e., routing) of all Wiring and related equipment in connection
therewith shall (A) be at Tenant's sole cost and expense, (B) be subject to
Landlord's prior consent, and (C) comply with Legal Requirements; and (v) the
antenna, reasonably required support structures, Wiring and related equipment
shall be maintained and kept in repair by Tenant, at Tenant's sole cost and
expense. The parties agree that Tenant's use of the rooftop of the Building is
a nonexclusive use and Landlord may permit the use of any other portion of the
roof to any other person, firm or corporation for any use including the
installation of other antennas and support equipment. Tenant shall not be
obligated to pay any additional fixed rental on account of Tenant's use of the
roof of the Building pursuant to this Article 45. Tenant shall also have the
right to use not more than its proportionate share of any designated shaftway
utilized by the Building for running lines to the roof to connect the antenna to
the demised premises.
45.02. For the purpose of installing, servicing or repairing the
antenna and related equipment, Tenant shall have access to the rooftop of the
Building upon prior reasonable request of Landlord. All access by Tenant to the
roof of the Building shall be subject to the supervision and control of Landlord
and to Landlord's reasonable safeguards for the security and protection of the
Building, the Building equipment and installations and equipment of other
tenants of the Building as may be located on the roof of the Building. Landlord
shall have the right to assign a Building representative to be present during
the duration of Tenant's access to the rooftop and Tenant shall pay the
Landlord's customary charges therefor as additional rent.
45.03. Tenant, at Tenant's sole cost and expense, agrees to
promptly and faithfully obey, observe and comply with all laws, ordinances,
regulations, requirements and rules of all duly constituted public authorities
in any manner affecting or relating to Tenant's use of said roof as to the
installation, repair, maintenance and operation of any support structures and
antenna and related equipment erected or installed by Tenant pursuant to the
provisions of this Article 45. Tenant, at Tenant's sole cost and expense, shall
secure and thereafter maintain all permits and licenses required for the
installation and operation of the antenna and any support structures and related
equipment erected or installed by Tenant pursuant to the provisions of this
Article 45, including, without limitation, any approval, license or permit
required from the Federal Communications Commission. In no event shall the
maximum level of microwave emissions from the antennas exceed an amount equal to
Tenant's proportionate share of the total microwave emissions allowable for the
Building as determined by the governmental authorities having jurisdiction
thereof.
45.04. Tenant agrees that Tenant will pay for all electrical
service required for Tenant's use of the antenna and related equipment erected
or installed by Tenant pursuant to the provisions of this Article 45 in
accordance with Article 4 of this Lease and Tenant further agrees that such
electric service shall feed off the
66
supply of electrical energy furnished to the demised premises as provided in
Article 4 of this Lease.
45.05. The antenna, support structures and related equipment
installed by Tenant, pursuant to the provisions of this Article 45 shall be
Tenant's personal property, and, upon the expiration of the term of this Lease,
or upon its earlier termination in any manner, shall be removed by Tenant at
Tenant's sole cost and expense. All Wiring and related electrical equipment
installed by Tenant in connection with the installation and operation of the
antenna shall be Tenant's personal property. Upon the expiration of the Term of
this Lease or upon its earlier termination in any manner, if Landlord so directs
by written notice to Tenant, Tenant shall promptly remove the Wiring and
electrical equipment as designated in such notice, at Tenant's sole cost and
expense. Tenant, at Tenant's sole cost and expense, shall promptly repair any
and all damage to the rooftop of the Building and to any other part of the
Building caused by or resulting from the installation, maintenance and repair,
operation or removal of the antenna, support structures, Wiring and related
equipment erected or installed by Tenant pursuant to the provisions of this
Article 45 and restore said affected areas to their condition as existed prior
to the installation of the antenna and related equipment.
45.06. Tenant agrees that Landlord shall not be required to provide
any services whatsoever to the rooftop of the Building.
45.07. Tenant covenants and agrees that all installations made by
Tenant on the rooftop of the Building or in any other part of the Building
pursuant to the provisions of this Article 45 shall be at the sole risk of
Tenant, and neither Landlord nor Landlord's agent or employees shall be liable
for any damage or injury thereto caused in any manner, unless the same shall
proximately result from the gross negligence or willful misconduct of Landlord,
its agents and employees.
45.08. Tenant will, and does hereby, indemnify and save harmless
Landlord from and against: (i) any and all claims, counsel fees, demands,
damages, expenses or losses by reason of any liens, orders, claims or charges
resulting from any work done, or materials or supplies furnished, in connection
with the fabrication, erection, installation, maintenance and operation of the
antenna, support structures, Wiring and any related equipment installed by
Tenant pursuant to the provisions of this Article 45; and (ii) any and all
claims, costs, demands, expenses, fees or suits arising out of accidents,
damage, injury or loss to any and all persons and property, or either,
whomsoever or whatsoever resulting from or arising in connection with the
erection, installation, maintenance and operation and repair of the antenna,
support structures, Wiring and related equipment installed by Tenant pursuant to
the provisions of this Article 45; except to the extent caused by the negligence
or willful misconduct of Landlord, or its agents or employees. Tenant shall
obtain and thereafter maintain during the Term of this Lease insurance coverage
for the benefit of Landlord and its managing agent (presently HRO International
Ltd.) in such amount and of such type as Landlord may reasonably require. If
any installations referred to in this Article 45 should revoke, negate or in any
manner impair or limit any roof warranty or guaranty obtained by Landlord, then
Tenant shall reimburse Landlord for any loss or damage sustained or costs or
expenses incurred by Landlord as a result thereof.
45.09. All plans and specifications of Tenant's Work and
installations to be done and made by Tenant pursuant to the provisions of this
Article 45 shall be subject to the prior approval of Landlord, such approval not
to be unreasonably withheld or delayed, and shall be further subject to
inspection and reasonable supervision by Landlord.
45.10. Tenant covenants and agrees that the antenna, support
structures, Wiring and related electrical equipment to be installed by Tenant
shall not interfere with or adversely affect any equipment, installations, lines
or machinery of the Building or any other tenant of the Building, including,
without limitation, any other communications equipment in, on top of or
otherwise outside the Building, or access thereto for maintenance, repair or
removal.
45.11. Tenant acknowledges being advised by Landlord that Landlord
has, and shall be, granting to third parties, various rights and licenses to
utilize various portions of the Building and rooftop thereof for the
installation of microwave
67
dishes, satellite communications equipment, whip antennae and other
communications equipment and related equipment (hereinafter all of the
foregoing are collectively referred to as "OTHER COMMUNICATIONS EQUIPMENT")
and that, inasmuch as Landlord's ability to facilitate the installation and
operation of such Other Communications Equipment will be of paramount
importance to Landlord, Landlord shall have the right, at any time and from
time to time, during the Term of this Lease, upon thirty (30) days' prior
written notice to Tenant, to relocate the Tenant's antenna, support
structures and related equipment to other areas of the Building and rooftop
thereof equally suitable for transmission and reception of signals, as
Landlord in its sole discretion may determine so as to accommodate such Other
Communications Equipment on the roof of the Building and so as to eliminate,
or not to create, problems of interference with respect to or between Other
Communications Equipment now, or in the future, installed on the roof or
other areas of the Building. Such relocation shall, to the extent
practicable, be performed during hours other than Tenant's regular business
hours so as to minimize any disruption of Tenant's normal business activities
and except for such downtime such relocation shall not prevent Tenant from
using its antenna for its original intended purpose. Tenant shall cooperate
with Landlord to effectuate the relocation of Tenant's antenna, support
structures and related equipment, as shall be required by Landlord. All
costs involved in such relocation shall be borne by Landlord.
