AGREEMENT OF LEASE
Between
POLESTAR FIFTH PROPERTY ASSOCIATES LLC
Landlord,
AND
WOMEN.COM NETWORKS, LLC
Tenant.
Premises:
The entire Second (2nd) Floor and Mezzanine
417 Fifth Avenue
New York, New York
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TABLE OF CONTENTS
Page
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1. BASIC LEASE TERMS...................................................................1
A. Definitions..................................................................1
B. Demise.......................................................................2
C. Term.........................................................................2
D. Rent.........................................................................2
E. Rent Credit..................................................................2
2. USE AND OCCUPANCY...................................................................2
A. Permitted Uses...............................................................2
B. Use Prohibitions.............................................................2
3. ALTERATIONS.........................................................................3
A. Alterations Within Premises..................................................3
B. Restoration of Premises......................................................3
C. Chlorofluorocarbons..........................................................4
D. Submission of Plans..........................................................4
E. Mechanics' Liens; Labor Conflicts............................................4
4. REPAIRS.............................................................................4
5. WINDOW CLEANING.....................................................................5
6. REQUIREMENTS OF LAW; FLOOR LOAD.....................................................5
A. Requirements of Law..........................................................5
B. Floor Load...................................................................6
7. SUBORDINATION.......................................................................6
A. Subordination................................................................6
B. Attornment...................................................................6
C. Subordination, Non-Disturbance Agreement.....................................6
8. RULES AND REGULATIONS...............................................................7
9. INSURANCE...........................................................................8
A. Liability Insurance..........................................................8
B. "All Risk" Insurance.........................................................8
C. Waiver of Subrogation........................................................8
10. DESTRUCTION OF THE PREMISES; PROPERTY LOSS OR DAMAGE................................9
A. Repair of Damage.............................................................9
B. Landlord's Termination Option................................................9
C. Tenant's Termination Option..................................................9
D. Repair Delays................................................................9
E. Provision Controlling........................................................9
F. Property Loss or Damage.....................................................10
11. CONDEMNATION.......................................................................10
A. Condemnation................................................................10
B. Award.......................................................................10
12. ASSIGNMENT AND SUBLETTING..........................................................10
A. Prohibition Without Consent.................................................10
B. Notice of Proposed Transfer.................................................11
C. Landlord's Option...........................................................11
D. Termination by Landlord.....................................................11
E. Intentionally Deleted.......................................................11
F. Effect of Termination.......................................................11
G. Conditions for Landlord's Approval..........................................11
H. Future Requests.............................................................13
I. Sublease Provisions.........................................................13
J. Profits from Assignment or Subletting.......................................13
K. Other Transfers.............................................................13
L. Related Corporation.........................................................14
M. Assumption by Assignee......................................................14
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N. Liability of Tenant.........................................................14
O. Listings....................................................................14
P. Exclusive Broker............................................................14
Q. Re-entry by Landlord........................................................15
R. Reimbursement...............................................................15
13. CONDITION OF THE PREMISES..........................................................15
A. Acceptance by Tenant........................................................15
B. Tenant's Initial Alteration.................................................16
14. ACCESS TO PREMISES.................................................................16
A. Access by Landlord..........................................................16
B. Other Landlord Privileges...................................................16
C. Courtyard Access............................................................17
15. CERTIFICATE OF OCCUPANCY...........................................................17
16. LANDLORD'S LIABILITY...............................................................17
17. DEFAULT............................................................................17
A. Events of Default; Conditions of Limitation.................................17
B. Effect of Bankruptcy........................................................18
C. Conditional Limitation......................................................18
18. REMEDIES AND DAMAGES...............................................................18
A. Landlord's Remedies.........................................................18
B. Damages.....................................................................19
C. Legal Fees..................................................................20
D. Additional Landlord Remedies................................................20
19. FEES AND EXPENSES..................................................................20
A. Curing Tenant's Defaults....................................................20
B. Late Charges................................................................20
20. NO REPRESENTATIONS BY LANDLORD.....................................................21
21. END OF TERM........................................................................21
A. Surrender of Premises.......................................................21
B. Holdover by Tenant..........................................................21
22. QUIET ENJOYMENT....................................................................21
23. FAILURE TO GIVE POSSESSION.........................................................21
24. NO WAIVER..........................................................................22
25. WAIVER OF TRIAL BY JURY............................................................22
26. INABILITY TO PERFORM...............................................................22
27. BILLS AND NOTICES..................................................................23
28. ESCALATION.........................................................................23
A. Defined Terms...............................................................23
B. Escalation..................................................................24
C. Payment of Escalations......................................................25
D. Adjustments.................................................................25
E. Intentionally Deleted.......................................................26
29. SERVICES...........................................................................26
A. Elevator....................................................................26
B. Heating.....................................................................26
C. Cooling/Window Units........................................................26
D. After Hours and Additional Services.........................................27
E. Cleaning/Provided by Landlord...............................................27
F. Sprinkler System............................................................27
G. Water.......................................................................27
H. Electricity Service.........................................................28
I. Interruption of Services....................................................29
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J. Life Safety Systems.........................................................29
K. Conduit Riser...............................................................29
30. PARTNERSHIP TENANT.................................................................29
A. Partnership Tenants.........................................................29
B. Limited Liability Entity....................................................30
31. VAULT SPACE........................................................................30
32. SECURITY DEPOSIT...................................................................30
33. CAPTIONS...........................................................................33
34. ADDITIONAL DEFINITIONS.............................................................33
35. PARTIES BOUND......................................................................33
36. BROKER.............................................................................33
37. INDEMNITY..........................................................................33
38. ADJACENT EXCAVATION SHORING........................................................34
39. MISCELLANEOUS......................................................................34
A. No Offer....................................................................34
B. Certificates................................................................34
C. Directory Listings..........................................................34
D. Authority...................................................................34
E. Signage.....................................................................34
F. Consents and Approvals......................................................35
G. Governing Law...............................................................35
H. Financial Statements........................................................35
I. Signatories.................................................................35
40. HAZARDOUS SUBSTANCES...............................................................35
41. INTENTIONALLY DELETED..............................................................36
42. INTENTIONALLY DELETED..............................................................36
43. RIGHT OF FIRST OFFER...............................................................36
</TABLE>
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Exhibit 1 Floor Plan of Premises
Exhibit 2 Cleaning Specifications for Premises
Exhibit 3 Form of Letter of Credit
Schedule A Rules and Regulations
Schedule B Landlord's Pre-Commencement Core Work and
Landlord's Post-Commencement Core Work
Schedule C Requirements for Certificates of Final Approval
Schedule D Tenant's Initial Alteration
Schedule E Tenant Alteration Work and New Construction
Conditions and Requirements
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THIS AGREEMENT OF LEASE (this "Lease"), made as of this 31st day of
July, 1999 by and between POLESTAR FIFTH PROPERTY ASSOCIATES LLC, having an
office c/o New Rock Realty Management LLC, 420 Lexington Avenue, New York, New
York 10017 ("Landlord") and WOMEN.COM, LLC, a Delaware limited liability company
having an office at 4 Columbus Circle, New York, New York 10019 ("Tenant").
1. BASIC LEASE TERMS.
A. Definitions. The following definitions contained in this subsection A
of this Article 1 shall have the meanings hereinafter set forth used throughout
this Lease and the Exhibits and Schedules (if any) annexed hereto and made a
part hereof.
(i) "Base Labor Year" shall mean the calendar year 1999.
(ii) "Base Tax Year" shall mean the Tax Year (as defined in
Article 28 hereof) 1999/2000.
(iii) "Broker" shall mean collectively, Cushman & Wakefield,
Inc. and Insignia/Edward S. Gordon Company.
(iv) "Building" the building known as 417 Fifth Avenue, County,
City and State of New York, together with all appurtenant rights granted to
Landlord, as lessee under the Master Lease (as hereinafter defined).
(v) "Commencement Date" shall mean the earlier of (i) the date
that Tenant takes possession of the Premises, or (ii) the date that is five (5)
days after the date that Landlord substantially completes Landlord's
Pre-Commencement Core Work (as hereinafter defined), Landlord shall use
reasonable efforts so that the Commencement Date shall be no later than
September 30, 1999, subject to the terms and conditions contained in Article 26.
(vi) "Expiration Date" shall mean December 31, 2009.
(vii) Intentionally Deleted.
(viii) "Labor Rate Factor" shall mean 47,193.
(ix) "Labor Rate Multiple" shall mean one (1).
(x) "Landlord's Contribution" shall mean $1,529,440.00.
(xi) "Landlord's Pre-Commencement Core Work" shall mean the work
and installations at the Premises performed prior to the Commencement Date and
"Landlord's Post Commencement Core Work" shall mean the work and installation at
the Premises performed after the Commencement Date each as set forth in Schedule
B annexed hereto and made a part hereof ("Landlord's Pre-Commencement Core Work
and Landlord's Post Commencement Core Work are from time to time collectively
referred to herein as "Landlord's Core Work").
(xii) "Master Lease" shall mean that certain lease dated
February 9, 1998 between 417 FS REALTY LLC, as lessor and Landlord, as lessee,
as such lease has been and may be modified and amended from time to time.
(xiii) "Permitted Uses" shall mean executive and general office
use.
(xiv) "Plans Submission Date" shall mean the date sixty (60)
days after the date of execution of this Lease.
(xv) "Premises" shall mean the entire second (2nd) floor and the
mezzanine in the Building, as more particularly shown hatched on Exhibit 1
annexed hereto and made a part hereof.
(xvi) "Real Property" shall mean the Building together with the
plot of land upon which such building stands.
(xvii) "Rent" shall mean:
(a) for the period commencing on the Rent Commencement
Date through and including December 31, 2004, $1,349,816.00 Dollars per annum,
payable in equal monthly installments of $112,484.66 Dollars each;
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(b) for the period commencing on January 1, 2005 through
and including the Expiration Date, $1,489,752.00 Dollars per annum, payable in
equal monthly installments of $124,146.00 Dollars each.
(xviii) "Rent Commencement Date" shall mean January 1, 2000.
(xix) "Security Deposit" shall mean the sum of $ 1,419,784.00 in
accordance with Article 32.
(xx) Intentionally Deleted.
(xxi) "Tenant's Initial Alteration" shall mean the work and
installations at the Premises to prepare the same for Tenant's initial occupancy
in accordance with Schedule D annexed hereto and made a part hereof.
(xxii) "Tenant's Proportionate Share" shall mean fourteen and
three one hundredths percent (14.30%).
Notwithstanding anything to the contrary contained in this subsection A
of this Article 1, Articles 1 through 43 of this Lease shall control the rights
and obligations of the parties hereto.
B. Demise. Subject to and upon the terms and conditions of this Lease,
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the
Premises, together with the non exclusive right in common with other tenants and
occupants of the Building to use the common areas of the Building, which
Landlord may vary from time to time, for the duration of the term of this Lease.
C. Term. This Lease shall be for a term (the "Term") which commences on
the Commencement Date and ends on the Expiration Date, unless sooner terminated
pursuant to any of the terms, covenants or conditions of this Lease or pursuant
to law. Within ten (10) business days of Landlord's or Tenant's request, Tenant
and Landlord shall join in the execution of an agreement stipulating the
Commencement Date, the Rent Commencement Date and the Expiration Date of this
Lease.
