EXHIBIT 10.1
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1600 STEWART AVENUE, L.L.C.
Landlord,
and
800-FLOWERS, INC.
Tenant,
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LEASE
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Premises known as Suites 408, 500 and 700
in the Building known as
1600 Stewart Avenue
Westbury, New York 11590
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LEASE dated this ______ day of May, 1998, between 1600 STEWART
AVENUE, L.L.C., a Delaware limited liability company ("Landlord"), having its
offices at c/o Oaktree Capital Management, LLC, 550 South Hope Street, 22nd
Floor, Los Angeles, California 90071, Attn: Michael A. Halperin, and
800-FLOWERS, INC. ("Tenant"), having its offices at 1600 Stewart Avenue, Suite
700, Westbury, New York 11590.
WITNESSETH:
Landlord and Tenant hereby covenant and agree as follows:
ARTICLE 1
Basic Lease Provisions and Definitions
1.01. Term: The term of this lease shall commence on May 15, 1998
(the "Commencement Date" or "Rent Commencement Date") and shall end on May 31,
2005, or sooner, pursuant to the other terms, covenants and conditions of this
lease.
A "Lease Year" shall comprise a period of twelve consecutive months,
except the first Lease Year shall commence on May 15, 1998 and shall end on May
31, 1999. Each succeeding Lease Year shall end on the anniversary date of the
last day of the first Lease Year.
Fixed Rent: Commencing on May 15, 1998, and thereafter on the first
day of each and every month hereof, Tenant shall pay in equal monthly
installments, without notice, demand, offset or abatement, except as
specifically set forth herein, to the Landlord at the address of the Landlord
hereinabove set forth or at such other place as LANDLORD may designate, a Base
Annual Fixed Rent of Eighteen and 90/100 ($18.90) Dollars per rentable square
foot for the first lease year, which aggregate amount shall be increased by Four
(4%) per cent on the first day of each Lease Year during the term of this lease
("Fixed Rent"), as follows:
1. For the first Lease Year, the fixed annual rent is
$1,340,558.10, which is payable in equal monthly installments of $111, 713.18.
2. For the second Lease Year, the fixed annual rent is
$1,394,180.42, which is payable in equal monthly installments of $116,181.71.
3. For the third Lease Year, the fixed annual rent is $1,
449,947.64, which is payable in equal monthly installments of $120,828.97.
4. For the fourth Lease Year, the fixed annual rent is
$1,507,945.56, payable in equal monthly installments of $125,662.13.
5. For the fifth Lease Year, the fixed annual rent is
$1,568,263.38, payable in equal monthly installments of $130,688.62.
6. For the sixth Lease Year, the fixed annual rent is
$1,630,993.98, payable in equal monthly installments of $135,916.16.
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7. For the seventh Lease Year, the fixed annual rent is
$1,696,233.68, payable in equal monthly installments of $141,352.81.
The Fixed Rent as set forth in sub paragraphs (1) through (7)
immediately above does not include increases of Additional Rent, as hereinafter
defined, including, but not limited to, pro-rata increases in taxes, insurance
and ground lease payments as provided hereinafter.
In the event the Rent Commencement Date shall be a day other than
the first day of the month, then the fractional rent, if any, from the Rent
Commencement Date to the first day of the following month shall be paid by
Tenant to Landlord within five (5) days after the Rent Commencement Date. Tenant
has deposited with Landlord upon the signing of this lease the rent in for the
period May 15, 1998 through June 30, 1998, in the amount of $92,580.93, which
sum represents the rent provided for in this lease for said period less a credit
for the rent pre-paid under the prior lease, in the amount of $60,294.09.
Notwithstanding, the provisions of this Section 1.01, provided
Tenant is not in default hereunder, beyond any applicable cure period, Tenant
shall receive a rent credit, in the total amount of $565,709.30, in nine (9)
equal monthly installments of $62,856.59 (which amount is a credit of one-half
of the Fixed Rent due during the period July 1, 1998 through March 31, 1999 plus
an additional credit, in the amount of $63,000.00, spread over the nine (9)
month period).
Landlord and Tenant agree that as of the Commencement Date, Tenant
will not be in possession of 6,220 square feet on the seventh floor.
Accordingly, the Fixed Rent attributable to that portion of the Demised
Premises, in the amount of $9,796.50 per month, shall be abated until such time
as such space is delivered to Tenant. Tenant agrees that Fixed Rent for the
portion of the Demised Premises delivered to Tenant after the Commencement Date
shall become due as of the date of delivery of possession of such premises to
Tenant in a vacant, broom clean condition, free of all fixtures and furnishings,
and shall be paid by Tenant to Landlord within five (5) days after demand
therefore. Any amount so paid by Tenant in excess of the actual rent due shall
be credited against the next due rent payment(s).
Parking Spaces: Landlord agrees that the parking area as set forth
on Exhibit B containing approximately 264 parking spaces, shall be designated
for the exclusive use of Tenant (the "Designated Parking Area"). In addition,
Tenant shall receive twenty (20) reserved parking spaces outside of the
Designated Parking Area. Tenant and its employees shall use the Designated
Parking Area exclusively. Tenant's employees may not use the unreserved spaces
in the parking lot adjoining the Building, however its customers, invitees and
other visitors may use the visitors parking in common with the other tenants of
the Building. Landlord shall have no obligation to insure exclusive use of the
Designated Parking Area or reserved parking spaces by Tenant. Tenant shall have
the right, at Tenant's sole cost and expense, to mark the Designated Parking
Area and otherwise enforce Tenant's exclusive right to use the Designated
Parking Area. Landlord agrees to cooperate with Tenant in regard to such
enforcement, including, but not limited to Tenant's right to post signs and to
have illegally parked cars towed from the Designated Parking Area. Should Tenant
desire to do so, it may arrange for off-site parking for its employees during
all holiday periods and peak seasonal sales periods whereupon Landlord shall
provide any necessary and reasonable on-site assistance.
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Permitted Use: Tenant shall use the space on the fourth, fifth and
seventh floors for General Offices and for no other purpose. General Offices
shall include, but is not limited to, telemarketing, professional training and
product development. In addition, Landlord grants to Tenant a license to use a
portion of the lobby area of the Building for the retail sale and display of
flowers, plants, gifts and related items.
Real Estate Tax Base: The General Taxes for the tax year commencing
January 1, 1998 and ending December 31, 1998; and the School Taxes for the
period commencing July 1, 1998 and ending June 30, 1999.
Rentable Area of Demised Premises: Agreed upon by Landlord and
Tenant to contain 70,929 rentable square feet in a building of 213,690 rentable
square feet. However, in the event the final approved plans differ from the
foregoing, the Fixed Rent shall be adjusted accordingly.
Security Deposit: None.
Tenant's Proportionate Share: 33.19%
1.01 (b) Definitions. As used herein, the following terms shall have
the meanings set forth below:
Addresses for Notices:
LANDLORD: TENANT:
1600 Stewart Avenue, L.L.C. 800-Flowers, Inc.
c/o Oaktree Capital 1600 Stewart Ave.
Management, LLC Westbury, New York 11590
c/o Oaktree Capital Attn: Brian McGee
Management, LLC
550 South Hope Street, 22nd Floor
Los Angeles, California 90071
Attn: Michael A. Halperin
with a copy to: with a copy to:
1600 Stewart Avenue, L.L.C. Gallagher, Walker & Bianco
450 Lexington Avenue 98 Willis Avenue
Suite 1600 Mineola, New York 11501
New York, New York 10017 Attn: Gerard M. Gallagher,
Attn: Marc Porosoff, Esq. Esq.
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Address for Payments: All payments under this Lease shall be payable
and delivered to:
1600 Stewart Avenue, L.L.C.
CB Commercial Real Estate Group, Inc.
1600 Stewart Avenue, Suite 210
Westbury, New York 11590
or to such other persons or address that Landlord or a Court of competent
jurisdiction may designate in writing from time to time.
Broker: Island Realty Service Group, Inc.
Building: The office building known as and by street address 1600
Stewart Avenue, Westbury, New York (the "Building").
Landlord: Only the owner at the time in question of the Building or
a lease of the Building, so that in the event of any transfer of title to the
Building or of Landlord's interest in a lease of the Building, the transferor
shall be and hereby is relieved and freed of all obligations of Landlord under
this Lease accruing after such transfer, and it shall be deemed without further
agreement that such transferee has assumed and agreed to perform and observe all
obligations of Landlord herein during the period it is the holder of Landlord's
interest under this Lease.
Landlord's Agents: The agents, contractors, members, partners,
shareholders, officers, directors, fiduciaries and employees of Landlord.
Managing Agent: CB Commercial Real Estate Group Inc., 200 Garden
City Plaza, Garden City, New York 11530, or such other party as Landlord may
hereafter designate by notice to Tenant.
Property: All of the land and improvements thereon, known as and by
the street number 1600 Stewart Avenue, Westbury, New York 11590.
Repair: The term "repair" shall be deemed to include restoration and
replacement as may be necessary to achieve, and maintain good working order and
condition.
Tenant's Agents: The agents, contractors, members, partners,
shareholders, officers, directors, fiduciaries and employees of Tenant.
Tenant's Property: The furniture and furnishings of Tenant and the
following which are furnished and installed by or for Tenant without expense to
Landlord and without any allowance or credit to Tenant; movable partitions,
chandeliers and other hanging, standing or projecting special lighting fixtures,
special cabinet work, other business and trade fixtures, business machines,
business equipment and communications equipment, whether or not attached to or
built into the Demised Premises and which can be removed without permanent
structural damage to, or permanent defacement of, the Building.
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ARTICLE 2
Demise, Term and Rent
2.01. Demise. Landlord hereby leases to Tenant, and Tenant hereby
hires from Landlord, upon and subject to the terms, covenants, provisions and
conditions of this Lease, the Demised Premises. For the purposes of this Lease,
the "Demised Premises" is the suites designated as number 408 on the fourth
floor of the Building containing 6,335 rentable square feet and the entire fifth
and seventh floors of the Building, each containing 32,297 rentable square feet.
2.02. Term. The term of this Lease (herein called the "Term") shall
commence on May 15, 1998 and shall end at midnight on May 31, 2005 (herein
called the "Expiration Date"), or on such earlier date upon which the Term shall
expire or be canceled or terminate pursuant to any of the conditions or
covenants of this Lease or pursuant to law.
2.03. Rent. The rents reserved under this Lease, which shall be
payable throughout the Term commencing with the Rent Commencement Date, shall
consist of (a) the Fixed Rent set forth in Article 1 hereof, less any applicable
rent credit, which shall be payable in equal monthly installments in advance on
the first day of each and every calendar month during the Term (except that
Tenant shall pay, upon the execution and delivery of this Lease by Tenant, the
first installment of Fixed Rent becoming due under this Lease), and (b)
additional rent (herein called "Additional Rent") consisting of all other sums
of money as shall become due from and payable by Tenant to Landlord hereunder
for non-payment for which Landlord shall have the same remedies as for a default
in the payment of Fixed Rent, all to be paid in lawful money of the United
States to Landlord at the Address for Payments set forth in Article 1 hereof, or
to such other person and/or at such other place as Landlord may designate by
notice to Tenant. (Fixed Rent and Additional Rent are herein sometimes
collectively called "Rent").
2.04. No Setoff. Tenant shall pay Fixed Rent and Additional Rent
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.
ARTICLE 3
Preparation of Premises
3.01. Landlord's and Tenant's Work. Except as expressly provided to
the contrary in this Lease, Tenant is hiring the Demised Premises "as-is" on the
date hereof, except for reasonable wear and tear.
In consideration thereof, Tenant shall receive a budget of $15.00
per usable square foot of the Demises Premises. Tenant shall install doors,
vents, demising walls and install any and all other improvements required to
conform the Demised Premises to municipal code and/or deemed desirable by
Tenant. Tenant shall, at its sole cost and expense, obtain a space plan,
specifications and any other materials necessary for "bid" of the improvements.
Tenant shall have the right to bring in a contractor of Tenant's selection,
subject to Landlord's
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reasonable approval, however, Landlord shall have fourteen (14) days from the
date of receipt of the bid from Tenant's contractor, to match the bid of
Tenant's contractor and assume the obligation to complete the work.
Notwithstanding the foregoing, Tenant shall have the right to select a
contractor for installation of Tenant's phone and computer wiring within the
Demised Premises provided same does not effect the Building's systems.
All amounts due to Tenant hereunder shall be paid to Tenant by
Landlord within thirty (30) days after Tenant delivers proof that the work has
been completed together with a release of lien from the contractor and/or
supplier for whose work/materials the Tenant is receiving payment from Landlord.
ARTICLE 4
Use
4.01. Tenant's Business. Tenant shall use and occupy the Demised
Premises for the Permitted Use set forth in Article 1 hereof, and for no other
purpose.
4.02. Permits. If any governmental license or permit, other than a
Certificate of Occupancy, 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 inspection of Landlord. Tenant shall at all times comply with
the terms and conditions of each such license or permit.
4.03. Restrictions. Tenant shall not at any time use or occupy, or
suffer or permit anyone to use or occupy, the Demised Premises, or do or permit
anything to be done in the Demised Premises, in any manner (a) which violates
the Certificate of Occupancy for the Demised Premises or for the Building; (b)
which causes or is liable to cause injury to the Building or any equipment,
facilities or systems therein; (c) which constitutes a violation of the laws and
requirements of any public authorities or the requirements of insurance bodies;
(d) which impairs or tends to impair the character, reputation or appearance of
the Building as a first-class office building; (e) which impairs or tends to
impair the proper and economic maintenance, operation and repair of the Building
and/or its equipment, facilities or systems; (f) which annoys or inconveniences
other tenants or occupants of the Building; or (g) which increases pedestrian
traffic in and out of the Demised Premises or the Building above a reasonable
level.
ARTICLE 5
Subordination
5.01. This lease is subject and subordinate in all respects to all
ground leases and/or underlying leases, to mortgages of record regardless of the
holder, and to all future first mortgages from an Institutional Lender, (which
term shall mean a savings bank, bank or trust company (whether for its own
account or as a fiduciary), savings and loan association, pension trust,
insurance company or educational institution, organized or existing under the
laws of the United States or any state in the United States) including a trust
indenture which is a first lien
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and is executed in connection with an industrial revenue financing, which may
now or hereafter be placed on or affect such leases and/or the real property of
which the Demised Premises form a part, or any part or parts of such real
property, and/or Landlord's interest or estate therein, and to each advance made
and/or hereafter to be made under any such mortgages, and to all renewals,
modifications, consolidations, replacements and extensions thereof and all
substitutions therefor (collectively, the "superior mortgages"). This Article
5.01 shall be self-operative and no further instrument of subordination shall be
required. In confirmation of such subordination, Tenant shall execute and
deliver promptly any certificate that Landlord and/or any mortgagee and/or the
lessor under any ground or underlying lease and/or their respective successors
in interest may request.
5.02. Without limitation of any of the provisions of this lease, in
the event that any holder of any of the superior mortgages or its assigns shall
succeed to the interest of Landlord in foreclosure or by deed in lieu of
foreclosure or of any successor-Landlord and/or shall have become lessee under a
new ground or underlying lease, then, at the option of such holder, this lease
shall nevertheless continue in full force and effect and Tenant shall and does
hereby agree to attorn to such holder or its assigns and to recognize such
holder or its respective assigns as its Landlord. However, provided the holder
honors all the terms of this lease, Tenant acknowledges said holder shall not:
(i) be liable for any previous act or omission of Landlord unrelated
to the terms of this lease;
(ii) be subject to any offset at law or in equity, not expressly
provided for in this lease, that shall have theretofore accrued to the Tenant
against the Landlord hereunder; or
(iii) be bound by any previous modification of said lease not
expressly provided for herein, or by any previous prepayment of more than one
month's Fixed Rent or any additional rent then due, unless such modification or
prepayment shall have been expressly approved in writing by such holder through,
or by reason of which, such holder shall have succeeded to the rights of the
Landlord hereunder;
5.03. Tenant shall, at any time and from time to time upon not less
than thirty (30) days prior notice by Landlord, execute, acknowledge and deliver
to Landlord a statement in writing 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 modification) and the dates
to which the rent, additional rent and other charges have been paid in advance,
if any, and stating whether or not to the best knowledge of the signer of such
certificate Landlord is in default in performance of any covenant, agreement,
term, provision or condition contained in this lease, and if so, specifying each
such default of which the signer may have knowledge, it being intended that any
such statement delivered pursuant hereto may be relied upon by any prospective
purchaser or lessee of said real property or any interest or estate therein or
any prospective assignee of any mortgage thereof. If, in connection with
obtaining financing for the Building and the land allocated to it, a banking,
insurance or other recognized institutional lender shall request reasonable
modifications in this lease as condition to such financing, Tenant will not
unreasonably withhold, delay, or defer its consent thereof, provided that such
modifications
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do not increase the obligations of Tenant hereunder or adversely affect the
leasehold interest hereby created.
