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EXHIBIT 10.4
ADVANCE MAGAZINE PUBLISHERS INC.,
Landlord
TO
CAMINUS CORPORATION,
Tenant
LEASE
Dated as of September 13, 2000
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TABLE OF CONTENTS
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ARTICLE 1 PREMISES; TERM; USE........................................... 1
1.01 DEMISE............................................................ 1
1.02 TERM.............................................................. 1
1.03 COMMENCEMENT DATE................................................. 1
1.04 USE............................................................... 2
ARTICLE 2 RENT.......................................................... 3
2.01 RENT.............................................................. 3
2.02 FIXED RENT........................................................ 3
2.03 ADDITIONAL RENT................................................... 3
2.04 TAX PAYMENTS...................................................... 4
2.05 WAGE INCREASE CHARGE.............................................. 5
2.06 TAX PROVISIONS.................................................... 7
2.07 ELECTRIC CHARGES.................................................. 8
2.08 MANNER OF PAYMENT................................................. 9
2.09 SECURITY; GUARANTY................................................ 9
ARTICLE 3 SERVICES...................................................... 11
3.01 SERVICES.......................................................... 11
3.02 SERVICE INTERRUPTIONS............................................. 13
3.03 SUPPLEMENTAL AIR CONDITIONING..................................... 14
3.04 LANDLORD'S CONTRIBUTION........................................... 15
ARTICLE 4 LEASEHOLD IMPROVEMENTS; TENANT COVENANTS...................... 16
4.01 INITIAL IMPROVEMENTS.............................................. 16
4.02 ALTERATIONS....................................................... 17
4.03 LANDLORD'S AND TENANT'S PROPERTY.................................. 20
4.04 ACCESS AND CHANGES TO BUILDING.................................... 20
4.05 MAINTENANCE OF PREMISES........................................... 22
4.06 COMPLIANCE WITH LAWS.............................................. 22
4.07 TENANT ADVERTISING................................................ 23
4.08 RIGHT TO PERFORM TENANT COVENANTS................................. 23
ARTICLE 5 ASSIGNMENT AND SUBLETTING..................................... 23
5.01 ASSIGNMENT; ETC................................................... 23
5.02 LANDLORD'S RIGHT OF FIRST OFFER................................... 24
5.03 ASSIGNMENT AND SUBLETTING PROCEDURES.............................. 26
5.04 GENERAL PROVISIONS................................................ 27
5.05 ASSIGNMENT AND SUBLEASE PROFITS................................... 28
ARTICLE 6 SUBORDINATION; DEFAULT; INDEMNITY............................. 29
6.01 SUBORDINATION..................................................... 29
6.02 ESTOPPEL CERTIFICATE.............................................. 31
6.03 DEFAULT........................................................... 32
6.04 RE-ENTRY BY LANDLORD.............................................. 32
6.05 DAMAGES........................................................... 33
6.06 OTHER REMEDIES.................................................... 34
6.07 RIGHT TO INJUNCTION............................................... 34
6.08 CERTAIN WAIVERS................................................... 34
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6.09 NO WAIVER......................................................... 34
6.10 HOLDING OVER...................................................... 34
6.11 ATTORNEYS' FEES................................................... 35
6.12 NONLIABILITY AND INDEMNIFICATION.................................. 35
ARTICLE 7 INSURANCE; CASUALTY; CONDEMNATION............................. 36
7.01 COMPLIANCE WITH INSURANCE STANDARDS............................... 36
7.02 INSURANCE......................................................... 36
7.03 SUBROGATION WAIVER................................................ 37
7.04 CONDEMNATION...................................................... 37
7.05 CASUALTY.......................................................... 39
ARTICLE 8 MISCELLANEOUS PROVISIONS...................................... 40
8.01 NOTICE............................................................ 40
8.02 BUILDING RULES.................................................... 41
8.03 SEVERABILITY...................................................... 41
8.04 CERTAIN DEFINITIONS............................................... 41
8.05 QUIET ENJOYMENT................................................... 41
8.06 LIMITATION OF LANDLORD'S PERSONAL LIABILITY....................... 42
8.07 COUNTERCLAIMS..................................................... 42
8.08 SURVIVAL.......................................................... 42
8.09 CERTAIN REMEDIES.................................................. 42
8.10 NO OFFER.......................................................... 43
8.11 CAPTIONS; CONSTRUCTION............................................ 43
8.12 AMENDMENTS........................................................ 43
8.13 BROKER............................................................ 43
8.14 MERGER............................................................ 44
8.15 SUCCESSORS........................................................ 44
8.16 APPLICABLE LAW.................................................... 44
8.17 NO DEVELOPMENT RIGHTS............................................. 44
8.18 CONDOMINIUM....................................................... 44
8.19 THIS LEASE IS A SUBLEASE.......................................... 44
8.20 SIGNAGE........................................................... 45
ARTICLE 9 RENEWAL RIGHT................................................. 45
9.01 RENEWAL RIGHT..................................................... 45
9.02 RENEWAL RENT AND OTHER TERMS...................................... 46
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EXHIBITS
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A Description of Land
B Premises Floor Plan
C Building Rules and Regulations
D Standard Cleaning Specifications
E HVAC Specifications
F Form of Non-Disturbance Agreement
G Lobby/Elevator Renderings
H Form of Letter of Credit
I ACP-5 Certificates
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INDEX OF DEFINED TERMS
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Definition Where Defined
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Acceptance Notice.............................................. Section 1.06
Additional Rent................................................ Section 2.03
Affiliate...................................................... Section 5.01
Alterations.................................................... Section 4.02
Annual Rent.................................................... Section 9.02
Assignment Consideration....................................... Section 5.05
Base Rate...................................................... Section 2.08
Base Tax Amount................................................ Section 2.04
Base Wage Rate................................................. Section 2.05
Benefit Period................................................. Section 2.04
Broker......................................................... Section 8.13
Building....................................................... Recitals
Business Days.................................................. Section 3.01
Business Hours................................................. Section 3.01
Casualty....................................................... Section 7.05
Communications Areas........................................... Section 8.20
Communications Equipment....................................... Section 8.20
Commencement Date.............................................. Section 1.03
Curing Party................................................... Section 4.08
Expiration Date................................................ Section 1.02
Fair Market Rent............................................... Section 9.02
Fixed Rent..................................................... Section 2.02
Fixtures....................................................... Section 4.03
HVAC Area...................................................... Section 8.20
HVAC Equipment................................................. Section 8.20
HVAC Unit...................................................... Section 3.03
Improvements and Betterments................................... Section 4.03
Indemnified Party.............................................. Section 6.12
Initial Tenant Work............................................ Section 3.04
Interest Rate.................................................. Section 2.08
KW............................................................. Section 2.07
KWHR........................................................... Section 2.07
Land........................................................... Recitals
Landlord....................................................... Introduction
Landlord Services.............................................. Section 3.01
Landlord's Determination....................................... Section 9.02
Landlord's Notice.............................................. Section 9.02
Landlord's Rate................................................ Section 2.07
Laws........................................................... Section 4.06
LC Date........................................................ Section 2.09
Letter of Credit............................................... Section 2.09
Local 32B-32J.................................................. Section 2.05
Material Alteration............................................ Section 4.01
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Definition Where Defined
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Multiplication Factor.......................................... Section 2.05
New Tenant..................................................... Section 6.10
Non-Disturbance Agreement...................................... Section 6.01
Notice......................................................... Section 8.01
Occupancy Date................................................. Section 3.01
Other Sublease Considerations.................................. Section 5.05
Porters........................................................ Section 2.05
Premises....................................................... Section 1.01
Prime Lease.................................................... Section 8.19
Prime Lessor................................................... Section 8.19
Pro Rata Installments.......................................... Section 3.04
Pro Rata Percentage............................................ Section 3.04
Pylon.......................................................... Section 8.20
Project........................................................ Recitals
Realty Advisory Board.......................................... Section 2.05
Renewal Notice................................................. Section 9.01
Renewal Option................................................. Section 9.01
Renewal Term................................................... Section 9.01
Rent........................................................... Section 2.01
Rent Notice.................................................... Section 9.02
Rent Commencement Date......................................... Section 2.02
Successor Landlord............................................. Section 6.01
Superior Lease................................................. Section 6.01
Superior Lessor................................................ Section 6.01
Superior Mortgage.............................................. Section 6.01
Superior Mortgagee............................................. Section 6.01
Tax Payment.................................................... Section 2.04
Tax Year....................................................... Section 2.04
Taxes.......................................................... Section 2.04
Tenant......................................................... Introduction
Tenant's Basic Cost............................................ Section 5.05
Tenant's Notice................................................ Section 9.02
Tenant's Property.............................................. Section 4.03
Tenant's Sign.................................................. Section 8.20
Tenant's Share................................................. Section 2.04
Term........................................................... Section 1.02
Unavoidable Delays............................................. Section 1.03
Wage Increase Charge........................................... Section 2.05
Wage Rate...................................................... Section 2.05
Work Allowance................................................. Section 3.04
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LEASE, dated as of September 13, 2000, between ADVANCE MAGAZINE
PUBLISHERS INC. ("Landlord"), a Delaware corporation whose address is Four Times
Square, New York, New York 10036 and CAMINUS CORPORATION ("Tenant"), a Delaware
corporation, whose address is 747 Third Avenue, New York, New York.