45.12. Tenant shall not be permitted to assign or transfer all or
any portion of the rights granted to Tenant pursuant to this Article 45 unless
Tenant assigns this Lease to the party to whom such rights are assigned or
transferred.
ARTICLE 46
FAIR MARKET RENT REVIEW
46.01. In the event that the fair market rental for the demised
premises or any portion thereof shall be required to be determined pursuant to
the terms of this Lease as of a particular date (hereinafter called a "Review
Date"), the fair market rent for the demised premises shall be determined in the
manner hereinafter provided.
46.02. If a fair market rental is to be determined pursuant to the
provisions of this Lease and the parties have not agreed on what that fair
market rental shall be, either party (hereinafter called the "Initiating Party")
shall give the other party (hereinafter called the "Responding Party") a notice
designating the name and address of the arbitrator (which arbitrator shall not
have an interest in or be related to the parties hereto) designated by the
Initiating Party to act on its behalf in the arbitration process herein
described (hereinafter called a "Review Notice" or a "Rent Review Notice").
46.03. (a) If the Initiating Party gives a Review Notice, then
within twenty (20) Business Days after the giving of such Review Notice, the
Responding Party shall give notice to the Initiating Party specifying in such
notice the name and address of the arbitrator designated by the Responding Party
to act on its behalf. In the event the Responding Party shall fail to give such
notice within such twenty (20) Business Day period, the fair market rental of
the demised premises shall conclusively be deemed to be the fair market rental
therefor as determined by the Initiating Party's arbitrator, and the Initiating
Party shall promptly send a copy of such determination to the Responding Party.
Upon the giving of such notice by the Responding Party, the two arbitrators so
chosen shall meet at a mutually agreeable time within twenty (20) Business Days
after the second arbitrator is appointed at the office of the Initiating Party's
arbitrator in the Borough of Manhattan (unless they are able to mutually agree
to an earlier time or a different location); provided, however, in the event of
extenuating circumstances, such as death, casualty, etc., each arbitrator shall
have the right to postpone such meeting for up to five (5) Business Days; and
shall exchange sealed envelopes each containing such arbitrator's written
determination of the fair market rental of the space in question based on the
criteria set forth in Section 47.03(c) hereof. The fair market rental specified
by the Initiating Party's arbitrator shall hereinafter be called the "Initiating
Party's Submitted Value" and the fair market rental specified by the Responding
Party's arbitrator shall hereinafter be called the "Responding Party's Submitted
Value."
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Copies of such written determinations shall promptly be sent to both the
Initiating Party and the Responding Party. Any failure of either of such
arbitrators (hereinafter called the "Non-Meeting Arbitrator") to meet and
exchange such determination, which failure continues for a period in excess
of ten (10) Business Days after a second written notice given by the party
represented by the other arbitrator (hereinafter called the "Meeting
Arbitrator") to the party represented by the Non-Meeting Arbitrator and to
the Non-Meeting Arbitrator, shall be deemed acceptance of the Meeting
Arbitrator's determination as to fair market rental. During the ten (10)
Business Day period referred to in the immediately preceding sentence, the
party represented by the Non-Meeting Party may, at its election, appoint a
substitute arbitrator, provided such substitute arbitrator meets the
requirements contained in this Section 46.03 and such substitution shall not
extend any time periods provided for herein. Within twenty (20) days after
the second arbitrator is appointed, they shall together appoint an impartial
third arbitrator, which third arbitrator shall not have an interest in, or be
related to, the parties hereto. If said two arbitrators cannot agree upon the
appointment of a third arbitrator within such twenty (20) day period, then
either party, on behalf of both, and on notice to the other may request such
appointment by the American Arbitration Association (or any successor
organization) in accordance with its then prevailing rules; provided,
however, that nothing contained herein shall be construed to require
submission of any dispute to the American Arbitration Association. If the
American Arbitration Association shall fail to appoint said third arbitrator
within thirty (30) days after such request is made, then either party may
apply, on notice to the other, to the Chairman of the Committee on Real
Property of the Bar Association of the City of New York (hereinafter called
the "Chairman") for the appointment of such third arbitrator, provided that
neither the Chairman nor his firm (nor any prior firm with which he was
affiliated) has represented either Landlord or Tenant (or any Affiliate of
Landlord or Tenant). In the event the Chairman or his firm has represented
either Landlord or Tenant (or any Affiliate of Landlord or Tenant), then such
application shall be made to the Chief Administrative Judge for New York
County of the Supreme Court of the State of New York.
Within twenty (20) Business Days after the appointment of such third
arbitrator, the first arbitrator and second arbitrator shall submit to such
third arbitrator their respective determinations of the fair market rental as
described in the immediately preceding paragraph. Such third arbitrator shall,
within twenty (20) Business Days after the end of such 15-Business Day period,
hold hearings, solicit and receive reports from each party (copies of which
shall be provided to the other party), and determine whether the fair market
rental specified by the first arbitrator or second arbitrator in such
submissions was closer to the determination by such third arbitrator of the fair
market rental of the demised premises and the fair market rental specified by
the first arbitrator or the second arbitrator which is closer to the
determination by such third arbitrator shall conclusively be deemed to be the
fair market rental of the demised premises. In no event shall either party have
any communications on an EX PARTE basis with the third arbitrator during the
course of any such arbitration.
(b) Each of the arbitrators selected as herein provided shall
have at least ten (10) years' experience in the leasing or management of office
space in the "Midtown" office market in the Borough of Manhattan or in the
business of appraising or managing commercial real estate or acting as a
commercial real estate agent or broker in the Borough of Manhattan. Each party
shall pay the fees and expenses of the arbitrator selected by it. The fees and
expenses of the third arbitrator and all other expenses (not including the
attorneys' fees, witness fees and similar expenses of the parties which shall be
borne separately by each of the parties) of the arbitration shall be borne
equally by the parties hereto.
(c) In rendering any determination of fair market rent of the
demised premises, the arbitrators shall assume or take into consideration as
appropriate all then-relevant factors, including, as appropriate, all of the
following: (i) Landlord and prospective tenant are typically motivated;
(ii) Landlord and prospective tenant are well informed and well advised and each
is acting in what it considers its own best interest; (iii) a reasonable time
under then-existing market conditions is allowed for exposure of the demised
premises on the open market; (iv) in the event the demised premises have been
destroyed or damaged by fire or other casualty, same shall have been deemed
fully restored; (v) the demised premises are to
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be let in as-is condition (but without Tenant's removable furniture,
furnishings and business equipment) with vacant possession and as a single
unit or multiple units or in combination with other space and for a term
which, under then prevailing market conditions, is calculated to obtain the
highest rental; provided, however, that no rent concession or work allowance
is actually being given; (vi) market rents then being charged and work
allowances and rent concessions being granted for comparable space in
comparable buildings; and (vii) charges for Tenant's electrical consumption
will be paid directly to the public utility furnishing electric service to
the Building as provided in Article 4. In rendering such decision and award,
the arbitrators shall not modify the provisions of this Lease except for the
fixed annual rent as herein provided in this Article. The decision and award
of the arbitrators shall be in writing and be final and conclusive on all
parties and counterpart copies thereof shall be delivered to each of said
parties. Judgment may be had on the decision and award of the arbitrators so
rendered in any court of competent jurisdiction.