D. Rent. Commencing as of the Rent Commencement Date, and continuing
throughout the Term, Tenant shall pay Landlord the annual Rent set forth in
subsection A of this Article 1, payable without demand, on or in advance of the
first day of each month in equal monthly installments, in lawful money (legal
tender for public or private debts) of the United States of America, at the
office of Landlord or such other place as Landlord may designate from time to
time without any set-off, offset, abatement or deduction whatsoever, except as
otherwise expressly provided for in this Lease, except that Tenant shall pay the
first (1st) monthly installment upon Tenant's execution of this Lease. If the
Rent Commencement Date occurs on a date other than the first day of a calendar
month, Tenant shall pay to Landlord on or before the first day of the next month
the monthly installment of Rent for such partial month on a pro rata basis
(based on the actual number of days in the commencement month), and the first
month's rent paid by Tenant as described above shall be applied to the first
full calendar month of the Term for which Rent shall be due and payable. Such
payment, together with the sum paid by Tenant as first month's Rent upon the
execution of this Lease, shall constitute payment of the Rent for the period
from the Rent Commencement Date to and including the last day of the next
succeeding calendar month.
E. Rent Credit. Notwithstanding anything to the contrary hereinabove set
forth, provided this Lease is in full force and effect and Tenant is not in
default under this Lease, Tenant shall be entitled to a credit against the Rent
for the period commencing on the Commencement Date and ending on the day
immediately preceding the Rent Commencement Date in the monthly amount of
$112,484.66. The foregoing rent credit shall be null and void "ab initio" if
Landlord at any time terminates this Lease or re-enters or repossesses the
Premises on account of any default beyond any applicable notice and cure period
of Tenant under this Lease, and Landlord shall be entitled to recover from
Tenant, in addition to all other amounts Landlord is entitled to recover, the
aggregate amount of the rent credit herein provided for.
2. USE AND OCCUPANCY.
A. Permitted Uses. Tenant shall use and occupy the Premises for the
Permitted Uses, and for no other purpose.
B. Use Prohibitions. Anything contained herein to the contrary
notwithstanding, Tenant shall not use the Premises or any part thereof, or
permit the Premises or any part thereof to be used, (i) for the business of
photographic, multilith or multigraph reproductions or offset printing, (ii) as
an employment agency, labor union office, physician's or dentist's office or for
the rendition of any other diagnostic or therapeutic services, dance or music
studio, school (except for the training of employees of Tenant), (iii) for a
public stenographer or typist, (iv) for a telephone or telegraph agency,
telephone or secretarial service for the public at large, (v) for a messenger
service for the public at large, (vi) gambling or gaming
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activities, obscene or pornographic purposes or any sort of commercial sex
establishment, (vii) for the possession, storage, manufacture or sale of
alcohol, drugs or narcotics, (viii) for the offices or business of any federal,
state or municipal agency or any agency of any foreign government or (ix) for a
security or guard service, or any other business for which landlords of
comparable avenue buildings would not normally rent space for. If any provision
of this Lease permits, in whole or in part, use involving fabrication of any
product or assembly of components of any product or the sale of any product or
service, such use is only permitted to the extent lawful under the present
certificate of occupancy for the Building and under laws, ordinances,
regulations, rules and orders of any governmental body having jurisdiction over
the Premises, from time to time in effect. The provisions of this Article shall
be binding upon Tenant's successors, assigns, subtenants and licensees and shall
not be waived by any consent to an assignment or subletting or otherwise except
by written instrument expressly referring to this Article. Nothing in this
subsection B shall preclude Tenant from using any part of the Premises for
photographic, multilith or multigraph reproductions in connection with, either
directly or indirectly, its own business and/or activities.
3. ALTERATIONS.
A. Alterations Within Premises. Tenant shall not make or perform or
permit the making or performance of, any alterations, installations,
improvements, additions or other physical changes in or about the Premises
("Alterations") without Landlord's prior consent (except for painting, carpeting
and wallcovering, in an amount which does not exceed Fifty Thousand ($50,000)
Dollars in the aggregate ["Decorative Changes"], which may be made without
Landlord's consent). Notwithstanding the foregoing, subject to obtaining the
prior written consent of Landlord, which consent Landlord agrees not to
unreasonably withhold or delay, and subject to the provisions of this Article,
Tenant, at Tenant's expense, may make Alterations in or to the interior of the
Premises which are nonstructural, do not affect the Building's mechanical,
electrical, plumbing, Class E or other Building systems or the structural
integrity of the Building, do not affect any part of the Building other than the
Premises, do not affect any service required to be furnished by Landlord to
Tenant or to any other tenant or occupant of the Building, do not reduce the
value or utility of the Building and which are performed only by contractors and
mechanics first approved by Landlord and in compliance with all applicable laws.
Tenant shall not perform work, without the prior written consent of Landlord,
which may be granted or withheld in Landlord's sole discretion, which would (i)
require changes to the structural components of the Building or the exterior
design of the Building, (ii) require any material modification to the Building's
mechanical, electrical, plumbing installations or other Building installations
outside the Premises, (iii) not be in compliance with all applicable laws,
rules, regulations and requirements of any governmental department having
jurisdiction over the Building and/or the construction of the Premises,
including but not limited to, the Americans with Disabilities Act of 1990, or
(iv) be incompatible with the Certificate of Occupancy for the Building. Any
changes required by any governmental department affecting the construction of
the Premises shall be performed at Tenant's sole cost. All Alterations shall be
done at Tenant's expense and at such times and in such manner as Landlord may
from time to time reasonably designate pursuant to the conditions for
Alterations prescribed by Landlord for the Premises. A copy of the current
construction conditions and requirements for tenant alteration work and new
construction is annexed hereto as Schedule E and made a part hereof.
B. Restoration of Premises. All furniture, furnishings and movable
fixtures and removable partitions installed by Tenant must be removed from the
Premises by Tenant, at Tenant's expense, on or prior to the Expiration Date. All
Alterations in and to the Premises which may be made by Landlord or Tenant prior
to and during the Term, or any renewal thereof, shall become the property of
Landlord upon the Expiration Date or earlier end of the Term or any renewal
thereof, and shall not be removed from the Premises by Tenant unless Landlord,
at Landlord's option, by notice to Tenant, prior to the Expiration Date, elects
to have them removed from the Premises by Tenant, in which event the same shall
be removed from the Premises by Tenant, at Tenant's expense, on or prior to the
Expiration Date, but Tenant shall not be obligated to remove (a) typical office
installations only (no raised floor(s), vault(s), etc.), and (b) any Alterations
installed unless Tenant requests in writing from Landlord whether the same shall
be required to be removed from the Premises and Landlord notifies Tenant, at the
time Landlord reviews the plans and specifications therefore, that such
Alterations will have to be removed upon the expiration of the Term, or (c)
Tenant's Initial Alteration (except for non-typical office installations [i.e.,
safes, pantries and raised flooring], provided, however, Tenant shall be
required to pay for the cost of removal of such raised flooring provided
Landlord, within six (6) months from the Expiration Date determines, in its
reasonable discretion, that such raised flooring be removed for the occupancy of
a future tenant of the Premises and Landlord so notifies Tenant of its intention
to do so and Landlord commences such removal within sixty (60) days from the
date of Landlord's notice to Tenant.) In the event Landlord elects to have
Tenant remove such Alterations, Tenant shall repair and restore in a good and
workmanlike manner to Building standard original condition (reasonable wear and
tear excepted) any damage to the Premises or the Building caused by such
removal. Any of such Alterations or other property not so removed by Tenant at
or prior to the Expiration Date or earlier termination of the Term shall become
the property of Landlord, but nothing herein shall be deemed to relieve Tenant
of responsibility for the cost of removal of any such Alterations or other
property which Tenant is obligated to remove hereunder. Notwithstanding
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the foregoing, Tenant shall request from Landlord, in writing, at the time that
Tenant submits its plans and specifications for any Alterations to Landlord for
Landlord's review and approval, whether the Landlord will require Tenant to
remove such Alterations at the end of the Term.
C. Chlorofluorocarbons. Anything contained herein to the contrary
notwithstanding, in the event Tenant repairs or removes any mechanical or other
equipment within the Premises, installed by Tenant or Tenant's contractors,
containing chlorofluorocarbons ("CFC's"), the repair or removal of such
equipment, as the case may be, shall conform with all requirements of law and
industry practices. Additionally, any such repair or removal shall be done by
contractors reasonably approved by Landlord and subject to the procedures to
which Landlord's consent shall have previously been obtained. Tenant shall
indemnify and hold Landlord harmless from any liability or damages resulting
from any contamination within the Building, as a result of the repair or removal
of any of the aforesaid equipment containing CFC's by Tenant.
D. Submission of Plans. Prior to making any Alterations (except for
Decorative Changes), Tenant (i) shall submit to Landlord or to a consultant
appointed by Landlord ("Landlord's Consultant") detailed plans and
specifications (including layout, architectural, mechanical, electrical,
plumbing, Class E sprinkler and structural drawings stamped by a professional
engineer or architect licensed in the State of New York) for each proposed
Alteration and shall not commence any such Alteration without first obtaining
Landlord's approval of such plans and specifications, (ii) shall pay to Landlord
all reasonable costs and expenses incurred by Landlord (including the cost of
Landlord's Consultant) in connection with Landlord's review of Tenant's plans
and specifications, which amount shall not exceed $3,500.00, (iii) shall, at its
expense, obtain all permits, approvals and certificates required by any
governmental or quasi-governmental bodies, and (iv) shall furnish to Landlord
evidence that Tenant, and Tenant's contractors and subcontractors engaged in
connection with such Alterations, are carrying such insurance as Landlord may
require, as more particularly set forth in Schedule E annexed hereto and made a
part hereof. Landlord shall approve or disapprove Tenant's plans and
specifications for such Alterations within ten (10) business days. Upon
completion of such Alteration, Tenant, at Tenant's expense, shall obtain
certificates of final approval of such Alteration, including the "as-built"
drawings showing such Alterations, required by any governmental or
quasi-governmental bodies and shall furnish Landlord with copies thereof. All
Alterations shall be made and performed in accordance with the Rules and
Regulations (hereinafter defined) and in accordance with the Americans with
Disabilities Act of 1990, including but not limited to the accessibility
provisions thereof; all materials and equipment to be incorporated in the
Premises as a result of all Alterations shall be new and first quality; no such
materials or equipment shall be subject to any lien, encumbrance, chattel
mortgage or title retention or security agreement. Tenant agrees to allow
Landlord's designated contractor to bid on any Alterations to be performed by or
on behalf of Tenant. Landlord's approval of Tenant's plans, specifications and
working drawings for Alterations shall create no responsibility or liability on
the part of Landlord with respect to their completeness, design, sufficiency or
compliance with all applicable laws, rules or regulations of governmental
agencies or authorities.
E. Mechanics' Liens; Labor Conflicts. Any mechanic's lien filed against
the Premises, or the Real Property, for work claimed to have been done for, or
materials claimed to have been furnished to, Tenant, shall be discharged by
Tenant within ten (10) days after Tenant has notice of the same, at Tenant's
expense, by payment or filing the bond required by law. Tenant shall not, at any
time prior to or during the Term, directly or indirectly employ, or permit the
employment of, any contractor, service provider, mechanic or laborer in the
Premises, whether in connection with any Alterations, cleaning services or
otherwise, if, in Landlord's sole discretion, such employment will interfere or
cause any conflict with other contractors, service providers, mechanics, or
laborers engaged in the construction, cleaning, 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, service
providers, mechanics or laborers causing such interference or conflict to leave
the Building immediately. Landlord hereby approves Anchor Construction as
Tenant's contractor and construction manager for Tenant's Initial Alteration.