5.04. The Tenant covenants and agrees that if by reason of a default
under any underlying lease or installment sales contract executed in connection
with industrial revenue financing (including an underlying lease through which
the Landlord derives its leasehold estate in the premises), such underlying
lease or installment sales contract and the leasehold estate of the Landlord in
the premises demised hereby is terminated, providing notice has been given to
the Tenant and leasehold mortgagee, the Tenant will attorn after receipt of
notice to the then holder of the reversionary interest in the premises demised
by this lease or to anyone who shall succeed to the interest of the Landlord or
to the lessee of a new underlying lease entered into pursuant to provisions of
such underlying lease, and will recognize such holder and/or such lessee as the
Tenant's landlord under this lease. The Tenant agrees to execute and deliver, at
any time and from time to time, upon the request of the Landlord or of the
lessor under any such underlying lease, any instrument which may be necessary or
appropriate to evidence such attornment.
5.05. "Nondisturbance, Subordination and Attornment Agreement", as
used in this Article, shall mean a provision in any instrument or a duly
executed and acknowledged separate instrument, in form suitable for recording,
providing that for so long as Tenant continues to pay the Fixed Rent and any
Additional Rent in accordance with this Lease, and otherwise performs and
complies with the terms and provisions of this Lease, and so long as no Events
of Default, as defined in Article 21 herein exist on Tenant's part hereunder,
and provided that Tenant attorns to the party executing such Nondisturbance,
Subordination and Attornment Agreement, that such mortgagee will not name or
join Tenant as a party defendant in any suit or proceeding for the dispossess of
the Tenant herein, or for the foreclosure of such mortgage, and that this Lease
and Tenant's possession of the Demised Premises and all of the Tenant's rights
hereunder, including Tenant's right to renew this Lease, shall not be disturbed
or affected. Same shall be delivered by such mortgagee on its standard form.
5.06. Landlord agrees that it shall cause the holder of any
leasehold mortgage to execute and deliver to Tenant a Nondisturbance,
Subordination and Attornment Agreement.
ARTICLE 6
Assignment and Subletting
6.01. Tenant, for itself, its successors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this agreement, nor
underlet the Demised Premises or any part thereof or license or permit the
Demised Premises or any part thereof to be used by others, without prior written
consent of the Landlord in each instance, which consent shall not be
unreasonably withheld, provided that:
(1) Tenant shall promptly notify Landlord in writing of such
assignment or sublease.
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(2) Tenant shall not under any circumstances solicit a
sublease or assignment from any of the other tenants in the Building.
(3) Subtenant or assignee does not diminish the quality of the
Building as a first class office building in the Mitchel Field/Garden
City/Westbury vicinity.
(4) Subtenant or assignee shall expressly undertake and agree
in writing to be bound by all covenants, terms and conditions of this Lease, and
the rules and regulations issued thereunder.
(5) That Tenant is not in default hereunder beyond any
applicable cure periods.
Upon Tenant's due compliance with the aforesaid provisions of this
Article 6, Landlord agrees not to unreasonably withhold its consent to an
assignment or subletting, provided that the Tenant is not then in an uncured
default under this Lease and that the proposed assignee or undertenant is
financially responsible, as determined by Landlord, and further provided that
such assignee or undertenant shall execute and deliver to Landlord an assumption
agreement wherein it agrees to perform all the obligations of the Tenant under
this Lease in form appropriate for recording.
6.02. No assignment of this Lease or underletting of the Demised
Premises shall be permitted if it releases or discharges the Tenant or Tenant's
guarantor hereunder, 800 Gift House, Inc., as successor to McCann Companies,
Inc., from any of its obligations to be performed under this Lease.
6.03. Notwithstanding anything to the contrary contained herein,
Tenant may assign this Lease or sublet all or part of the Demised Premises to
any subsidiary or affiliate or any successor by merger or consolidation provided
the assignee or subtenant fully assumes all of the Tenant `s obligations
hereunder, and Tenant's guarantor hereunder, 800 Gift House, Inc., remains fully
obligated jointly and severally under such sublease or assignment. Said
assignment or subletting shall be subject to the following additional
requirements:
(1) Tenant shall promptly notify Landlord in writing of any
such assignment or subletting.
(2) The subtenant or assignee shall not diminish the quality
of the Building as a first class office building in the Mitchel Field/Garden
City/Westbury vicinity.
6.04. Tenant Remains Liable. Each assignment or subletting pursuant
to this Article shall be subject to all of the covenants, agreements, terms,
provisions and conditions contained in this Lease. Notwithstanding any such
assignment subletting and/or acceptance of Rent by Landlord from any subtenant,
Tenant shall and will remain fully liable for the payment of Fixed Rent and
Additional Rent due and to become due hereunder and for the performance of all
the covenants, agreements, terms, provisions and conditions contained in this
Lease on the part of Tenant to be performed and all acts and omissions of any
assignee, licensee or subtenant or anyone claiming under or through any assignee
or subtenant which shall be in violation of any of the obligations of this
Lease, shall be deemed to be a violation by Tenant. Tenant further
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agrees that notwithstanding any such assignment or subletting, no other and
further assignment of this Lease or subletting of the Demised Premises or any
part thereof by Tenant or any person claiming through or under Tenant shall or
will be made except upon compliance with and subject to the provisions of this
Article.
6.05. In the event that Tenant shall assign this lease and shall
receive any consideration therefore, one-half of such consideration shall be
paid to the Landlord as additional rent. In the even Tenant shall sublet any of
the space demised hereunder and the rent and/or additional rent reserved under
any such sublease shall be in excess of the rent provided for hereunder, Tenant
shall pay to the Landlord, as additional rent, as and when same is collected,
one-half the difference between the rent and additional rent reserved herein and
the rent and additional rent reserved in such sublease. Notwithstanding the
foregoing, it is agreed and understood that this provision shall not apply to
any assignment or sublet to an affiliate of Tenant.
6.06. Joint and Several Liability. The joint and several liability
hereunder of Tenant herein named, or any immediate or remote successor in
interest of said Tenant, as assignor, with each assignee subsequent to it for
the obligations of Tenant hereunder in each instance provided for in this
Article shall not be discharged, released or impaired in any respect by any
agreement or stipulation made between Landlord or any grantee or assignee by way
of mortgage, or otherwise, of Landlord and any such assignee, extending the time
of, or modifying, any of the obligations of this Lease, or by any waiver or
failure of Landlord to enforce any of the obligations of this Lease, or of the
same as affected by any such agreement or stipulation, but shall remain in full
force and effect, and Tenant herein named and its successors in interest
preceding such assignment shall continue liable hereunder until the expiration
of the Term. To charge Tenant herein named and its successors in interest
preceding any such assignment no demand shall be required, nor shall there be
required any notice of any default with respect to any of the obligations of
this Lease, or of the same as affected by such agreement or stipulation, if any,
said Tenant and each of its said successors in interest hereby expressly waiving
any such demand or notice, except that if Tenant herein named or any such
successor in interest, at or about the time of making its assignment, or
thereafter, gives written notice to Landlord expressly referring to this Section
and demanding notice of default, Landlord shall give said Tenant or such
successor in interest the same or equivalent notice of default and opportunity
to cure as the Tenant in possession shall be entitled to receive under this
Lease.
ARTICLE 7
Estoppel Certificate; Memorandum
7.01. Delivery of Certificate. Tenant shall, without charge at any
time and from time to time, within ten (10) days after request by Landlord,
certify by written instrument duly acknowledged and delivered to any proposed or
actual mortgagee, assignee of any mortgagee or purchaser, or any other person,
firm or corporation specified by Landlord:
(a) This Lease is unmodified and in full force and effect (or,
if there has been any modification, that the same is in full force
and effect as modified and stating the modification);
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(b) Whether or not there are then existing any set-offs, or
defenses against the enforcement of any of the agreements, terms,
covenants or conditions hereof upon the part of Tenant to be
performed or complied with (and, if so specifying the same); and
(c) The dates, if any, to which the Rent has been paid in
advance.
7.02. Memorandum of Lease. Either party hereto, at the request of
the other party, shall promptly execute, acknowledge and deliver a memorandum in
form satisfactory to the requesting party with respect to this Lease, or any
amendment of or other agreement supplementary to this Lease, sufficient for
recording. It is agreed and understood that Tenant shall not have the right to
record such memorandum without the prior written consent of Landlord.
ARTICLE 8
Requirements of Law
8.01. Compliance. Tenant, at Tenant's sole cost and expense, shall
promptly comply with all present and future laws, orders and regulations of all
governmental authorities having jurisdiction and all orders, rules and
regulations of the New York Board of Fire Underwriters or any similar body which
shall impose any violation, order or duty (collectively, "Regulations") upon
Landlord or Tenant with respect to the Demised Premises or the use or occupancy
thereof, except that nothing herein shall require Tenant to make structural
repairs or alterations unless the need for such structural repairs or
alterations arises by reason of (i) the manner of conduct of Tenant's business
or operation of its installations, equipment or other property therein, (ii) any
cause or condition created by or at the instance of Tenant or (iii) the breach
of any of Tenant's obligations hereunder. Tenant may, after securing Landlord to
Landlord's satisfaction against all damages, interest, penalties and expenses,
including, but not limited to, attorney's fees, by cash deposit or by surety
bond in an amount and in a company satisfactory to Landlord, contest and appeal
any such Regulations provided same is done with all reasonable promptness and
provided such appeal shall not subject Landlord to prosecution for a criminal
offense or constitute a default under any lease or mortgage under which Landlord
may be obligated, or which may encumber the Demised Premises, the Building or
the Property or cause the Demised Premises, the Building or the Property to be
condemned or vacated.
8.02. Prohibitions. Tenant shall not do or permit any act or thing
to be done in or to the Demised Premises which is contrary to law, or which will
invalidate or be in conflict with public liability, fire or other policies of
insurance at any time carried by or for the benefit of Landlord with respect to
the Demised Premises or the Building or which shall or might subject Landlord to
any liability or responsibility to any person or for property damage, nor shall
Tenant keep anything in the Demised Premises except as now or hereafter
permitted by the Fire Department, Board of Fire Underwriters, Fire Insurance
Rating Organization or other authority having jurisdiction, and then only in
such manner and such quantity so as not to increase the rate for fire insurance
applicable to the Building, nor use the Demised Premises in a wrongful manner
which will increase the insurance rate for the Building or any property located
therein over that in effect prior to the commencement of Tenant's occupancy. If
by reason of Tenant's failure to
12
comply with the provisions of this Article the fire insurance rate shall be
higher than it otherwise would be, then Tenant shall reimburse Landlord, as
Additional Rent hereunder, for that portion of all fire insurance premiums
thereafter paid by Landlord which shall have been charged because of such
failure by Tenant, and shall make such reimbursement upon the first day of the
month following receipt of notice by Tenant together with sufficient proof of
the increased premium and of such outlay by Landlord.
8.03. Insurance Rates. In any action or proceeding wherein Landlord
and Tenant are parties, a schedule or "makeup" of rates for the Building or
Demised Premises issued by the New York Fire Insurance Exchange, or other body
making fire insurance rates applicable to the Building or the Demised Premises,
shall be conclusive evidence of the facts therein stated and of the several
items and charges in the fire insurance rate then applicable.
ARTICLE 9
Property Loss and Indemnification
9.01. Limitation of Liability. Neither Landlord nor Landlord's
Agents shall be liable for any damage to property of Tenant or of others
entrusted to employees of the Building, nor for loss of or damage to any
property of Tenant by theft or otherwise, nor for injury or damage to persons or
property resulting from any cause of whatsoever nature, unless caused by or due
to the negligence of Landlord or Landlord's Agents, nor shall Landlord or
Landlord's Agents be liable for any such damage caused by other tenants or
persons in, upon or about the Building or caused by operations or construction
of any private, public or quasi-public work, unless such other tenants or
persons or operations or construction was under the control and direct
supervision of Landlord.
9.02. (a) Tenant's Indemnification. Tenant shall indemnify and hold
harmless Landlord and Landlord's Agents from and against any and all claims
arising from or in connection with (a) the conduct or management of the Demised
Premises or of any business therein, or any work or thing whatsoever done, or
any condition created (other than by Landlord) in the Demised Premises during
the Term or during the period of time, if any, prior to the Commencement Date
that Tenant may have been given access to the Demised Premises; (b) any act,
omission or negligence of Tenant, Tenant's Agents, invitees or any subtenants or
licensees or their partners, officers, agents, employees or contractors; (c) any
accident, injury or damage whatsoever (unless caused solely by the negligence of
Landlord or its agents) occurring in, at or upon the Demised Premises; and (d)
any breach or default by Tenant in the full and prompt payment and performance
of Tenant's obligations under this Lease; together with all costs, expenses and
liabilities incurred in or in connection with each such claim or action or
proceeding brought thereon, including, without limitation, all reasonable
attorneys' fees and expenses. In case any action or proceeding be brought
against Landlord or Landlord's Agents by reason of any such claim, Tenant, upon
notice from Landlord, shall resist and defend such action or proceeding (by
counsel reasonably satisfactory to Landlord).
(b) Landlord's Indemnification. Landlord shall indemnify and hold
harmless Tenant from and against any and all claims arising from or in
connection with the Demised Premises during the Term caused by (i) the
negligence or willful malfeasance of Landlord or
13
Landlord's agents or its partners, officers, agents, employees or contractors
and (ii) any breach or default by Landlord in the full and prompt performance of
Landlord's obligations under this Lease; together with all reasonable costs,
expenses and liabilities incurred in or in connection with each such claim or
action or proceeding brought thereon, including, without limitation, all
reasonable attorneys' fees and expenses. In case any action or proceeding be
brought against Tenant by reason of any such claim, Landlord, upon notice from
Tenant, shall resist and defend such action or proceeding.
ARTICLE 10
Destruction - Fire and Other Casualty
10.01. Repairs. If the Demised Premises shall be damaged by fire or
other casualty, Tenant shall give immediate notice thereof to Landlord and this
Lease shall continue in full force and effect except as hereinafter set forth.
If the Demised Premises are rendered partially unusable by fire or other
casualty, the damage thereto shall be repaired by Landlord with reasonable
dispatch after collection of the insurance proceeds attributable to such damage,
subject to delays due to causes beyond Landlord's control. All Fixed Rent and
Additional Rent attributable to the portion of the Demised Premises, according
to the proportionate part of the Demised Premises which is unusable, shall be
fully abated until such repairs shall be substantially completed. All Fixed Rent
and Additional Rent for the usable portion of the Demised Premises, as
apportioned, shall be due and payable to Landlord from the day following the
casualty until the repairs are substantially completed and Tenant is able to use
the entire Demised Premises. Landlord, however, shall have no obligation to
repair any damage to Tenant's Property or Tenant's Work or any other property or
effects of Tenant. If the Demised Premises are totally damaged or rendered
wholly unusable by fire or other casualty then the Fixed Rent shall be
proportionately paid up to the time of the casualty and thenceforth shall cease
until the date when the Demised Premises shall have been repaired and restored
by Landlord, subject to Landlord's right to elect not to restore the same as
hereinafter provided.
10.02. Termination. If the Demised Premises are rendered wholly
unusable (whether or not the Demised Premises are damaged in whole or in part)
or if the Building shall be so damaged that Landlord shall decide to demolish it
or not to rebuild it, then, in either of such events, Landlord may elect to
terminate this Lease by written notice to Tenant given within one hundred twenty
(120) days after such fire or casualty. Such notice shall specify a date for the
expiration of this Lease, and upon the date specified the Term shall expire as
fully and completely as if such date were the date set forth above for the
termination of this Lease and Tenant shall forthwith quit, surrender and vacate
the Demised Premises, without prejudice however, to Landlord's rights and
remedies against Tenant under the Lease provisions in effect prior to such
termination, and any Rent owing shall be paid up to the date of termination and
any payments of Rent made by Tenant which were on account of any period
subsequent to such date shall be returned to Tenant. Unless Landlord shall serve
a termination notice as provided for herein, Landlord shall make repairs and
restoration as herein set forth with reasonable dispatch after collection of the
insurance proceeds as provided in Section 10.01.
10.03. Tenant's Property. Tenant acknowledges that Landlord will not
carry insurance on Tenant's Property or on Tenant's business records or other
property of Tenant or
14
Tenant's Agents, and Tenant agrees that Landlord will not be obligated to repair
any damage thereto or to replace the same.