W I T N E S S E T H:
WHEREAS, Landlord is willing to lease to Tenant and Tenant is
willing to hire from Landlord, on the terms hereinafter set forth, certain space
in the office building located at 825 Third Avenue, New York, New York (a/k/a
201 East 50th Street, New York, NY) (the "Building") on the land more
particularly described in Exhibit A (the "Land"; the Land and the Building and
all plazas, sidewalks and curbs adjacent thereto are collectively called the
"Project").
NOW, THEREFORE, Landlord and Tenant agree as follows:
ARTICLE 1
PREMISES; TERM; USE
1.01 DEMISE. (a) Landlord hereby leases to Tenant and Tenant hereby
hires from Landlord, subject to the terms and conditions of this Lease, the
entire 27th and 28th floors of the Building (the "Premises") substantially as
shown on Exhibit B attached hereto.
(b) Landlord and Tenant confirm that the Premises shall conclusively
be deemed to contain for all purposes 22,290 rentable square feet.
1.02 TERM. The term of this Lease (the "Term") shall commence on the
Commencement Date and shall end, unless sooner terminated as herein provided, on
the last day of the calendar month in which occurs the 10th anniversary of the
day preceding the Rent Commencement Date (such date, as the same may be extended
pursuant to Article 9, is called the "Expiration Date").
1.03 COMMENCEMENT DATE. (a) "Commencement Date" means the date on
which Landlord delivers possession of the Premises to Tenant vacant, broom clean
and in its as-is condition.
(b) Landlord shall give Tenant at least 10 days prior written notice
of the Commencement Date; provided however, that if Landlord gives such notice
and the Commencement Date shall not occur within thirty (30) days after the date
specified by Landlord therein, Landlord shall have no liability therefor, but
Landlord shall give Tenant at least 10 days prior written notice of the revised
anticipated Commencement Date and the provisions of this paragraph (b) shall
then again apply if the Commencement Date shall not occur on the date specified
by Landlord in any such notice so that Tenant receives ten (10) days notice
thereof.
(c) After the occurrence of the Commencement Date and Landlord has
so advised Tenant, Landlord and Tenant shall promptly confirm the Commencement
Date, the Rent Commencement Date and the Expiration Date by a separate
instrument; provided, that the failure
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to execute and deliver such instrument shall not affect the determination of
such dates in accordance with this Article 1. Pending the resolution of any
dispute as to the Commencement Date and/or the Rent Commencement Date, Tenant
shall pay Rent based upon Landlord's determination. If such dispute is resolved
in Tenant's favor and Tenant has overpaid Rent to Landlord, such overpayment
shall be promptly returned to Tenant, together with interest thereon at the Base
Rate.
(d) If for any reason Landlord shall be unable to deliver possession
of the Premises to Tenant on any date specified in this Lease for such delivery,
Landlord shall have no liability to Tenant therefor and the validity of this
Lease shall not be impaired, nor shall the Term be extended, by reason thereof.
Notwithstanding the foregoing, if the Commencement Date has not occurred as of
November 1, 2000 (subject to extension by up to thirty (30) days for Unavoidable
Delays), then the Rent Commencement Date shall be delayed one (1) additional day
for each day beyond the day on which it would have otherwise occurred pursuant
to the terms hereof. If the Commencement Date has not occurred as of March 1,
2001 (subject to extension by up to thirty (30) days for Unavoidable Delays),
Tenant shall be permitted to terminate this Lease by giving Landlord thirty (30)
days written notice thereof, and this Lease shall terminate on such thirtieth
day and Tenant shall have no further rights and Landlord shall have no further
obligations hereunder except that Landlord shall return to Tenant any Fixed Rent
paid by Tenant prior to the date of such termination and Landlord shall return
the Letter of Credit to Tenant as if such termination date were the LC Date.
"Unavoidable Delays" means strikes, labor troubles, accidents, governmental
preemption in connection with a national emergency, Laws, delay caused by
Tenant, conditions of supply and demand which have been or are affected by war,
other emergency, fire or other casualty, acts of God or any other cause beyond
Landlord's reasonable control. This Section 1.03 shall be an express provision
to the contrary for purposes of Section 223-a of the New York Real Property Law
and any other law of like import now or hereafter in effect.
1.04 USE. The Premises shall be used and occupied by Tenant (and its
permitted subtenants) solely as general and executive offices (including such
ancillary uses in connection therewith as shall be reasonably required by Tenant
in the operation of its business); provided, that in no event shall the Premises
be used for any of the following: (a) offices or agencies of a government or
political subdivisions thereof or any other body having or asserting sovereign
immunity, (b) offices of any governmental bureau or agency of any government or
any state or any political subdivision thereof, (c) offices of any public
utility company (other than executive offices which do not service the general
public), (d) data processing activities (other than those ancillary to an
otherwise permitted use), (e) health care activities (other than those ancillary
to an otherwise permitted use), (f) schools or other training or educational
uses (other than those ancillary to an otherwise permitted use), (g) clerical
support services (other than those ancillary to an otherwise permitted use), (h)
reservation centers for airlines or travel agencies, (i) retail or restaurant
use, (j) studios for radio, television or other media; (k) storage (other than
storage ancillary to an otherwise permitted use), (l) personnel agencies, (m)
banking, trust company, or safe deposit business, unless the use is exclusively
for executive offices and not for off-the-street sales to the general public,
(n) savings bank, a savings and loan association, or a loan company, unless the
use is exclusively for executive offices and not for off-the-street sales to the
general public, (o) sale of travelers' checks and/or foreign exchange, unless
the use is exclusively for executive offices and not for off-the-street sales to
the general public, (p) stock
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brokerage office for stock brokerage purposes, unless the use is exclusively for
executive offices and not for off-the-street sales to the general public or (q)
manufacturing of goods. Subject to the other provisions of this Lease, the
Premises shall not be used for any purpose which would tend to lower the first
class character of the Building, create unreasonable or excessive elevator or
floor loads, impair or interfere with any of the Building operations or the
proper and economic heating, ventilation, air-conditioning, cleaning or other
servicing of the Building, constitute a public or private nuisance, interfere
with, annoy or disturb the use of the other areas of the Building by any other
tenants, or impair the appearance of the Building or violate Article 5 of the
Prime Lease.
ARTICLE 2
RENT
2.01 RENT. "Rent" shall consist of Fixed Rent and Additional Rent.
2.02 FIXED RENT. The fixed rent ("Fixed Rent") shall be payable as
follows:
(a) Subject to Sections 2.02(b) below, with respect to the Premises
demised to Tenant under Section 1.01 above:
(i) for the period commencing on the Commencement Date and
ending on the day immediately preceding the 5th anniversary of the Commencement
Date, at the rate of $52.00 per rentable square foot of Premises per annum
(which, based on the agreed upon rentable square footage of the Premises
initially demised under this Lease of 22,290 rentable square feet, is equal to
$1,159,080.00 per annum), payable in equal monthly installments of $96,590.00
and
(ii) for the period commencing on the 5th anniversary of the
Commencement Date and ending on the Expiration Date at the rate of $57.00 per
rentable square foot per annum (which, based on the agreed upon rentable square
footage of the Premises initially demised under this Lease of 22,290 rentable
square feet is equal to $1,270.530.00 per annum), payable in equal monthly
installments of $105,877.50.
(b) Fixed Rent shall be payable in advance on the Rent Commencement
Date and on the first day of each calendar month thereafter throughout the Term,
provided, that Tenant shall pay upon the execution and delivery of this Lease by
Tenant $96,590.00 to be applied against the first full monthly installment of
Fixed Rent; and provided further, that if the Rent Commencement Date is not the
first day of a month, then Fixed Rent for the month in which the Rent
Commencement Date occurs shall be prorated and paid in arrears on the first day
of the month following the month in which the Rent Commencement Date occurred.
"Rent Commencement Date" means January 14, 2001.
2.03 ADDITIONAL RENT. "Additional Rent" means Tax Payments, Wage
Increase Payments and all other sums of money, other than Fixed Rent, at any
time payable by Tenant to Landlord under this Lease, all of which Additional
Rent shall be deemed to be rent.
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2.04 TAX PAYMENTS. (a) "Base Tax Amount" means the Taxes (excluding
any amounts described in Section 2.04(b)(iii)) for the Tax Year commencing on
July 1, 2000, as finally determined.