4. REPAIRS. Landlord shall maintain and repair the public portions of
the Building, both exterior and interior and the Building systems up to the
respective points of entry to the Premises, in a manner consistent with
comparable avenue office buildings in Manhattan in the vicinity of the Building.
Tenant shall, throughout the Term, take good care of the Premises and the
fixtures and appurtenances therein and at Tenant's sole cost and expense, make
all nonstructural repairs thereto as and when needed to preserve them in good
working order and condition, reasonable wear and tear and damage for which
Tenant is not responsible under the terms of this Lease excepted. Tenant shall
pay Landlord the reasonable cost for all replacements to the lamps, tubes,
ballasts and starters in the lighting fixtures installed in the Premises.
Notwithstanding the foregoing, all damage or injury to the 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 carelessness, omission, neglect or improper conduct of, or Alterations
made by, or any work, labor, service or equipment done for or supplied to,
Tenant or any subtenant, or the installation, use or operation of any property
or equipment by Tenant or any of Tenant's subtenants,
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agents, employees, invitees or licensees, shall be repaired promptly by Tenant,
at its sole cost and expense, to the satisfaction of Landlord, to the extent
such damage was caused by Tenant or any of Tenant's subtenants, agents,
employees, contractors, invitees or licensees. Tenant also shall repair all
damage to the Building and the Premises caused by the moving of Tenant's
fixtures, furniture or equipment, to the extent such damage was caused by Tenant
or any of Tenant's subtenants, agents, contractors, employees, invitees or
licensees. All the aforesaid repairs shall be of quality and class equal to the
original work or construction and shall be made in accordance with the
provisions of Article 3 hereof. If Tenant fails after ten (10) days notice to
proceed with due diligence to make repairs required to be made by Tenant
hereunder, or if Landlord, following ten (10) days notice to Tenant, except in
the case of an emergency, elects to make any repairs in or to the Building or
the facilities and systems thereof for which Tenant is responsible, the same may
be made by Landlord, at the expense of Tenant, and the expenses thereof incurred
by Landlord shall be collectible by Landlord as additional rent promptly after
rendition of a bill or statement therefor. Tenant shall give Landlord prompt
notice of any defective condition in the Premises for which Landlord may be
responsible hereunder. Except as expressly provided in this Lease, there shall
be no allowance to Tenant for a diminution of rental value and no liability on
the part of Landlord by reason of inconvenience, annoyance or injury to business
arising from Landlord, Tenant or others making, or failing to make, any repairs,
alterations, additions or improvements in or to any portion of the Building, or
the Premises, or in or to fixtures, appurtenances, or equipment thereof. If the
Premises become infested with vermin, Tenant, at Tenant's expense, shall cause
the same to be exterminated from time to time to the satisfaction of Landlord
and shall employ such exterminators and such exterminating company or companies
as shall be approved by Landlord. Landlord shall endeavor to deliver the
Premises to Tenant on the Commencement Date substantially free of vermin and of
food smells caused by other tenants located in the Building. The water and wash
closets and other plumbing fixtures shall not be used for any purposes other
than those for which they were designed or constructed, and no sweepings,
rubbish, rags, acids or other substances shall be deposited therein. If at any
time any windows of the Premises are temporarily closed, darkened or bricked up
for any reason whatsoever including, but not limited to, Landlord's own acts, or
any of such windows are permanently closed, darkened or bricked up if required
by law or related to any construction upon property adjacent to the Real
Property by Landlord or others, Landlord shall not be liable for any damage
Tenant may sustain thereby and Tenant shall not be entitled to any compensation
therefor nor abatement of Rent nor shall the same release Tenant from its
obligations hereunder nor constitute an eviction.
5. WINDOW CLEANING. Tenant shall not clean, nor require, permit, suffer or allow
any window in the Premises to be cleaned, from the outside in violation of
Section 202 of the Labor Law, or any other applicable law, or of the rules of
the Board of Standards and Appeals, or of any other board or body having or
asserting jurisdiction. Landlord shall, at Landlord's sole cost and expense,
clean the exterior of the windows of the Premises in accordance with the
provisions Exhibit 2.
6. REQUIREMENTS OF LAW; FLOOR LOAD.
A. Requirements of Law. Tenant, at Tenant's sole expense, shall promptly
comply with all present and future laws, statutes, orders, directives and
regulations of federal, state, county, city and municipal authorities,
departments, bureaus, boards, agencies, commissions and other sub-divisions
thereof, and of any official thereof and any other governmental and quasi-public
authority and all rules, orders, regulations or requirements of the New York
Board of Fire Underwriters, or any other similar body which shall now or
hereafter impose any violation, order or duty upon Landlord or Tenant with
respect to the Premises as a result of the use, occupation or alteration thereof
by Tenant, unless such compliance requires structural alterations to the
Premises (except if such structural alterations are required as a result of
Tenant's manner of use of the Premises (as opposed to Tenant's use of the
Premises for office purposes) or as a result of Alterations made by or on behalf
of Tenant). Tenant shall not do or permit to be done any act or thing upon the
Premises which is contrary to and will invalidate or be in conflict with any
public liability, fire or other policies of insurance at any time carried by or
for the benefit of Landlord with respect to the Building and fixtures and
property therein, or which shall or might subject Landlord to any liability or
responsibility to any person or for property damage. Tenant shall not do, or
permit anything to be done in or upon the Premises, or bring or keep anything
therein, except as now or hereafter permitted by the New York City Fire
Department, New York Board of Fire Underwriters, New York Fire Insurance Rating
Organization or other authority having jurisdiction and then only in such
quantity and manner as not to increase the insurance rate applicable to the
Building, or use the Premises in a manner which shall increase the rate of fire
insurance on the Building or on property located therein, over that in similar
type buildings or in effect prior to this Lease. If by reason of Tenant's
failure to comply with the provisions of this Article, the fire insurance rate
shall at the beginning of this Lease or at any time thereafter be higher than it
otherwise would be, then Tenant shall reimburse Landlord, as additional rent
hereunder, for that part of all fire insurance premiums thereafter paid by
Landlord which shall have been charged because of such failure of use by Tenant,
and shall make such reimbursement upon the first day of the month following such
outlay by Landlord. In any action or proceeding wherein Landlord and Tenant are
parties, a schedule or "make up" of rates for the Building or the Premises
issued by the New York Fire Insurance Rating Organization, or other body fixing
such fire insurance rates, shall be conclusive evidence of the facts therein
stated and of the several items and
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charges in the fire insurance rates then applicable to the Premises. Any work or
installations made or performed by or on behalf of Tenant or any person claiming
through or under Tenant pursuant to this Article shall be made in conformity
with, and subject to the provisions of, Article 3 hereof.
B. Floor Load. Tenant shall not place a load upon any floor of the
Premises exceeding the floor load per square foot area which such floor was
designed to carry and which is allowed by law. Landlord reserves the right to
prescribe the weight and position of all safes, business machines and heavy
equipment and installations such that the same are placed and maintained by
Tenant, at Tenant's expense, in settings sufficient in Landlord's judgment to
absorb and prevent vibration, noise and annoyance. Tenant shall not move any
safe, heavy machinery, heavy equipment, freight, bulky matter or fixtures into
or out of the Building without Landlord's prior consent and payment to Landlord
of Landlord's reasonable costs in connection therewith. If such safe, machinery,
equipment, freight, bulky matter or fixtures requires special handling, Tenant
agrees to employ only persons holding a Master Rigger's License to do said work,
and that all work in connection therewith shall comply with the Administrative
Code of the City of New York and all other laws and regulations applicable
thereto, and shall be done during such hours as Landlord may designate.
7. SUBORDINATION.
A. Subordination. This Lease is subject and subordinate to the Master
Lease and to each and every ground or underlying lease of the Real Property or
the Building hereafter made by Landlord (collectively, the "Superior Leases")
and to each and every trust indenture and mortgage (each a "Mortgage" and
collectively the "Mortgages") which may now or hereafter affect the Real
Property, the Building or any such Superior Lease and the leasehold interest
created thereby, and to all renewals, extensions, supplements, amendments,
modifications, consolidations, and replacements thereof or thereto,
substitutions therefor and advances made thereunder. This clause shall be
self-operative and no further instrument of subordination shall be required to
make the interest of any lessor under a Superior Lease, or trustee or mortgagee
of a Mortgage superior to the interest of Tenant hereunder. In confirmation of
such subordination, however, Tenant shall execute promptly any certificate that
Landlord may request. If the date of expiration of any Superior Lease shall be
the same day as the Expiration Date, the Term shall end and expire twelve (12)
hours prior to the expiration of the Superior Lease. Tenant covenants and agrees
that, except as expressly provided herein and to the extent that Tenant has
knowledge of same, Tenant shall not do anything that would constitute a default
under any Superior Lease or Mortgage, or omit to do anything that Tenant is
obligated to do under the terms of this Lease so as to cause Landlord to be in
default under any of the foregoing. If, at any time Landlord's obligations as
lessee under the Master Lease require Landlord to modify any of its obligations
under, or any of the terms of, this Lease or if, in connection with the
financing of the Real Property, the Building or the interest of the lessee under
any Superior Lease, any lending institution shall request reasonable
modifications of this Lease, provided such modifications do not increase the
obligations or adversely affect the rights of Tenant under this Lease, Tenant
covenants to make such modifications.
B. Attornment. If at any time prior to the expiration of the Term, any
Mortgage shall be foreclosed or any Superior Lease shall terminate or be
terminated for any reason, Tenant agrees, at the election and upon demand of any
owner of the Real Property or the Building, or the lessor under any such
Superior Lease, or of any mortgagee in possession of the Real Property or the
Building, to attorn, from time to time, to any such owner, lessor or mortgagee,
upon the then executory terms and conditions of this Lease, for the remainder of
the term originally demised in this Lease, provided that such owner, lessor or
mortgagee, as the case may be, or receiver caused to be appointed by any of the
foregoing, shall not then be entitled to possession of the Premises. The
provisions of this subsection B shall inure to the benefit of any such owner,
lessor or mortgagee, shall apply notwithstanding that, as a matter of law, this
Lease may terminate upon the termination of any such Superior Lease, and shall
be self-operative upon any such demand, and no further instrument shall be
required to give effect to said provisions. Tenant, however, upon demand of any
such owner, lessor or mortgagee, agrees to execute, from time to time,
instruments in confirmation of the foregoing provisions of this subsection B,
satisfactory to any such owner, lessor or mortgagee, acknowledging such
attornment and setting forth the terms and conditions of its tenancy. Nothing
contained in this subsection B shall be construed to impair any right otherwise
exercisable by any such owner, lessor or mortgagee.
C. Subordination, Non-Disturbance Agreement. As a condition precedent to
Tenant's agreement to be bound by Section 7A and B, Landlord agrees within
thirty (30) days after the execution and delivery of this Lease to deliver from
the then holder or holders of the existing Mortgage an agreement on such
holder's or holders' form of agreement substantially to the effect that in the
event of any foreclosure of the existing Mortgage, such holder or holders will
not make Tenant a party-defendant to such foreclosure (unless required by law in
order to obtain jurisdiction, but in such event, no judgment foreclosing this
Lease will be sought) nor disturb its possession under this Lease so long as
there shall be no default by Tenant under this Lease beyond applicable notice
and grace periods (any such agreement, or any agreement of similar import, is
referred to as a "Non-Disturbance Agreement" and any provisions in any Mortgage
substantially to the same effect as those contained in a Non-Disturbance
Agreement are
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referred to as "Non-Disturbance Provisions"). As a condition precedent to
Tenant's agreement to be bound by Section 7A and B, Landlord agrees within
thirty (30) days after execution and delivery of this Lease to deliver from the
holder ("Master Lessor") of the Master Lease an agreement on such Master
Lessor's form of agreement substantially to the effect that in the event of any
default of the Master Lease by reason of the default or insolvency of Landlord,
the Master Lessor will permit Tenant to attorn to Master Lessor and will not
disturb Tenant's possession under this Lease, so long as there shall be no
default by Tenant under this Lease beyond applicable notice and grace periods.