10.04. Waiver. Tenant hereby waives the provisions of Section 227 of
the Real Property Law (and any successor law of like import) and agrees that the
provisions of this Article shall control in lieu thereof.
ARTICLE 11
Insurance
11.01. Tenant shall not violate, or permit the violation of any
condition imposed by the fire insurance policy then issued for the building of
which the Demised Premises forms a part, and shall not do, or permit anything to
be done, or keep or permit anything to be kept in the Demised Premises,
excluding business equipment maintained in the normal course of Tenant's
business which is employed for office use only, which would increase the fire or
other casualty insurance rate on the building or the property therein over the
rate which would otherwise then be in effect or which would result in insurance
companies of good standing refusing to insure the building or any of such
property in amounts and at normal rates reasonably satisfactory to Landlord.
However, Tenant shall not be subject to liability or obligation under this
section provided Tenant's use of the Demised Premises is in accordance with
Article 1 herein and the terms of this Lease which govern Tenant's occupancy.
11.02. Tenant shall obtain and keep in full force and effect during
the Term at its own cost and expense, public liability insurance, to afford
protection in the amount of $2,000,000.00 for injury or death to any one person,
$5,000,000.00 for injury or death arising out of any one occurrence, and
$2,000,000.00 for damage to property, protecting the Landlord and the Tenant as
insureds against any and all claims for personal injury, death or property
damage occurring in, on, adjacent, or connected with the Demised Premises and
any part thereof. Said insurance is to be written by insurance companies
admitted to do business in the State of New York which shall be reasonably
satisfactory to the Landlord. The original insurance policies or appropriate
certificates shall be deposited with Landlord together with any renewals,
replacements or endorsements to the end that said insurance shall be in full
force and effect for the benefit of the Landlord during the term. In the event
Tenant shall fail to procure and place such insurance, the Landlord may, but
shall not be obligated to, procure and place same, in which event the amount of
the premium paid shall be paid by Tenant to Landlord, within thirty (30) days of
written demand therefor.
11.03. Tenant shall include in its fire insurance policies for its
contents, furniture, furnishings, fixtures and other property removable by
Tenant under the provisions of this lease and in its business interruption
policy, appropriate clauses pursuant to which the insurance carriers (i) waive
all rights of subrogation against Landlord with respect to losses payable under
such policies and/or (ii) agree that such policies shall not be invalidated
should the insured waive in writing prior to a loss any or all right of recovery
against any party for losses covered by such policies. If Tenant, at any time,
is unable to obtain such inclusion of either of the clauses described in the
preceding sentence, Tenant shall have Landlord named in such policies as one of
the additional insured. Should any additional premium be exacted for including
the clauses or
15
naming, Tenant shall be released from the obligation hereby imposed unless
Landlord shall agree to pay such additional premium within ten (10) days after
receipt of written notice from Tenant that such additional premium is requested.
If Landlord shall be named as an insured, Landlord shall promptly endorse to
order of Tenant, without recourse, any check, draft, or order for payment of
money representing the proceeds of any such policy or representing any other
payment growing out of or connected with said policy, and Landlord does
irrevocably waive any and all rights in and to such proceeds and payments.
Tenant hereby waives any and all right of recovery which it might otherwise have
against Landlord, its agents and employees, for loss or damage to Tenant's
contents, furniture, furnishings, fixtures and other property removable by
Tenant under the provisions of this Lease to the extent that the same is covered
by Tenant's insurance, notwithstanding that such damage may result from the
negligence or fault of Landlord, its agents or employees. Tenant agrees to
advise Landlord promptly as to the coverage or language of clauses included in
its insurance policies pursuant to this Article 11. Tenant so agrees to notify
Landlord promptly of any cancellation or change of the terms of any such policy
which would affect such clauses or naming.
11.04. Each of the parties hereto and their successors or assigns
waives any and all rights of action for negligence against the other party
hereto which may hereafter arise for damages to the premises or to property
therein resulting from any fire or other casualty of the kind covered by
standard fire insurance policies with extended coverage, regardless of whether
or not or in what amounts, such insurance is now or hereafter carried by the
parties hereto, or either of them. Both parties agree to use their best efforts
to obtain and maintain a waiver of subrogation from their respective carriers.
The waiver of subrogation or permission shall extend to Landlord's agents and
its and their employees, but only if and to the extent that such waiver or
permission can be obtained without additional charge (unless such party shall
pay such charge).
11.05. When the Fire or Casualty insurance procured by Landlord now
in effect for the Building shall be renewed by Landlord and if there shall be an
increase of the premium costs of such insurance over the premium costs paid for
the year 1998, Tenant shall pay 33.19% of any such insurance cost increase over
the premium cost paid for the year 1998. Any monies required to be paid by
Tenant to Landlord pursuant to this Article shall be made within twenty (20)
days after Landlord has rendered to the Tenant a statement setting forth a
computation of the sums owed for such insurance increases, which amounts shall
constitute Additional Rent and be collectable as such by Landlord.
ARTICLE 12
Condemnation
12.01. Total Taking. If all or substantially all of the Building
shall be lawfully condemned or taken in any manner for any public or
quasi-public use, this Lease shall cease and terminate as of the date of the
vesting of title in the condemnor.
12.02. Partial Taking. If less than all of the Building shall be so
condemned or taken, but if such taking shall substantially affect the Demised
Premises or the means of access thereto, or if such condemnation or taking shall
be of a substantial part of the Demised Premises, then Landlord shall have the
right to terminate this Lease and the term and estate hereby granted
16
by the delivery of written notice to Tenant within thirty (30) days following
the date of actual vesting of title in the condemnor. Such termination shall
take effect as of the date of actual vesting of title in the condemnor or thirty
(30) days after the giving of such notice of termination, whichever is later. If
Landlord shall not so elect to terminate, this Lease shall be and remain
unaffected by such condemnation or taking, except that, effective as of the date
of the vesting of title in the condemnor, Fixed Rent shall be reduced in the
proportion which the area of the part of the Demised Premises so condemned or
taken bears to the total area of the Demised Premises prior to such condemnation
or taking.
12.03. Award. In the event of the termination of this Lease in
accordance with this Article, Rent shall be prorated and paid to the effective
date of the termination. Tenant, whether or not this Lease be canceled pursuant
to this Article, shall not be entitled to claim or receive any part of any award
of compensation which may be issued or rendered in any such condemnation
proceeding or as a result of such condemnation or taking, and shall not be
entitled to claim or receive any damages against Landlord, whether the same be
for the value of the unexpired term of this Lease or otherwise.
ARTICLE 13
Repairs
13.01. Tenant's Repairs. Tenant shall take good care of the Demised
Premises and the fixtures and appurtenances therein and Tenant at Tenant's sole
cost and expense shall be responsible for all non-structural repairs thereto,
except as provided for herein, as and when needed to preserve them in good
working order and condition, reasonable wear and tear, obsolescence and damage
from the elements, fire or other casualty excepted. Landlord shall be
responsible for maintaining the building standard air conditioning units at its
sole cost and expense, however, Tenant shall be responsible for the maintenance
of the supplemental air conditioning units that service Tenant's computer rooms
or as otherwise installed by Tenant. Should Tenant fail to perform its repairs,
as required, Landlord may, at Landlord's option, elect to perform any such
repairs on Tenant's behalf and at Tenant's expense in which event the charge
therefor shall be payable by Tenant to Landlord as Additional Rent within ten
(10) days after demand therefor. Notwithstanding the foregoing, all damage or
injury to the Demised Premises or to any other part of the Building, or to its
fixtures, equipment and appurtenances, whether requiring structural or
nonstructural repairs, caused by or resulting from the following shall be
repaired promptly by Tenant at its sole cost and expense (or at Landlord's
option may be performed by Landlord at Tenant's sole cost and expense which
shall be payable in accordance with the preceding sentence):
(a) the performance or existence of Tenant's Work or
Alterations;
(b) the installation, use or operation of Tenant's Property
in the Demised Premises;
(c) the moving of Tenant's Property in or out of the
Building; or
17
(d) the act, omission, misuse or neglect of Tenant, Tenant's
Agents or any subtenant.
All the aforesaid repairs shall be of quality or class equal to the original
work or construction. If Tenant fails after ten (10) days' notice to proceed
with due diligence to make repairs required to be made by it, the same may be
made by Landlord at the expense of Tenant, and the expenses thereof incurred by
Landlord shall be collectible as Additional Rent after rendition of a bill or
statement therefor. Tenant shall give Landlord prompt notice of any defective
condition in any plumbing, heating system or electrical lines located in,
servicing or passing through the Demised Premises and following such notice,
Landlord shall remedy the condition with due diligence but at the expense of
Tenant if repairs are necessitated by damage or injury attributable to Tenant or
Tenant's Agents. It is agreed and understood that Landlord shall be responsible
for repairs to the plumbing components which are part of the Building's systems
(including the toilet fixtures and sink drains and shut-off valves).
13.02. Abatement. Except as specifically provided herein, neither
(i) the making by Landlord, Tenant or others of any decorations, repairs,
alterations, additions or improvements in or to the Building or the Demised
Premises, nor (ii) the failure of Landlord or others to make any such
decorations, repairs, alterations, additions or improvements, nor (iii) any
damage to the Demised Premises or to the property of Tenant, nor any injury to
any persons, caused by other tenants or persons in the Building, or by
operations in the construction of any private, public or quasi-public work, or
by any other cause, nor (iv) any latent defect in the Building or in the Demised
Premises, nor (v) any temporary or permanent closing, darkening or bricking up
of windows of the Demised Premises for any reason whatsoever including, but not
limited to, Landlord's own acts, nor (vi) any inconvenience or annoyance to
Tenant or injury to or interruption of Tenant's business by reason of any of the
events or occurrences referred to in the foregoing subdivisions (i) through (v),
shall constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of Rent, or relieve Tenant from
any of its obligations under this Lease, or impose any liability upon Landlord,
or Landlord's Agents or any Superior Lessor or Superior Mortgagee other than
such liability as may be imposed upon Landlord by law for Landlord's gross
negligence or the gross negligence of Landlord's Agents in the operation or
maintenance of the Building or for the breach by Landlord of any express
covenant of this Lease on Landlord's part to be performed.
The provisions of this Article with respect to the making of repairs
shall not apply in the case of fire or other casualty which are dealt with in
Article 10.
ARTICLE 14
Utilities and Services
14.01. Electricity. Landlord shall furnish at Tenant's expense
electric current to Tenant in the Demised Premises in accordance with the
Building electric design. Tenant shall be responsible for the installation,
cost, operation and maintenance of such additional fixtures or systems and
business equipment and machines as Tenant shall deem necessary and which
Landlord may permit in writing in accordance with the provisions of this Lease
to accommodate any total lighting and power electrical load in the Demised
Premises occasioned by Tenant's use
18
thereof in excess of four (4) watts per square foot of rentable area. Landlord
agrees to re-program the computer controlling the HVAC and lighting for the
Demised Premises, without cost to Tenant up to four (4) times per year (any
additional re-programming requested by Tenant shall be at Tenant's sole cost and
expense), upon not less than seven (7) business days' prior notice.
Landlord shall provide, at Landlord's sole cost and expense,
load/shed priority from the existing generator in the Building to the Demised
Premises. Landlord agrees that the existing generator shall be capable of
supplying a minimum of 48 hours complete back-up electrical power for Tenant's
business operations. Landlord agrees that it will attempt to form a tenant
committee to oversee the proper inspection and maintenance of all disaster
recovery equipment on or before January 1, 1999. Landlord agrees that Tenant
shall have the right to designate one representative to such committee. Landlord
further agrees that the disaster recovery equipment shall be fully tested a
minimum of four (4) times per year.
14.02. Electricity Charges. Tenant shall pay all charges for
electric service to the Demised Premises for air conditioning, lighting and
power, as billed to Tenant by the utility company servicing the Building, in
accordance with Tenant's usage as stated on the separate electric meter
installed by Landlord for the Demised Premises, at Landlord's sole cost and
expense. Notwithstanding the foregoing, Tenant may elect to have the Demised
Premises submetered and to purchase electricity at a lower rate through Landlord
as follows: Charges for electric service are recorded by Landlord from the 16th
day of the month to the 15th day of the following month and shall be included on
the Landlord's rent bill and due and payable by the Tenant on the 1st day of the
following month.
At no time shall Tenant's use of electric current exceed the
capacity of the feeders to the Building or the risers or wiring installation. In
order to ensure that such capacity is not exceeded and to avert possible adverse
effect upon the electric service in the Building, Tenant agrees not to connect
any additional electrical equipment, fixtures, machinery or appliances of any
type to the Building electric distribution system, other than lamps,
typewriters, word processing equipment, desktop computers and other small office
machines which consume comparable amounts of electricity, without Landlord's
prior written consent, which consent shall not be unreasonably withheld. Any
additional risers, feeders, or other equipment proper or necessary to supply
Tenant's electrical requirements, upon written request of Tenant, will be
installed by Landlord, at the sole cost and expense of Tenant, if, in Landlord's
sole judgment, the same are necessary and will not cause permanent damage or
injury to the Building or the Demised Premises, or cause or create a dangerous
or hazardous condition or entail excessive or unreasonable alterations, repair
or expense or interfere with or disturb other tenants or occupants.
14.03. Building Services. (a) Provided that Tenant is not in default
hereunder beyond applicable cure periods, Landlord agrees to furnish or cause to
be furnished on a twenty-four (24) hour basis, seven (7) days per week, 365 days
per year, the following utilities and services, subject to the conditions and
standards set forth below and elsewhere herein:
(i) Landlord shall, subject to interruptions beyond Landlord's
control and other provisions hereunder, furnish the Demised Premises with water
for drinking and lavatory purposes only.
19
(ii) Tenant shall provide, at Tenant's sole cost and expense, all
janitorial services to the Demised Premises. Landlord shall provide janitorial
services to the common areas of the Building, in accordance with the cleaning
specifications set forth on Exhibit D hereto Tenant shall pay to Landlord the
cost of removal of any of Tenant's refuse and rubbish to the extent that the
same exceeds the refuse and rubbish as has been in the past attendant to
Tenant's use of the Demised Premises as offices.
(iii) Landlord shall replace, as necessary, the fluorescent tubes in
the standard lighting fixtures installed by Landlord. Tenant agrees to reimburse
Landlord upon demand for the cost of such fluorescent tubes and the labor and
overhead for their installation.
(iv) Landlord shall furnish lighting for the lobby, not less than
one working elevator and lighting for Tenant's parking area.
(b) Tenant agrees to cooperate fully at all times with Landlord and
to abide by all regulations and requirements which Landlord may prescribe for
the use of the above utilities and services of which Tenant has actual notice.
Any failure to pay any costs as described above shall constitute a breach of the
obligation to pay Rent under this Lease and shall entitle Landlord to the rights
herein granted for such breach.
14.04. Landlord shall not be liable for, and Tenant shall not be
entitled to, any abatement or reduction of Rent by reason of Landlord's failure
to furnish any of the foregoing services, or any failure or defect in the
character or supply of any utility provided to the Demised Premises, nor shall
any such failure, stoppage or interruption of any such utility or service be
construed either as an eviction of Tenant, or relieve Tenant from the obligation
to perform any covenant or agreement. However, in the event of any failure or
interruption thereof, Landlord shall use reasonable diligence to have service
resumed promptly.
14.05. Air Conditioning and Heating. Landlord shall have full and
unrestricted access to all air-conditioning and heating equipment, and to all
other utility installations servicing the Building and the Demised Premises.
Landlord reserves the right temporarily to interrupt, curtail, stop or suspend
air-conditioning and heating service, and all other utility, or other services,
because of any cause beyond Landlord's reasonable control, including, without
limitation, Landlord's inability to obtain, or difficulty or delay in obtaining,
labor or materials necessary therefor, or in order to comply with governmental
restrictions in connection therewith. No diminution or abatement of Fixed Rent,
Additional Rent, or other compensation shall or will be claimed by Tenant,
except as specifically provided herein, nor shall this Lease or any of the
obligations of Tenant hereunder be affected or reduced by reason of such
interruptions, stoppages or curtailments, the causes of which are hereinabove
enumerated, nor shall the same give rise to a claim in Tenant's favor that such
failure constitutes actual or constructive, total or partial eviction from the
Demised Premises, except as specifically provided herein.
14.06. Notwithstanding the foregoing, in the event the heating,
ventilation, air conditioning, and/or electrical systems solely within the
Demised Premises, which are non-building systems and non-structural in nature,
shall cease operating in its/their entirety for a continuous and uninterrupted
period of five (5) business days, then Tenant shall have the right to an
abatement of Fixed Rent and/or Additional Rent for the period covered by such
lack of
20
services, provided that any such lack of service is attributable to act(s)
within the Landlord's control. Nothing herein shall preclude Tenant from
prosecuting or maintaining legal proceedings against Landlord as provided by
law; the prevailing party in such litigation shall be entitled to reasonable
attorney's fees.