(b) "Taxes" means (i) the real estate taxes, vault taxes,
assessments, business improvement district assessments and special assessments
levied, assessed or imposed upon or with respect to the Project by any federal,
state, municipal or other government or governmental body or authority, (ii) all
taxes assessed or imposed with respect to the rentals payable under this Lease
other than general income and gross receipts taxes; provided, that any such tax
shall exclude Commercial Rent or Occupancy Taxes imposed pursuant to Title 11,
Chapter 7 of the New York City Administrative Code so long as such tax is
required to be paid by tenants directly to the taxing authority and (iii) any
expenses incurred by Landlord in contesting such taxes or assessments and/or the
assessed value of the Project, which expenses shall be allocated to the Tax Year
to which such expenses relate. If at any time the method of taxation shall be
altered so that in lieu of amounts otherwise constituting Taxes or in lieu of an
addition to or as a substitute for, the whole or any part of such real estate
taxes, assessments and special assessments now imposed on real estate, there
shall be levied, assessed or imposed (x) a tax, assessment, levy, imposition,
fee or charge wholly or partially as a capital levy or otherwise on the rents
received therefrom, or (y) any other such substitute tax, assessment, levy,
imposition, fee or charge, including without limitation, business improvement
district and transportation taxes, fees and assessments, then all such taxes,
assessments, levies, impositions, fees or charges or the part thereof so
measured or based shall be included in "Taxes". "Taxes" shall not include any
franchise, capital stock, transfer, income or gross receipts tax.
(c) "Tax Year" means each period of 12 months, commencing on the
first day of July of each such period, in which occurs any part of the Term, or
such other period of 12 months occurring during the Term as hereafter may be
adopted as the fiscal year for real estate tax purposes of the City of New York.
(d) "Tenant's Share" is conclusively deemed to mean 4.45% (which is
based upon the rentable square footage of the Premises [i.e., initially, 22,290]
divided by the rentable square footage of the Building [i.e., 500,492]), as the
same may be increased to the extent that Tenant leases additional space in the
Building.
(e) If Taxes for any Tax Year, including the Tax Year in which any
Commencement Date occurs, shall exceed the Base Tax Amount, Tenant shall pay to
Landlord (each, a "Tax Payment") Tenant's Share of the amount by which Taxes for
such Tax Year are greater than the Base Tax Amount. If the Commencement Date is
not the same date for all floors of the Premises, then Tenant's Tax Share shall
be equitably adjusted to reflect the portion of the Premises as to which the
Commencement Date has occurred. Landlord may furnish to Tenant, prior to the
commencement of each Tax Year, a statement setting forth Landlord's reasonable
estimate of the Tax Payment for such Tax Year. Tenant shall pay to Landlord on
the first day of each month during such Tax Year, an amount equal to 1/12th of
Landlord's estimate of the Tax Payment for such Tax Year. If Landlord shall not
furnish any such estimate for a Tax Year or if Landlord shall furnish any such
estimate for a Tax Year subsequent to the commencement thereof, then (i) until
the first day of the month following the month in which such estimate is
furnished to Tenant, Tenant shall pay to Landlord on the first day of each month
an amount equal
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to the monthly sum payable by Tenant to Landlord under this Section 2.04(e) in
respect of the last month of the preceding Tax Year; (ii) after such estimate is
furnished to Tenant, Landlord shall notify Tenant whether the installments of
the Tax Payment previously made for such Tax Year were greater or less than the
installments of the Tax Payment to be made in accordance with such estimate, and
(x) if there is a deficiency, Tenant shall pay the amount thereof within 15 days
after demand therefor, or (y) if there is an overpayment, Landlord shall refund
to Tenant the amount thereof; and (iii) on the first day of the month following
the month in which such estimate is furnished to Tenant and monthly thereafter
throughout such Tax Year, Tenant shall pay to Landlord an amount equal to 1/12th
of the Tax Payment shown on such estimate. Landlord may, during each Tax Year,
furnish to Tenant a revised statement of Landlord's estimate of the Tax Payment
for such Tax Year, and in such case, the Tax Payment for such Tax Year shall be
adjusted and paid or refunded as the case may be, substantially in the same
manner as provided in the preceding sentence. After the end of each Tax Year
Landlord shall furnish to Tenant a statement of Tenant's Tax Payment for such
Tax Year (and shall endeavor to do so within 180 days after the end of each Tax
Year). If such statement shall show that the sums paid by Tenant, if any, under
Section 2.04(e) exceeded the Tax Payment to be paid by Tenant for the applicable
Tax Year, Landlord shall refund to Tenant the amount of such excess (and, in any
case where the amount of such excess is more than 5% over the amount actually
due, together with interest thereon at the Base Rate from the date paid by
Tenant until the date refunded by Landlord); and if such statement shall show
that the sums so paid by Tenant were less than the Tax Payment to be paid by
Tenant for such Tax Year, Tenant shall pay the amount of such deficiency within
15 days after demand therefor. If there shall be any increase in the Taxes for
any Tax Year, whether during or after such Tax Year, or if there shall be any
decrease in the Taxes for any Tax Year, the Tax Payment for such Tax Year shall
be appropriately adjusted and paid or refunded, as the case may be, in
accordance herewith. In no event, however, shall Taxes be reduced below the Base
Tax Amount.
(f) If Landlord shall receive a refund of Taxes for any Tax Year in
which Taxes exceeded the Base Tax Amount, Landlord shall pay to Tenant, within
30 days of Landlord's receipt thereof, Tenant's Share of the net refund (after
deducting from such refund the costs and expenses of obtaining the same,
including, without limitation, appraisal, accounting and legal fees, to the
extent that such costs and expenses were not included in the Taxes for such Tax
Year); provided, that such payment to Tenant shall in no event exceed Tenant's
Tax Payment paid for such Tax Year. Tenant's right to receive a refund under
this Section 2.04(f) shall survive the expiration or earlier termination of this
Lease.
(g) If the Taxes comprising the Base Tax Amount are reduced as a
result of an appropriate proceeding or otherwise, the Taxes as so reduced shall
for all purposes be deemed to be the Base Tax Amount and Landlord shall notify
Tenant of the amount by which the Tax Payments previously made were less than
the Tax Payments required to be made under this Section 2.04 and Tenant shall
pay the deficiency within 30 days after demand therefor.
2.05 WAGE INCREASE CHARGE. (a) "Base Wage Rate" shall mean the Wage
Rate in effect on January 1, 2000.
(b) "Wage Rate" means the full minimum regular hourly rate of wages,
excluding all fringe benefits, in effect as of January 1st of each year during
the Term (whether
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paid by Landlord or any contractor employed by Landlord) computed as paid over a
forty (40) hour week to Porters in Class A office buildings pursuant to an
Agreement between The Realty Advisory Board on Labor Relations, Incorporated, or
any successor thereto ("Realty Advisory Board"), and Local 32B-32J of the
Building Service Employees International Union ("Local 32B-32J"), AFL-CIO, or
any successor thereto; provided, however, that if there is no such agreement in
effect prescribing a wage rate for Porters, computations and payments shall
thereupon be made upon the basis of the regular hourly wage rate actually
payable to Porters by Landlord or by Landlord's service contractors over a forty
(40) hour week, in effect as of January 1st of each year during the Term (with
an appropriate adjustment made if and when an agreement is in effect), and
provided, however, that if in any year during the Term the regular employment of
Porters shall occur on days or during hours which overtime or other premium pay
rates are in effect pursuant to such Agreement, then the term "hourly rate of
wages" as used herein shall be deemed to mean the average hourly rate for the
hours in a calendar week during which Porters are regularly employed (e.g., if
pursuant to an agreement between Realty Advisory Board and Local 32B-32J the
regular employment of Porters for forty hours during a calendar week is at a
regular hourly wage rate of $15.00 for the first thirty hours, and premium or
overtime hourly wage rate of $22.50 for the remaining ten hours, then the hourly
rate of wages under this Article during such period shall be total weekly rate
of $675.00 divided by the total number of regular hours of employment, forty, or
$16.875).
(c) The term "Porters" means that classification of non-supervisory
employees in and about the Building who devote a major portion of their time to
general cleaning, maintenance and miscellaneous services essentially of a
non-technical and non-mechanical nature and are the type of employees who are
presently included in the classification of "Class A-Others" in the Commercial
Building Agreement between the Realty Advisory Board and Local 32-B-32J.
(d) "Multiplication Factor" shall mean the product obtained by
multiplying the area of the Premises (which, for the purposes of this Article,
the parties have agreed shall be 22,290 rentable square feet) by one (1).