At or about the time that Landlord executes any future Mortgages, Landlord
agrees to use its best efforts to obtain from the then holder or holders of such
future Mortgages a Non-Disturbance Agreement on such holder's or holders' form
of Non-Disturbance Agreement (a "Future Non-Disturbance Agreement" and any
provisions in such future Mortgage substantially to the same effect as those
contained in a Future Non-Disturbance Agreement are referred to as "Future
Non-Disturbance Provisions"). At or about the time that Landlord executes any
future Superior Lease of the Real Property or the Building, Landlord shall use
its best efforts to obtain from the lessor thereof an agreement on such lessor's
form of agreement substantially to the effect that in the event of the
termination of such Superior Lease by reason of the default or insolvency of the
lessee thereunder, such lessor will permit Tenant to attorn to such lessor and
will not disturb Tenant's possession under this Lease so long as there shall be
no default by Tenant under this Lease beyond applicable notice and grace periods
(any such agreement, or any agreement of similar import is referred to as a
"Future Tenant Recognition Agreement" and any provisions in such future Superior
Lease substantially to the same effect as those contained in a Future Tenant
Recognition Agreement are referred to as "Future Recognition Provisions"). If
Landlord is unable in good faith after using its best efforts to obtain any such
Future Non-Disturbance Agreement or Future Non-Disturbance Provisions or Future
Tenant Recognition Agreement or Future Tenant Recognition Provisions, neither
the validity of this Lease nor the obligations of Tenant under this Lease shall
be affected thereby (except that Tenant shall not be required to subordinate
this Lease to such future Mortgage(s) or Superior Lease(s)) and Landlord shall
not be liable to Tenant for Landlord's failure to obtain any such Future
Non-Disturbance Agreement or Future Non-Disturbance Provisions or Future Tenant
Recognition Agreement or Future Tenant Recognition Provisions, it being intended
that Landlord's sole obligation with respect to any Future Non-Disturbance
Agreement or Future Non-Disturbance Provisions or Future Tenant Recognition
Agreement or Future Tenant Recognition Provisions shall be to request, in good
faith, at or about the date of execution of any future Mortgages or Superior
Lease (with respect to any future Mortgages or Superior Lease) the then holders
of any Mortgages or the then lessor under the Superior Lease, as the case may
be, to enter into such Future Non-Disturbance Agreement or include Future
Non-Disturbance Provisions in any future Mortgages or enter into such Future
Tenant Recognition Agreement or include Future Tenant Recognition Provisions in
any future Superior Lease as the case may be, if required by the holder of any
Mortgage or by the lessor under any Superior Lease, Tenant shall promptly join
in any commercially reasonable Future Non-Disturbance Agreement or Future Tenant
Recognition Agreement to indicate its concurrence with the provisions thereof.
If Tenant does not execute and deliver such Future Non-Disturbance Agreement or
Future Tenant Recognition Agreement within ten (10) days from the date of
delivery of same, Landlord may execute such Future Non-Disturbance Agreement
and/or Future Tenant Recognition Agreement, as the case may be, on behalf of
Tenant, as Tenant's attorney-in-fact. Tenant hereby agrees to pay all reasonable
fees including without limitation, reasonable attorney's fees and disbursements,
of any holder or lessor for preparing such Future Non-Disturbance Agreement or
Future Tenant Recognition Agreement or Future Non-Disturbance Provisions or
Future Tenant Recognition Provisions (providing, however, Tenant shall only be
responsible for the payment of such fees in connection with three (3) Future
Non-Disturbance Agreements, in the aggregate, and three (3) Future Tenant
Recognition Agreements, in the aggregate, during the Term). The existing
Mortgage is held by PW Real Estate Investments, Inc. Notwithstanding the
foregoing, Landlord shall have no obligation to decline any financing under any
Mortgage or not enter into any Superior Lease if any holder of any Mortgage or
any lessor of any Superior Lease fails to provide a Non-Disturbance Agreement or
Tenant Recognition Agreement or Non-Disturbance Provisions or Tenant Recognition
Provisions, as the case may be.
8. RULES AND REGULATIONS. Tenant and Tenant's employees, agents, visitors and
licensees shall observe faithfully, and comply strictly with, the Rules and
Regulations annexed hereto and made a part hereof as Schedule A and such other
and further reasonable Rules and Regulations as Landlord or Landlord's agents
may from time to time adopt, so long as the same do not materially and adversely
impair Tenant's access to and use of the Premises (collectively, the "Rules and
Regulations") on such notice to be given as Landlord may elect. Nothing in this
Lease contained shall be construed to impose upon Landlord any duty or
obligation to enforce the Rules and Regulations or terms, covenants or
conditions in any other lease, against any other tenant and Landlord shall not
be liable to Tenant for violation of the same by any other tenant, its
employees, agents, visitors or licensees; provided, however, Landlord shall not
enforce the Rules and Regulations in a manner which discriminates against
Tenant.
9. INSURANCE.
A. Liability Insurance. Tenant shall obtain at its own expense and keep
in full force and effect during the Term, a policy of commercial general
liability insurance (including, without limitation,
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insurance covering Tenant's contractual liability under this Lease), under which
Tenant is named as the insured, and Landlord, Landlord's managing agent, the
present and any future mortgagee of the Real Property or the Building and/or
such other designees specified by Landlord from time to time, are named as
additional insureds. Such policy shall contain a provision that no act or
omission of Tenant shall affect or limit the obligation of the insurance company
to pay the amount of any loss sustained. Such policy shall also contain a
provision which provides the insurance company will not cancel or refuse to
renew the policy, or change in any material way the nature or extent of the
coverage provided by such policy, without first giving Landlord at least thirty
(30) days written notice by certified mail, return receipt requested, which
notice shall contain the policy number and the names of the insureds and policy
holder. The minimum limits of liability shall be a combined single limit with
respect to each occurrence in an amount of not less than $5,000,000 for injury
(or death) and damage to property or such greater amount as Landlord may, from
time to time, reasonably require. Tenant shall also maintain at its own expense
during the Term a policy of workers' compensation insurance providing statutory
benefits for Tenant's employees and employer's liability. Tenant shall provide
to Landlord upon execution of this Lease and at least thirty (30) days prior to
the termination of any existing policy, a certificate evidencing the
effectiveness of the insurance policies required to be maintained hereunder
which shall include the named insured, additional insured, carrier, policy
number, limits of liability, effective date, the name of the insurance agent and
its telephone number. Tenant shall provide Landlord with a complete copy of any
such policy upon written request of Landlord. Tenant shall have no right to
obtain any of the insurance required hereunder pursuant to a blanket policy
covering other properties unless the blanket policy contains an endorsement that
names Landlord, Landlord's managing agent and/or designees specified by Landlord
from time to time, as additional insureds, references the Premises, and
guarantees a minimum limit available for the Premises equal to the amount of
insurance required to be maintained hereunder. Each policy required hereunder
shall contain a clause that the policy and the coverage evidenced thereby shall
be primary with respect to any policies carried by Landlord, and that any
coverage carried by Landlord shall be excess insurance. The limits of the
insurance required under this subsection shall not limit the liability of Tenant
under this Lease. All insurance required to be carried by Tenant pursuant to the
terms of this Lease shall be effected under valid and enforceable policies
issued by reputable and independent insurers permitted to do business in the
State of New York, and rated in Best's Insurance Guide, or any successor thereto
(or if there be none, an organization having a national reputation) as having a
general policyholder rating of "A-" and a financial rating of at least "10". In
the event that Tenant fails to continuously maintain insurance as required by
this subsection, Landlord may, at its option and without relieving Tenant of any
obligation hereunder, order such insurance and pay for the same at the expense
of Tenant. In such event, Tenant shall repay the amount expended by Landlord,
with interest thereon, immediately upon Landlord's written demand therefor.
B. "All Risk" Insurance. Tenant shall also maintain at its own expense
during the Term a policy against fire and other casualty on an "all risk" form
covering all Alterations, construction and other improvements installed within
the Premises, whether existing in the Premises on the date hereof or hereinafter
installed by or on behalf of Landlord or Tenant, and on all furniture, fixtures,
equipment, personal property and inventory of Tenant located in the Premises and
any property in the care, custody and control of Tenant (fixed or otherwise)
sufficient to provide 100% full replacement value of such items, which policy
shall otherwise comply with the provisions of subsections A and C of this
Article 9. On any such policy, Tenant shall name Landlord as a loss payee, as
its interest may appear.
C. Waiver of Subrogation. The parties hereto shall procure an
appropriate clause in, or endorsement on, any "all-risk" property insurance
covering the Premises and the Building, including its respective Alterations,
construction and other improvements as well as personal property, fixtures,
furniture, inventory and equipment located thereon or therein, pursuant to which
the insurance companies waive subrogation or consent to a waiver of right of
recovery, and each party hereby agrees that it will not make any claim against
or seek to recover from the other or the partners, directors, officers,
shareholders or employees of such party for any loss or damage to its property
or the property of others resulting from fire or other hazards covered by such
"all-risk" property insurance policies to the extent that such loss or damage is
actually recoverable under such policies exclusive of any deductibles. Such
waiver will not apply should any loss or damage result from one of the parties'
gross negligence or willful misconduct. If the payment of an additional premium
is required for the inclusion of such waiver of subrogation provision, each
party shall advise the other of the amount of any such additional premiums and
the other party shall pay the same. It is expressly understood and agreed that
Landlord will not carry insurance on the Alterations, construction and other
improvements presently existing or hereafter installed within the Premises or on
Tenant's fixtures, furnishings, equipment, personal property or inventory
located in the Premises or insurance against interruption of Tenant's business.
10. DESTRUCTION OF THE PREMISES; PROPERTY LOSS OR DAMAGE.
A. Repair of Damage. If the Premises or any part thereof shall be
damaged by fire or other casualty, Tenant shall give immediate notice thereof to
Owner and this Lease shall continue in full force and effect except as
hereinafter set forth. If the Premises shall be damaged by fire or other
casualty, then the Premises shall be repaired and restored to its condition
preceding the damage in accordance with the
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provisions of this Article 10. Whenever in this Article 10 reference is made to
restoration of the Premises, (i) Tenant's obligation shall be as to all property
within the Premises including Tenant's furniture, fixtures, equipment and other
personal property, any and all Alterations, construction or other improvements
made to the Premises by or on behalf of Tenant and any other leasehold
improvements existing in the Premises on the date hereof, all of which shall be
restored and replaced at Tenant's sole cost and expense and (ii) Landlord's
obligation, if any, shall be as to the shell, which constitutes the structure of
the Building and the mechanical, electrical, plumbing, air-conditioning and
other building-wide systems up to the point of connection into the Premises.