ARTICLE 47
STORAGE SPACE
47.01. If, within eighteen (18) months from the date hereof, Tenant
shall request that Landlord lease to Tenant a portion of the basement area and,
at the time of such request, there shall be basement space unencumbered and
available for leasing to Tenant, then from and after the date that Landlord
shall deliver such basement space to Tenant the provisions of this Article 47
shall apply to the leasing of such basement space. Landlord shall lease to
Tenant and Tenant shall hire from Landlord, upon the terms and subject to the
conditions of this Lease and to such additional terms and conditions as are
hereinafter set forth, storage space located in the basement of the Building to
be delineated by Landlord, in its sole discretion (the "Storage Space"). The
fixed annual rent payable hereunder shall be increased without abatement as
provided in Section 1.05 or otherwise by the following amounts:
(i) At the annual rate of $17.50 per rentable square foot per
annum for the period beginning on the Commencement Date and
ending on the last day of the month immediately preceding the
month in which occurs the fifth (5th) anniversary of the
Commencement Date;
(ii) At the annual rate of $20.00 per square foot per annum
for the period beginning on the first (lst) day of the month
in which occurs the fifth (5th) anniversary of the
Commencement Date and ending on the last day of the month
immediately preceding the month in which occurs the tenth
(10th) anniversary of the Commencement Date; and
(iii) At the annual rate of $22.50 per rentable square foot
per annum for the period beginning on the first day of the
month in which occurs the tenth (10th) anniversary of the
Commencement Date and ending on the Expiration Date.
47.02. Notwithstanding anything to the contrary contained in this Lease,
Tenant agrees that Tenant's occupancy of the Storage Space shall be subject to
the following additional terms and conditions:
(a) Landlord shall not be obligated to perform any work or
incur any expense to prepare the Storage Space for Tenant's use, except that
Landlord shall: (i) erect such walls as are necessary to demise the Storage
Space; (ii) furnish and install therein Building Standard lighting and such
wiring as is necessary to operate the same;
(b) Tenant shall make no alterations, installations,
additions, or improvement in or to the Storage Space without Landlord's prior
written consent;
(c) Tenant shall use the Storage Space only for the purposes
of office storage;
70
(d) Tenant may not assign its rights with respect to the Storage
Space (except in connection with an assignment of this Lease pursuant to
Article 11 hereof) or sublease the same or allow the same to be used by
others without the prior written consent of Landlord; and
(e) Except as hereinabove provided, Landlord shall not be
responsible for the rendition or delivery of any services or utilities to the
Storage Space whatsoever, including without limitation, water, heating,
ventilation, air-conditioning, or cleaning.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed
this Lease as of the day and year first above written.
Witness: SPARTAN MADISON CORP., Landlord
By: Charles R. Klotz, President
---------------------------
Charles R. Klotz, President
INVESTMENT TECHNOLOGY GROUP, INC., Tenant
By: James Lynch
-----------
Name: James Lynch
Title: Vice President and
General Counsel
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 27th day of September, 1996 before me personally came James
Lynch, to me known, who, being duly sworn by me, did depose and say that he
resides in* that he is the V.P. of INVESTMENT TECHNOLOGY GROUP, INC., the
corporation described in and which executed the above instrument and that he
signed his name thereto by order of the board of directors of said
corporation.
* 306 West 100th St, NY NY
Andrea Hicks
-------------------------------------
Andrea Hicks
Notary Public, State of New York
No. 5025097
Qualified in Kings County
Commission Expires march 21, 1998
COMMONWEALTH OF MASSECHUSETTS )
: ss.:
COUNTY OF SUFFOLK )
On this 30th day of September, 1996, before me personally came C.R.
Klotz, to me known, who, being by me duly sworn, did depose and say that he
resides in Wellesley; that he is the President of SPARTAN MADISON CORP. the
corporation described in and which executed the above instrument; and that he
signed his name by authority of the board of directors of such corporation.
C. Paula Barretto
Notary Public
C. Paula Barretto
Notary Public
My Commission Expires Oct. 20, 2000
71
SCHEDULE A
FLOOR PLAN
[To be inserted]
SCHEDULE B
DESCRIPTION OF LAND
ALL that certain plot, piece or parcel of land, with the buildings
and improvements thereon erected, situate, lying and being in the Borough of
Manhattan, City, County and State of New York, bounded and described as
follows:
BEGINNING at the corner formed by the intersection of the Westerly
side of Madison Avenue with the southerly side of 47th Street; running thence
Westerly along the Southerly side of 47th Street, 140 feet;
thence Southerly parallel with Madison Avenue, 100 feet 5 inches to the
center of the block;
thence Westerly along the corner line of the block and parallel with 46th
Street, 100 feet;
thence Southerly and parallel with Madison Avenue, 100 feet 5 inches to the
Northerly side of 46th Street;
thence Easterly along the Northerly side of 46th Street, 240 feet to the
corner formed by the intersection of the said northerly side of 46th Street
with the westerly side of Madison Avenue, thence Northerly along the Westerly
side of Madison Avenue 200 feet 10 inches to the corner, point or place of
BEGINNING.
SCHEDULE C
Intentionally Omitted
SCHEDULE D-1
FORM OF ESTOPPEL CERTIFICATE
TENANT ESTOPPEL CERTIFICATE
_____________________________ undersigned ("Tenant"), in consideration
of One Dollar ($1.00) and other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, hereby certifies to Spartan Madison
Corp. ("Landlord"), the holder of any mortgage covering the property or any
leasehold interest therein (the "Mortgagee") and the vendee under any contract
of sale with respect to the Property (the "Purchaser") as follows:
1. Tenant executed and exchanged with Landlord a certain lease (the
"Lease"), dated _______________, covering the ________________________ floors
(the "demised premises") in the building located in the Borough of Manhattan, in
the City,
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County, and State of New York, known as 380 Madison Avenue, New York, New
York (the "Property"), for a term to commence (or which commenced) on the
"Commencement Date" (as such term is defined in Section 2.01 of the Lease),
and to expire on _________________.
2. The Lease is in full force and effect and has not been
modified, changed, altered or amended in any respect.
3. Tenant has accepted and is now in possession of the demised
premises and is paying the rental under the Lease pursuant to the provisions
of the Lease.
4. The fixed minimum annual rent payable under this Lease is set
forth in Section 1.02 of the Lease. The fixed minimum annual rent and all
additional rent and other charges required to be paid under the Lease have
been paid for the period up to and including the date thereof.
5. No rent under the Lease has been paid for more than thirty
(30) days in advance of its due date.
6. All work required under the Lease to be performed by Landlord
has been completed to the full satisfaction of Tenant.
7. To Tenant's knowledge there are no defaults to our knowledge
existing under the Lease on the part of Landlord.
8. To Tenant's knowledge there is no existing basis for Tenant to
cancel or terminate the Lease.
9. To Tenant's knowledge as of the date hereof, there exist no
valid defenses, offsets, credits, deductions in rent or claims against the
enforcement of any of the agreements, terms, covenants or conditions of the
Lease.
10. There are no actions, whether voluntary or otherwise, pending
against the Tenant under the Bankruptcy Laws of the United States or any
state thereof.
11. This certification is made to induce Purchaser to consummate a
purchase of the Property and/or to induce Mortgagee to make and maintain a
mortgage loan secured by the Property, or any leasehold interest therein, as
the case may be, knowing that said Purchaser and/or Mortgagee as applicable,
rely upon the truth of this certification in making and/or maintaining such
purchase or mortgage, as applicable.
Date: _______________, 199_
--------------------------
By:
-----------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this _____ day of ________________, 199_, before me personally came
__________________________, to me known, who, being by me duly sworn, did depose
and say that he resides in __________________________________________; that he
is the ________________________________, the corporation described in and which
executed the above instrument and that he signed his name thereto by order of
the board of directors of said corporation.