(e) If the Wage Rate for any calendar year during the Term shall be
greater than the Base Wage Rate, then Tenant shall pay, as additional rent, an
amount (the "Wage Increase Charge") equal to the product obtained by multiplying
the Multiplication Factor by the number of cents (including any fraction of a
cent) by which the Wage Rate is greater than the Base Wage Rate, such payment to
be made in equal monthly installments commencing with the first monthly
installments of Fixed Rent falling due on or after the effective date of such
increase in Wage Rate (payable retroactive from said effective date) and
continuing thereafter until a new adjustment shall have become effective in
accordance with the provisions of this Section 2.05. Landlord shall give Tenant
notice of each change in Wage Rate that will be effective to create or change
Tenant's obligation to pay the Wage Increase Charge pursuant to the provisions
of this Article, which notice shall contain Landlord's calculation of the Wage
Increase Charge payable resulting from such increase in Wage Rate. The Wage
Increase Charge shall be prorated, if necessary, to correspond with that portion
of a calendar year occurring within the Term. Such notice shall be served in
accordance with the terms of this Lease and shall be accompanied by such
information as shall be reasonably necessary for Tenant to evaluate the accuracy
thereof.
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(f) Every notice given by Landlord pursuant to subsection (e) of
this Section 2.05 shall be conclusive and binding upon Tenant unless (i) within
sixty (60) days after the receipt of such notice, Tenant shall notify Landlord
that it disputes the correctness of the notice, specifying the particular
respects in which the notice is claimed to be incorrect and (ii) if such dispute
shall not have been settled by agreement, Tenant shall submit the dispute to
binding arbitration before the American Arbitration Association in the City of
New York, County of New York, at Tenant's sole cost and expense (unless the
arbiter determines that Tenant has overpaid Landlord by more than 5% in which
case the cost of the arbitration shall be borne by Landlord), within one hundred
twenty (120) days after receipt of the notice. Pending the determination of such
dispute, Tenant shall pay the Wage Increase Charge in accordance with Landlord's
notice without prejudice to Tenant's position of such dispute. In the event such
dispute shall be determined in Tenant's favor, Landlord shall, on demand, pay
Tenant the amount so overpaid by Tenant (and, in any case where the amount of
such excess is more than 5% over the amount actually due, together with interest
thereon at the Base Rate from the date paid by Tenant until the date refunded by
Landlord).
(g) The Wage Rate is intended to be a substitute comparative index
of economic costs and inflationary pressures and does not necessarily reflect
the actual costs of wages or other expenses of operating the Building. The Wage
Rate shall be used whether or not the Building is a Class A office building,
whether or not Porters are employed in the Building and without regard to
whether such employees are members of the union referred to in subsection (b) of
this Section 2.05.
2.06 TAX PROVISIONS. (a) In any case provided in Section 2.04 in
which Tenant is entitled to a refund, Landlord may, in lieu of making such
refund, credit against the next succeeding installment of Rent after Landlord
was obligated to make such refund any amounts to which Tenant shall be entitled.
Nothing in this Article 2 shall be construed so as to result in a decrease in
the Fixed Rent. If this Lease shall expire before any such credit shall have
been fully applied, then (provided Tenant is not in default under this Lease)
Landlord shall refund to Tenant the unapplied balance of such credit.
(b) Landlord's failure to render or delay in rendering any statement
with respect to any Tax Payment or installment thereof shall not prejudice
Landlord's right to thereafter render such a statement, nor shall the rendering
of a statement for any Tax Payment or installment thereof prejudice Landlord's
right to thereafter render a corrected statement therefor.
(c) Landlord and Tenant confirm that the computations under Section
2.05 of this Article 2 are intended to constitute a formula for agreed rental
escalation and may or may not constitute an actual reimbursement to Landlord for
costs and expenses incurred by Landlord with respect to the Project. If the
Building shall be condominiumized, then Tenant's Tax Payments shall, if
necessary, be equitably adjusted such that Tenant shall thereafter continue to
pay the same share of the Taxes of the Building as Tenant would pay in the
absence of such condominiumization.
(d) Each Tax Payment in respect of a Tax Year, which begins prior to
the Initial Commencement Date or ends after the expiration or earlier
termination of this Lease, and
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any tax refund pursuant to Section 2.04(f), shall be prorated to correspond to
that portion of such Tax Year occurring within the Term.
2.07 ELECTRIC CHARGES. (a) Tenant's demand for, and consumption of,
electricity in the Premises shall be determined by meter or meters (capable of
accepting an output feed) installed (or, if existing, retrofitted) by Landlord
at Landlord's expense. Tenant shall pay for such electric consumption within 15
days after rendition of bills therefor, which bills shall be rendered by or on
behalf of Landlord separately for each meter unless a totalizer is installed. At
Tenant's request and expense, Landlord shall install a totalizer selected by
Landlord in Landlord's sole discretion for the meters measuring the consumption
of electricity in the Premises which shall aggregate the measurement of Tenant's
electric consumption in the Premises. Tenant shall pay for the cost of the
totalizer and the installation thereof (in an amount not to exceed $5,000.00)
within 15 days after rendition of a bill therefor.
(b) The amount payable by Tenant to Landlord per kilowatt
("KW") and kilowatt hour ("KWHR") for electricity consumed within the Premises,
determined pursuant to Section 2.07(a), shall be 103% of the amount (as adjusted
from time to time, "Landlord's Rate") at which Landlord from time to time
purchases each KW and KWHR of electricity for the same period from the utility
company (including all surcharges, taxes, fuel adjustments, taxes passed on to
consumers by the public utility, and other sums payable in respect thereof).
Landlord's Rate shall be determined by dividing the cost charged by said utility
(averaged separately for KW and KWHRs) during each respective billing period by
the number of KWs and KWHRs consumed by the Building as set forth on the utility
company invoice for such period.
(c) If Tenant shall commence Tenant's initial Alterations on
any floor of the Premises prior to the installation of submeters on such floor
of the Premises, then Tenant, in respect of the period commencing on the date
that such initial Alterations are commenced on such floor of the Premises and
ending on the earlier to occur of (i) the date that Tenant takes occupancy of
such floor of the Premises for the normal conduct of Tenant's business, and (ii)
the date upon which such submeters are installed, shall pay to Landlord for
Tenant's use of electricity on such floor of the Premises during such period at
a rate equal to $1.25 per rentable square foot of such floor of the Premises per
annum. If Tenant shall take occupancy of any floor of the Premises for the
normal conduct of Tenant's business prior to the installation of submeters on
such floor of the Premises, then Tenant, in respect of the period commencing on
the date that Tenant shall take such occupancy and ending on the date upon which
such submeters are installed, shall pay to Landlord for Tenant's use of
electricity on such floor of the Premises during such period at a rate equal to
$2.75 per rentable square foot of such floor of the Premises per annum. Any
charge under this Section 2.07(c) shall be paid by Tenant monthly, within 15
days after submission of a bill therefor. Notwithstanding the foregoing,
Landlord shall proceed diligently to install submeters and a totalizer (if
requested by Tenant) to measure and aggregate Tenant's consumption of
electricity in the Premises and in the event Landlord does not install such
meters with respect to any floor of the Premises within 90 days of Tenant taking
possession of such floor and such totalizer upon Tenant taking possession of the
entire Premises, as such dates may be extended by up to 30 days for Unavoidable
Delays, then Tenant may install such meter and totalizer on ten (10) days prior
written notice to Landlord and Landlord shall reimburse Tenant for the
reasonable, actual out-of-pocket cost for the purchase and installation of
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such meter(s) only (and not the totalizer), not to exceed $3,000.00 per floor
for meter(s) on each floor of the Premises on which Tenant has installed meters
pursuant to this Section 2.07(c).
(d) At Landlord's election, exercisable by at least 90 days'
prior notice to Tenant, Landlord may require that Tenant obtain electricity
directly from the public utility company providing electricity to the Building
and (i) if such requirement is due to a change in Laws, Tenant shall pay the
costs of all alterations and installations necessary to obtain such electricity
directly from such public utility company and thereafter shall pay such public
utility company directly for Tenant's consumption of electricity and (ii) if
such requirement is solely at the election of Landlord, Landlord shall pay the
costs of all alterations and installations necessary to obtain such electricity
directly from such public utility company and thereafter Tenant shall pay such
public utility company directly for Tenant's consumption of electricity.
2.08 MANNER OF PAYMENT. Tenant shall pay all Rent as the same shall
become due and payable under this Lease (a) in the case of Fixed Rent and
recurring Additional Rent, by wire transfer of immediately available federal
funds as directed by Landlord, and (b) in the case of all other sums, either by
wire transfer as aforesaid or by check (subject to collection) drawn on a New
York Clearing House Association member bank, in each case at the times provided
herein without notice or demand except as to Additional Rent and without setoff
or counterclaim. All Rent shall be paid in lawful money of the United States to
Landlord at its office or such other place as Landlord may from time to time
designate. If Tenant fails more than two (2) times in any 12-month period to pay
any Rent within three (3) days after the due date therefor, Tenant shall pay
interest on the third and any subsequent late payment in any 12-month period
from the date when such Rent became due to the date of Landlord's receipt
thereof at the Interest Rate; in all other cases interest shall only accrue as
of the fourth day after any such payment became due but such interest shall be
retroactive to the date such payment first became due. "Interest Rate" means the
lesser of (i) the base rate (the "Base Rate") announced from time to time by The
Chase Manhattan Bank (or if The Chase Manhattan Bank shall not exist or shall
cease to announce such rate, such other bank in New York as shall be designated
by Landlord in a notice to Tenant) plus 3% and (ii) the maximum rate permitted
by law. Any Additional Rent for which no due date is specified in this Lease
shall be due and payable on the 30th day after the date of invoice. All bills,
invoices and statements rendered to Tenant with respect to this Lease shall be
binding and conclusive on Tenant unless, within 365 days after receipt of same,
Tenant notifies Landlord that it is disputing same.