14.07. In the event (i) Landlord shall default in its obligation to
make repairs in the Demised Premises in accordance with this Article 14, and
(ii) Tenant shall notify Landlord and Landlord's mortgagee, if any, of the
existence of such default which notice shall specifically state that "unless
Landlord shall fail to commence to cure such default within twenty (20) days
after the date of this notice, then Tenant may take action to cure such default
under Section 14.06 of the Lease" (the "Self-Help Notice") and (iii) Landlord
either shall (x) fail to commence to cure such default within twenty (20) days
after the giving of said notice or shall fail thereafter to prosecute to
completion with reasonable diligence the work necessary to cure such default or
(y) fail to notify Tenant within twenty (20) days after the giving of said
notice that Landlord is unable to commence to cure such default because of
inability to obtain materials or strikes or other labor disputes, fire or other
casualty (or reasonable delays in adjustment of insurance), accidents, orders or
regulations of any Federal, State, County or Municipal authority, or by any
other cause beyond Landlord's reasonable control, whether or not such cause
shall be similar in nature to those hereinbefore enumerated, then, but only in
such events and subject to the provisions set forth in the following provisions
of this section, Tenant may take action to cure such default. In the event
Tenant cures any default in accordance with the foregoing provisions of this
section, any reasonable expenditures made by Tenant to cure such default shall
be repaid by Landlord to Tenant within twenty (20) days demand by Tenant to
Landlord. In the event of any dispute between Landlord and Tenant as to whether
or not Landlord was in default, such dispute shall be determined by applicable
legal proceedings.
14.08. Notwithstanding anything herein to the contrary, Landlord
reserves the right from time to time to make reasonable modifications to the
above provisions for utilities and services. Any such changes shall not
materially interfere with Tenant's use and enjoyment of the Demised Premises or
result in material increased costs for Tenant.
ARTICLE 15
Alterations
15.01. Requirements. Tenant may from time to time, at its expense,
make such alterations (herein called "Alterations") in and to the Demised
Premises, excluding structural changes, as Tenant may reasonably consider
necessary for the conduct of its business in the Demised Premises, provided and
upon condition that:
(a) the outside appearance of the Building shall not be
affected;
(b) the Alterations are to the interior of the Demised
Premises and no part of the Building outside of the Demised Premises
shall be affected;
21
(c) the proper functioning of the mechanical, electrical,
sanitary and other service systems of the Building shall not be
adversely affected and the usage of such systems by Tenant shall not
be increased;
(d) before proceeding with any structural Alteration or any
Alteration costing in excess of $25,000.00 per year, in the
aggregate, to complete, Tenant shall submit to Landlord for
Landlord's approval plans and specifications for the work to be
done, and Tenant shall not proceed with such work until it obtains
Landlord's approval;
(e) Tenant shall pay to Landlord upon demand the reasonable
cost and expense of Landlord in (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 and all laws and requirements of public
authorities, including, without limitation, the fees of any
architect or engineer employed by Landlord for such purpose,
however, it is agreed and understood that this provision shall not
apply to cosmetic alterations or alterations wholly within the
Demised Premises which do not effect the Buildings's structure or
its mechanical systems;
(f) before proceeding with any Alteration in excess of
$100,000 (exclusive of Tenant's initial installations which shall
not be subject to this provision) Tenant shall obtain and deliver to
Landlord either (i) a performance bond and a labor and materials
payment bond (issued by a corporate surety licensed to do business
in New York), each in an amount equal to one hundred twenty five
(125%) percent of the cost of the Alteration as estimated by a
reputable contractor designated by Landlord and in form satisfactory
to Landlord, or (ii) such other security as shall be satisfactory to
Landlord;
(g) Tenant shall fully and promptly comply with and observe
the rules and regulations of Landlord then in force with respect to
the making of Alterations; and
(h) with respect to Alteration or improvement work costing
more than $25,000, in the aggregate, Tenant agrees to pay to
Landlord or Landlord's managing agent, as Additional Rent, promptly
upon being billed therefor, a sum equal to the actual, commercially
reasonable costs incurred by Landlord for indirect costs, field
supervision and coordination in connection with such work, which are
in excess of Landlord's day to day costs for operating the Building.
Tenant agrees that any review or approval by Landlord of any plans
and/or specifications with respect to any Alteration and any inspection thereof
are 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.
15.02. Permit. Tenant, at its expense, shall obtain all necessary
governmental permits and certificates for the commencement and prosecution of
Alterations and for final
22
approval thereof upon completion, and shall cause Alterations to be performed in
a good and workmanlike manner, using new materials and equipment at least equal
in class to the better of (i) the original installations of the Building, or
(ii) the then standards for the Building established by Landlord. Alterations
effecting the Building's structure and/or its mechanical systems shall be
performed by contractors first approved by Landlord provided, however, that any
Alterations in or to the mechanical, electrical, sanitary, heating, ventilating,
air-conditioning or other systems of the Building shall be performed only by
licensed contractors(s) selected from a list of approved contractors maintained
by Landlord (Landlord agrees that each contractor on said list shall have rates
and charges which are commercially reasonable and in accordance with prevailing
rates and charges in the Mitchel Field/Garden City/Westbury vicinity) which list
(which Landlord may modify from time to time) shall be furnished to Tenant on
request. Alterations shall be performed in such manner as not to unreasonably
interfere with or delay and as not to impose any additional expense upon
Landlord in the maintenance, repair or operation of the Building; and if any
such additional expense shall be incurred by Landlord as a result of Tenant's
performance of any Alterations, Tenant shall pay such additional expense upon
demand, as provided in Article 15. Throughout the performance of Alterations,
Tenant, at its expense, shall carry, or cause to be carried, workmen's
compensation insurance in statutory limits and general liability insurance, with
completed operation endorsement, for any occurrence in or about the Building,
under which Landlord and such other persons and entities as may be designated by
Landlord shall be named an insured, in such limits as Landlord may reasonably
require, with insurers reasonably satisfactory to Landlord. Tenant shall furnish
Landlord with reasonably satisfactory evidence that such insurance is in effect
at or before the commencement of Alterations and, on request, at reasonable
intervals thereafter during the continuance of Alterations. If any Alterations
shall involve the removal of any fixtures, equipment or other property in the
Demised Premises which are not Tenant's Property, such fixtures, equipment or
other property shall be promptly replaced at Tenant's expense with new fixtures,
equipment or other property of like utility and at least equal value unless
Landlord shall otherwise expressly consent.
15.03. Violations. Tenant, at its expense, and with diligence and
dispatch, shall procure the cancellation or discharge of all notices of
violation arising from or otherwise connected with Alterations, or any other
work, labor, services or materials done for or supplied to Tenant, or any person
claiming through or under Tenant, which shall be issued by public authority
having or asserting jurisdiction. Tenant shall defend, indemnify and save
harmless Landlord from and against any and all mechanics' and other liens and
encumbrances filed in connection with Alterations, or any other work, labor,
services or materials done for or supplied to Tenant, or any person claiming
through or under Tenant, including without limitation, security interests in any
materials, fixtures or articles so installed in and constituting part of the
Demised Premises and against all costs, expenses and liabilities incurred in
connection with any such lien or encumbrances or any action or proceeding
brought thereon. Tenant, at its expense, shall procure the satisfaction or
discharge of record of all such liens and encumbrances within thirty (30) days
after the filing thereof. Notice is hereby given that Landlord shall not be
liable for any work performed or to be performed at the Demised Premises for
Tenant or for any subtenant, or for any materials furnished or to be furnished
at the Demised Premises for Tenant or any subtenant, upon credit, and that no
mechanic's or other lien for such work or materials shall attach to or affect
the estate or interest of Landlord in and to the Demised Premises.
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15.04. Labor Strife. Tenant shall not, at any time prior to or
during the Term, directly or indirectly employ, or permit the employment of, any
contractor, mechanic or laborer in the Demised Premises, whether in connection
with any Alterations or otherwise, if such employment will interfere or cause
any conflict with other contractors, mechanics, or laborers engaged in the
construction, maintenance or operation of the Building by Landlord, Tenant or
others. In the event of any such interference or conflict, Tenant, upon demand
of Landlord, shall cause all contractors, mechanics or laborers causing such
interference or conflict to leave the Building immediately.
ARTICLE 16
Escalations - Taxes, Etc.
16.01. Definitions. As used in this Article 16 the following
definitions shall apply:
(a) "Tax Year" shall mean each period of twelve months
commencing January 1st in which occurs any part of the Term or such
other period of twelve months occurring during the Term as hereafter
may be adopted as the fiscal year for real estate tax purposes by
the Town taxing authority having jurisdiction over the Property.
(b) "Real Estate Taxes" shall mean the taxes and assessments
(including special or extraordinary assessments) imposed upon the
Property, including without limitation any School, State, County, or
Town Tax. If, due to a future change in the method of taxation, any
franchise, income, profit or other tax, however designated, shall be
levied against Landlord in substitution, in whole or in part, for or
in lieu of any tax which would otherwise constitute a Real Estate
Tax, such franchise, income, profit or other tax shall be deemed to
be a Real Estate Tax for the purposes hereof and shall be deemed to
be included in the term "Real Estate Taxes".
(c) "Real Estate Tax Base" shall be as set forth in Section
1.01.
(d) "Ground Lease Base Rent" shall mean the rental paid under
the Ground Lease for the Building in 1997/1998.
(e) "Escalation Statement" shall mean a statement in writing
signed by Landlord or Landlord's agent setting forth the amount
payable by Tenant for a specified Tax Year or Operating or Lease
Year (as the case may be) pursuant to this Article 16.
16.02. Escalation. If the Real Estate Taxes or rental under the
Ground Lease for any subsequent year shall be greater than the Real Estate Tax
Base and/or the Ground Lease Base Rent, then Tenant shall pay to Landlord as
Additional Rent an amount equal to Tenant's Proportionate Share of such excess
(herein called the "Excess Payment"). Notwithstanding the foregoing, Tenant
shall not be required to pay any Excess Payments attributable to increases in
the Ground Lease Base Rent until the year 2003.
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16.03. Tax Payments. (a) Tenant's Excess Payment for each Lease Year
shall be due and payable in twelve (12) equal installments, in advance, on the
first day of each month during each Lease Year, based upon the Escalation
Statement furnished prior to the commencement of such Lease Year, until such
time as a new Escalation Statement for a subsequent Lease Year shall become
effective. If an Escalation Statement is furnished to Tenant after the
commencement of a Lease Year in respect of which such Escalation Statement is
rendered, Tenant shall, within 15 days thereafter, pay to Landlord an amount
equal to the amount of any underpayment of Tenant's Excess Payment with respect
to such Lease Year and, in the event of an overpayment, Landlord shall permit
Tenant to credit against subsequent payments under this Article 16 the amount of
Tenant's overpayment. If there shall be any increase in Taxes and/or Ground
Lease Rent for any Lease Year, whether during or after such Lease Year, Landlord
shall furnish a revised Escalation Statement for such Lease Year, and Tenant's
Excess Payment for such Lease Year shall be adjusted and paid substantially in
the same manner as provided in the preceding sentence. If during the term of
this Lease, Real Estate Taxes are required to be paid (either to the appropriate
taxing authorities or as tax escrow payments to a superior mortgagee) in full or
in monthly, quarterly, or other installments, on any other date or dates than as
presently required, then at Landlord's option, Tenant's Excess Payments for
taxes shall be correspondingly accelerated or revised so that said Tenant's
Excess Payments for taxes are due at least 30 days prior to the date payments
are due to the taxing authorities or the superior mortgagee. The benefit of any
discount for any early payment or prepayment of Taxes shall accrue solely to the
benefit of Landlord and such discount shall not be subtracted from Taxes.
(b) If the real estate tax fiscal year of the relevant taxing
authorities shall be changed during the term of this Lease, any Taxes for such
fiscal year, a part of which is included within a particular Tax Year and a part
of which is not so included, shall be apportioned on the basis of the number of
days in such fiscal year included in the particular Tax Year for the purpose of
making the computations under this Section 16.03.
16.04. Survival. Payments shall be made pursuant to this Article 16
notwithstanding the fact that an Escalation Statement is furnished to Tenant
after the Expiration Date.
16.05. Tax Refunds. Reductions.
(a) If Landlord shall receive a refund of Real Estate Taxes
for any Tax Year, Landlord shall either pay to Tenant, or permit Tenant to
credit against subsequent payments under this Article, Tenant's Proportionate
Share of the net refund (after deducting from such total refund the costs and
expenses, including, but not limited to, appraisal, accounting and legal fees of
obtaining the same); provided, however, such payment or credit to Tenant shall
in no event reduce Tenant's proportionate share of the Real Estate Taxes to less
than the amount of the Real Estate Taxes for the Base Year. Tenant acknowledges
and agrees, that Tenant shall not be entitled to receive any credit or refund
that would reduce Tenant's proportionate share of Real Estate Taxes to below the
amount of the Real Estate Taxes for the Base Year, except as specifically
provided in sub-paragraph (c) below.
(b) In case the Real Estate Taxes for any Tax Year or part
thereof shall be reduced before Tenant shall have paid Tenant's Proportionate
Share of any excess thereof in
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respect of such Tax Year pursuant to Section 16.03(a) hereof, the
Real Estate Taxes for such Tax Year shall be deemed to include any expenses,
including counsel fees, incurred by Landlord in connection with obtaining such
reduction.
(c) Upon receipt by Landlord of proof, as documented from the
appropriate taxing authority, that the property taxes for the Building have been
reduced and/or a tax incentive has been granted solely as a result of Tenant's
business and continued occupancy in the Town of Hempstead and Nassau County,
Landlord shall either pay to Tenant, or permit Tenant to credit against
subsequent payments under this Lease, the full amount of such reduction, refund
and/or tax incentive.
16.06. Tax Proration. If a Tax Year ends after the Expiration Date
or other termination of this Lease, the Tax Payment therefor shall be prorated
to correspond to that portion of such Tax Year occurring within the Term.
ARTICLE 17
Environmental
17.01. Tenant shall not (either with or without negligence) cause or
permit the escape, disposal or release of any biologically or chemically active
or other hazardous substance from or in the Demised Premises during the Term or
while Tenant is in possession thereof or from or on the Property if caused by
Tenant or Tenant's employees, agents, contractors, licensees, visitors or
invitees; provided, however, that Landlord, its agents, employees or contractors
are not the cause thereof. Tenant shall not allow the storage or use of such
substances in any manner not permitted by law or by the highest standards
prevailing in the industry for the storage and use of such substances, nor allow
to be brought onto the Property any such substances except for the use in the
ordinary course of Tenant's business, and then only after such written notice is
given to Landlord of Tenant's intent to bring such substance, which shall be
specifically identified, onto the Property. Without limitation, hazardous
substances shall include those described in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section
9601 et seq., any applicable state or local laws and the regulations adopted
under these acts. In addition, Tenant shall execute affidavits, representations
and the like from time to time at Landlord's request concerning Tenant's best
knowledge and belief regarding the presence of hazardous substances on the
Demised Premises.
ARTICLE 18
Signs
18.01. (a) If Tenant shall cause or permit any sign or other object
to be placed on or affixed to any part of the Building not within the Demised
Premises without Landlord's written permission, Landlord shall have the right,
in addition to any other rights or remedies, without notice or liability to
Tenant, to remove and dispose of any such sign or other object and to make any
repairs necessitated by such removal, all at Tenant's sole cost and expense, and
Landlord's cost and expense in performing such removal and repair shall be
deemed Additional Rent payable with the next installment of Fixed Rent due
hereunder.
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(b) Tenant shall at all times during the Term of this Lease
obtain, at its own cost and expense, all necessary permits and shall pay during
the Term of this Lease all fees relating thereto. Copies of said permits shall
be furnished to Landlord from time to time as they are issued and/or reviewed.
All such signs shall always be installed and maintained in full compliance with
all local ordinance, rules and regulations of any governmental agency having
jurisdiction thereover. Such signs shall be maintained and kept in good repair
and in good and safe condition by the Tenant at its own cost and expense. At the
expiration of the Term of this Lease, Tenant shall remove such signs installed
by it and Tenant shall repair any damage to the Demised Premises or the Property
that may result from either the installation or from the removal of the signs.
In all accident and liability insurance policies required to be maintained and
furnished by Tenant in accordance with any of the provisions of this Lease, the
Tenant agrees that in addition to any other requirement of this Lease with
respect thereto there shall also be included therein with respect to the
coverage of hazards, for which such insurance is to be provided for the benefit,
of the Landlord, full coverage to the extent of the limits thereof for all
hazards arising out of the installation and maintenance of all of Tenant's
signs.