73
------------------------------------
SCHEDULE D-2
FORM OF LANDLORD'S ESTOPPEL CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. The undersigned is the Landlord under that certain Lease, dated __________
by and between __________________________ as Lessor ("Landlord"), and
________________, as Lessee ("Tenant"), covering those certain premises
known and designated as ___________ of the building known as
__________________, New York, New York (the "Lease").
2. The Lease has not been modified, changed, altered or amended in any way
(except as indicated in this sentence), and this is the only lease or
agreement, written or otherwise, between the undersigned and Tenant
affecting said premises.
3. Tenant has accepted the premises and is occupying same. The term of the
Lease began __________, all Fixed Rent, Tenant's Tax and Tenant's Expense
Payments, as billed, pursuant to the Lease has been paid to and including
____________. The fixed minimum rent paid is currently $___________ per
month. The expiration date of the Lease is __________________.
4. To the best of the undersigned's knowledge, (i) the Lease is in full force
and effect and (ii) there are no defaults thereunder, as of the date
hereof, and (iii) there exists no condition which gives rise to Landlord's
right to terminate the Lease.
5. To the best of the undersigned's knowledge, no actions, whether voluntary
or otherwise, are pending against the undersigned under the bankruptcy or
insolvency laws of the United States or any state thereof.
6. The amount of any security deposit deposited with Landlord pursuant to the
terms of the Lease is $__________.
7. As of the date hereof, to the best of the undersigned's knowledge, there
exists no valid defenses, offsets, credits, deductions in rent or claims
against the enforcement of any of the agreements, terms, covenants or
conditions of the Lease.
8. This certification is made to induce _____________ to ____________ knowing
that __________ relies upon the truth of the certification.
------------------------------
Landlord
Dated: , 199
-------------- --
SCHEDULE E
RULES AND REGULATIONS
1. The rights of tenants in the entrances, corridors, elevators
of the Building are limited to ingress to and egress from the tenants'
premises for the tenants and their employees, licensees and invitees, and no
tenant shall use, or permit the use of, the entrances, corridors, or
elevators for any other purpose. No tenant shall invite to the tenant's
premises, or permit the visit of, persons in such numbers or under such
conditions as to interfere with the use and enjoyment of any of the,
entrances, corridors, elevators and other facilities of the Building by other
tenants except to a de minimis extent. Fire exits and stairways are for
emergency use only, and they shall not be used for any other purposes by the
tenants, their
74
employees, licensees or invitees. No tenant shall encumber or obstruct, or
permit the encumbrance or obstruction of any of the sidewalks, entrances,
corridors, elevators, fire exits or stairways of the Building. The Landlord
reserves the right to control and operate the public portions of the Building
and the public facilities, as well as facilities furnished for the common use
of the tenants, in such manner as it reasonably deems best for the benefit of
the tenants generally.
2. The cost of repairing any damage to the public portions of the
building or the public facilities or to any facilities used in common with
other tenants, caused by a tenant or the employees, licensees or invitees of
the tenant, shall be paid by such tenant.
3. The Landlord may refuse admission to the Building outside of
ordinary business hours to any person not known to the watchman in charge or
not having a pass issued by the Landlord or not properly identified, and may
require all persons admitted to or leaving the Building outside of ordinary
business hours to register. Tenant's employees, agents and visitors shall be
permitted to enter and leave the building whenever appropriate arrangements
have been previously made between the Landlord and the Tenant with respect
thereto. Each tenant shall be responsible for all persons for whom such
person requests such permission and shall be liable to the Landlord for all
acts of such persons. Any person whose presence in the Building at any time
shall, in the reasonable judgment of the Landlord, be prejudicial to the
safety, character, reputation and interests of the Building or its tenants
may be denied access to the Building or may be ejected therefrom. In case of
invasion, riot, public excitement or other commotion, the Landlord may
prevent all access to the Building during the continuance of the same, by
closing the doors or otherwise, for the safety of the tenants and protection
of property in the Building. The Landlord may require any person leaving the
Building with any package or other object to exhibit a pass from the tenant
from whose premises the package or object is being removed, but the
establishment and enforcement of such requirements shall not impose any
responsibility on the Landlord for the protection of any tenant against the
removal of property from the premises of the tenant. The Landlord shall in
no way be liable to any tenant for injury or loss arising from the admission,
exclusion or ejection of any person to or from the tenant's premises or the
Building under the provisions of this rule.
4. No tenant shall obtain or accept or use in its premises ice,
drinking water, food, beverage, towel, barbering, boot blacking, floor
polishing, lighting maintenance, cleaning or other similar services from any
persons not authorized by the Landlord in writing to furnish such services,
provided always that charges for such services by persons authorized by the
Landlord are not excessive. Such services shall be furnished only at such
hours, in such places within the tenant's premises and under such regulations
as may be fixed by the Landlord.
5. No awnings or other projections over or around the windows
shall be installed by any tenant and only such window blinds as are supplied
or permitted by the Landlord shall be used in a tenant's premises.
6. There shall not be used in any space, or in the public halls
of the Building, either by the Tenant or by jobbers or others, in the
delivery or receipt of merchandise or mail any hand trucks, except those
equipped with rubber tires and side guards. All deliveries to tenants,
except mail and food, shall be made to such place as Landlord shall designate
and shall be distributed to tenants only during the hours from 7:00 A.M. to
12:00 noon and 1:00 P.M. to 4:00 P.M., Monday through Friday.
7. All entrance doors in each tenant's premises shall be left
locked when the tenant's premises are not in use. Entrance doors shall not
be left open at any time. All windows in each tenant's premises shall be
kept closed at all times and all blinds or drapes therein above the ground
floor shall be lowered or closed when and as reasonably required because of
the position of the sun, during the operation of the Building air
conditioning system to cool or ventilate the tenant's premises. Tenant shall
not tamper with or adjust tamperproof or covered thermostats which have been
preset by Landlord to control the operation of the air conditioning system.
All such adjustments shall be made only by Landlord.
75
8. No noise, including the playing of any musical instruments,
radio or television, which, in the reasonable judgment of the Landlord, might
disturb other tenants in the Building shall be made or permitted by any
tenant and no cooking shall be done in the Tenant's premises except as
expressly approved by the Landlord. Nothing shall be done or permitted in
any tenant's premises, and nothing shall be brought into or kept in any
tenant's premises which would impair or interfere with any of the Building
services or the proper and economic heating, cleaning or other servicing of
the Building or the premises, or the use or enjoyment by any other tenant of
any other premises, nor shall there be installed by any tenant any
ventilating, air conditioning, electrical or other equipment of any kind
which, in the reasonable judgment of the Landlord, might cause any such
impairment or interference. No dangerous, inflammable, combustible or
explosive object or material shall be brought into the Building by any tenant
or with the permission of any tenant.
9. Tenant shall not permit any cooking or food odors emanating
from the demised premises to seep into other portions of the Building.
10. No acids, vapors or other materials shall be discharged or
permitted to be discharged into the waste lines, vents or flues of the
Building which may damage them. The water and wash closets and other
plumbing fixtures in or serving any tenant's premises shall not be used for
any purpose other than the purpose for which they were designed or
constructed and no sweepings, rubbish, rags, acids or other foreign
substances shall be deposited therein. All damages resulting from any misuse
of the fixtures shall be borne by the tenant who, or whose servants,
employees, agents, visitors or licensees, shall have caused the same.
11. Tenant shall not display any sign, graphics, notice, picture,
or poster, or any advertising matter whatsoever, anywhere in or about the
demised premises or the Building at places visible from anywhere outside or
at the entrance to the demised premises without first obtaining Landlord's
written consent thereto, such consent to be at Landlord's sole discretion.