2.09 SECURITY; GUARANTY. (a) Tenant has delivered to Landlord, as
security for the performance of Tenant's obligations under this Lease, an
unconditional, irrevocable letter of credit in the amount of $1,738,620.00, in
the form annexed hereto as Exhibit H and issued by a bank satisfactory to
Landlord (the "Letter of Credit"). The Letter of Credit shall provide that it is
assignable by Landlord without charge and shall either (A) expire on the date
which is 60 days after the expiration or earlier termination of this Lease (the
"LC Date") or (B) be automatically self-renewing until the LC Date. If any
Letter of Credit is not renewed at least 30 days prior to the expiration thereof
or if Tenant holds over in the Premises without the consent of Landlord after
the expiration or termination of this Lease, Landlord may draw upon the Letter
of Credit and hold the proceeds thereof as security for the performance of
Tenant's obligations under this Lease. Landlord may draw on the Letter of Credit
(or the proceeds thereof) to the extent necessary to remedy defaults (which
continue beyond applicable notice and grace periods) by
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Tenant in the payment or performance of any of Tenant's obligations under this
Lease. If Landlord shall have so drawn upon the Letter of Credit (or the
proceeds thereof), Tenant shall, within 5 Business Days after demand, deposit
with Landlord a sum equal to the amount so drawn by Landlord.
(b) Tenant shall be entitled to a reduction of the amount of the
Letter of Credit by $289,770.00 on the second (2nd) anniversary of the Rent
Commencement Date, by an additional $289,770.00 on the fourth (4th) anniversary
of the Rent Commencement Date, by an additional $289,770.00 on the sixth (6th)
anniversary of the Rent Commencement Date, and by an additional $289,770.00 on
the eighth (8th) anniversary of the Rent Commencement Date (each, a "Reduction
Date") and each such reduction which is to occur on each such Reduction Date,
subject to the terms hereof, is referred to as a "Reduction Amount"), provided
that (A) Tenant is not then in monetary default under the terms of this Lease
and Tenant is not then in non-monetary default under the terms hereof (which
non-monetary default has continued beyond any applicable notice and/or grace
periods), (B) Tenant has not been in default under this Lease beyond applicable
notice and grace periods more than one (1) time during the 12 month period prior
to such Reduction Date, (C) Landlord has not previously drawn on the Letter of
Credit by reason of any default on the part of Tenant, and (D) in no event shall
the Letter of Credit be reduced to less than $579,540.00. If the foregoing
conditions shall have been satisfied, then Landlord shall consent to a
modification of the Letter of Credit to reduce the amount thereof by the
Reduction Amount (the form and substance of such modification to be reasonably
satisfactory to Landlord) or Tenant may deliver a replacement Letter of Credit
in the amount required to be maintained by Tenant hereunder which is in form and
issued by a bank reasonably satisfactory to Landlord, and which otherwise
satisfies the requirements hereof (and contemporaneously with Landlord's receipt
thereof, Landlord shall return the original Letter of Credit to Tenant).
Notwithstanding the foregoing, but provided that Tenant has satisfied conditions
(A), (B) and (C) above, if, at any time during the Term, Tenant has a net worth
equal to eight (8) times the then annual Fixed Rent and Tenant has maintained
EBITDA reduced for cash payments for debt service at four (4) times the then
annual Fixed Rent for a minimum of the three (3) previous years, then the Letter
of Credit shall be reduced to an amount equal to six (6) months of the then
annual Fixed Rent.
(c) Provided Tenant is not in default under this Lease and Tenant
has surrendered the Premises to Landlord in accordance with all of the terms and
conditions of this Lease, on or before the LC Date: (i) Landlord shall return to
Tenant the Letter of Credit (or the proceeds thereof) then held by Landlord or
(ii) if Landlord shall have drawn upon such Letter of Credit (or the proceeds
thereof) to remedy defaults by Tenant in the payment or performance of any of
Tenant's obligations under this Lease, Landlord shall return to Tenant that
portion, if any, of the proceeds of the Letter of Credit remaining in Landlord's
possession.
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ARTICLE 3
SERVICES
3.01 SERVICES. (a) Landlord shall furnish Tenant with the following
services (collectively, "Landlord Services") from and after the respective dates
set forth in this Section 3.01(a).
(i) From and after the date that Tenant first occupies floors in the
Premises for the conduct of Tenant's business (the "Occupancy Date") heat,
ventilation and air-conditioning to such floors in the Premises during Business
Hours on Business Days substantially in accordance with the design
specifications set forth on Exhibit E attached hereto. If Tenant shall require
heat, ventilation or air conditioning services at any other times, Landlord
shall furnish such service (A) in the case of a Business Day, upon receiving
notice from Tenant by 3:00 p.m. of such Business Day and (B) in the case of a
day other than a Business Day, upon receiving notice from Tenant by 1:00 p.m. of
the immediately preceding Business Day, and Tenant shall pay to Landlord upon
demand Landlord's then established charges for such heat, ventilation and
air-conditioning services which as of the date of this Lease are $150.00 per
hour for one floor ($100.00 per hour for one floor for heat and ventilation
only), $250.00 per hour for two floors ($200.00 per hour for two floors for heat
and ventilation only) and $100.00 per hour per floor for three or more floors
($50.00 per hour per floor for three or more floors for heat and ventilation
only) and shall require a minimum of four hours. Landlord shall provide heat,
ventilation and air conditioning services to Tenant during the period following
the Commencement Date for each floor on substantially the same terms as Landlord
is obligated to provide such services after the Occupancy Date applicable to
each floor on the condition that Tenant shall install and maintain at all times
during the prosecution of Tenant's initial Alterations, an air filtration system
throughout the Premises which shall be reasonably satisfactory to Landlord. In
connection with the utilization of such system, Tenant shall take such action as
Landlord may reasonably request, including, without limitation, replacing the
filters on the return air shafts serving the Premises on a weekly basis in order
to minimize the dust and debris entering the Premises and the Building through
such shafts. In addition, Tenant shall pay, within 15 days after demand, the
cost of any repairs required to the Building systems which Landlord in good
faith determines arise out of dust or debris from the Premises being circulated
to other portions of the Building.
(ii) During the prosecution of Tenant's initial Alterations
and at all times thereafter during the Term, Landlord shall furnish Tenant with
(A) passenger elevator service to each floor of the Premises at all times during
Business Hours on Business Days, with at least one passenger elevator subject to
call at all other times and (B) freight elevator service to the Premises on a
first come-first served basis (i.e., no advance scheduling) during Business
Hours on Business Days, and on a reserved basis at all other times upon the
payment of Landlord's then established charges therefor (which as of the date of
this Lease is $162.00 per hour of use before 6:00 a.m. and after 4:30 p.m.).
Tenant's use of all elevators shall be on a non-exclusive basis and Landlord
agrees that during the Term, except by reason of condemnation, Landlord shall
not voluntarily and permanently reduce the number of passenger elevators
available for Tenant's use (i.e., four (4) passenger elevators).
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(iii) During the prosecution of Tenant's initial Alterations
and at all times thereafter during the Term, reasonable quantities of cold water
(and warm water to the lavatories) to the floor(s) on which the Premises are
located for lavatories, pantries (provided the same do not contain dishwashers)
and cleaning purposes only. If Tenant requires water for any other purpose
(including without limitation, any kitchen within the Premises), Landlord shall
furnish cold water and the cost of heating such water, if applicable, as well as
the cost of piping and supplying such water to the Premises, shall be paid by
Tenant. Landlord may install and maintain, at Tenant's expense, meters to
measure Tenant's consumption of cold water and/or hot water for such other
purposes in which event Tenant shall reimburse Landlord for the quantities of
cold water and hot water shown on such meters (including Landlord's standard
charge for the production of such hot water, if produced by Landlord), within 15
days after demand.