Landlord shall have no liability to Tenant, and Tenant shall not be entitled to
terminate this Lease, if such repairs and restoration are not in fact completed
within Landlord's estimated time period, so long as Landlord shall have
proceeded with reasonable due diligence. The Rent until such repairs shall be
made shall be reduced in the proportion which the area of the part of the
Premises which is not usable by Tenant bears to the total area of the Premises;
provided, however, should Tenant reoccupy a portion of the Premises for the
conduct of its business prior to the date such repairs are made, the Rent shall
be reinstated with respect to such reoccupied portion of the Premises and shall
be payable by Tenant from the date of such occupancy. Notwithstanding the
foregoing to the contrary, in no event shall the Rent be reduced for a period in
excess of three (3) months following the date Landlord substantially completes
its repair and restoration obligations hereunder.
B. Landlord's Termination Option. Anything in subsection A of this
Article 10 to the contrary notwithstanding, if the Premises are totally damaged
or are rendered wholly untenantable, or if the Building shall be so damaged by
fire or other casualty that, in Landlord's opinion, either substantial
alteration, demolition or reconstruction of the Building shall be required
(whether or not the Premises shall have been damaged or rendered untenantable),
or if the Building, after its proposed repair, alteration or restoration, shall
not be economically viable as an office building, then in any of such events,
Landlord, at Landlord's option, may, not later than ninety (90) days following
the damage, give Tenant a notice in writing terminating this Lease. In addition,
(i) if any damage shall occur to the Premises or the Building during the last
two (2) years of the Term, Landlord shall have the option to terminate this
Lease by thirty (30) days prior written notice to Tenant and (ii) Landlord shall
not be obligated to repair or restore the Premises or the Building if a holder
of a mortgage or underlying leasehold applies proceeds of insurance to the loan
or lease payment balance, and the remaining proceeds, if any, available to
Landlord are insufficient to pay for such repair or restoration. If Landlord
elects to terminate this Lease, the Term shall expire upon the date set forth in
such notice, and Tenant shall vacate the Premises and surrender the same to
Landlord without prejudice however, to Landlord's rights and remedies against
Tenant under this Lease in effect prior to such termination and any Rent owing
shall be paid up to such date and any payments of Rent made by Tenant which were
on account of any period subsequent to such date shall be returned to Tenant.
Upon the termination of this Lease under the conditions provided for in the next
preceding sentence, Tenant's liability for Rent thereafter accruing shall cease
as of the day following such damage.
C. Tenant's Termination Option. Notwithstanding anything contained in
this Article 10 to the contrary, in the event Landlord elects not to terminate
this Lease as provided in subsection B above, Landlord shall, within ninety (90)
days of the date of any casualty described in subsection B above, send Tenant a
notice, which notice shall set forth the time period which Landlord, in its sole
discretion, determines is necessary to repair the Premises. If the foregoing
time period exceeds twelve (12) months, Tenant shall have the option to
terminate this Lease upon thirty (30) days notice to Landlord. If the foregoing
time period is twelve (12) months or less, and Landlord commences such repair
work and such repair work is not completed on or before the date that is twelve
(12) months after the date that Landlord commences such repair work, Tenant
shall have the right to send Landlord a notice ("Tenant's Termination Notice")
of its intention to cancel this Lease and if Landlord does not substantially
complete such repair work within thirty (30) days from the date of Landlord's
receipt of Tenant's Termination Notice, then this Lease shall be terminated
effective the date that is thirty (30) days after the date that Landlord
receives Tenant's Termination Notice.
D. Repair Delays. Landlord shall not be liable for reasonable delays
which may arise by reason of the claim adjustment with any insurance company on
the part of Landlord and/or Tenant, and for reasonable delays on account of
"labor troubles" or any other cause beyond Landlord's control.
E. Provision Controlling. The parties agree that this Article 10
constitutes an express agreement governing any case of damage or destruction of
the Premises or the Building by fire or other casualty, and that Section 227 of
the Real Property Law of the State of New York, which provides for such
contingency in the absence of an express agreement, and any other law of like
import now or hereafter in force shall have no application in any such case.
F. Property Loss or Damage. Any Building employee to whom any property
shall be entrusted by or on behalf of Tenant shall be deemed to be acting as
Tenant's agent with respect to such property and neither Landlord nor its agents
shall be liable for any damage to property of Tenant or of others entrusted to
employees of the Building, nor for the loss of or damage to any property of
Tenant by theft or
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otherwise. Neither Landlord nor its agents shall be liable for any injury or
damage to persons or property or interruption of Tenant's business resulting
from fire, explosion, falling plaster, steam, gas, electricity, water, rain or
snow or leaks from any part of the Building or from the pipes, appliances or
plumbing works or from the roof, street or subsurface or from any other place or
by dampness or by any other cause of whatsoever nature, unless caused by the
gross negligence of Landlord; nor shall Landlord or its agents be liable for any
such damage caused by other tenants or persons in the Building or caused by
construction of any private, public or quasi-public work nor shall Landlord be
liable for any latent defect in the Premises or in the Building. Anything in
this Article 10 to the contrary notwithstanding, nothing in this Lease shall be
construed to relieve Landlord from responsibility directly to Tenant for any
loss or damage caused directly to Tenant wholly or in part by the gross
negligence or willful misconduct of Landlord. Nothing in the foregoing sentence
shall affect any right of Landlord to the indemnity from Tenant to which
Landlord may be entitled under Article 37 hereof in order to recoup for payments
made to compensate for losses of third parties.
11. CONDEMNATION.
A. Condemnation. If the whole of the Real Property, the Building or the
Premises shall be acquired or condemned for any public or quasi-public use or
purpose, this Lease and the Term shall end as of the date of the vesting of
title with the same effect as if said date were the Expiration Date. If only a
part of the Real Property shall be so acquired or condemned then, (i) except as
hereinafter provided in this subsection A, this Lease and the Term shall
continue in force and effect but, if a part of the Premises is included in the
part of the Real Property so acquired or condemned, from and after the date of
the vesting of title, the Rent shall be reduced in the proportion which the area
of the part of the Premises so acquired or condemned bears to the total area of
the Premises immediately prior to such acquisition or condemnation; (ii) whether
or not the Premises shall be affected thereby, Landlord, at Landlord's option,
may give to Tenant, within sixty (60) days next following the date upon which
Landlord shall have received notice of vesting of title, a five (5) days notice
of termination of this Lease; and (iii) if the part of the Real Property so
acquired or condemned shall contain more than twenty percent (20%) of the total
area of the Premises immediately prior to such acquisition or condemnation, or
if, by reason of such acquisition or condemnation, Tenant no longer has
reasonable means of access to the Premises, Tenant, at Tenant's option, may give
to Landlord, within sixty (60) days next following the date upon which Tenant
shall have received notice of vesting of title, a five (5) days notice of
termination of this Lease. If any such five (5) days notice of termination is
given by Landlord or Tenant, this Lease and the Term shall come to an end and
expire upon the expiration of said five (5) days with the same effect as if the
date of expiration of said five (5) days were the Expiration Date. If a part of
the Premises shall be so acquired or condemned and this Lease and the Term shall
not be terminated pursuant to the foregoing provisions of this subsection A,
Landlord, at Landlord's expense, shall restore that part of the Premises not so
acquired or condemned to a self-contained rental unit. In the event of any
termination of this Lease and the Term pursuant to the provisions of this
subsection A, the Rent shall be apportioned as of the date of sooner termination
and any prepaid portion of Rent for any period after such date shall be refunded
by Landlord to Tenant.
B. Award. In the event of any such acquisition or condemnation of all or
any part of the Real Property, Landlord shall be entitled to receive the entire
award for any such acquisition or condemnation, Tenant shall have no claim
against Landlord or the condemning authority for the value of any unexpired
portion of the Term and Tenant hereby expressly assigns to Landlord all of its
right in and to any such award. Nothing contained in this subsection B shall be
deemed to prevent Tenant from making a claim in any condemnation proceedings for
the then value of any furniture, furnishings and fixtures installed by and at
the sole expense of Tenant and included in such taking, provided that such award
shall not reduce the amount of the award otherwise payable to Landlord.
12. ASSIGNMENT AND SUBLETTING.
A. Prohibition Without Consent. Tenant expressly covenants that it shall
not (i) assign or otherwise transfer this Lease or the term and estate hereby
granted, (ii) mortgage, pledge or encumber this Lease or the Premises or any
part thereof in any manner by reason of any act or omission on the part of
Tenant, (iii) sublet the Premises or any part thereof or permit the Premises or
any part thereof to be used or occupied by others (whether for desk space,
mailing privileges or otherwise) or (iv) advertise, or authorize a broker to
advertise the Premises for assignment or subletting, without obtaining the prior
written consent of Landlord in each instance. If this Lease be assigned, or if
the Premises or any part thereof be sublet or occupied by anybody other than
Tenant, Landlord may, after default by Tenant, collect rent from the assignee,
subtenant or occupant, and apply the net amount collected to the Rent herein
reserved, but no assignment, underletting, occupancy or collection shall be
deemed a waiver of the provisions hereof, the acceptance of the assignee,
undertenant or occupant as tenant, or a release of Tenant from the further
performance by Tenant of covenants on the part of Tenant herein contained. The
consent by Landlord to an assignment or underletting shall not in any way be
construed to relieve Tenant from obtaining the express consent in writing of
Landlord to any further assignment or underletting. In no event shall any
permitted subtenant assign or encumber its sublease or further sublet all or any
portion
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of its sublet space, or otherwise suffer or permit the sublet space or any part
thereof to be used or occupied by others, without Landlord's prior written
consent in each instance. Any assignment, sublease, mortgage, pledge,
encumbrance or transfer in contravention of the provisions of this Article 12
shall be void.
B. Notice of Proposed Transfer. If Tenant shall at any time or times
during the Term desire to assign this Lease or sublet all or part of the
Premises, Tenant shall give notice thereof to Landlord, which notice shall be
accompanied by (i) a fully-executed letter of intent which sets forth the
proposed business terms of the proposed assignment or sublease, the effective or
commencement date of which shall be not less than thirty (30) nor more than one
hundred and eighty (180) days after the giving of such notice, (ii) a statement
setting forth in reasonable detail the identity of the proposed assignee or
subtenant, the nature of its business and its proposed use of the Premises,
(iii) current financial information with respect to the proposed assignee or
subtenant, including, without limitation, its most recent financial report, (iv)
an agreement by Tenant to indemnify Landlord against liability resulting from
any claims that may be made against Landlord by the proposed assignee or
subtenant or by any brokers or other persons claiming a commission or similar
compensation in connection with the proposed assignment or sublease and (v) in
the case of a sublease, such additional information related to the proposed
subtenant as Landlord shall reasonably request, if any.
C. Landlord's Option. The notice containing all of the information set
forth in subsection B of this Article 12 above shall be deemed an offer from
Tenant to Landlord whereby Landlord may, at its option, terminate this Lease (if
the proposed transaction is an assignment or a sublease of all or substantially
all of the Premises for substantially the remainder of the Term). Said option
may be exercised by Landlord by notice to Tenant at any time within thirty (30)
days after the aforesaid notice has been given by Tenant to Landlord; and during
such thirty (30) day period Tenant shall not assign this Lease nor sublet such
space to any person or entity.
D. Termination by Landlord. If Landlord exercises its option to
terminate this Lease in the case where Tenant desires either to assign this
Lease or sublet all or substantially all of the Premises for substantially the
remainder of the Term, then this Lease shall end and expire on the date that
such assignment or sublet was to be effective or commence, as the case may be,
and the Rent and additional rent due hereunder shall be paid and apportioned to
such date. Furthermore, if Landlord exercises its option to terminate this Lease
pursuant to subsection C of this Article 12, Landlord shall be free to and shall
have no liability to Tenant if Landlord should lease the Premises (or any part
thereof) to Tenant's prospective assignee or subtenant.