Any such consent by Landlord shall be upon the understanding and condition
that Tenant will remove the same at the expiration or sooner termination of
this Lease and Tenant shall repair any damage to the demised premises or the
Building caused thereby.
In the event of the violation of the foregoing by any tenant,
Landlord may remove the same without any liability, and may charge the
expense incurred by such removal to the tenant or tenants violating this
rule. Interior signs, signs and lettering on doors shall be inscribed,
painted, or affixed for each by Landlord at the expense of such tenant, and
shall be of a size, color and style acceptable to Landlord. Landlord shall
have the right to prohibit any advertising by any tenant which impairs the
reputation of the Building or its desirability as a building for offices, and
upon written notice from Landlord, Tenant shall refrain from or discontinue
such advertising.
12. No additional locks or bolts of any kind shall be placed upon
any of the doors or windows in any tenant's premises and no lock on any door
therein shall be changed or altered in any respect. Duplicate keys for a
tenant's premises and toilet rooms shall be procured only from the Landlord,
which may make a reasonable charge therefor. Upon the termination of a
tenant's lease, all keys to the tenant's premises and toilet rooms shall be
delivered to the Landlord.
13. No tenant shall mark, paint, drill into, or in any way deface
any part of the Building or the premises demised to such tenant. No boring,
cutting or stringing of wires shall be permitted, except with the prior
written consent of Landlord, and as Landlord may direct or as permitted under
the Lease. No tenant shall install any resilient tile or similar floor
covering in the premises demised to such tenant except in a manner approved
by Landlord.
14. No tenant or occupant shall engage or pay any employees in the
Building, except those actually working for such tenant or occupant in the
Building, or advertise for laborers giving an address at the Building.
15. No premises shall be used, or permitted to be used, at any
time, as a store for the sale or display of goods or merchandise of any kind,
or as a restaurant, shop, booth, bootblack or other stand, or for the conduct
of any business
76
or occupation which involves direct patronage of the general public in the
premises demised to such tenant, or for manufacturing or for other similar
purposes.
16. The requirements of tenants will be attended to only upon
application at the office of the building. Employees of Landlord shall not
perform any work or do anything outside of the regular duties, unless under
special instructions from the office of the Landlord.
17. Each tenant shall, at its expense, provide artificial light in
the premises demised to such tenant for Landlord's agents, contractors and
employees while performing janitorial or other cleaning services and making
repairs or alterations in said premises.
18. The Tenant's employees shall not loiter around the hallways,
stairways, elevators, front, roof or any other part of the building used in
common by the occupants thereof.
19. Tenant, at its sole cost and expense, shall cause its premises
to be exterminated, from time to time, to the reasonable satisfaction of
Landlord, and shall employ such exterminators therefor as shall be approved
by Landlord.
20. Any cuspidors or similar containers or receptacles used in any
tenant's premises shall be cared for and cleaned by and at the expense of
Tenant.
21. Tenant shall use only the service elevator for deliveries and
only at hours prescribed by Landlord. Bulky materials, as reasonably
determined by Landlord, may not be delivered during usual business hours but
only thereafter. Tenant agrees to pay for use of the service elevator at
rates set forth in the Lease.
22. Tenant shall have no right of access to the roof of the
demised premises or the Building and shall not install, repair or replace any
aerial, fan, air conditioner or other device on the roof of the demised
premises or the Building without the prior written consent of Landlord,
except as provided in the Lease. Any aerial, fan, air conditioner or device
installed without such written consent shall be subject to removal, at
Tenant's expense, without notice, at any time.
23. There will be no building directory. The concierge of the
Building retains a listing of tenants of the Building and their employees.
24. At Landlord's election, all messenger deliveries shall be made
through the designated messenger entrance on 47th Street subject to such
reasonable procedures as Landlord may adopt.
SCHEDULE F
CLEANING SPECIFICATIONS
1. GENERAL OFFICE AREAS
A. Nightly
1. All stone, ceramic, tile, marble, terrazzo and other unwaxed
flooring to be mopped nightly, using approved dust-down
preparations; wash flooring weekly, scrubbed when necessary.
All unwaxed flooring used as corridors adjacent to the core
shall be cleaned and wet mopped nightly.
2. All linoleum, vinyl, rubber, asphalt tile and other similar
types of flooring (that may be waxed) to be swept nightly
using approved dust-down preparation. Waxing, if any, shall
be done at tenant's expense.
77
Mop up and wash floors for spills, smears and foot tracks
throughout, including tenant's space, as needed and wash
floor in general as required.
3. All carpeting and rugs to be vacuumed nightly.
4. Hand dust with treated cloth and wipe clean all furniture,
fixtures, and window enclosures nightly.
5. Empty and clean all waste receptacles nightly and remove
from the demised premises wastepaper to designated areas.
6. Empty and clean all ash trays and screen all sand urns
nightly and replace sand.
7. Dust interior of all waste disposal cans and baskets
nightly; damp-dust as necessary.
8. Wash clean all water fountains and coolers nightly.
9. Dust all door and other ventilating louvers within reach;
damp wipe as necessary.
10. Dust all telephones nightly and wash monthly.
11. Keep locker rooms and telephone and electric closets in a
neat and orderly condition at all times.
12. Wipe clean all brass, if necessary; and other bright work
nightly.
13. Sweep, vacuum or wash all private staircases nightly.
14. Metal doors of elevator cars to be properly maintained
daily.
15. Remove all gum and foreign matter on sight.
16. Clean all glass furniture tops.
17. Collect and remove wastepaper, cardboard boxes (which
Contractor will flatten) and waste material to a designated
area in the premises. Waste and/or rubbish (heavy duty
plastic) bags shall be furnished by Contractor and shall be
adequate to hold contents without breaking. Owner shall
have the right to approve trash removal containers and
janitorial carts.
18. Dust, wash and vacuum closet and coat room shelving, coat
racks and flooring nightly.
B. PERIODIC CLEANING - (To be performed as needed unless otherwise
specified but not less than once each week or as hereinafter
provided);
1. Vacuum all furniture fabric and drapes not less than once
each week.
2. Wash and remove all finger marks, ink stains, smudges, scuff
marks and other marks from metal partitions, sills, all
vertical surfaces (doors, walls, window sills), including
elevator doors, and other surfaces, as necessary. Clean and
sweep any vacant areas.
78
3. Dust and clean electric fixtures, all baseboards and other
fixtures or fittings as necessary, but not less than once
each quarter.
C. HIGH DUSTING
1. Do all high dusting every three (3) months, unless otherwise
specified, including, but not limited to, the following:
a. Vacuum and dust all pictures, frames, charts, graphs
and similar wall hangings not reached in nightly
cleaning. Damp dust as required.
b. Vacuum and dust all vertical surfaces such as walls,
partitions, doors, bucks and ventilating louvers,
grills, high moldings, and other surfaces not reached
in nightly cleaning.
c. Dust all overhead pipes, sprinklers, ventilating and
air conditioning louvres, ducts, high moldings and
other high areas not reached in nightly cleaning.
d. Dust all venetian blinds, with a Masslin treated dust
control cloth, every three months. Dust all window
frames.
e. Dust exterior and interior of lighting fixtures.
f. Wash all furniture glass as needed.
g. Vacuum and dust ceiling tiles around ventilators and
clean and wash air conditioning diffusers as required.
2. ELEVATOR LOBBY AND PUBLIC CORRIDORS (MULTI-TENANT FLOORS)
A. Vacuum floors nightly and machine scrub or shampoo floors
monthly. Wax, buff, apply sealer and finishes as required.