(iv) During the prosecution of Tenant's initial Alterations,
electric energy pursuant to Section 2.07(c), and at all times thereafter during
the Term, electric energy, at a level of 5.75 watts demand load per usable
square foot of the Premises (exclusive of electric energy for the base building
heating, ventilation and air conditioning system) on a submetered basis through
presently installed electric facilities for Tenant's reasonable use of lighting
and other electrical fixtures, appliances and equipment. In no event shall
Tenant's consumption of electricity exceed the capacity of existing feeders to
the Building or the risers or wiring serving the Premises, nor, except as
provided in Section 3.01(c) below, shall Tenant be entitled to any unallocated
power available in the Building.
(v) From and after the Occupancy Date, cleaning services for
the Premises in accordance with Exhibit D attached hereto. Tenant shall pay to
Landlord within 15 days after demand the costs incurred by Landlord for (A)
extra cleaning work in the Premises requested by Tenant or if required because
of (w) carelessness, indifference, misuse or neglect on the part of Tenant, its
subtenants or their respective employees or visitors, (x) interior glass
partitions or an unusual quantity of interior glass surfaces, (y) non-building
standard materials or finishes installed in the Premises and/or (z) the use of
the Premises other than during Business Hours on Business Days, and (B) removal
from the Premises and the Building of any refuse of Tenant in excess of that
ordinarily accumulated in business office occupancy, including, without
limitation, kitchen refuse, or at times other than Landlord's standard cleaning
times. Notwithstanding the foregoing, Landlord shall not be required to clean
any portions of the Premises used for preparation, serving or consumption of
food or beverages, training rooms, trading floors, data processing or
reproducing operations, private lavatories or toilets or other special purposes
requiring greater or more difficult cleaning work than office areas and Tenant
shall retain Landlord's cleaning contractor to perform such cleaning at Tenant's
expense. Landlord's cleaning contractor shall have access to the Premises after
6:00 p.m. and before 8:00 a.m. and shall have the right to use, without charge
therefor, all light, power and water in the Premises reasonably required to
clean the Premises. Notwithstanding the foregoing, Tenant shall be permitted to
use Tenant's own personnel to perform routine cleaning tasks in the Premises.
(vi) During the prosecution of Tenant's initial Alterations
and at all times thereafter during the Term, access to the Building 7 days per
week, 24 hours per day.
(vii) During the prosecution of Tenant's initial Alterations
and at all times thereafter during the Term, an attended lobby, in the Building,
7 days per week, 24 hours
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per day; provided, that Landlord shall have no responsibility to prevent, and
Landlord shall have no liability to Tenant (or anyone claiming under or through
Tenant) for, loss to Tenant (or such other person), or their agents,
contractors, employees, invitees or licensees, arising out of theft, burglary or
damage or injury to persons or property caused by persons gaining access to the
Building or other causes.
(viii) During the prosecution of Tenant's initial Alterations
and at all times thereafter during the Term, to the extent required by
applicable Laws, Landlord shall maintain a code compliant Class E system for the
Building (it being agreed and understood that Tenant shall maintain Tenant's
Class E system within the Premises, using a contractor designated by Landlord,
from the on floor connection point of the Building's Class E system).
(b) At the request of Tenant, Landlord shall list in the Building's
directory (i) the name of Tenant, (ii) any trade name under which Tenant has the
right to operate, (iii) the name of any permitted subtenant or any permitted
assignee occupying the Premises pursuant to this Lease and, at Tenant's
election, (iv) the names of employees, departments and/or divisions of Tenant
occupying the Premises pursuant to this Lease. Tenant shall have a number of
listings in the Building's directory equal to the Tenant's Share of the total
number of listing spaces/slots in the Building's directory.
(c) If at any time Tenant shall reasonably require electric power in
excess of the electric power then being furnished to the Premises, Tenant may
notify Landlord thereof, which notice shall specify the additional amount of
electric power that Tenant requests be made available to Tenant. Landlord, in
Landlord's sole, but good faith, judgment (taking into consideration the
potential needs of present and future tenants of the Building and the Building
itself) shall determine if the same is available through the existing Building
facilities and, if and to the extent the same is so available, Landlord shall
furnish same to Tenant. Any work required to bring such additional electrical
power to the Premises and to make it usable by Tenant, shall be performed by
Tenant, at Tenant's expense. If, in Landlord's sole, but good faith, judgment,
Tenant's requirements for additional electricity shall necessitate installation
of an additional riser, risers or other proper and necessary equipment in the
Building, and, in Landlord's sole, but good faith, judgment such installation
shall be feasible, the same shall, at Tenant's request be installed by Landlord
and the cost thereof (or the pro rata portion thereof, if such capacity is in
excess of that being provided to Tenant) shall be paid by Tenant. If, in
Landlord's sole, but good faith, judgment, Tenant's requirements for additional
electric power shall necessitate the installation of an additional riser, risers
or other proper and necessary equipment and, in Landlord's sole, but good faith,
judgment, such installation in the Building (other then the Premises) shall not
be feasible, but such additional riser, risers or other proper and necessary
equipment can be installed in the Premises, then the same may be installed by
Tenant at Tenant's expense.
3.02 SERVICE INTERRUPTIONS. (a) Landlord may stop or interrupt any
Landlord Service, electricity or other service to be provided to Tenant under
this Article 3 and may stop or interrupt the use of any Building facilities and
systems at such times as may be necessary and for as long as may reasonably be
required by reason of accidents; strikes; the making of repairs, alterations or
improvements; inability to secure a proper supply of fuel, gas, steam, water,
electricity, labor or supplies; or by reason of any other cause beyond the
reasonable control of Landlord. Landlord shall have no liability to Tenant by
reason of any stoppage or interruption of
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any Landlord Service, electricity or other service or the use of any Building
facilities and systems by reason thereof. Landlord shall use reasonable
diligence (which shall not include incurring overtime charges) to make such
repairs as may be required to machinery or equipment within the Project to
provide restoration of any Landlord Service and, where the cessation or
interruption of such Landlord Service has occurred due to circumstances or
conditions beyond the Project boundaries, to cause the same to be restored by
diligent application or request to the provider.
(b) Without limiting any of Landlord's other rights and remedies, if
Tenant shall be in monetary default beyond any applicable grace period, Landlord
shall not be obligated to furnish to the Premises any service outside of
Business Hours on Business Days, and Landlord shall have no liability to Tenant
by reason of any failure to provide, or discontinuance of, any such service.
(c) "Business Hours" means 8:00 a.m. to 6:00 p.m. "Business Days"
means all days except Saturday, Sundays, New Year's Day, President's Day, Martin
Luther King Day, Memorial Day, Independence Day, Labor Day, Thanksgiving, the
day following Thanksgiving, Christmas and any other days which are either (i)
observed by both the federal and the state governments as legal holidays or (ii)
designated as a holiday by the applicable Building Service Union Employee
Service contract or Operating Engineers contract.
(d) Except as provided in Section 2.07, 3.01 and 3.02 of this Lease,
Landlord shall not be required to provide any services to the Premises.
3.03 SUPPLEMENTAL AIR CONDITIONING. Notwithstanding anything
contained in this Lease to the contrary, Tenant, at Tenant's expense, may,
subject to Landlord's reasonable consent and such rules and regulations as
Landlord may, from time to time, promulgate in accordance with the provisions of
this Lease, install air-cooled supplemental air conditioning units in the
Premises (collectively, the "HVAC Unit") which HVAC Unit shall be of a type
manufactured by a manufacturer, and installed by a contractor, approved in each
case by Landlord which approval shall not be unreasonably withheld or delayed.
Tenant shall be permitted to install not more than two (2) louvers per floor of
the Premises in windows on the north side of the Premises in locations
reasonably designated by Landlord to provide an exhaust system for the HVAC
Unit. The HVAC Unit shall be self-contained and shall not be connected to, tied
into or otherwise make use of any of the Building's systems (excluding the
Building's electrical system) including, without limitation, any Building
ductwork (provided that Tenant may tie-in to or otherwise make use of the
Building's ductwork as long as such tie-in or use does not adversely affect the
Building's ductwork, as determined by Landlord) or equipment. Tenant shall
maintain the HVAC Unit and all of the louvers, ducts, dampers, registers,
grilles, wiring and appurtenances utilized in connection therewith. Tenant shall
contract for and maintain throughout the Term regular service of the HVAC Unit
and related equipment with a recognized maintenance company reasonably
acceptable to Landlord. Such contract shall include the thorough maintenance of
the system at least once each year (at the commencement of the cooling season).
The HVAC Unit and all louvers, ducts, dampers, registers, grilles, wiring and
appurtenances utilized in connection with the HVAC Unit, whether within or
outside the Premises, shall, upon the installation thereof, become part of the
Premises and shall be deemed the property of Landlord.
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3.04 LANDLORD'S CONTRIBUTION. (a) Landlord shall reimburse Tenant
for the cost of the Initial Tenant Work relating to the Premises in an amount
(the "Work Allowance") equal to the lesser of (i) $557,250.00 and (ii) the
actual cost of the Initial Tenant Work, upon the following terms and conditions:
(x) The Work Allowance shall be payable to Tenant (or to
Tenant's general contractor or construction manager, as directed by Tenant) in
Pro Rata Installments as Initial Tenant Work progresses, but in no event more
frequently than monthly. Pro Rata Installments of the Work Allowance shall be
payable by Landlord within 30 days following Tenant's satisfaction of each of
the conditions required for disbursement set forth in this Section 3.04(a).