(c) Landlord will include Tenant's name(s) on the Building
directory, provided the number of lines requested is not proportionately greater
than Tenant's Proportionate Share of the total number of lines available on the
Directory.
(d) No signs or lettering of any nature may be put on or in
any window nor on the exterior of the Building or elsewhere within the Demised
Premises such as will be visible from the street or the atrium of the Building.
No sign or lettering in the public corridors or on the doors are permitted
except Landlord's standard name plaque and except for name of tenant and its
related entities only as set forth on signs of similar size and style as
presently existing elsewhere on the interior of the Building. Tenant may only
maintain said signs on the specific floors of the Building wherein it leases
space; Tenant is strictly prohibited from maintaining signs on specific floors
of the Building where it does not lease space. In addition, Tenant shall have
the right to install its trade name/logo in each elevator of the Building
adjacent to the fifth and seventh floor buttons, subject to Landlord's prior
reasonable approval.
(e) Notwithstanding anything contained herein to the contrary,
provided Tenant is not in default beyond applicable cure periods, Tenant shall
have the right to retain the two (2) signs on or alongside each of the uppermost
east and west sides of the Building, which display the Tenant's name. In
addition, Landlord agrees that Tenant shall have the right to install, at
Tenant's sole cost and expense, two (2) additional signs on or alongside each of
the uppermost north and south sides of the Building which are substantially the
same as the signs which are presently maintained on the east and west sides of
the Building, provided Tenant complies with subparagraph (b) above. Landlord
shall contribute to the cost of the foregoing signs and/or the replacement,
upgrading and maintenance of the existing signs, to a maximum of $60,000.00,
upon submission to Landlord of bona fide paid bills for same which are received
by Landlord on or before May 31, 1999. Landlord agrees that Tenant's right to
maintain signs alongside each of the uppermost sides of the Building shall be
exclusive so long as Tenant leases and occupies not less than two (2) full
floors in the Building. Tenant agrees that Landlord shall have the right to
install monument or building eyebrow signage identifying other tenants or the
name/address of the Building, provided that any such tenant eyebrow signage
shall be installed below the second floor windows and shall only be installed
for/by a tenant leasing in
27
excess of 10,000 square feet in the Building and which tenant possesses: i)
national or regional (i.e. operating in five or more states) stature, and/or ii)
sales in excess of $250 million per year.
ARTICLE 19
Limitation of Landlord's Liability
19.01. Tenant shall look solely to the estate and interest of
Landlord in the Building for the satisfaction of Tenant's remedies for the
collection of any judgment (or other judicial process) requiring the payment of
money by Landlord in the event of any default or breach by Landlord with respect
to any of the terms, covenants and conditions of this Lease to be observed or
performed by Landlord, and no other property or assets of Landlord or any of the
partners, shareholders, members, fiduciaries or other principals of Landlord
shall be subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies under or with respect to either this Lease,
the relationship of Landlord and Tenant hereunder or Tenant's use and occupancy
of the Demised Premises.
ARTICLE 20
Broker
20.01. Landlord and Tenant covenant, warrant and represent to each
other that they have not had discussions or negotiations with any broker
concerning the leasing of space in the Building or concerning this Lease other
than Island Realty Service Group, Inc. Landlord and Tenant agree to indemnify,
defend and hold each other harmless from and against any claim for a brokerage
commission or other compensation arising out of any discussions or negotiations
had by Landlord and/or Tenant with any other broker. Landlord shall be
responsible for payment of the brokerage commission due to Island Realty Service
Group, Inc.
ARTICLE 21
Default -- Conditions of Limitation
21.01. Default. Upon the occurrence, at any time prior to or during
the Demised Term, of any one or more of the following events an "Event of
Default" shall occur:
(i) If Tenant shall default in the payment when due of any
installment of Fixed Basic Annual Rent or in the payment when due of any
Additional Rent, and such default shall continue for a period of ten (10) days
after notice by Landlord to Tenant of such default; or
(ii) If Tenant shall default in the observance or performance of any
material term, material covenant or material condition of this Lease on Tenant's
part to be observed or performed (other than the covenants for the payment of
Fixed Basic Annual Rent and Additional Rent) and Tenant shall fail to cure such
default within fifteen (15) days after notice by Landlord to Tenant of such
default or if such default is of such a nature that it cannot be completely
remedied within said fifteen day period and Tenant shall not commence within
said fifteen days, or shall not thereafter diligently prosecute to completion,
all reasonable steps necessary to remedy such default; or
28
(iii) If Tenant shall file a voluntary petition in bankruptcy or
insolvency, or shall be adjudicated a bankrupt or becomes insolvent, or shall
file any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under the
present or any future federal bankruptcy act or any other present or future
applicable federal, state or other statute of law, or shall make an assignment
for the benefit of creditors or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Tenant or of all or any
part of Tenant's property; or
(iv) If, within sixty (60) days after the commencement of any
proceeding against Tenant, whether by the filing of a petition or otherwise
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any future federal bankruptcy
act or any other present or future applicable federal, state or other statute of
law, such proceedings shall not have been dismissed, or if, within sixty (60)
days after the appointment of any trustee, receiver or liquidator of Tenant, or
of all or any part of Tenant's property, without the consent or acquiescence of
Tenant, such appointment shall not have been vacated or otherwise discharged, or
if any execution or attachment shall be issued against Tenant or any of Tenant's
property pursuant to which the Demised Premises shall be taken or occupied or
attempted to be taken or occupied; or
(v) Notwithstanding anything to the contrary, if Tenant shall
default in the observance or performance of any material term, material covenant
or material condition on Tenant's part to be observed or performed under any
other lease with Landlord of space in the Building and such default shall
continue beyond any grace period set forth in such other lease for the remedying
of such default; or
(vi) If the Demised Premises shall become deserted or abandoned
unless Tenant continues to pay all Basic Annual Rent and Additional Rent as same
becomes due and subject to any applicable grace periods and Tenant properly
maintains security; or
(vii) If Tenant's interest in this Lease shall devolve upon or pass
to any person, whether by operation of law or otherwise, except as expressly
permitted under Article 6, then, upon the occurrence, at any time prior to or
during the Demised Term, of any one or more of such Events of Default, Landlord,
at any time thereafter, at Landlord's option, may give to Tenant thirty (30)
days notice of termination of this lease and, in the event such notice is given
and Tenant fails to cure within such thirty (30) day period, then this Lease and
the Demised Term shall come to an end and expire (whether or not said term shall
have commenced) upon the expiration of said thirty (30) days with the same
effect as if the date of expiration of said thirty (30) days were the Expiration
Date. Notwithstanding anything to the contrary herein, Tenant shall remain
liable for damages as provided in Article 23.
If, at any time (i) Tenant shall be comprised of two (2) or more
persons, or (ii) Tenant's obligations under this lease shall have been
guaranteed by any person other than Tenant, or (iii) Tenant's interest in this
lease shall have been assigned, the word "Tenant", as used in subsection (iii)
and (iv) of Section 21.01, shall be deemed to mean any one or more of the
persons primarily or secondarily liable for Tenant's obligations under this
lease. Any monies received by Landlord from or on behalf of Tenant during the
pendency of any proceeding of the types referred to in said subsections (iii)
and (iv) shall be deemed paid as compensation for the
29
use and occupation of the Demised Premises and the acceptance of any such
compensation by Landlord shall not be deemed an acceptance of rent or a waiver
on the part of Landlord of any rights under the within Lease.
ARTICLE 22
Re-Entry by Landlord
22.01. Summary Dispossess. If Tenant shall default in the payment of
any Fixed Rent or Additional Rent and such default shall continue for fifteen
(15) days or if this Lease shall terminate as provided in Article 21, Landlord
or Landlord's agents and employees may immediately or at any time thereafter
re-enter the Demised Premises in accordance with applicable laws, 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
therefor, and may repossess the same, and may remove any person therefrom, to
the end that Landlord may have, hold and enjoy the Demised Premises. The word
"re-enter", as used herein, is not restricted to its technical meaning. If this
Lease is terminated under the provisions of Article 21, or if Landlord shall
re-enter the Demised Premises under the provisions of this Article, 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 provisions of law by reason of
default hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord
the Fixed Rent and Additional Rent payable 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 23.
22.02. Waivers. Tenant, on its own behalf and on behalf of all
persons claiming through or under Tenant, including creditors, does hereby waive
any and all rights and privileges so far as is permitted by law which Tenant and
all such persons might otherwise have under any present or future law (a) to the
service of any notice of intention to re-enter or to institute legal proceedings
to that end, (b) to redeem the Demised Premises, (c) to re-enter or repossess
the Demised Premises, or (d) to restore the operation of this Lease, after
Tenant shall have been dispossessed by a judgment or by warrant of any court or
judge, or after any re-entry by Landlord, or after any expiration or termination
of this Lease and the Term, whether such dispossess, re-entry, expiration or
termination shall be by operation of law or pursuant to the provisions of this
Lease.
22.03. Injunctive Relief. In the event of a breach or threatened
breach by Tenant of any of its obligations under this Lease, Landlord shall also
have the right of injunction. The special remedies to which Landlord may resort
hereunder are cumulative and are not intended to be exclusive of any other
remedies 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.
22.04. Retention of Monies. If this Lease shall terminate under the
provisions of Article 21, or if Landlord shall re-enter the Demised Premises
under the provisions of this Article, 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 provisions of law by reason of default hereunder
30
on the part of Tenant, Landlord shall be entitled to retain all monies, if any,
paid by Tenant to Landlord, whether as advance rent, security or otherwise, but
such monies shall be credited by Landlord against any Fixed 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 Article 23 or
pursuant to law. Notwithstanding anything contained herein to the contrary,
Landlord agrees the balance of the Security Deposit, if any, remaining after
satisfaction of all amounts due to Landlord from Tenant, shall be refunded to
Tenant within sixty (60) days after Landlord completes it final accounting.
ARTICLE 23
Damages
23.01. Acceleration, Reletting. If this Lease is terminated under
the provisions of Article 21, or if Landlord shall re-enter the Demised Premises
under the provisions of Article 22, or in the event of the termination of this
Lease, or of re-entry, by or under any summary dispossess or other proceeding or
action or any provision of law by reason of default hereunder on the part of
Tenant, Tenant shall pay to Landlord as damages, at the election of Landlord,
either:
(a) a sum which at the time of such termination of this Lease
or at the time of any such re-entry by Landlord, as the case may be,
represents the then value of the excess, if any, of (i) the
aggregate amount of the Fixed Rent and the Additional Rent under
Articles 2 and 16 which would have been payable by Tenant
(conclusively presuming the Additional Rent under Article 16 to be
the same as was payable for the prior year, or if less than 365 days
have then elapsed since the Commencement Date, the partial year
immediately preceding such termination or re-entry) for the period
commencing with such earlier termination of this Lease or the date
of any such re-entry, as the case may be, and ending with the date
contemplated as the Expiration Date hereof if this Lease had not so
terminated or if Landlord had not so re-entered the Demised
Premises, over (ii) the aggregate rental value of the Demised
Premises for the same period, or
(b) sums equal to the Fixed Rent and the Additional Rent which
would have been payable by Tenant had this Lease not so terminated,
or had Landlord not so re-entered the Demised Premises, payable upon
the due dates therefor specified herein following such termination
or such re-entry and until the date contemplated as the Expiration
Date hereof if this Lease had not so terminated or if Landlord had
not so reentered the Demised Premises; provided, however, that if
Landlord shall relet the Demised Premises during said period,
Landlord shall credit Tenant with the net rents received by Landlord
from such reletting, such net rents to be determined by first
deducting from the gross rents as and when received by Landlord from
such reletting the 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 expenses of reletting,
including, without limitation, altering and preparing the Demised
Premises for new tenants, brokers' commissions, legal fees, and all
other expenses properly chargeable
31
against the Demised Premises and the rental therefrom, it being
understood that any such reletting may be for a period shorter or
longer than the remaining Term, but in no event shall Tenant be
entitled to receive any excess of such net rents over the sums
payable by Tenant to Landlord hereunder nor shall Tenant be entitled
in any suit for the collection of damages pursuant to this
subdivision to a credit in respect of any net rents from reletting,
except to the extent that such net rents are actually received by
Landlord. If the Demised Premises or any part thereof shall be relet
in combination with other space, then proper apportionment on a
square foot basis shall be made of the rent received from such
reletting and of the expenses of reletting.
If the Demised Premises or any part thereof be relet by Landlord for
the unexpired portion of the Term, or any part thereof, before presentation of
proof of such damages to any court, commission or tribunal, the amount of rent
reserved upon such reletting shall, prima facie, be the fair and reasonable
rental value for the Demised Premises, or part thereof, so relet during the term
of the reletting. Landlord shall not be liable in any way whatsoever for its
failure or refusal to relet the Demised Premises or any part thereof, or if the
Demised Premises or any part thereof are relet, for its failure to collect rent,
and Tenant's liability for damages or otherwise under this Lease shall not be
released or otherwise affected thereby.
23.02. Successive Suits, etc. Suit or suits for the recovery of such
damages, or any installments thereof, may be brought by Landlord from time to
time at its election, and nothing contained herein shall be deemed to require
Landlord to postpone suit until the date when the Term of this Lease would have
expired if it had not been so terminated under the provisions of Article 21, or
under any provision of law, or had Landlord not re-entered the Demised Premises.
Nothing herein contained shall be construed to limit or preclude recovery by
Landlord against Tenant of any sums or damages to which, in addition to the
damages particularly provided above, Landlord may lawfully be entitled by reason
of any default hereunder on the part of Tenant. Nothing herein contained shall
be construed to limit or prejudice the right of Landlord to prove for and obtain
as damages by reason of the termination of this Lease or re-entry on the Demised
Premises for the default of Tenant under this Lease an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, such damages are to be proved whether or not
such amount be greater, equal to, or less than any of the sums referred to in
Section 23.01.
23.03. Condition of Premises. In addition, if this Lease is
terminated under the provisions of Article 21, or if Landlord shall re-enter the
Demised Premises under the provisions of Article 22, Tenant agrees that:
(a) the Demised Premises then shall be in the same condition
as that 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 alteration
or for restoring or rebuilding the Demised Premises or the Building, or any part
thereof; and
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(c) for the breach of any covenant of Tenant set forth above
in this Section 23.03, 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 estimated
by an independent contractor selected by Landlord).
23.04. Interest. In addition to any other remedies Landlord may have
under this Lease, and without reducing or adversely affecting any of Landlord's
rights and remedies under Article 21, if any Fixed Rent, Additional Rent or
damages payable hereunder by Tenant to Landlord is not paid within five (5) days
after its due date and/or demand therefor, the same shall bear interest at the
rate of one and one-half percent (1 1/2%) per month or the maximum rate
permitted by law, whichever is less, from the due date thereof until paid, and
the amount of such interest shall be Additional Rent hereunder.
23.05. In addition to any other remedies Landlord may have under
this Lease, and without reducing or adversely affecting any of Landlord's rights
and remedies under Article 21, in the event Tenant both vacates the Demised
Premises and there is a default in the payment of Rent hereunder, or in the
event Landlord obtains possession of the Demised Premises or terminates the
Lease by reason of a default by Tenant hereunder other than vacation of the
Demised Premises, Tenant shall pay to Landlord, as Additional Rent hereunder,
the amount of the unamortized cost of leasehold improvements made by the
Landlord amortized over the balance of the term of this lease.
ARTICLE 24
Surrender
24.01. Condition of Premises. (a) On the last day of the Term or
upon any earlier termination of this Lease, or upon any re-entry by Landlord
upon the Demised Premises, Tenant shall, at its own expense, quit and surrender
the Demised Premises to Landlord broom clean, in good order, condition and
repair, except for ordinary wear and tear and such damage or destruction as
Landlord is required to repair or restore under the Lease. Tenant shall remove
from the Demised Premises all of Tenant's Property and all personal property and
personal effects of all persons claiming through or under Tenant, and shall pay
the cost of repairing all damage to the Building and the Demised Premises
occasioned by such removal.
(b) 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 shall become and be the property of Landlord,
and shall remain upon and be surrendered with the Demised Premises as a part
thereof at the end of the Term of this Lease, except that Landlord shall
have-the right and privilege at any time up to twenty (20) days prior to the
expiration of the Term of the Lease to serve notice upon Tenant that any of such
alterations, installations, additions and improvements 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.
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24.02. Sunday, Holidays. If the date of termination of this Lease
shall fall on a Sunday or a Holiday, then Tenant's obligations under Section
24.01 shall be performed on or prior to the Saturday or business day immediately
preceding such Sunday or Holiday.