B. Wipe down all metal surfaces in lobby nightly, and polish
monthly.
C. High dust and wash if necessary all electrical and air
conditioning ceiling fixtures at least once per month.
D. Dust walls nightly and wash monthly.
E. Clean cigarette urns, screen sand and supply sand as necessary.
F. Burned out lamps shall be replaced promptly with lamps supplied
by Contractor.
G. Clean saddles daily and polish saddles monthly.
3. ELEVATORS
A. Clean saddles and frames on floors above lobby once per week and
vacuum dirt from door tracks nightly. Polish saddles monthly.
B. Dust elevator doors daily.
79
C. Clean floors twice daily and polish weekly by machine.
4. LAVATORIES IN BASE BUILDING CORE AREAS ON FLOOR
A. Nightly
1. Scour, wash and disinfect all toilet seats (both sides),
basins, bowls, urinals and tile walls near urinals,
throughout.
2. Sweep and wash all lavatory floors using proper
disinfectants.
3. Wash and polish all mirrors, powder shelves, bright work and
enameled surfaces in all lavatories.
Contractor shall use only non-abrasive material to avoid
damage and deterioration to chrome fixtures.
4. Hand dust and clean, washing where necessary, all
partitions, dispensers and receptacles in all lavatories and
rest rooms.
5. Service sanitary napkin dispensers. (Napkins supplied by
Contractor.)
6. Empty paper towel and sanitary napkin disposal receptacles
and remove paper to designated areas.
7. Fill all toilet tissue holders, soap dispensers, towel
dispensers and sanitary napkin vending dispensers.
(Materials to be supplied by Contractor as approved by
Landlord.)
8. Empty and clean sanitary disposal receptacles.
9. Clean and wash all receptacles and dispensers.
10. Remove finger marks from painted surfaces.
11. Clean all slop sinks on all floors nightly and keep in a
neat, orderly and clean condition at all times.
B. Periodic
1. Clean and wash all partitions once every week.
2. Scrub floors as necessary, but not less than once each week.
3. Hand dust, clean and wash all tile walls and ceilings
including washable acoustical tile, once each week, more if
necessary.
4. High dusting shall be done once each month which will
include lights, walls and grills.
5. Wash all lighting fixtures as necessary.
SCHEDULE G
SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
80
THIS AGREEMENT made as of the _____ day of September, 1996 between
THE FIRST NATIONAL BANK OF BOSTON, a national banking association, having an
office at 100 Federal Street, Boston, Massachusetts 02110 ("Mortgagee") and
INVESTMENT TECHNOLOGY GROUP, INC., a Delaware corporation, having an address
at 900 Third Avenue, New York, New York ("Tenant").
W I T N E S S E T H :
WHEREAS, Tenant has entered into a lease dated as of September __,
1996 between Spartan Madison Corp. ("Landlord"), as landlord, and Tenant, as
tenant, with respect to certain space (the "Demised Premises") in the
building located at 380 Madison Avenue, New York, New York (the "Building")
located on the land (the "Land") as more particularly described in Exhibit A
annexed hereto and made part hereof (said lease, as heretofore or hereafter
amended and supplemented, is hereinafter called the "Lease"); and
WHEREAS, Mortgagee is the holder of certain mortgage, as modified
by a certain Mortgage Modification Agreement, dated as of June 20, 1991,
between Mortgagee and Landlord's predecessor-in-interest (collectively, as so
modified, the "June Mortgage"), which Mortgage encumbers, among other things,
Tenant's interest in the Demised Premises and the Building; and
WHEREAS, Landlord and Mortgagee have entered into a certain Project
Loan Agreement dated December 20, 1991 pursuant to which Mortgagee shall make
certain loans to Landlord in the aggregate amount of $11,200,000 subject to
the terms and conditions set forth in such Project Loan Agreement, and, in
order to secure such loans, Landlord shall deliver to Mortgagees certain
Project Loan Mortgages (as defined in the Project Loan Agreement), by
Landlord to Mortgagee covering Landlord's interest in the Building (the
"PROJECT LOAN MORTGAGES"). The June Mortgage and the Project Loan Mortgages
are herein collectively called the "Mortgage"; and
WHEREAS, Mortgagee and Tenant desire to enter into this Agreement
upon the terms, covenants and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and the agreements
of the parties contained herein, the parties agree as follows:
1. The Lease and all of Tenant's rights thereunder are and shall
be at all times and in all respects subject and subordinate to the Mortgage,
and to all advances made and/or hereafter to be made under the Mortgage and
all renewals, modifications, consolidations, replacements, substitutions,
additions and extensions of the Mortgage and to any subsequent mortgages with
which the Mortgage may be spread and/or consolidated.
2. Provided Tenant shall not be in default under the Lease beyond
the applicable period of grace, if any, provided therein with respect to the
default in question as of the date Mortgagee commences a foreclosure action,
(i) Tenant shall not be named a party in any action or proceeding to enforce
the Mortgage, unless such joinder shall be required under applicable law, and
in which case Mortgagee shall not seek affirmative relief from Tenant in such
action or proceeding, nor shall the Lease be cut off or terminated nor
Tenant's possession thereunder be disturbed in any such action or proceeding,
and (ii) subject to the provisions of Section 4 of this Agreement, Mortgagee
will recognize the Lease and Tenant's rights thereunder.
3. Upon any foreclosure of the Mortgage or other acquisition of
the property encumbered thereby, Tenant shall attorn to Mortgagee or any
other party acquiring said property or so succeeding to Landlord's rights
(collectively, the "Successor Landlord") and shall recognize the Successor
Landlord as its landlord under the Lease and Tenant shall promptly execute
and deliver any instrument that the Successor Landlord may reasonably request
to evidence further said attornment, which instrument shall be reasonably
satisfactory to Tenant's counsel.
4. Upon such attornment or other acquisition of said property,
the Lease shall continue as a direct lease between the Successor Landlord and
Tenant
81
upon all terms, covenants and conditions thereof as are then applicable under
the Lease except that the Successor Landlord shall not be (a) liable for any
previous act or omission of Landlord under the Lease, (b) subject to any
offsets, defenses or counterclaims that Tenant may have against Landlord,
except to the extent expressly set forth in the Lease (c) bound by any
covenant to perform or complete any initial construction in connection with
the Building or the Demised Premises or to pay any sums to Tenant in
connection therewith, (d) bound by any prepayment of more than one (1)
month's rent or other charges under the Lease or prepayment of more than
three (3) months' rent where such payments are payable at intervals of more
than one (1) month, unless such payment shall have been expressly approved in
writing by Mortgagee, or (e) bound by any amendment, modification, extension
or expansion of the Lease unless approved in writing by Mortgagee.
5. Tenant shall not, without obtaining the prior written consent
of Mortgagee (a) prepay installments of base rent due under the Lease for
more than one month in advance, except in connection with the first month's
rent and additional rent paid in advance pursuant to the provisions of the
Lease or (b) modify the Lease so as to (1) reduce the rents payable
thereunder or (2) reduce the term of the Lease, or (c) terminate, cancel or
voluntarily surrender the Demised Premises unless for cause, other than
pursuant to Tenant's option to terminate contained in Article 43 of the Lease
or (d) assign the Lease or sublet the Demised Premises or any part thereof
other than pursuant to the provisions of the Lease. Any such amendment,
modification, termination, prepayment, voluntary surrender, assignment or
subletting (other than an assignment or subletting pursuant to the Lease),
without Mortgagee's prior consent, shall not be binding upon Mortgagee.