(y) Prior to the payment of any Pro Rata Installment, Tenant
shall deliver to Landlord a request for disbursement which shall be accompanied
by (1) paid invoices (or invoices if Tenant shall be directing Landlord to pay
Tenant's general contractor or construction manager) for the Initial Tenant Work
performed or incurred since the last disbursement of the Work Allowance (unless
payment is made to Tenant in which case paid invoices for all work which was the
subject of any prior disbursements shall be delivered to Landlord), (2) a
certificate signed by Tenant's architect and an officer of Tenant certifying
that the Initial Tenant Work and services represented by the aforesaid invoices
have been satisfactorily completed substantially in accordance with the plans
and specifications therefor approved by Landlord and have not been the subject
of a prior disbursement of the Work Allowance, and (3) lien waivers by
architects, contractors, subcontractors and all materialmen for all such work
and services (unless payment is made to Tenant in which case lien waivers for
all work which was the subject of any prior disbursement shall be delivered to
Landlord). Landlord shall be permitted to retain from each disbursement an
amount equal to 10% of the amount requested to be disbursed by Tenant if the
amount of the request does not take into account a 10% retainage by requesting
10% less then the cost of the work for which Tenant is requesting reimbursement.
The aggregate amount of the retainages shall be paid by Landlord to Tenant upon
the completion of all Initial Tenant Work and upon receipt from Tenant of (A) a
certificate signed by Tenant's architect and an officer of Tenant certifying
that all of the Initial Tenant Work has been satisfactorily completed
substantially in accordance with the plans and specifications therefor approved
by Landlord, (B) all Building Department sign-offs and inspection certificates
and any permits required to be issued by the Building Department or any other
governmental entities having jurisdiction thereover, and (C) a release, except
with respect to amounts in respect of which Tenant has a bona fide dispute, not
to exceed $10,000.00 from all contractors and subcontractors performing the
Initial Tenant Work releasing Landlord and Tenant from all liability for any of
the Initial Tenant Work.
(z) Tenant is not then in default under this Lease beyond any
applicable grace, notice or cure period provided with respect thereto.
"Pro Rata Installments" shall mean the cost of the portion of
Initial Tenant Work performed and covered by such request by Tenant for payment
multiplied by a percentage, calculated by dividing $557,250.00 by the projected
cost of Initial Tenant Work (which projected cost shall be submitted to Landlord
prior to the commencement of such Initial Tenant Work) (the "Pro Rata
Percentage"). From time to time, Landlord may request that Tenant update its
estimate
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of the total cost of Initial Tenant Work. If any such update causes an increase
in excess of $25,000 in such estimate or any subsequent estimate most recently
used to calculate the Pro Rata Installments the Pro Rata Percentage shall be
revised by Landlord to reflect such increase (such revised Pro Rata Percentage
shall be calculated by dividing the remaining unpaid portion of the Work
Allowance by the total then estimated cost to complete the Initial Tenant Work).
(b) "Initial Tenant Work" means the hard and soft costs incurred in
the installation of fixtures, improvements and appurtenances attached to or
built into the Premises to prepare the Premises for Tenant's use and occupancy,
and shall not include movable partitions, business and trade fixtures,
machinery, equipment, furniture, furnishings and other articles of personal
property.
(c) The right to receive reimbursement for (or direct payment of)
the cost of Initial Tenant Work as set forth in this Section 3.04 shall be for
the exclusive benefit of Tenant, it being the express intent of the parties
hereto that in no event shall such right be conferred upon or for the benefit of
any third party, including, without limitation, any contractor, subcontractor,
materialman, laborer, architect, engineer, attorney or any other person, firm or
entity. Without in any way limiting the provisions of Section 6.12(b), Tenant
shall indemnify and hold harmless each Indemnified Party from and against any
and all liability, damages, claims, costs or expenses arising out of or relating
to Landlord's payment of any installment of the Work Allowance directly to
Tenant's general contractor or construction manager, together with all costs,
expenses and liabilities incurred in or in connection with each such claim or
action or proceeding brought thereon, including, without limitation, all
reasonable attorneys' fees and expenses.
(d) Notwithstanding anything to the contrary contained in this
Section 3.04, in no event shall more than $55,725.00 of the Work Allowance be
made available to Tenant for Tenant's soft costs of construction (including,
without limitation, filing and permit fees and expenses, architecture,
engineering and other consulting fees and expenses and moving expenses).
ARTICLE 4
LEASEHOLD IMPROVEMENTS; TENANT COVENANTS
4.01 INITIAL IMPROVEMENTS. (a) On the Commencement Date, Tenant
shall accept the Premises in its "as is" condition on such date. If, after the
Commencement Date, it is determined that the condition of the Premises as of the
date of this Lease was in violation of then-applicable laws, Landlord agrees to
promptly cure such violation in a manner so as to minimize, to the extent
practicable, inconvenience to Tenant (provided that such minimization of
inconvenience shall not include the use of overtime labor by Landlord). Landlord
shall have no obligation to perform any work to prepare the Premises for
Tenant's occupancy. All installations, materials and work which may be
undertaken by Tenant to prepare, equip, furnish and decorate the Premises shall
be performed, subject to Section 3.04 above, at Tenant's expense in accordance
with all of the terms, conditions and provisions of this Lease, including,
without limitation, Section 4.02.
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(b) On the Commencement Date, Landlord shall deliver to Tenant ACP-5
Certificates with respect to the Premises in form and substance as set forth in
Exhibit I attached hereto.
4.02 ALTERATIONS. (a) Tenant shall make no improvements, changes or
alterations in or to the Premises ("Alterations"), including Tenant's initial
Alterations, without Landlord's prior approval. Landlord shall not unreasonably
withhold, delay or condition its approval to any Alteration that is not a
Material Alteration. "Material Alteration" means an Alteration that (i) is not
limited to the interior of the Premises or which affects the exterior (including
the appearance) of the Building, (ii) is structural (other than the structural
reinforcement of flooring, the running of risers and the installation of the
HVAC Unit, each within the Premises, and which reinforcement of flooring and
risers and HVAC Unit installation shall be subject to Landlord's approval which
shall not be unreasonably withheld, conditioned or delayed), or affects the
strength of the Building, (iii) affects the usage or the proper functioning of
any of the Building systems outside the Premises, (iv) requires the consent of
any Superior Mortgagee or Superior Lessor including, without limitation, Prime
Lessor or (v) requires a change to the Building's certificate of occupancy.
Notwithstanding the foregoing, Tenant may, without Landlord's consent, but
provided that Tenant notifies Landlord of such Alterations at least 5 days prior
to the commencement thereof (such notice to include any available plans of the
Alterations), perform Alterations of a purely cosmetic or decorative nature,
including, without limitation, painting or carpeting of the Premises, provided
that such Alterations do not require that any application, plans or other
documentation be filed with or approved by any governmental agency or authority.
(b) Tenant, in connection with any Alteration, shall comply
with any and all rules and regulations as may be from time to time established
by Landlord in accordance with Section 8.02. Tenant shall also comply with all
of the terms of Article 13 of the Prime Lease to the extent applicable. Except
as otherwise provided above, Tenant shall not proceed with any Alteration unless
and until Landlord approves Tenant's plans and specifications therefor.
Landlord, within 10 days after Landlord's initial receipt of plans and
specifications for any Alteration and within 5 days after Tenant's resubmission,
if necessary, of such plans and specifications to Landlord, shall respond
thereto, in writing, by either (A) approving the same, or (B) disapproving the
same. In any case where Landlord disapproves such plans and specifications,
Landlord's disapproval shall include Landlord's reasons therefor. If Landlord
shall fail to approve or disapprove such plans and specifications within such
10-day period or 5-day period, as applicable, then Tenant shall have the right
to give a reminder notice to Landlord, and, provided that such reminder notice
states, in bold-faced capital letters, that "THIS NOTICE IS BEING GIVEN UNDER
SECTION 4.02(B) OF OUR LEASE. YOUR FAILURE TIMELY TO RESPOND WILL RESULT IN YOUR
DEEMED APPROVAL OF THE PLANS AND SPECIFICATIONS PREVIOUSLY SUBMITTED BY TENANT",
if Landlord shall fail to approve or disapprove the plans and specifications
within 3 Business Days after Landlord's receipt of such reminder notice, then
the plans and specifications shall be deemed approved by Landlord; provided that
in no event shall any of Tenant's plans and specification be deemed approved by
Landlord if such plans and specifications are subject to the approval or consent
of Prime Lessor under the Prime Lease. Any review or approval by Landlord of
plans and specifications with respect to any Alteration is solely for Landlord's
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benefit, and without any representation or warranty to Tenant with respect to
the adequacy, correctness or efficiency thereof, its compliance with Laws or
otherwise.