24.03. Tenant's Property. Any Tenant's Property or other personal
property (other than money, securities, documents, or other valuables) which
shall remain in the Demised Premises after termination of this Lease shall be
deemed to have been abandoned and either may be retained by Landlord as its
property or may be disposed of in such manner as Landlord may see fit. If such
Tenant's Property or other personal property or any part thereof shall be sold,
Landlord may receive and retain the proceeds of such sale and apply the same, at
its option, against the expenses of the sale, cost of moving and storage, any
arrears of Fixed Rent or Additional Rent and damages to which Landlord may be
entitled hereunder or pursuant to law. Any excess proceeds shall be the property
of Landlord. Any expense incurred by Landlord in removing or disposing of such
Tenant's Property or other personal property shall be reimbursed to Landlord by
Tenant on demand.
24.04. Indemnification. If the Demised Premises are not surrendered
upon the termination of this Lease, Tenant shall indemnify Landlord against
loss, liability claims, damage, cost and expense (including, without limitation,
reasonable attorneys' fees), resulting from delay by Tenant in so surrendering
the Demised Premises as provided in Section 24.01, including any claims made by
any succeeding tenant founded on such delay.
24.05. Last Month. If, during the last month of the Term, Tenant
shall have removed all or substantially all of Tenant's Property from the
Demised Premises, Landlord may immediately enter and alter, renovate and
redecorate the Demised Premises, without elimination, diminution or abatement of
Rent, or incurring liability to Tenant for any compensation, and such acts shall
have no effect upon this Lease.
24.06. Survival. Landlord and Tenant's obligations under this
Article shall survive the termination of this Lease.
ARTICLE 25
Access to Demised Premises
25.01. Landlord's Rights. Landlord and Landlord's Agents shall have
the following rights in and about the Demised Premises: (i) to enter the Demised
Premises at all reasonable times, upon not less than twenty-four (24) hours
notice to Tenant, except in emergency situations, to examine the Demised
Premises or for any of the purposes set forth in this Article or for the purpose
of performing any obligation of Landlord under this Lease or exercising any
right or remedy reserved to Landlord in this Lease, and if Tenant or Tenant's
Agents shall not be personally present or shall not open and permit an entry
into the Demised Premises at any time when such entry shall be necessary for an
emergency, to use a master key or to forcibly enter the Demised premises; (ii)
to erect, install, use and maintain pipes, ducts and conduits in and through the
Demised Premises; (iii) to exhibit the Demised Premises to prospective tenants
during the last twelve (12) months of the Term or any Renewal Term or to
mortgagees and/or prospective purchasers of the Building at all other times;
(iv) to make such
34
decorations, repairs, alterations, improvements or additions, or to perform such
maintenance, including, but not limited to, the maintenance of all heating,
air-conditioning, elevator, plumbing, electrical and other mechanical
facilities, as Landlord may deem necessary or desirable; (v) to take all
materials into and upon the Demised Premises that may be required in connection
with any such decorations, repairs, alterations, improvements, additions or
maintenance; and (vi) to install on the inside of the windows a film or other
similar substance to reduce the usage of energy in the Building.
25.02. Portions Reserved. All parts (except surfaces facing the
interior of the Demised Premises) of all walls, windows and doors bounding the
Demised Premises (including exterior Building walls, core corridor walls, doors
and entrances), all balconies, terraces and roofs adjacent to the Demised
Premises, all space in or adjacent to the Demised Premises used for shafts,
stacks, stairways, chutes, pipes, conduits, ducts, fan rooms, heating,
air-conditioning, plumbing and other mechanical facilities, service closets and
other Building facilities (other than the electric closet serving the Demised
Premises which shall be deemed a part thereof), and the use thereof, as well as
access thereto through the Demised Premises for the purposes of operation,
maintenance, alteration and repair, are hereby reserved to Landlord. Landlord
also reserves the right at any time to change the arrangement or location of
entrances, passageways, doors, doorways, corridors, stairs, toilets and other
public parts of the Building, provided any such change does not permanently and
unreasonably obstruct Tenant's access to Demised Premises. Nothing contained in
this Article shall impose any obligation upon Landlord with respect to the
operation, maintenance, alteration or repair of the Demised Premises or the
Building.
25.03. Third Party Access. Landlord and Landlord's Agents shall have
the right to permit access to the Demised Premises, whether or not Tenant shall
be present, to any receiver, trustee, assignee for the benefit of creditors,
sheriff, marshall or court officer entitled to, or reasonably purporting to be
entitled to, such access for the purpose of taking possession of, or removing
any property of Tenant or any other occupant of the Demised Premises, or for any
other lawful purpose, or by any representative of the fire, police, building,
sanitation or other department of the Town, Village, County, City, State or
Federal Governments. Neither anything contained in this Section, nor any action
taken by Landlord under this Section, shall be deemed to constitute recognition
by Landlord that any person other than Tenant has any right or interest in this
Lease or the Demised Premises.
25.04. No Eviction. The exercise by Landlord or Landlord's Agents of
any right reserved to Landlord in this Article shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of Rent, or relieve Tenant from any of its obligations under this
Lease, or impose any liability upon Landlord, or Landlord's Agents, or upon any
Superior Lessor or Superior Mortgagee by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business, or otherwise.
35
ARTICLE 26
Waivers
26.01. Order of Payment. If Tenant is in arrears in payment of Fixed
Rent or Additional Rent, Tenant waives Tenant's right, if any, to designate the
items to which any payments made by Tenant are to be credited, and Tenant agrees
that Landlord may apply any payments made by Tenant to such items as Landlord
sees fit, irrespective of and notwithstanding any designation or request by
Tenant as to the items to which any such payments shall be credited.
26.02. Counterclaims Defenses and Offsets. Subject to the provisions
of Articles "10", "12", "13" and "14" of this Lease, it is hereby expressly
covenanted and agreed by and between the parties hereto that the Tenant shall
not be entitled to any abatement of Rent, or rental value, or diminution of Rent
in any action between the parties hereto, or in any summary proceedings for the
nonpayment of Rent, or in any other actions or proceedings by reason of any
breach of the Landlord of any covenant contained in this Lease on its part to be
performed, and that in any action by the Landlord against Tenant either for Rent
or Additional Rent, or in any summary proceedings for nonpayment of rent, or in
any other action or proceedings instituted by Landlord against Tenant, the
Tenant shall not have the right of set-off, recoupment or counterclaim for any
damages which the Tenant may have sustained by reason of the Landlord's failure
to perform any of the terms, covenants and conditions contained in this Lease on
its part to be performed, or for any other cause. The Tenant shall be relegated
to an independent action for damages and such independent action shall not at
any time be brought or consolidated with any action or proceeding instituted by
the Landlord. In addition to the foregoing, in any such action or summary
proceeding brought by the Landlord against the Tenant for the collection of Rent
or for the nonpayment of Rent, the Tenant does hereby waive and agree not to
introduce any defense or counterclaim which the Tenant now has or hereafter may
have, except the defense of payment. The Tenant, however, shall have the right
to litigate any such claim in some independent action therefor, including the
right to seek any equitable remedy which a court of competent jurisdiction is
willing to grant to Tenant, and such independent action shall at no time be
joined or consolidated with any such action or summary proceeding for nonpayment
of Rent. This provision shall not apply in the event of total or partial
destruction of the major portion of the Demised Premises.
26.03. Trial by Jury. Landlord and Tenant hereby waive trial by jury
in any action, proceeding or counterclaim brought by either against the other or
any matter whatsoever arising out of or in any way connected with this Lease,
the relationship of Landlord and Tenant and Tenant's use or occupancy of the
Demised Premises.
ARTICLE 27
No Surrender, etc.
27.01. Delivery of Keys, etc. No act or thing done by Landlord or
Landlord's Agents during the Term shall constitute a valid acceptance of a
surrender of the Demised Premises or any remaining portion of the Term except a
written instrument accepting such
36
surrender, executed by Landlord. No employee of Landlord or the Managing Agent
shall have any authority to accept the keys of the Demised Premises prior to the
termination of this Lease, and the delivery of such keys to any such employee
shall not operate as a termination of this Lease or a surrender of the Demised
Premises; however, if Tenant desires to have Landlord sublet the Demised
Premises for Tenant's account, Landlord, or Landlord's Agents are authorized to
receive said keys for such purposes without releasing Tenant from any liability
for loss of, or damage to, any of Tenant's Property or other effects in
connection with such subletting. The failure of Landlord to seek redress for
breach or violation of, or to insist upon the strict performance of, any term,
covenant or condition of this Lease on Tenant's part to be observed or performed
shall not prevent a subsequent act or omission which would have originally
constituted a breach or violation of such term, covenant or condition from
having all the force and effect of an original breach or violation. The receipt
by Landlord of Rent with knowledge of the breach or violation by Tenant of any
term, covenant or condition of this Lease on Tenant's part to be observed or
performed shall not be deemed a waiver of such breach or violation. Landlord's
failure to enforce any Rules or Regulations against Tenant or against any other
occupant of the Building shall not be deemed a waiver of any such Rules or
Regulations. No provision of this Lease shall be deemed to have been waived by
Landlord unless such waiver shall be set forth in a written instrument executed
by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than
the aggregate of all Fixed Rent and Additional Rent then due, no endorsement or
statement on any check and no letter accompanying any check or other Rent
payment in any such lesser amount and no acceptance of any such check or other
such payment by Landlord shall constitute an accord and satisfaction, and
Landlord may accept any such check or payment without prejudice to Landlord's
right to recover the balance of such Rent or to pursue any other legal remedy.
ARTICLE 28
Curing Tenant's Defaults
28.01. Right to Cure. If Tenant shall default in the performance of
any of Tenant's obligations under this Lease, Landlord, without thereby waiving
such default, may (but shall not be obligated to) perform the same for the
account and at the expense of Tenant, without notice in a case of emergency, and
in any other case only if such default continues after the expiration of fifteen
(15) days from the date Landlord gives Tenant notice of the default.
28.02. Reimbursement. Bills for any expenses incurred by Landlord in
connection with any such performance by it for the account of Tenant, and bills
for all costs, expenses and disbursements of every kind and nature whatsoever,
including reasonable counsel fees, involved in collecting or endeavoring to
collect the Fixed Rent or Additional Rent or any part thereof or enforcing or
endeavoring to enforce any rights against Tenant or Tenant's obligations
hereunder, under or in connection with this Lease or pursuant to law, including
any such cost, expense and disbursement involved in instituting and prosecuting
summary proceedings or in recovering possession of the Demised Premises after
default by Tenant or upon the expiration or sooner termination of this Lease,
and interest on all sums advanced by Landlord under this Article at the rate of
one and one-half percent (1 1/2%) per month or the maximum rate permitted by
law, whichever is less, may be sent by Landlord to Tenant monthly, or
37
immediately, at Landlord's option, and such amounts shall be due and payable in
accordance with the terms of such bills as Additional Rent.
ARTICLE 29
Notices
29.01. Any notice, statement, request, demand, consent, approval or
other communication required or permitted to be given, rendered or made by
either party to the other, pursuant to this Lease or pursuant to any applicable
law or requirement of public authority, shall be in writing (whether or not so
stated elsewhere in this Lease) and shall be deemed to have been properly given,
rendered or made only if (i) sent by registered or certified mail, return
receipt requested, posted in a United States post office station or letter box
in the continental United States, (ii) sent by overnight carrier, or (iii)
delivered by hand with receipt for delivery; addressed to the other party at the
Addresses for Notices set forth in Article 1 hereof (except that after the
Commencement Date, Tenant's address, unless Tenant shall give notice to the
contrary, shall be the Building), and shall be deemed to have been given,
rendered or made (i) on the day so mailed, unless outside of the State of New
York, in which case it shall be deemed to have been given, rendered or made on
the third business day after the day so mailed, (ii) on the day after being sent
by overnight carrier, or (iii) on the day of delivery by hand. Either party may,
by notice as aforesaid, designate a different address or addresses for notices,
statements, demands, consents, approvals or other communications intended for
it.
ARTICLE 30
OMITTED
ARTICLE 31
OMITTED
ARTICLE 32
No Representations -- Entire Agreement
32.01. Tenant expressly acknowledges and agrees that Landlord has
not made and is not making, and Tenant, in executing and delivering this Lease,
is not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this Lease or in
any other written agreement which may be made between the parties concurrently
with the execution and delivery of this Lease and shall expressly refer to this
Lease. All understandings and agreements heretofore had between the parties are
merged in this Lease and any other written agreement(s) made concurrently
herewith, which alone fully and completely express the agreement of the parties
and which are entered into after full investigation, neither party relying upon
any statement or representation not embodied in this Lease or any other written
agreement(s) made concurrently herewith.
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ARTICLE 33
Changes and Modifications
33.01. No agreement shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this Lease, in whole
or in part, unless such agreement is in writing, refers expressly to this Lease
and is signed by the party against whom enforcement of the change, modification,
waiver, release, discharge, termination or effectuation of the abandonment is
sought.
If any Superior Mortgagee shall require any modification of this
Lease, Tenant shall, at Landlord's request, promptly execute and deliver to
Landlord such instrument effecting such modification as Landlord shall require,
provided that such modification does not adversely affect in any material
respect any of the Tenant's rights under this Lease.
ARTICLE 34
Successors and Assigns
34.01. Except as otherwise expressly provided in this Lease, the
obligations of this Lease shall bind and benefit the successors and assigns of
the parties hereto with the same effect as if mentioned in each instance where a
party is named or referred to; provided, however, that (a) no violation of the
provisions of Article 6 shall operate to vest any rights in any successor or
assignee of Tenant and (b) the provisions of this Article shall not be construed
as modifying the conditions of limitation contained in Article 21.
ARTICLE 35
Inability to Perform
35.01. The obligations of Tenant hereunder shall be in no way
affected, impaired or excused, nor shall Landlord have any liability whatsoever
to Tenant, because (a) Landlord is unable to fulfill, or is delayed in
fulfilling; any of its obligations under this Lease by reason of strike, other
labor trouble, governmental preemption or priorities or other controls in
connection with a national or other public emergency or shortages of fuel,
supplies or labor resulting therefrom, or any other cause, whether similar or
dissimilar, beyond Landlord's reasonable control; or (b) of any failure or
defect in the supply, quantity or character of electricity or water furnished to
the Demised Premises by reason of any requirement, act or omission of the public
utility or others serving the Building with electric energy, steam, oil, gas or
water, or for any other reason whether similar or dissimilar, beyond Landlord's
reasonable control.
ARTICLE 36
Rules and Regulations
36.01. Tenant and its employees and agents shall faithfully observe
and strictly comply with the Rules and Regulations annexed hereto and made a
part hereof as Exhibit C, and such reasonable changes therein (whether by
modification, elimination or addition) as Landlord
39
hereafter may make and communicate in writing to Tenant which do not
unreasonably affect the conduct of the permitted use of the Demised Premises.
Tenant's right to dispute the reasonableness of any changes in the Rules and
Regulations shall be deemed waived unless asserted by notice to Landlord within
thirty (30) days after the date upon which Landlord shall have given notice to
Tenant of the adoption of any such changes, in which case such dispute shall be
determined by arbitration pursuant to Article 30. In case of any conflict or
inconsistency between the provisions of this Lease and any Rules and Regulations
as originally promulgated or as changed, the provisions of this Lease shall
control. Landlord shall have no duty or obligation to enforce any Rule or
Regulation, or any term, covenant or condition of any other lease, against any
other tenant or occupant of the Building, and Landlord shall have no liability
to Tenant for any violation of the same by any other tenant or occupant of the
Building.
ARTICLE 37
Consents
37.01. Express Provision. The provisions of this Article shall apply
only in cases where either party hereto shall have specifically agreed not to
unreasonably withhold its consent or approval as provided in this Lease, or
where this Lease expressly provides that a judgment, opinion, requirement, act,
sum of money or time limit be reasonable.
37.02. If Tenant shall request Landlord's consent and Landlord shall
fail or refuse to give such consent, Tenant shall not be entitled to any damages
for any withholding by Landlord of its consent, it being intended that Tenant's
sole remedy shall be an action for specific performance or injunction, and that
such remedy shall be available only in those cases where Landlord has expressly
agreed in writing not to unreasonably withhold its consent or where as a matter
of law Landlord may not unreasonably withhold its consent.
ARTICLE 38
OMITTED
ARTICLE 39
Quiet Enjoyment
39.01. If and so long as Tenant pays the Fixed Rent and Additional
Rent and performs and observes all the terms, covenants and conditions hereof on
the part of Tenant to be performed and observed, Tenant shall quietly enjoy the
Demised Premises during the Term without hindrance or molestation by any one
claiming by, through or under Landlord, subject, however, to the terms of this
Lease.