E. Intentionally Deleted.
F. Effect of Termination. If Landlord exercises its option to terminate
this Lease as provided in subsection C above, if required by applicable law in
connection with any termination of this Lease, Tenant shall complete, swear to
and file any questionnaires, tax returns, affidavits or other documentation
which may be required to be filed with the appropriate governmental agency in
connection with any other tax which may now or hereafter be in effect. Tenant
further agrees to pay any amounts which may be assessed in connection with any
of such taxes and to indemnify Landlord against and to hold Landlord harmless
from any claims for payment of such taxes as a result of such transactions.
G. Conditions for Landlord's Approval. In the event Landlord does not
exercise its option provided to it pursuant to subsection C of this Article 12
and provided that Tenant is not in default of any of Tenant's obligations under
this Lease (after notice and the expiration of any applicable grace period) as
of the time of Landlord's consent, and as of the effective date of the proposed
assignment or commencement date of the proposed sublease, Landlord's consent
(which must be in writing and form reasonably satisfactory to Landlord) to the
proposed assignment or sublease shall not be unreasonably withheld or delayed,
provided and upon condition that:
(i) Tenant shall have complied with the provisions of subsection
B of this Article 12 and Landlord shall not have exercised its option under
subsection C of this Article 12 within the time permitted therefor;
(ii) In Landlord's reasonable judgment the proposed assignee or
subtenant is engaged in a business or activity, and the Premises, or the
relevant part thereof, will be used in a manner which (a) intentionally deleted,
(b) is limited to the use of the Premises as provided in Article 2, and (c) and
is not otherwise used in a manner prohibited by this Lease;
(iii) The proposed assignee or subtenant is a reputable party of
good character and with sufficient financial worth considering the
responsibility involved, and Landlord has been furnished with reasonable proof
thereof;
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(iv) Neither (a) the proposed assignee or subtenant nor (b) any person which,
directly or indirectly, controls, is controlled by or is under common control
with, the proposed assignee or subtenant, is then an occupant of any part of the
Building, and there is comparable space in the Building for a comparable term;
(v) The proposed assignee or subtenant is not a person with whom
Landlord is or has been, within the preceding six (6) month period, negotiating
to lease space in the Building;
(vi) The form of the proposed sublease or instrument of
assignment (a) shall be in form reasonably satisfactory to Landlord, and (b)
shall comply with the applicable provisions of this Article 12;
(vii) There shall not be more than three (3) subtenants of the
Premises;
(viii) The amount of the aggregate rent to be paid by the
proposed subtenant is not less than ninety-five (95%) percent of the then
current market rent per rentable square foot for the Premises (provided there is
comparable space in the Building at the time that Tenant submits to Landlord a
notice of its desire to assign or sublet in accordance with subsection B above)
as though the Premises were vacant, and the rental and other terms and
conditions of the sublease are substantially and materially the same as those
contained in the proposed sublease furnished to Landlord pursuant to subsection
B of this Article 12;
(ix) Intentionally Deleted;
(x) Tenant shall not have listed the Premises for subletting or
assignment, with a broker, agent or representative other than the then managing
agent of the Building or other agent designated by Landlord for a period of
ninety (90) days from the date that Tenant submits to Landlord a notice of its
desire to assign or sublet in accordance with subsection B above;
(xi) The proposed occupancy shall not, in Landlord's reasonable
opinion, increase the office cleaning requirements or the Building's operating
or other expenses or impose an extra unreasonable burden upon services to be
supplied by Landlord to Tenant;
(xii) The proposed assignee or subtenant or its business shall
not be subject to compliance with additional requirements of law (including
related regulations) beyond those requirements which are applicable to the named
Tenant herein which shall impose compliance of any additional requirements of
law upon the Landlord; and
(xiii) The proposed subtenant or assignee shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity and shall be subject
to the service of process in, and the jurisdiction of the courts of New York
State.
Landlord shall grant or deny its consent to any proposed subleasing or
assignment within twenty (20) days of Tenant's request therefore. Each
subletting pursuant to this subsection G of this Article 12 shall be subject to
all of the covenants, agreements, terms, provisions and conditions contained in
this Lease. Notwithstanding any such subletting to any subtenant and/or
acceptance of Rent or additional rent by Landlord from any subtenant, Tenant
shall and will remain fully liable for the payment of the 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 licensee
or subtenant or anyone claiming under or through any 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 agrees that notwithstanding any such
subletting, no other and further subletting of the Premises 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 12. If Landlord
shall decline to give its consent to any proposed assignment or sublease, or if
Landlord shall exercise its option under subsection C of this Article 12, Tenant
shall indemnify, defend and hold harmless Landlord against and from any and all
loss, liability, damages, costs, and expenses (including reasonable counsel
fees) resulting from any claims that may be made against Landlord by the
proposed assignee or subtenant or by any brokers or other persons claiming a
commission or similar compensation in connection with the proposed assignment or
sublease.
H. Future Requests. In the event that (i) Landlord fails to exercise its
option under subsection C of this Article 12 and consents to a proposed
assignment or sublease, and (ii) Tenant fails to execute and deliver the
assignment or sublease to which Landlord consented within ninety (90) days after
the giving of such consent, then, Tenant shall again comply with all of the
provisions and conditions of subsection B of this Article 12 before assigning
this Lease or subletting all or part of the Premises.
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I. Sublease Provisions. With respect to each and every sublease or
subletting authorized by Landlord under the provisions of this Lease, it is
further agreed that:
(i) No subletting shall be for a term ending later than one (1)
day prior to the Expiration Date of this Lease;
(ii) No sublease shall be delivered, and no subtenant shall take
possession of the Premises or any part thereof, until an executed counterpart of
such sublease has been delivered to Landlord;
(iii) Each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which this Lease is or shall be
subordinate, and that in the event of termination, re-entry or dispossession by
Landlord under this Lease Landlord may, at its option, take over all of the
right, title and interest of Tenant, as sublessor, under such sublease, and such
subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then
executory provisions of such sublease, except that Landlord shall not (a) be
liable for any previous act or omission of Tenant under such sublease, (b) be
subject to any counterclaim, offset or defense, not expressly provided in such
sublease, which theretofore accrued to such subtenant against Tenant, or (c) be
bound by any previous modification of such sublease or by any previous
prepayment of more than one (1) month's Rent. The provisions of this Article 12
shall be self-operative and no further instrument shall be required to give
effect to this provision; and
(iv) If any laws, orders, rules or regulations of any applicable
governmental authority require that any Hazardous Substances, including, without
limitation, asbestos, contained in or about the Premises to be sublet (the
"Sublet Space") be dealt with in any particular manner in connection with any
alteration of the Sublet Space, then it shall be either the Tenant's or the
subtenant's obligation, at such party's expense, to deal with such Hazardous
Substances in accordance with all such laws, orders, rules and regulations
(unless Landlord elects to deal with such Hazardous Substances itself, in which
event, the Tenant or the subtenant shall reimburse Landlord for all of
Landlord's costs and expenses in connection therewith within ten (10) days next
following the rendition of a statement therefor).
J. Profits from Assignment or Subletting. Landlord shall give its
consent to any assignment of this Lease or to any sublease or if Tenant shall
enter into any other assignment or sublease permitted hereunder, Tenant shall in
consideration therefor, pay to Landlord, as additional rent:
(i) in the case of an assignment, an amount equal to sixty (60%)
percent of all sums and other considerations paid to Tenant by the assignee for
or by reason of such assignment (including, but not limited to, sums paid for
the sale of Tenant's fixtures, leasehold improvements, equipment, furniture,
furnishings or other personal property, less, in the case of a sale thereof, the
then net unamortized or undepreciated cost thereof determined on the basis of
Tenant's federal income tax returns) less all expenses reasonably and actually
incurred by Tenant on account of brokerage commissions, legal fees, marketing
and advertising costs or reasonable alteration expenses incurred in connection
with such assignment, provided that Tenant shall submit to Landlord a receipt
evidencing the payment of such expenses (or other proof of payment as Landlord
shall reasonably require); and
(ii) in the case of a sublease, sixty (60%) percent of any
rents, additional charges or other consideration payable under the sublease on a
per square foot basis to Tenant by the subtenant which is in excess of the Rent
and additional rent accruing during the term of the sublease in respect of the
subleased space (at the rate per square foot payable by Tenant hereunder)
pursuant to the terms hereof (including, but not limited to, sums paid for the
sale or rental of Tenant's fixtures, leasehold improvements, equipment,
furniture or other personal property, less, in the case of the sale thereof, the
then net unamortized or undepreciated cost thereof determined on the basis of
Tenant's federal income tax returns), less all expenses reasonably and actually
incurred by Tenant on account of brokerage commissions, legal fees, marketing
and advertising costs or reasonable alteration expenses incurred; and the cost
of demising the premises so sublet in connection with such sublease, provided
that Tenant shall submit to Landlord a receipt evidencing the payment of such
expenses (or other proof of payment as Landlord shall require). The sums payable
under this subsection J(ii) of this Article 12 shall be paid to Landlord as and
when payable by the subtenant to Tenant.
K. Other Transfers. (i) If Tenant is a corporation other than a
corporation whose stock is listed and traded on a nationally recognized stock
exchange (hereinafter referred to as a "public corporation"), the provisions of
subsection A of this Article 12 shall apply to a transfer (by one or more
transfers) of a majority of the stock of Tenant as if such transfer of a
majority of the stock of Tenant were an assignment of this Lease; but said
provisions shall not apply to transactions with a corporation into or with which
Tenant is merged or consolidated or to which substantially all of Tenant's
assets are transferred, provided that such merger, consolidation or transfer of
assets is for a valid business purpose and not principally for the purpose of
transferring the leasehold estate created hereby, and provided further, that in
any of such events (a) the successor to Tenant has a net worth computed in
accordance with generally accepted accounting principles at least equal to the
greater of (1) the net worth of Tenant immediately prior to such
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merger, consolidation or transfer, or (2) the net worth of Tenant herein named
on the date of this Lease and (b) proof satisfactory to Landlord of such net
worth shall have been delivered to Landlord at least ten (10) days prior to the
effective date of any such transaction. An initial public offering of the stock
of Tenant shall not be deemed to be an assignment under this Lease.
(i) If Tenant is a partnership, the provisions of subsection A
of this Article 12 shall apply to a transfer (by one or more transfers) of a
majority interest in the partnership, as if such transfer were an assignment of
this Lease.
(ii) If Tenant is a subdivision, authority, body, agency,
instrumentality or other entity created and/or controlled pursuant to the laws
of the State of New York or any city, town or village of such state or of
federal government ("Governmental Entity"), the provisions of subsection A of
this Article 12 shall apply to a transfer (by one or more transfers) of any of
Tenant's rights to use and occupy the Premises, to any other Governmental
Entity, as if such transfer of the right of use and occupancy were an assignment
of this Lease; but said provisions shall not apply to a transfer of any of
Tenant's rights in and to the Premises to any Governmental Entity which shall
replace or succeed to substantially similar public functions, responsibilities
and areas of authority as Tenant, provided that in any of such events the
successor Governmental Entity (a) shall utilize the Premises in a manner
substantially similar to Tenant, and (b) shall not utilize the Premises in any
manner which, in Landlord's judgment, would impair the reputation of the
Building as a first-class office building.