6. Tenant from and after the date hereof shall send a copy of any
notice of default or notice in connection with the commencement of any action
to terminate the Lease or similar statement under the Lease to Mortgagee at
the same time such notice or statement is sent to Landlord under the Lease.
Such notices shall be delivered to Mortgagee pursuant to Paragraph 8 hereof
at the following address:
The First National Bank of Boston
l00 Federal Street
Boston, Massachusetts 02110
Attention: Ian Harvey, London Branch
with a copy to:
Bingham, Dana & Gould
150 Federal Street
Boston, Massachusetts 02110
Attention: James F. Monahan, Esq.
With respect to the commencement by Tenant of any action to terminate the
Lease, Mortgagee shall have the right to cure any default on the part of
Landlord which is the basis for such action within a reasonable time after
receipt of the notice from Tenant with respect to such action. All notices,
demands or requests to Tenant, if any, shall be in writing and addressed to
Tenant at its address set forth in the Lease.
7. Tenant acknowledges that it has notice that Landlord's
interest under the Lease and the rent and all other sums due thereunder have
been assigned to Mortgagee, as part of the security for the note secured by
the Mortgage. In the event that Mortgagee notifies Tenant of a default under
the Mortgage and demands that Tenant pay its rent and all other sums due
under the Lease to Mortgagee, Tenant agrees that it shall pay its rent and
all other sums due under the Lease to Mortgagee. Landlord joins in the
execution hereof for the purpose of consenting to the provisions of this
Section.
8. Any and all notices, elections, demands, requests and
responses hereto permitted or required to be given under this Agreement shall
be in writing, signed by or on behalf of the party giving the same and shall
be deemed to have been properly given and shall be deemed effective upon
receipt after delivery by a national overnight courier service (E.G., Federal
Express), or upon receipt after
82
being deposited in the United States mail, postage prepaid, certified with
return receipt requested, to the other party at the address of such other
party set forth below or at such other address within the continental United
States as such other party may designate by notice specifically designated as
a notice of change of address and given in accordance herewith. Rejection or
other refusal to accept or inability to deliver because of changed address of
which no notice has been received shall constitute receipt. Any such notice,
election, demand, request or response, if given to Mortgagee, shall be
addressed as follows:
The First National Bank of Boston
l00 Federal Street
Boston, Massachusetts 02110
Attention: Ian Harvey, London Branch
with a copy to:
Bingham, Dana & Gould
150 Federal Street
Boston, Massachusetts 02110
Attention: James F. Monahan, Esq.
and, if given to Tenant, shall be addressed as follows:
Investment Technology Group, Inc.
900 Third Avenue
New York, New York 10022
Attention: James Lynch, General Counsel
with a copy to:
Morgan, Lewis & Bockius
101 Park Avenue
New York, New York 10178
Attention: Chester P. Lee, Esq.
9. This Agreement may not be modified, amended or terminated
unless in writing and duly executed by the party against whom the same is
sought to be asserted and constitutes the entire agreement between the
parties with respect to this subject matter hereof.
10. This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
MORTGAGEE:
THE FIRST NATIONAL BANK OF BOSTON
By:
----------------------------
Name:
Title:
TENANT:
INVESTMENT TECHNOLOGY GROUP, INC.
By: James Lynch
----------------------------
Name: James Lynch
Title: Vice President and
General Counsel
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LANDLORD:
SPARTAN MADISON CORP.
By:
----------------------------
Name:
Title:
STATE OF MISSOURI )
: ss.:
COUNTY OF JACKSON )
On this ____ day of ____________, 1996, before me personally came
, to me known, who, being duly sworn by me, did depose and say that
he is _________ the _________ of _______________________________________,
the limited partnership described in and which executed the above instrument
and that he signed his name thereto by authority given on behalf of the
partnership.
----------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this ____ day of ____________, 1996, before me personally came
__________, to me known, who, being by me duly sworn, did depose and say that
he resides in _________________; that he is the ______________________ of
SPARTAN MADISON CORP. the corporation described in and which executed the
above instrument; and that he signed his name by authority of the board of
directors of such corporation.
----------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this ____ day of ____________, 1996, before me personally came
_________________, to me known, who, being duly sworn by me, did depose and
say that he resides in ______________________________ that he is the
President of _______________________, the corporation described in and which
executed the above instrument and that he signed his name thereto by order of
the board of directors of said corporation.
----------------------------------
Notary Public
SCHEDULE B
DESCRIPTION OF LAND
84
`
ALL that certain plot, piece or parcel of land, with the buildings
and improvements thereon erected, situate, lying and being in the Borough of
Manhattan, City, County and State of New York, bounded and described as
follows:
BEGINNING at the corner formed by the intersection of the Westerly
side of Madison Avenue with the southerly side of 47th Street; running thence
Westerly along the Southerly side of 47th Street, 140 feet;
thence Southerly parallel with Madison Avenue, 100 feet 5 inches to the
center of the block;
thence Westerly along the corner line of the block and parallel with 46th
Street, 100 feet;
thence Southerly and parallel with Madison Avenue, 100 feet 5 inches to the
Northerly side of 46th Street;
thence Easterly along the Northerly side of 46th Street, 240 feet to the
corner formed by the intersection of the said northerly side of 46th Street
with the westerly side of Madison Avenue, thence Northerly along the Westerly
side of Madison Avenue 200 feet 10 inches to the corner, point or place of
BEGINNING.
SCHEDULE H
FORM OF
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made this _____ day of 1996, among the 380 MADISON
AVENUE,LLC as successor-in-interest to IRVING TRUST COMPANY, TRUSTEE UNDER
THE LAST WILL AND TESTAMENT OF HAROLD D. URIS, DECEASED, FOR THE BENEFIT OF
RUTH URIS, having an address at One Wall Street, New York, New York 10015
("Owner"), SPARTAN MADISON CORP., a Delaware corporation, having an address
at c/o HRO International Ltd., 126 East 56th Street, New York, New York 10022
("Sublessor"), and INVESTMENT TECHNOLOGY GROUP, INC., a Delaware corporation,
having an address at 900 Third Avenue, New York, New York("Sublessee").
W I T N E S S E T H:
WHEREAS, Owner and Sublessor's predecessor in interest have entered
into a certain ground lease, dated January 26, 1989 ("Lease"), covering the
land and improvements located at 380 Madison Avenue, New York, New York
("Premises");
WHEREAS, Sublessee has entered into a certain sublease, dated as of
September __, 1996, with Sublessor ("Sublease") covering space in the
Premises on the entire fourth (4th) floor as more particularly described in
the Sublease ("Space") for a term, including renewal options, expiring on the
Expiration Date, as such term is defined in the Sublease; and
WHEREAS, Owner has agreed to assure Sublessee of Sublessee's
continued occupancy of the Space under the terms of the Sublease.
NOW, THEREFORE, for and in consideration of the mutual covenants
herein contained, the sum of Ten Dollars ($10.00)@ and @ other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and
85
notwithstanding anything in the Lease or the Sublease to the contrary, it is
hereby agreed as follows:
1. Provided Sublessee is not in default under the terms of the
Sublease beyond any applicable notice and grace period (a) the right
of possession of Sublessee to the Space shall not be affected or
disturbed by Owner in the exercise of any of Owner's rights under the
Lease and (b) Sublessee shall not be named as a party in any summary
dispossess proceeding or in any other similar action under the Lease
unless required by law in which case Sublessee may be named only for
the purpose of complying with said law (but not for the purpose of
dispossessing Sublessee).