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ARTICLE 40
OMITTED
ARTICLE 41
Late Charge
41.01. In the event that any payment of Fixed Rent or Additional
Rent required to be made by Tenant under this Lease shall be overdue, a one time
late charge of six hundred and no/100 ($600.00) dollars may be charged by
Landlord for each such overdue payment, for the purpose of defraying the
expenses incurred in handling delinquent payments It is understood that the late
charge payable under this Article is in addition to the payment of interest on
overdue payments pursuant to Section 23.04.
ARTICLE 42
Miscellaneous
42.01. Governing Law. Irrespective of the place of execution or
performance, thin Lease shall be governed by and construed in accordance with
the laws of the State of New York.
42.02. Severability. If any provision of this Lease or the
application thereof to any person or circumstances shall, for any reason and to
any extent, be invalid or unenforceable, the remainder of this Lease and the
application of that provision to other persons or circumstances shall not be
affected but rather shall be enforced to the extent permitted by law.
42.03. Captions. The table of contents, captions, headings and
titles in this Lease are solely for convenience of reference and shall not
affect its interpretation.
42.04. Tenant's Covenants. 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 provisions of this Lease.
42.05. Gender. All terms and words used in this Lease, regardless of
the number of gender in which they are used, shall be deemed to include any
other number and any other gender as the context may require.
42.06. Tenant's Occupancy of Other Space. Tenant shall not occupy
any space in the Building (by assignment, sublease or otherwise) other than the
Demised premises, except with the prior written consent of Landlord in each
instance.
42.07. Excavation. If an excavation shall be made upon land adjacent
to or under the Building, or shall be authorized to be made, Tenant shall afford
to the person causing or authorized to cause such excavation' license to enter
the Demised Premises for the purpose of performing such work as said person
shall deem necessary or desirable to preserve and protect the Building from
injury or damage and to support the same by proper foundations, without any
41
claim for damages or liability against Landlord and without reducing or
otherwise affecting Tenant's obligations under this Lease.
42.08. Construction. This Lease shall be construed without regard to
any presumption or other rule requiring construction against the party causing
this Lease to be drafted.
42.09. Notice of Accident. Tenant shall give notice to Landlord,
promptly after Tenant learns thereof, of (a) any accident in or about the
Demised Premises or the Building for which Landlord might be liable, (b) any
fire in the Demised Premises, (c) all damage to or defects in the Demised
Premises including fixtures, equipment and appurtenances thereof for the repair
of which Landlord might be responsible and (d) all damage to or defects in any
parts or appurtenances of the air-conditioning, elevator, plumbing, electrical,
sanitary, mechanical or other service or utility systems located in or passing
through the Demised Premises.
42.10. Window Cleaning. Neither Tenant or Tenant's Agents or
employees will require, permit, suffer or allow the cleaning of any window in
the Demised Premises from the outside (within the meaning of Section 202 of the
New York Labor Law) except in compliance with all applicable Regulations.
42.11. No Offer to Lease. This Lease is not to be construed as an
offer to lease and shall not in any way bind Landlord until such time as
Landlord shall have executed this Lease and made delivery thereof to Tenant.
42.12. Name of Building. Landlord may adopt any name for the
Building, and Landlord reserves the right to change the name and/or address of
the Building at any time.
ARTICLE 43
Common Areas and Parking
43.01. Landlord shall provide and shall make available from time to
time within the boundaries of the Property such parking facilities, driveways,
entrances and exits thereto, landscape and planted areas, and other improvements
and facilities, as Landlord shall at any time and from time to time deem
appropriate (all the foregoing being collectively referred to in this Lease as
"Common Areas"). Tenant and its officers, employees, agents, customers and
invitees shall have a nonexclusive right, in common with Landlord and all others
to whom Landlord has granted or may hereafter grant rights, to use the Common
Areas. The Common Areas shall at all times be subject to the exclusive control
and management of Landlord, and Landlord shall have the right from time to time
to establish, modify and enforce reasonable rules and regulations with respect
to the Common Areas, and Tenant agrees, after notice thereof, to abide by such
rules and regulations and to cause its officers, employees, agents, customers
and invitees to conform thereto. Landlord shall construct, operate, manage,
equip, repair, landscape, and maintain the Common Areas for their intended
purposes in such manner as Landlord shall, in Landlord's sole discretion, from
time to time determine. Landlord's rights respecting the Common Areas shall
include (but shall not be limited to) the following:
42
(i) to construct, maintain and operate lighting facilities
serving the Common Areas;
(ii) from time to time to change the area, level, location and
arrangement of parking areas and other Common Area facilities, to
make installations therein and to move or remove such installations,
and to change the location of, or permanently diminish or
discontinue the use of, any portion of the Common Areas;
(iii) to restrict parking by tenants, their officers, agents,
employees, customers and invitees, to designated areas;
(iv) to discontinue, or restrict the use of, any portion of
the Common Areas to such extent, and for such period of time, as may
in the opinion of Landlord's counsel be necessary to prevent a
dedication thereof or the accrual of any rights to any person or the
public therein;
(v) to temporarily suspend the use of all, or any portion of,
the Common Areas; and
(vi) to take any other action with respect to the Common
Areas, as Landlord, in his sole discretion, shall determine to be
advisable.
43.02. Tenant's right to use the Common Areas shall be deemed to be
a license coterminous with this Lease, and Landlord shall not be subject to any
liability nor shall Tenant be entitled to any compensation or diminution or
abatement of Rent by reason of Landlord's exercise of any right or rights
respecting Common Areas reserved pursuant to Section 43.01 hereof, nor shall the
exercise of any such right be deemed a constructive or actual eviction.
43.03. Tenant shall be entitled to free use of up to the number of
parking spaces provided in Section 1.01 hereof for its employees and invitees.
43.04. With respect to the parking of vehicles at the Property:
(a) If Landlord elects to designate a specific parking area
for Tenant's use, Tenant shall require its personnel and visitors to
park their vehicles only in parking spaces designated by Landlord
for Tenant's use for its personnel and visitors on a "first come,
first served" basis. Landlord reserves the right at all times to
redesignate such parking spaces. Tenant, its personnel and visitors
shall not at any time park any trucks or delivery vehicles in any of
the parking areas.
(b) All parking spaces and any other parking areas used by
Tenant, its personnel and visitors will be at their own risk, and
Landlord shall not be liable for any injury to person or property,
or for loss or damage to any automobile or its contents, resulting
from theft, collision, vandalism or any other cause whatsoever.
(c) If any automobile owned by Tenant or by its personnel or
visitors remains in the parking area overnight and the same
interferes with the cleaning or
43
maintenance of said area (snow or otherwise), and any such
automobile is not relocated within the parking lot after reasonable
notice from Landlord to do so, any costs or liabilities incurred by
Landlord in removing said automobile to effectuate cleaning or
maintenance, or any damages resulting to said automobile or to
Landlord's equipment or equipment owned by others by reason of the
presence of or removal of said automobile during such cleaning or
maintenance shall be paid by Tenant to Landlord, as Additional Rent
on the Fixed Rent payment date next following submission of a bill
therefor.
43.05. Tenant shall have the right to use the conference room
located in the common areas of the first floor of the Building, upon such terms
and conditions, and subject to the rules and regulations for the Building as
promulgated by Landlord in its sole discretion, on a first come, first served
basis in common with the other tenants of the Building. Notwithstanding anything
contained herein or in the rules and regulations of the Building to the
contrary, Landlord agrees that Tenant will not be charged for the first two
times that Tenant uses the conference room each month.
43.06. Tenant shall have the right to use the area set forth on
Exhibit E hereto, located in the first floor lobby of the Building, for the
retail sale of flowers (the "Retail Space"), without charge to Tenant for Fixed
Rent, however, Tenant shall be responsible for payment of all charges for
electric service and janitorial services for the Retail Space.
ARTICLE 44
Holding Over
44.01. If Tenant holds over after the expiration or sooner
termination hereof without the express written consent of Landlord, Tenant shall
become a tenant at sufferance only at the greater of (i) one and one-half times
the Fixed Rent due hereunder or (ii) the then prevailing market rate rent, as
determined by Landlord in its sole and absolute discretion, plus all items of
Additional Rent provided herein, and either (i) or (ii) shall be prorated on a
daily basis according to the number of days contained in the month that such
expiration or earlier termination takes place, and otherwise upon the terms,
covenants and conditions herein specified so far as applicable. Acceptance by
Landlord of this Fixed Rent after such expiration or earlier termination shall
not constitute a consent to a holdover hereunder or result in a renewal. The
foregoing provisions of this paragraph are in addition to and do not affect
Landlord's rights of re-entry or any other rights of Landlord hereunder or as
otherwise provided by law.
ARTICLE 45
Industrial Development Agency
45.01. Tenant represents that:
(i) The performance under this lease by Tenant will not result in
the removal of an industrial, manufacturing, warehousing, recreation or
commercial plant or facility from one area of the State of New York, or in the
abandonment of one or more of such plants or facilities
44
within the State of New York, unless such removal or abandonment is reasonably
necessary in Tenant's judgment to discourage Tenant from removing such other
plant or facility to a location outside the State of New York, or is reasonably
necessary to preserve the competitive position of Tenant in its industry; and
(ii) Tenant shall use the Demised Premises for purposes permitted
under the New York State Industrial Development Agency Act (constituting Title I
of Article 18-A of the General Municipal Law, Chapter 24 of the Consolidated
Laws of New York), as amended, and Chapter 529 of the 1971 Laws of New York, as
amended.
ARTICLE 46
RIGHT OF FIRST OFFER
46.01. In the event that any other space in the Building becomes
available for rent on or before April 1, 2002, then, provided Tenant is not in
default beyond applicable cure periods of any material terms or material
provisions of this Lease, Landlord shall first offer such space to Tenant for
lease. Tenant acknowledges and agrees that the foregoing right of first offer is
subject to the rights of all existing tenants of the Building to renew their
current leases whether or not the current leases contain a renewal option.
Landlord shall notify Tenant, in writing, within twelve (12) months of the date
that a space in the Building will become available for lease. Tenant shall have
seven (7) calendar days from the time Tenant receives such notice from Landlord
to exercise this right of first offer, by written notice to Landlord, time being
of the essence with respect to such notice. In the event that Tenant timely
exercises the aforesaid option, it shall lease such additional space on the
first, second and/or third floors of the Building upon terms and conditions then
being offered by Landlord to the general market for like space in the Building;
and any additional space on the fourth or sixth floors of the Building shall be
upon the same terms and conditions, including the then current Basic Annual
Rent, as set forth in this Lease, with the aggregate cost of Tenant improvements
to be installed in the additional space by Landlord calculated as follows: $2.14
per square foot per month remaining in the lease term.
ARTICLE 47
RENEWAL OPTION
Landlord agrees that so long as Tenant is not in default beyond
applicable cure periods of any of the material terms or material provisions of
this lease and Tenant has not assigned the Lease or sub-let the Demised
Premises, Tenant shall have the option (the "Renewal Option") to renew the term
of this lease for one (1) additional period of five (5) years (the "Renewal
Term"). The Renewal Term shall be upon the same terms and conditions as are
herein contained except that the Fixed Rent shall be as determined to be 95% of
"fair" market rent for comparable space in the Building.
Tenant shall exercise the Renewal Option by delivery of written
notice to Landlord no later than nine (9) months prior to the commencement of
the Renewal Term, time being of the essence with respect to such notice.
45
Landlord shall provide an allowance to Tenant in an amount
equivalent to Landlord's cost to repaint and re-carpet the Demised Premises
using Building standard materials, at the commencement of the Renewal Term.
Nothing herein shall require Landlord to perform any other work, renovations or
improvements upon demised premises or otherwise.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as
of the day and year first above written.
WITNESS: LANDLORD:
1600 STEWART AVENUE, L.L.C
By: STEWART HOLDINGS, L.L.C.,
its Member
By: OAKTREE CAPITAL MANAGEMENT, LLC,
its Manager
By:_____________________________________
Name: Russel S. Bernard
Title: Principal
By:_____________________________________
Name: Michael S. Halpern
Title: Vice President
WITNESS: TENANT:
800-FLOWERS, INC.
_______________________ By:_____________________________________
Name: Christopher McCann
Title: Senior Vice President
Tenant's Federal Tax Identification Number Is___________________________________
46
EXHIBIT A
Description of Property
TAX LOT 364
ALL that certain part place or parcel of land lying, being and situate near
Westbury, Town of Hempstead, County of Nassau and State of New York, being more
particularly bounded and described as follows:
BEGINNING at the corner formed by the intersection of the southerly side of
Stewart Avenue and the westerly side of Merrick Avenue;
RUNNING THENCE from said point of beginning southerly along the westerly side of
Merrick Avenue South 19 degrees 37 minutes 12 seconds East 736.97 feet to a
point and land now or formerly of The Long Island Railroad;
RUNNING THENCE generally westerly along said land of the Long Island Railroad,
the following five (5) courses and distances:
(1) North 88 degrees 09 minutes 12 seconds West a distance of 135.00 feet;
(2) North 1 degree 50 minutes 48 seconds East a distance of 10.00 feet;
(3) North 88 degrees 09 minutes 12 seconds West a distance of 60.00 feet;
(4) South 1 degree 50 minutes 48 seconds West a distance of 10.00 feet;
(5) North 88 degrees-09 minutes 12 seconds West a distance of 117.60 feet to a
point and land now or formerly of the County of Nassau;
RUNNING THENCE northerly and westerly along said land now or formerly of the
County of Nassau the following five (5) courses and distances:
(1) Along the arc of a curve bearing to the left, having a radius of 500.00
feet a distance of 168.06 feet;
(2) Along the arc of a curve bearing to the left having a radius of 1,000.00
feet a distance of 118.69 feet;
(3) North 52 degrees 32 minutes 40 seconds West a distance of 368.00 feet;
(4) Along the arc of a curve bearing to the right having a radius of 150.00
feet a distance of 360.07 feet;
(5) North 84 degrees 59 minutes 30 seconds East 18.03 feet to the southerly
side of Stewart Avenue;
RUNNING THENCE southerly and easterly along the southerly side of Stewart
Avenue, the following two courses and distances:
(1) South 1 degree 50 minutes 48 seconds West a distance of 7.99 feet;
(2) South 88 degrees 09 minutes 12 seconds East 449.81 feet to the corner
formed by the intersection of the southerly side of Stewart Avenue and the
westerly side of Merrick Avenue and the point or place of BEGINNING.
TAX LOT 365
ALL that certain plot, piece or parcel of land, lying, being and situate near
Westbury, Town of Hempstead, County of Nassau and State of New York, being more
particularly bounded and described as follows:
BEGINNING at a point on the easterly side of Meadowbrook State Parkway, distant
227.89 feet southerly from the corner formed by the intersection of the
southerly side of Stewart Avenue and the easterly side of Meadowbrook State
Parkway;
RUNNING THENCE from said point of beginning southerly along the Meadowbrook
State Parkway entrance and exit ramp the following three (3) courses and
distances:
(1) South 52 degrees 32 minutes 40 seconds East a distance of 515.73 feet;
(2) Along the arc of a curve bearing to the right having a radius of 942.00
feet a distance of 111.80 feet;
(3) Along the arc of a curve bearing to the right having a radius of 442.00
feet a distance of 116.64 feet to a point and land now or formerly of the
Long Island Railroad;
RUNNING THENCE westerly along said land of the Long Island Railroad the
following two (2) courses and distances:
(1) North 88 degrees 09 minutes 12 seconds West a distance of 149.20 feet;
(2) Along the arc of a curve bearing to the left, having a radius of 5,759.65
feet a distance of 209.50 feet to the easterly side of Meadowbrook State
Parkway;
RUNNING THENCE northerly along said easterly side of Meadowbrook State Parkway
the following two (2) courses and distances:
(1) Along the arc of a curve bearing to the left having a radius of 4,977.01
feet a distance of 286.15 feet;
(2) North 0 degrees 59 minutes 26 seconds West a distance of 268.40 feet to
the point or place of BEGINNING.