L. Related Corporation. Tenant may, without Landlord's consent, but upon
prior notice to Landlord, permit any corporations or other business entities
(but not including Governmental Entities) which control, are controlled by, or
are under common control with Tenant (herein referred to as "related
corporation") to sublet all or part of the Premises for any of the purposes
permitted to Tenant, subject however to compliance with Tenant's obligations
under this Lease. Such subletting shall not be deemed to vest in any such
related corporation any right or interest in this Lease or the Premises nor
shall it relieve, release, impair or discharge any of Tenant's obligations
hereunder. For the purposes hereof, "control" shall be deemed to mean ownership
of not less than fifty percent (50%) of all of the voting stock of such
corporation or not less than fifty percent (50%) of all of the legal and
equitable interest in any other business entities.
M. Assumption by Assignee. Any assignment or transfer, whether made with
Landlord's consent pursuant to subsection A of this Article 12 or without
Landlord's consent pursuant to subsection K or L of this Article 12, shall be
made only if, and shall not be effective until, the assignee shall execute,
acknowledge and deliver to Landlord an agreement in form and substance
satisfactory to Landlord whereby the assignee shall assume the obligations of
this Lease and agree to be bound by all of the terms, conditions, covenants and
provisions hereof on the part of Tenant to be performed or observed and whereby
the assignee shall agree that the provisions in subsection A of this Article 12
shall, notwithstanding such assignment or transfer, continue to be binding upon
it in respect of all future assignments and transfers. The original named Tenant
covenants that, notwithstanding any assignment or transfer, whether or not in
violation of the provisions of this Lease, and notwithstanding the acceptance of
Rent and/or additional rent by Landlord from an assignee, transferee or any
other party, the original named Tenant shall remain fully liable for the payment
of the Rent and additional rent and for the other obligations of this Lease on
the part of Tenant to be performed or observed.
N. Liability of Tenant. The joint and several liability of Tenant and
any immediate or remote successor in interest of Tenant and the due performance
of the obligations of this Lease on Tenant's part to be performed or observed
shall not be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord extending the time, 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.
O. Listings. The listing of any name other than that of Tenant, whether
on the doors of the Premises or the Building directory, or otherwise, shall not
operate to vest any right or interest in this Lease or in the Premises, nor
shall it be deemed to be the consent of Landlord to any assignment or transfer
of this Lease or to any sublease of the Premises or to the use or occupancy
thereof by others. Any such listing shall constitute a privilege extended by
Landlord, revocable at Landlord's will by notice to Tenant.
P. Exclusive Broker. In the event Tenant desires to sublet the Premises
or assign this Lease, at Landlord's option, Tenant shall designate Landlord, the
then managing agent of the Building or other agent designated by Landlord for a
period of ninety (90) days from the date that Tenant submits a notice to
Landlord of its desire to sublet or assign in accordance with subsection B
above, as Tenant's exclusive agent to effect such sublease or assignment and
shall pay Landlord, the managing agent or such other agent, as the case may be,
a reasonable brokerage commission computed in accordance with the usual rates
charged by Landlord, the managing agent or such other agent.
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Q. Re-entry by Landlord. If Landlord shall recover or come into
possession of the Premises before the date herein fixed for the termination of
this Lease, pursuant to the terms of this Lease, Landlord shall have the right,
at its option, to take over any and all subleases or sublettings of the Premises
or any part thereof made by Tenant and to succeed to all the rights of said
subleases and sublettings or such of them as it may elect to take over. Tenant
hereby expressly assigns and transfers to Landlord such of the subleases and
sublettings as Landlord may elect to take over at the time of such recovery of
possession, such assignment and transfer not to be effective until the
termination of this Lease or re-entry by Landlord hereunder, pursuant to the
terms of this Lease, or if Landlord shall otherwise succeed to Tenant's estate
in the Premises, at which time Tenant shall upon request of Landlord, execute,
acknowledge and deliver to Landlord such further instruments of assignment and
transfer as may be necessary to vest in Landlord the then existing subleases and
sublettings. Every subletting hereunder is subject to the condition and by its
acceptance of and entry into a sublease, each subtenant thereunder shall be
deemed conclusively to have thereby agreed from and after the termination of
this Lease or re-entry by Landlord hereunder, pursuant to the terms of this
Lease, of or if Landlord shall otherwise succeed to Tenant's estate in the
Premises that such subtenant shall waive any right to surrender possession or to
terminate the sublease and, at Landlord's election, such subtenant shall be
bound to Landlord for the balance of the term of such sublease and shall attorn
to and recognize Landlord, as its landlord, under all of the then executory
terms of such sublease, except that Landlord shall not (i) be liable for any
previous act, omission or negligence of Tenant under such sublease, (ii) be
subject to any counterclaim, defense or offset not expressly provided for in
such sublease, which theretofore accrued to such subtenant against Tenant, (iii)
be bound by any previous modification or amendment of such sublease or by any
previous prepayment of more than one (1) month's rent and additional rent which
shall be payable as provided in the sublease, (iv) be obligated to repair the
subleased space or the Building or any part thereof, in the event of total or
substantial total damage beyond such repair as can reasonably be accomplished
from the net proceeds of insurance actually made available to Landlord (unless
the subleased space is all or substantially all of the Premises), (v) be
obligated to repair the subleased space or the Building or any part thereof, in
the event of partial condemnation beyond such repair as can reasonably be
accomplished from the net proceeds of any award actually made available to
Landlord as consequential damages allocable to the part of the subleased space
or the Building not taken (unless the subleased space is all or substantially
all of the Premises) or (vi) be obligated to perform any work in the subleased
space of the Building or to prepare them for occupancy beyond Landlord's
obligations under this Lease, and the subtenant shall execute and deliver to
Landlord any instruments Landlord may reasonably request to evidence and confirm
such attornment. Each subtenant or licensee of Tenant shall be deemed
automatically upon and as a condition of occupying or using the Premises or any
part thereof, to have given a waiver of the type described in and to the extent
and upon the conditions set forth in this Article 12.
R. Reimbursement. Within ten (10) business days after receipt of a bill
therefor, Tenant shall reimburse Landlord for the reasonable costs that may be
incurred by Landlord in connection with any assignment or sublease, including,
without limitation, the costs of making investigations as to the acceptability
of the proposed assignee or subtenant, and reasonable legal costs incurred by
Landlord in connection with the granting of any requested consent.
13. CONDITION OF THE PREMISES.
A. Acceptance by Tenant. Tenant has examined the Premises and agrees to
accept possession of the Premises in the condition and state of repair which
shall exist on the date hereof "as is." Tenant agrees that except for
performance of Landlord's Post-Commencement Core Work, Landlord shall have no
other obligation to perform any work or make any installations in order to
prepare the Premises for Tenant's occupancy. Landlord shall substantially
complete that portion of Landlord's Post- Commencement Core Work consisting of
installation of certain windows located on the second (2nd) floor portion of the
Premises (the "Window Work") by September 30, 1999, as set forth on Schedule B
(with respect to the mezzanine portion of the Premises, Landlord shall clean,
scrape and make such windows fully operable and appear substantially similar to
the new windows that are installed on the second (2nd) floor of the Premises in
the reasonable judgment of Tenant). In the event Landlord fails to substantially
complete the Window Work by November 1, 1999, subject to the terms and
conditions contained in Article 26, Tenant shall be entitled to receive an
abatement of Rent, in the amount equal to one half (_) of one (1) day of Rent
for each day commencing on November 1, 1999 that the Window Work is not
substantially completed until the date that the Window Work is substantially
completed. The taking of possession of the Premises by Tenant shall be
conclusive evidence as against Tenant that, at the time such possession was so
taken, the Premises and the Building were in good and satisfactory condition
(except for latent defects which Tenant must provide notice thereof to Landlord
within twelve (12) months from the Rent Commencement Date) and that Landlord's
Pre-Commencement Core Wor k was substantially completed.
B. Tenant's Initial Alteration. Tenant agrees to perform, or to cause
contractors approved by Landlord to perform, Tenant's Initial Alteration in
accordance with the terms, conditions and provisions contained in this Lease,
including, without limitation, Schedules C, D and E annexed hereto. All of the
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terms, covenants and conditions of Schedules C, D and E are incorporated in this
Lease as if fully set forth at length herein.
14. ACCESS TO PREMISES.
A. Access by Landlord. Tenant shall permit Landlord, Landlord's agents
and public utilities servicing the Building to erect, use, maintain and replace,
concealed ducts, pipes and conduits in and through the Premises. Landlord,
Landlord's agents and/or affiliates, and the holder of any Mortgage shall each
have the right to enter the Premises at all reasonable times upon reasonable
prior notice to Tenant, except in the case of an emergency, to (i) examine the
same, (ii) to show them to prospective purchasers, mortgagees or lessees (during
the last six (6) months of the Term) of the Building or space therein, (iii) to
make such decorations, repairs, replacements, alterations, improvements or
additions as Landlord may deem necessary or desirable to the Premises or to any
other portion of the Building or which Landlord may elect to perform following
Tenant's failure to make repairs or perform any work which Tenant is obligated
to perform under this Lease, (iv) for the purpose of complying with laws,
regulations or other requirements of government authorities and (v) to perform
"Remedial Work" (as defined in Article 40 hereof) after the failure of Tenant to
perform the same in accordance with the terms of this Lease. Landlord shall be
allowed, during the progress of any work in and about the Premises, to take all
necessary material and equipment into and upon the Premises and to store them
within the Premises without the same constituting an eviction or constructive
eviction of Tenant in whole or in part and the Rent shall in nowise abate while
any decorations, repairs, replacements, alterations, improvements or additions
are being made, by reason of loss or interruption of business of Tenant, or
otherwise, provided that Landlord shall endeavor to minimize the adverse effects
on Tenant of any such entry or storage of materials by Landlord in or about the
Premises for any reason, provided, however, Landlord shall have no obligation to
use overtime personnel or pay premium rates in connection with any such work.
During the six (6) months prior to the Expiration Date or the expiration of any
renewal or extended term, Landlord may exhibit the Premises to prospective
tenants thereof. If Tenant shall not be personally present to open and permit an
entry into the Premises, in the event of an emergency, when for any reason an
entry therein shall be necessary, Landlord or Landlord's agents may enter the
same by a master key, or, in the event of an emergency, may forcibly enter the
same, without rendering Landlord or such agents liable therefor (if during such
entry Landlord or Landlord's agents shall accord reasonable care to Tenant's
property), and without in any manner affecting the obligations and covenants of
this Lease. Nothing herein contained, however, shall be deemed or construed to
impose upon Landlord any obligation, responsibility or liability whatsoever, for
the care, supervision or repair of the Building or any part thereof, other than
as herein provided. Notwithstanding anything to the contrary contained herein,
and subject to the imposition of any legal requirements which may be imposed at
the Building, Landlord agrees that the Premises shall not be used as a point of
re-entry from any external fire staircases in the Building.