2. Sublessee agrees that if Owner shall become the lessor of
the Space by reason of the dispossession of Sublessor from the
Premises or due to any other similar proceeding and Sublessee is not
then in default under the terms of its Sublease beyond any applicable
notice and grace period, the Sublease shall become a direct Sublease
between Owner and Sublessee, Sublessee shall attorn to Owner, the
Sublease shall continue in accordance with its terms between Sublessor
and Owner and Sublessee shall continue to perform its obligations
under the Sublease, provided, however, (a) Owner shall not be liable
for any accrued obligation, or any act or omission of Sublessor
accruing prior to the date upon which Owner shall become the lessor of
the Space, (b) Owner shall not be subject to any offsets, defenses or
counterclaims other than those expressly set forth in the Sublease
which shall have accrued to Sublessee against Sublessor prior to the
date upon which Owner shall become the lessor of the Space, (c) Owner
shall not be bound by any base rent or additional rent which Sublessee
might have prepaid for more than one month to Sublessor (other than
the first month's rent and additional rent paid in advance pursuant to
the provisions of the Sublease), (d) Owner shall be entirely freed and
relieved of all covenants, obligations and liabilities of Owner under
the Sublease accruing from and after the date Owner transfers title to
the Premises to a third party, and (e) Owner shall have no liability
to Sublessee for any take over lease obligation or for any initial
work to be done in Sublessee's Space.
3. Sublessee shall not, without obtaining the prior written
consent of Owner, (a) prepay installments of base rent due under the
Sublease for more than one month in advance, except in connection with
the first month's rent and additional rent paid in advance pursuant to
the provisions of the Sublease or (b) modify the Sublease so as to
(1) reduce the rents payable thereunder or (2) reduce the term of the
Sublease, or (c) terminate, cancel or voluntarily surrender the Space
unless for cause, or (d) assign the Sublease or sublet the Space or
any part thereof other than pursuant to the provisions of the
Sublease. Any such amendment, modification, termination, prepayment,
voluntary surrender, assignment or subletting (other than an
assignment or subletting pursuant to the Sublease), without Owner's
prior consent, shall not be binding upon Owner. If Owner consents to
any amendment or modification of the existing Sublease, or to any new
Sublease, this Agreement shall apply to such amendment, modification
or new Sublease.
4. The Sublease with all rights, options, liens and charges
created thereby is and shall be subject and subordinate in all
respects to the Lease and to all the terms, conditions and provisions
thereof, and to any renewals, extensions, modifications or
replacements thereof, including any supplements thereto.
5. The foregoing provisions shall be self-operative, however,
Sublessee agrees to execute and deliver to Owner or to any person to
whom Sublessee herein agrees to attorn such other
86
instrument as either shall reasonably request in order to effectuate
said provisions.
6. Sublessee will notify Owner (at the last address of Owner
provided to Sublessee of any default of Sublessor which would entitle
Sublessee to cancel the Sublease and agrees that notwithstanding any
provision of the Sublease to the contrary, no notice of cancellation
thereof shall be effective unless Owner has received the notice
aforesaid and has failed within thirty (30) days of the date thereof
to cure.
7. Any and all notices, elections, demands, requests and
responses hereto permitted or required to be given under this
Agreement shall be in writing, signed by or on behalf of the party
giving the same and shall be deemed to have been properly given and
shall be deemed effective upon receipt
after delivery by a national overnight courier service (E.G., Federal
Express), or upon receipt after being deposited in the United States
mail, postage prepaid, certified with return receipt requested, to the
other party at the address of such other party set forth below or at
such other address within the continental United States as such other
party may designate by notice specifically designated as a notice of
change of address and given in accordance herewith. Rejection or
other refusal to accept or inability to deliver because of changed
address of which no notice has been received shall constitute receipt.
Any such notice, election, demand, request or response, if given to
Owner, shall be addressed as follows:
Bank of New York
Trust Properties Department
48 Wall Street - 9th Floor
New York, New York 10286
Attn: Roy Weydig
with a copy to: Donald A. Bettex, Esq.
Wien Malkin & Bettex
60 East 42nd Street
New York, New York 10165
and, if given to Sublessor, shall be addressed as follows:
Spartan Madison Corp.
126 East 56th Street
New York, New York 10022
Attn: Mr. Howard P. Ronson
with a copy to: Chadbourne & Parke
30 Rockefeller Plaza
New York, New York 10122
Attention: H. Hedley Stothers, Esq.
and, if given to Sublessee, shall be addressed as follows:
Investment Technology Group, Inc.
900 Third Avenue
New York, New York 10022
Attention: General Counsel
with a copy to:
Morgan, Lewis & Bockius
101 Park Avenue
New York, New York 10178
Attention: Chester P. Lee, Esq.
87
This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective heirs, legal representatives,
successors, successors-in-title and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
380 MADISON AVENUE, LLC
By:
------------------------------
Name:
Title: Manager
SPARTAN MADISON CORP.
By:
------------------------------
Name:
Title:
INVESTMENT TECHNOLOGY GROUP, INC.
By: James Lynch
------------------------------
Name: James Lynch
Title: Vice President and
General Counsel
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this ____ day of ____________, ____, before me personally came
_______________, to me known, who, being duly sworn by me, did depose and say
that he is the ________________ of ______________________, the business
entity described in and which executed the above instrument and that he
signed his name thereto on behalf of the partnership.
------------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this ____ day of October, 1996, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and
say that he resides in ________________; that he is the President of SPARTAN
MADISON CORP. the corporation described in and which executed the above
instrument; and that he signed his name by authority of the board of
directors of such corporation.
------------------------------------
Notary Public
88
SCHEDULE I
Tenant's Supplemental Cleaning
Rug Shampooing
Glass Cleaning
SCHEDULE J
Intentionally Omitted
SCHEDULE K
Intentionally Omitted
SCHEDULE L
Intentionally Omitted
SCHEDULE M
Floor Plans -- First Offering Space
SCHEDULE N
Landlord's Work
E-1 Lighting & Power Plan Revised 7/18/96
E-2 Riser Diagram & Schedules Revised 7/18/96
E-3 Electrical Specifications Dated 4/9/96
M-1 HVAC Plan Revised 7/15/96
M-2 Specifications & Details Revised 7/15/96
RCP-1 Reflected Ceiling Plan at
Accessible Women's
and Men's Room Issued 7/31/96
RCP-2 Reflected Ceiling Plan at
Men's Rooms Issued 7/31/96
SCHEDULE O
HVAC Specifications
A. The system is designed to operate within the requirements of the
New York State Energy Conservation Code and is capable of maintaining inside
conditions of approximately 74DEG. F and 50% relative humidity when the summer
outside conditions are not more than 95DEG. F dry bulb and 78DEG. F wet bulb and
approximately 74DEG. F when the outside winter temperature is 10DEG. F.
B. The design capabilities of the system are based upon and limited
to the following conditions:
(i) The occupancy does not exceed one (1) person for each 100
usable square feet of area.
(ii) A total demand electrical load of 5.00 watts per usable square
foot.
(iii) Proper use of blinds to control sun load.
SCHEDULE P
89
Louver Location Plan
SCHEDULE Q
Punchlist Work
1. Patch spray-on fireproofing on columns
where columns meet beams.
2. Fill in or align gaps in blind's pockets.
SCHEDULE R
Approved Contractors
AGREEMENT OF LEASE
between
SPARTAN MADISON CORP., Landlord
and
INVESTMENT TECHNOLOGY GROUP, INC., Tenant
Dated: September __, 1996
PROPERTY
380 Madison Avenue
New York, New York
Entire 4th Floor
TABLE OF CONTENTS
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