2
OVERALL DESCRIPTION
ALL that plot, place or parcel of land, lying, being and situate near Westbury,
County of Nassau and State of New York, being more particularly bounded and
described as follows:
BEGINNING at the corner formed by the intersection of the southerly side of
Stewart Avenue and the westerly side of Merrick Avenue;
RUNNING THENCE from said point of beginning southerly along the westerly side of
Merrick Avenue South 19 degrees 37 minutes 12 seconds East 736.97 feet to a
point and land now or formerly of the Long Island Railroad;
RUNNING THENCE generally westerly, along said land of the Long Island Railroad,
the following six (6) courses and distances:
(1) North 88 degrees 09 minutes 12 seconds West, a distance of 135.00 feet;
(2) North 1 degree 50 minutes 48 seconds East, a distance of 10.00 feet;
(3) North 88 degrees 09 minutes 12 seconds West, a distance of 60.00 feet;
(4) South 1 degree 50 minutes 48 seconds West, a distance of 10.00 feet;
(5) North 88 degrees 09 minutes 12 seconds West, a distance of 334.01 feet;
(6) Along the arc of a circle bearing to the left, having a radius of 5,759.65
feet, a distance of 209.50 feet to the easterly side of Meadowbrook State
Parkway;
RUNNING THENCE northerly and westerly along said easterly side of Meadowbrook
State Parkway, the following two (2) courses and distances:
(1) Along the arc of a curve bearing to the left, having a radius of 4,977.01
feet, a distance of 286.15 feet;
(2) North 0 degrees 59 minutes 26 seconds West, a distance of 496.29 feet to
the southerly side of Stewart Avenue;
RUNNING THENCE easterly along said southerly side of Stewart Avenue, along the
arc of a curve bearing to the right, having a radius of 5,337.85 feet a distance
of 252.61 feet to a point;
RUNNING THENCE southerly South 1 degree 50 minutes 48 seconds West 7.99 feet to
the widened line of Stewart Avenue;
RUNNING THENCE easterly along the widened southerly line of Stewart Avenue South
88 degrees 09 minutes 12 seconds East a distance of 449.81 feet to the point or
place of BEGINNING.
3
EXCEPTING THEREFROM such land as is necessary to provide for the entrance and
exit ramps of Meadowbrook State Parkway, said exception parcel being more
particularly bounded and described as follows:
BEGINNING at the corner formed by the intersection of the easterly side of
Meadowbrook State Parkway and the southerly side of Stewart Avenue;
RUNNING THENCE from said point of beginning easterly along the southerly side of
Stewart Avenue, along the arc of a curve bearing to the right, having a radius
of 5,337.85 feet a distance of 252.61 feet to a point;
RUNNING THENCE southerly, along the easterly side of said Meadowbrook Parkway
entrance and exit ramp, the following five (5) courses and distances:
(1) South 84 degrees 59 minutes 30 seconds West, a distance of 18.03 feet;
(2) Along the arc of a curve bearing to the left, having a radius of 150.00
feet, a distance of 360.07 feet;
(3) South 52 degrees 32 minutes 40 seconds East, a distance of 368.00 feet;
(4) Along the arc of a curve bearing to the right, having a radius of 1,000.00
feet a distance of 118.69 feet;
(5) Along the arc of a curve bearing to the right, having a radius of 500.00
feet, a distance of 168.06 feet to a point and land now or formerly of the
Long Island Railroad;
RUNNING THENCE westerly along said land now or formerly of the Long Island
Railroad, North 88 degrees 09 minutes 12 seconds West, 67.21 feet to the
westerly side of said Meadowbrook Parkway entrance and exit ramp;
RUNNING THENCE northerly along said entrance and exit ramp, the following four
(4) courses and distances:
(1) Along the arc of a curve bearing to the left, having a radius of 442.00
feet, a distance of 116.64 feet;
(2) Along the arc of a curve bearing to the left, having a radius of 942.00
feet, a distance of 111.80 feet;
(3) North 52 degrees 32 minutes 40 seconds West, a distance of 515.73 feet;
(4) North 0 degrees 59 minutes 26 seconds West, a distance of 227.89 feet to
the point or place of BEGINNING.
4
EXHIBIT C
RULES AND REGULATIONS
(1) The rights of tenants in the entrances, corridors and elevators
of the Building are limited to ingress to and egress from the tenant's premises
for the tenants and their employees, licenses 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 plazas, entrances, corridors, elevators and other
facilities of the Building by other tenants. No tenant shall encumber or
obstruct, or permit the encumbrances, or obstruction of any of the sidewalks,
plazas, 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, the public facilities, as well as facilities furnished
for the common use of the tenants, in such manner as it deems best for the
benefit of the tenants generally.
(2) 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 he request 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 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 requirement 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 damages 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.
(3) No tenant shall obtain or accept for use in its premises ice,
food, beverages, barbering, boot lacking, floor polishing, lighting maintenance,
cleaning or other similar services from any person not authorized by the
Landlord in writing to furnish such services, provided always that the 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. It
is agreed understood that this provision shall not apply to take-out food
ordered in by Tenant.
(4) No awnings or other projections over or around the windows shall
be installed by any tenant, and only such window coverings as are supplied or
permitted by the Landlord shall be used in a tenant's premises.
(5) There shall not be used in any space, nor in the public halls of
the Building, either by the Tenant or by jobbers, or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards.
(6) All entrance doors in each tenant's premises shall be left
locked when the tenant's premises are not in use. Entrance doors shall not be
left open at any time. All windows in each tenant's premises shall be kept
closed at all times and all blinds therein above the ground floor shall be
lowered 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.
(7) No noise, including the playing of any musical instruments,
radio or television, which, in the 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 in
writing by the Landlord. No dangerous, inflammable, combustible or explosive
object or material shall be brought into the Building by any tenant or with the
permission of any tenant.
(8) Tenant shall not permit any foul odors emanating within the
premises to seep into any other portion of the Building.
(9) No acids, vapors or other materials shall be discharged into the
waste lines, vents or flues of the Building which may cause damage thereto. 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 purposes for which
they were designed or constructed, and no sweeping, rubbish, rags, acids or
other foreign substances shall be deposited therein. All damages resulting from
any misuse of the fixtures shall be borne by the tenant who, or whose servants,
employees, agents, visitors or licensees shall have, caused the same.
(10) No signs, advertisements, notices or other lettering shall be
exhibited, inscribed, painted or affixed by any tenant on any part of the
outside or inside of the premises or the Building without the prior written
consent of Landlord. 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.
Signs and lettering on doors shall be inscribed, painted, or affixed for each
tenant by Landlord at the expense of such tenant, and shall be of a size, color
and style acceptable to Landlord. Tenant shall not use any advertising which
impairs the reputation of the Building or its desirability as a first class
office building, and upon written notice from Landlord, Tenant shall refrain
from or discontinue such advertising.
(11) 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
2
a tenant's lease, all keys of the tenant's premises and toilet rooms shall be
delivered to the Landlord. It is understood that Tenant shall have the right to
designate "secured" rooms within the Demised Premises for which Landlord shall
not be provided keys. Tenant agrees to supply a list of the area(s) so secured
to Landlord.
(12) No tenant shall install any resilient tile or similar floor
covering in the premises except in such manner as may be approved by Landlord.
(13) No tenant or occupant shall engage or pay any employees in the
Building, except those actually working for the management company employed by
Landlord for the Building.
(14) No premises shall be used, or permitted to be used, at any
time, as a store for the sale or display of goods, wares, or merchandise of any
kind or a restaurant, shop booth, bootblack or other stand, or for the conduct
of any business or occupation which predominately involves direct patronage of
the general public in the Premises or for manufacturing or for other similar
purposes.
(15) 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.
(16) If the premises become infested with insects or vermin, such
tenant, at its sole cost and expense, shall cause its premises to be
exterminated, from time to time, to the satisfaction of Landlord, and shall
employ such exterminators therefor as shall be approved by Landlord.
(17) Tenant shall not install nor permit to be installed any vending
machines for public use.
(18) The floors, windows, doors and transoms that reflect or admit
light in passageways, or into any place in the Building, shall not be covered or
obstructed by any of the tenants.
(19) Nothing shall be placed on the outside of the Building or of
the windows, window sills or projections.
(20) No tenant shall cause unnecessary labor by reason of
carelessness and indifference to the preservation of good order and cleanliness
in its premises or in the Building.
(21) No animals or birds, bicycles, mopeds or vehicles of any kind
shall be kept in or about the premises or permitted therein.
(22) A directory in a conspicuous place on the first floor will be
provided by the Landlord, on which the names of tenants will be placed by
Landlord.
(23) Tenant shall not use or keep in the Building any explosives,
kerosene, gasoline, benzine, camphene, burning fluid or other illuminating
material, except for that which is permitted by Landlord's insurance coverage
and Tenant's insurance coverage.
3
(24) No tenant, or any other employee of any tenant, shall go upon
the roof of the Building without the written consent of the Landlord.
(25) No furniture, office equipment, packages or merchandise will be
received in the Building or carried up or down in the elevator, except between
such hours as shall be designated by the Landlord. The Landlord shall prescribe
the method and manner in which any merchandise, heavy furniture, equipment or
safes shall be brought in or taken out of the Building, and also the hours at
which such moving shall be done. The Landlord in all cases retains the right to
prescribe the weight and proper position of such heavy furniture and safes. All
damages done to the Building by taking in or out such merchandise, heavy
furniture or safes or any damages done to the Building while any of the said
property shall be therein, shall be made good and paid for by tenant on demand.
(26) No article shall be fastened to or holes drilled or nails or
screws driven into the walls or partitions which are greater than 5/8" long, nor
shall the wall or partitions be in any way marked or broken, nor shall any
attachment be made to the electric-lighting wires of the Building for storing of
electricity, or for the running of motors or other purposes, nor shall any
Tenant use any other method of heating than that provided by Landlord, without
the written consent of Landlord. No mechanics shall be allowed in or about the
Building other than those employed by the Building Management without the
written consent of the Landlord first having been obtained.
(27) Pursuant to Article 36, the Landlord reserves the right to
rescind any of these rules and regulations and to make such other and further
rules and regulations as, in Landlord's judgment, may from time to time be
needed for the safety, care, maintenance, operation and cleanliness of the
Building, and for the preservation of good order therein which, when so made,
and notice thereof given to the tenant, shall have the same force and effect as
if originally made a part of the foregoing lease; provided that such other and
further rules and regulations shall not be inconsistent with the proper and
rightful enjoyment by the tenant under the foregoing lease of the premises
therein referred to.
4
EXHIBIT D
CLEANING SCHEDULE
LANDLORD'S CLEANING SERVICES
I. LAVATORIES (in common hallways only):
(nightly unless otherwise noted)
A. Clean and disinfect all bowls, seats, urinals and sinks.
B. Clean all mirrors.
C. Empty all trash receptacles and sanitary napkin disposal receptacles
and remove to a designated area.
D. Wipe dry all metal work.
E. Refill all soap, paper towel, toilet tissue and seat cover
dispensers.
F. Sweep and damp mop tile floors with disinfectant.
G. Wipe clean the exterior or all waste cans and dispensing units.
H. Spot clean and disinfect all walls and partitions.
I. Scrub flooring as necessary.
J. Remove smudges from doors, doorframes and light switches.
II. COMMON HALLWAYS AND CORRIDORS:
(nightly unless otherwise noted)
A. Spot clean all glass.
B. Clean all drinking fountains.
C. Vacuum all carpeted areas, as necessary.
III. RUBBISH REMOVAL SERVICE:
Remove all ordinary, office dry rubbish and paper from waste paper
receptacles nightly, Monday through Friday, Holidays excepted.
IV. WINDOW CLEANING SERVICE:
Clean the outside of all exterior windows periodically during the year as
Landlord deems necessary.
2
THIS is by GIFT HOUSE, INC., as successor to McCann Companies Inc., a
Delaware Corporation, having its principal place of business at 1600 Stewart
Avenue, Westbury, New York I 1530 (hereinafter referred to as "Guarantor"), to
1600 STEWART AVENUE, L.L.C., a Delaware limited liability company ("Landlord"),
having its offices at c/o Oaktree Capital Management, LLC, 550 South Hope
Street, 22nd Floor, Los Angeles, California 90071, Attn: Michael A. Halperin
(the "Landlord"), on this ____ day of May, 1998
At the request of the Guarantor, the Landlord has entered into a lease
(the "Lease") of office space with 800-FLOWERS, INC., (the "Tenant") in premises
located at 1600 Stewart Avenue, Westbury, New York I 1590 New York (the
"`Demised Premises"), winch is dated the same date as this guaranty and
The Landlord would not have entered into the Lease except for the request
of the Guarantor and the execution and delivery of this guaranty; and
In consideration of the Landlord entering into the Lease with the Tenant:
The Guarantor jointly and severally agrees as follows:
1. Guaranty. The Guarantor, for itself and its legal representatives,
guarantees the prompt payment when due, or whenever payment may become due under
the terms of the lease, of all payments of rent, additional rent, and all other
charges, expenses ant costs of every laud and nature, which are or may be due
now or in the future under the terms of the Lease, any agreements or documents
related to the Lease, or any other transaction between the Landlord and the
Tenant directly or indirect related to the Lease; and the complete and timely
performance, satisfaction and observation of the terms and conditions of the
Lease, rules and regulations and related obligations arising by reason of the
Lease, required to be performed satisfied or observed by the Tenant.
2. Coverage of guaranty. This guaranty extends to any and all liability
which the Tenant has or may have to the Landlord by reason of matters occurring
after the expiration of the term of the lease by reason of removal of Tenant
property, surrender of possession, Tenant's default, or other matters. This
guaranty extends to any successor of the Tenant, any assignee or sublessee of
the Tenant, to any extensions or renewals of the Lease, and to any term
established by reason of the holdover of the Tenant, an assignee or sublessee.
3. Performance guaranty. In the event that the Tenant fails to perform,
satisfy or observe the teens and conditions of the Lease, rules and regulations,
and related Lease obligations required to be performed, satisfied or observed by
the Tenant, the Guarantor will promptly and fully perform, satisfy and observe
the obligation or obligations in the place of the Tenant. The Guarantor shall
pay, reimburse and indemnify the Landlord for any and all damages, costs,
expenses, losses and other liabilities arising or resulting from the failure of
the Tenant to perform, satisfy or observe regulations and related obligations.
4. Waiver of notices. Without notice to or further from the Guarantor, the
Landlord may waive or modify any of the terms or conditions of the Lease, any
rules and regulations or related Tenant obligations; or compromise, settle or
extend the time of payment of any amount due from the Tenant or the time of
performance of any obligations of the Tenant. These actions
3
may be taken by the Landlord without discharging or otherwise affecting the
obligations of the Guarantor.
5. Lease security. This guaranty shall remain in full force and effect,
and the Guarantor shall be fully responsible, without regard to any security
deposit or other collateral for the performance of the terms and conditions of
the lease, or the receipt, disposition, application, or release of any security
deposit or other collateral, now or hereafter held by or for the Landlord
6. Unconditional Obligations. The liability of the Guarantor is direct,
immediate, absolute, continuing, unconditional and unlimited. The landlord shall
not be required to pursue any remedies it may have against the Tenant or against
any security deposit or other collateral as a condition to enforcement of this
guaranty. Nor shall the Guarantor be discharged or released by reason of the
discharge or release of the tenant for any reason, including a discharge in
Bankruptcy, receivership or other proceedings, a disaffirmation or rejection of
the Lease by a trustee, custodian, or other representative in Bankruptcy a stay
or other enforcement restriction, or any other reduction, modification,
impairment or limitations of the liability of the Tenant or any remedy of the
Landlord, including but not limited to the Landlord's obtaining of a judgment of
possession and the issuance and/or execution of a warrant of eviction issued by
any count of competent jurisdiction. The Guarantor assumes all responsibility
for bang and keeping himself informed of Tenant's financial condition and
assets, and of all other circumstances bearing upon the risk of non-performance
by Tenant under the Lease. The Guarantor agrees that Landlord shall have no duty
to advise the Guarantor of information known to it regarding such circumstances
or risks.
7. Binding effect. This guaranty is binding upon the Guarantor, his legal
representatives and assigns, and is binding upon and shall inure to the benefit
of the Landlord, its successors and assigns. No assignment or delegation by the
Guarantor shall release the Guarantor of his joint and several liability and
obligations under this guaranty includes also the first and any successive
assignee or sublessee of the Tenant or any assignee or sublessee of the Tenant.
8. Modification. This guaranty may not be modified orally, but only by a
writing signed by the Guarantor and the Landlord. Modifications include any
waiver, change, discharge, modification, or termination.
IN WITNESS WHEREOF, the Guarantor has duly signed this guaranty on the
date stated above.
WITNESS: Guarantor:
800 GIFT HOUSE, INC.
By:_____________________________________
Christopher McCann, V.P.
STATE NEW YORK )
)ss.:
COUNTY OF NASSAU )
On the ________ day of May, 1998, before me personally came James F.
McCann to me known to be the President of 800 GIFT HOUSE, INC., the corporation
described in and which executed the foregoing instrument'; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation, and that he signed his name thereto by like order.
________________________________________
Notary Public