B. Other Landlord Privileges. Landlord shall have the right at any time,
without the same constituting an actual or constructive eviction and without
incurring any liability to Tenant therefor, to change the arrangement and/or
location of entrances or passageways, doors and doorways, corridors, elevators,
stairs, toilets or other public parts of the Building and to change the name,
number or designation by which the Building is commonly known, provided that (a)
any such change does not deprive Tenant of reasonable access to the Premises,
(b) such change does not materially interfere with Tenant's use and occupancy of
the Premises, and (c) Landlord shall endeavor to minimize the extent and
duration of any interference with the use of the Premises. Landlord shall have
no obligation to use overtime personnel or pay any premium rates in connection
with such work. Tenant acknowledges that Landlord may (but shall have no
obligation to) perform repairs, improvements, alterations and/or substantial
renovation work in and to the public parts of the Building and the mechanical
and other systems serving the Building (which work may include improvements to
the lobby and facade of the Building, which may require that scaffolding and/or
a sidewalk bridge be placed in front of the Building, and the replacement of
window glass, requiring access to the same from within the Premises), provided
that (a) any such change does not deprive Tenant of reasonable access to the
Premises, (b) such change does not materially interfere with Tenant's use and
occupancy of the Premises, and (c) Landlord shall endeavor to minimize the
extent and duration of any interference with the use of the Premises. Landlord
shall have no obligation to use overtime personnel or pay any premium rates in
connection with such work. Landlord shall incur no liability to Tenant, nor
shall Tenant be entitled to any abatement of Rent on account of any noise,
vibration or other disturbance to Tenant's business at the Premises (provided
that Tenant is not denied access thereto) which shall arise out of the
performance by Landlord or other tenants of the aforesaid repairs, alterations,
additions, improvements, alterations and renovations of the Building or any part
thereof and Tenant hereby agrees to release Landlord of and from any claims
(including without limitation, claims arising by reason of loss or interruption
of business) of every kind and nature whatsoever arising under or in connection
therewith. Tenant understands and agrees that all parts (except surfaces facing
the interior of the Premises) of all walls, windows and doors bounding the
Premises (including exterior Building walls, core corridor walls, doors and
entrances), all balconies, terraces and roofs adjacent to the Premises, all
space in or adjacent to the Premises used for shafts, stacks, stairways, chutes,
pipes, conduits, ducts, fan rooms, heating, air cooling, plumbing and other
mechanical facilities, service closets and other Building facilities are not
part of the Premises, and Landlord shall have the use
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thereof, as well as access thereto through the Premises for the purposes of
operation, maintenance, alteration and repair. Landlord, throughout the Term,
shall have free access to any and all mechanical installations of Landlord,
including but not limited to air-cooling, fan, ventilating, machine rooms and
electrical closets.
C. Courtyard Access. Tenant shall permit Landlord and/or certain
maintenance personnel (the "Maintenance Personnel") to enter the Premises in
order to maintain, repair and/or replace certain equipment located in the
courtyard of the Building adjacent to the Premises (the "Courtyard Space").
Tenant hereby agrees that Landlord and the Maintenance Personnel shall be
permitted to enter the Premises in order to access the Courtyard Space and
(except in the case of an emergency where such access shall be permitted in
accordance with the provisions of subsection A above) such access shall be
subject to the following: (i) Landlord shall provide Tenant with reasonable
notice of such access, (ii) such access shall be at reasonable times, (iii) a
Building representative shall accompany the Maintenance Personnel, (iv) a Tenant
representative shall accompany the Maintenance Personnel and Building
representative, (v) entry to the Premises for such purpose shall be made through
the elevator servicing the Premises which is located in the northeast portion of
the Premises, and (vi) Landlord shall use reasonable efforts not to transport
heavy machinery through the Premises during business hours when entering the
Premises for the purposes set forth in this subsection C.
15. CERTIFICATE OF OCCUPANCY . Tenant shall not at any time use or occupy the
Premises in violation of the certificate of occupancy issued or which may be
issued for the Premises or for the Building (providing such certificate of
occupancy does not prohibit Tenant's Permitted Use of the Premises as set forth
in Section IA[xiii]) and in the event that any department of the City or State
of New York shall hereafter at any time contend and/or declare by notice,
violation, order or in any other manner whatsoever that the Premises are used
for a purpose which is a violation of such certificate of occupancy, Tenant
shall, upon five (5) days written notice from Landlord, immediately discontinue
such use of the Premises. Failure by Tenant to discontinue such use after such
notice shall be considered a default in the fulfillment of a covenant of this
Lease and Landlord shall have the right to terminate this Lease immediately, and
in addition thereto shall have the right to exercise any and all rights and
privileges and remedies given to Landlord by and pursuant to the provisions of
Articles 17 and 18 hereof.
16. LANDLORD'S LIABILITY. The obligations of Landlord under this Lease shall not
be binding upon Landlord named herein after the sale, conveyance, assignment or
transfer by such Landlord (or upon any subsequent landlord after the sale,
conveyance, assignment or transfer by such subsequent landlord) of its interest
in the Building or the Real Property, as the case may be, and in the event of
any such sale, conveyance, assignment or transfer, Landlord shall be and hereby
is entirely freed and relieved of all covenants and obligations of Landlord
hereunder, and it shall be deemed and construed without further agreement
between the parties or their successors in interest, or between the parties and
the purchaser, grantee, assignee or other transferee that such purchaser,
grantee, assignee or other transferee has assumed and agreed to carry out any
and all covenants and obligations of Landlord hereunder. Neither the
shareholders, members, directors or officers of Landlord, if Landlord is a
corporation, nor the partners comprising Landlord (nor any of the shareholders,
members, directors or officers of such partners), if Landlord is a partnership
(collectively, the "Parties"), shall be liable for the performance of Landlord's
obligations under this Lease. Tenant shall look solely to Landlord to enforce
Landlord's obligations hereunder and shall not seek any damages against any of
the Parties. The liability of Landlord for Landlord's obligations under this
Lease shall not exceed and shall be limited to Landlord's interest in the
Building and the Real Property (and any refinancing or any sale proceeds) and
Tenant shall not look to or attach any other property or assets of Landlord or
the property or assets of any of the Parties in seeking either to enforce
Landlord's obligations under this Lease or to satisfy a judgment for Landlord's
failure to perform such obligations. In no event shall Landlord (or any of the
officers, trustees, directors, partners, beneficiaries, joint ventures, members,
stockholders or other principals or representatives and the like, disclosed or
undisclosed, thereof) ever be liable for incidental or consequential damages.
17. DEFAULT.
A. Events of Default; Conditions of Limitation. This Lease and the term
and estate hereby granted are subject to the limitations that upon the
occurrence, at any time prior to or during the Term, of any one or more of the
following events (referred to as "Events of Default"):
(i) if Tenant shall default in the payment when due of any
installment of Rent or in the payment when due of any additional rent, and any
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 term, covenant or condition of this Lease on Tenant's part to be observed or
performed (other than the covenants for the payment of Rent and additional rent)
and Tenant shall fail to remedy such default within twenty (20) 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 period of twenty (20)
days and Tenant shall not commence within said
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period of twenty (20) days, or shall not thereafter diligently prosecute to
completion all steps necessary to remedy such default; or
(iii) Intentionally Deleted; or
(iv) if the Premises shall become abandoned; or
(v) if Tenant's interest in this Lease shall devolve upon or
pass to any person, whether by operation of law or otherwise, except as may be
expressly permitted under Article 12 hereof; or
(vi) if this Lease shall be rejected under Section 235 of Title
11 of the U.S. Bankruptcy Code; or
(vii) if any execution or attachment shall be issued against
Tenant or any of Tenant's property pursuant to which the Premises shall be taken
or occupied; then, in any of said cases, at any time prior to or during the
Term, of any one or more of such Events of Default, Landlord, at any time
thereafter, at Landlord's option, may give to Tenant a five (5) days notice of
termination of this Lease and, in the event such notice is given, this Lease and
the Term shall come to an end and expire (whether or not the Term shall have
commenced) upon the expiration of said five (5) days with the same effect as if
the date of expiration of said five (5) days were the Expiration Date, but
Tenant shall remain liable for damages as provided in Article 18 hereof.
B. Effect of Bankruptcy. Anything elsewhere in this Lease to the
contrary notwithstanding, this Lease may be canceled by Landlord by sending of a
written notice to Tenant within a reasonable time after the happening of any one
or more of the following events: (i) the commencement of a case in bankruptcy or
under the laws of any state naming Tenant as the debtor, provided such case is
not dismissed within ninety (90) days following its commencement; or (ii) the
making by Tenant of any assignment or any other arrangement for the benefit of
creditors under any state statute. Neither Tenant nor any person claiming
through or under Tenant, or by reason of any statute or order of court, shall
thereafter be entitled to possession of the Premises but shall forthwith quit
and surrender the Premises. If this Lease shall have been assigned in accordance
with its terms, the provisions of this Article 17 shall be applicable to any of
the persons or entities primarily or secondarily liable for Tenant's obligations
under this Lease. It is stipulated and agreed that in the event of the
termination of this Lease pursuant to this subsection, Landlord shall forthwith,
notwithstanding any other provisions of this Lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount determined in
accordance with subsection B(i)(c) of Article 18 of this Lease.
C. Conditional Limitation. Nothing contained in this Article 17 shall be
deemed to require Landlord to give the notices herein provided for prior to the
commencement of a summary proceeding for non-payment of rent or a plenary action
for recovery of rent on account of any default in the payment of the same, it
being intended that such notices are for the sole purpose of creating a
conditional limitation hereunder pursuant to which this Lease shall terminate
and if Tenant thereafter remains in possession after such termination, Tenant
shall do so as a holdover tenant.
18. REMEDIES AND DAMAGES.
A. Landlord's Remedies. (i) If Tenant shall default, beyond any
applicable notice and cure periods, in the payment when due of any installment
of Rent or in the payment when due of any additional rent, or if any execution
or attachment shall be issued against Tenant or any of Tenant's property
whereupon the Premises shall be taken or occupied or attempted to be taken or
occupied by someone other than Tenant, or if this Lease and the Term shall
expire and come to an end as provided in Article 17:
(a) Landlord and its agents and servants may immediately, or at
any time after such default, beyond any applicable notice and cure periods, or
after the date upon which this Lease and the Term shall expire and come to an
end, re-enter the Premises or any part thereof, either by summary proceedings,
or by any other applicable action or proceeding, (without being liable to
indictment, prosecution or damages therefor), and may repossess the Premises and
dispossess Tenant and any other persons from the Premises and remove any and all
of their property and effects from the Premises; and
(b) Landlord, at Landlord's option, may relet the whole or any
part or parts of the Premises from time to time, either in the name of Landlord
or otherwise, to such tenant or tenants, for such term or terms ending before,
on or after the Expiration Date, at such rental or rentals and upon such other
conditions, which may include concessions and free rent periods, as Landlord, in
its sole discretion, may determine. Landlord shall have no obligation to relet
the Premises or any part thereof and shall in no event be liable for refusal or
failure to relet the Premises or any part thereof, or, in the event of any such
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reletting, for refusal or failure to collect any rent due upon any such
reletting, and no such refusal or failure shall operate to relieve Tenant of any
liability under this Lease or otherwise to affect any such liability; Landlord,
at Landlord's option, may make such repairs, replacements, alterations,
additions, improvements, decorations and other physical changes in and to the
Premises as Landlord, in its sole discretion, considers advisable or necessary
in connection with any such reletting or proposed reletting, without relieving
Tenant of any liability under this Lease or otherwise affecting any such
liability. Notwithstanding the foregoing, Landlord shall use commercially
reasonable efforts to collect rent due and payable from such immediately
successive tenant of the Premises, or any portion of the Premises, provided,
however, such reasonable commercial efforts shall not require Landlord to expend
more than Ten Thousand and 00/100 ($10,000.00) Dollars in attorney's fees in
connection with its efforts to collect such rent.
(ii) Tenant hereby waives the service of any notice of intention
to re-enter or to institute legal proceedings to that end which may otherwise be
required to be given under any present or future law. Tenant, on its own behalf
and on behalf of all persons claiming through or under Tenant, including all
creditors, does further hereby waive any and all rights which Tenant and all
such persons might otherwise have under any present or future law to redeem the
Premises, or to re-enter or repossess the Premises, or to restore the opera