(c) Except with respect to Tenant's initial Alterations Tenant shall
pay to Landlord upon demand Landlord's reasonable actual, out-of-pocket costs
and expenses (including, without limitation, the fees of any architect or
engineer employed by Landlord or any Superior Lessor or Superior Mortgagee for
such purpose) for reviewing plans and specifications.
(d) Before proceeding with any Alteration (other than the first
major renovation of the Premises and not including the initial painting,
carpeting and minor changes to the reception area of the Premises) that will
cost more than $250,000.00 (subject to increases in the amount of $50,000.00
every five (5) years during the Term), as estimated by a reputable contractor
designated by Landlord, Tenant shall, unless Tenant's net worth (computed in
accordance with generally accepted accounting principles as evidenced to the
reasonable satisfaction of Landlord) equals or exceeds $50,000,000.00, furnish
to Landlord one of the following: (i) a cash deposit or (ii) an irrevocable,
unconditional, negotiable letter of credit, issued by a bank and in a form
reasonably satisfactory to Landlord; each to be equal to 110% of the cost of the
Alteration, estimated as set forth above. Any such letter of credit shall be for
one year and shall be renewed by Tenant each and every year until the Alteration
in question is completed and shall be delivered to Landlord not less than 30
days prior to the expiration of the then current letter of credit, failing which
Landlord may present the then current letter of credit for payment. Upon (A) the
completion of an Alteration in accordance with the terms of this Section 4.02
and (B) the submission to Landlord of (x) proof evidencing the payment in full
for said Alteration and (y) written unconditional lien waivers (except with
respect to amounts in respect of which Tenant has a bona fide dispute, not to
exceed $25,000.00) of mechanics' liens and other liens on the Project from all
contractors performing said Alteration, the security deposited with Landlord
pursuant to this Article (or the balance of the proceeds thereof, if Landlord
has drawn on the same) shall be returned to Tenant. Upon Tenant's failure
properly to perform, complete and fully pay for any Alteration subject to this
Article 4.02(d) within five (5) Business Days after notice from Landlord,
Landlord may draw on the security deposited under this Section 4.02(d) to the
extent Landlord deems necessary in connection with said Alteration, the
restoration and/or protection of the Premises or the Project and the payment of
any costs, damages or expenses resulting therefrom.
(e) Tenant shall obtain (and furnish copies to Landlord of) all
necessary governmental permits and certificates for the commencement and
prosecution of Alterations and for final approval thereof upon completion, and
shall cause Alterations to be performed in compliance therewith, in compliance
with all Laws and substantially in compliance with the plans and specifications
approved by Landlord. Alterations shall be diligently performed in a good and
workmanlike manner, using new materials and equipment. Alterations shall be
performed by architects, engineers and contractors first approved by Landlord
(which approval shall not be unreasonably withheld, conditioned or delayed);
provided that any Alterations in or to the systems of the Building shall be
performed only by the contractor(s) designated by Landlord (Landlord shall, from
time to time upon Tenant's request made prior to Tenant's commencement of each
such Alteration, designate at least 3 contractors for each Building system
except for the Class E system for which Landlord shall only designate one
contractor). Landlord hereby approves Montroy, Andersen Design Group Inc., as
Tenant's architect, any of MGJ
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Engineering, Thomas Fiskaa Engineering or Robert Director Engineering, as
Tenant's engineer, and any of Lehr, Ambassador or Sweet, as Tenant's general
contractor and/or construction manager, in connection with Tenant's initial
Alterations. The performance of any Alteration shall not be done in a manner
which would violate Landlord's union contracts affecting the Project, or create
any work stoppage, picketing, labor disruption, disharmony or dispute or any
interference with the business of Landlord or any tenant or occupant of the
Building. Tenant shall immediately stop the performance of any Alteration if
Landlord notifies Tenant that continuing such Alteration would violate
Landlord's union contracts affecting the Project, or create any work stoppage,
picketing, labor disruption, disharmony or dispute or any interference with the
business of Landlord or any tenant or occupant of the Building. Tenant shall not
resume the performance of such Alteration until such time as such Alteration may
be performed in a manner which shall not violate such union contracts or create
such work stoppage, picketing, labor disruption, disharmony or dispute or
interference.
(f) Throughout the performance of Alterations, Tenant shall carry
worker's compensation insurance in statutory limits, "all risk" Builders Risk
coverage and general liability insurance, with completed operation endorsement,
for any occurrence in or about the Project, under which Landlord and its agent
and any Superior Lessor and Superior Mortgagee whose name and address have been
furnished to Tenant shall be named as parties insured, in such limits as
Landlord may reasonably require, with insurers rated by Best's Insurance
Reports, or any successor publication of comparable standing, as A/VIII or
better or the then equivalent of such rating. Tenant shall furnish Landlord with
evidence that such insurance is in effect at or before the commencement of
Alterations and, on request, at reasonable intervals thereafter during the
continuance of Alterations.
(g) Should any mechanics' or other liens be filed against any
portion of the Project by reason of the acts or omissions of, or because of a
claim against, Tenant or anyone claiming under or through Tenant, Tenant shall
cause the same to be canceled or discharged of record by bond or otherwise
within 30 days after notice from Landlord. If Tenant shall fail to cancel or
discharge said lien or liens within said 30 day period, Landlord may cancel or
discharge the same and, upon Landlord's demand, Tenant shall reimburse Landlord
for all costs incurred in canceling or discharging such liens, together with
interest thereon at the Interest Rate from the date paid by Landlord to the date
of payment by Tenant, such reimbursement to be made within 30 days after receipt
by Tenant of a written statement from Landlord as to the amount of such costs.
Tenant shall indemnify and hold Landlord harmless from and against all costs
(including, without limitation, attorneys' fees and disbursements and costs of
suit), losses, liabilities or causes of action arising out of or relating to any
Alteration, including, without limitation, any mechanics' or other liens
asserted in connection with such Alteration.
(h) Tenant shall deliver to Landlord, within 30 days after the
completion of an Alteration, "marked" drawings thereof which shall include a
certification from Tenant's architect or engineer that the Alteration in
question has been completed in accordance with the drawings as marked. During
the Term, Tenant shall use commercially reasonable efforts to keep records of
Alterations costing in excess of $50,000 including plans and specifications,
copies of contracts, invoices, evidence of payment and all other records
customarily maintained in the real estate business relating to Alterations and
the cost thereof and shall, within 30 days after demand by Landlord, furnish to
Landlord copies of such records.
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(i) All Alterations to and Fixtures installed by Tenant in the
Premises shall be fully paid for by Tenant in cash and shall not be subject to
conditional bills of sale, chattel mortgages, or other title retention
agreements.
4.03 LANDLORD'S AND TENANT'S PROPERTY. (a) All Alterations,
fixtures, equipment, improvements and appurtenances attached to or built into
the Premises, whether or not at the expense of Tenant (collectively,
"Fixtures"), shall be and remain a part of the Premises and shall not be removed
by Tenant. All Fixtures constituting Improvements and Betterments shall be the
property of Tenant during the Term and, upon expiration or earlier termination
of this Lease, shall become the property of Landlord. All Fixtures other than
Improvements and Betterments shall, upon installation, be the property of
Landlord. "Improvements and Betterments" means (i) all Fixtures, if any,
installed at the expense of Tenant, whether installed by Tenant or by Landlord
(i.e., excluding any Fixtures paid for by Landlord directly or by way of an
allowance) and (ii) all carpeting in the Premises.
(b) Notwithstanding anything to the contrary in Section 4.03(a), all
movable partitions, business and trade fixtures, machinery and equipment, and
all furniture, furnishings and other articles of movable personal property owned
by Tenant and located in the Premises (collectively, "Tenant's Property") shall
be and shall remain the property of Tenant and may be removed by Tenant at any
time during the Term; provided, that if any of Tenant's Property is removed,
Tenant shall repair any damage to the Premises or to the Building resulting from
the installation and/or removal thereof.
(c) At or before the Expiration Date, or within 15 days after any
earlier termination of this Lease, Tenant, at Tenant's expense, shall remove
Tenant's Property from the Premises (except for (x) the HVAC Unit and (y) such
other items thereof as Landlord shall have expressly permitted to remain, which
shall become the property of Landlord), and Tenant shall repair any damage to
the Premises or the Building resulting from any installation and/or removal of
Tenant's Property. Any items of Tenant's Property (other than as set forth
above) which remain in the Premises after the Expiration Date, or more than 15
days after an earlier termination of this Lease, may, at the option of Landlord,
be deemed to have been abandoned, and may be retained by Landlord as Landlord's
property or disposed of by Landlord, without accountability, in such manner as
Landlord shall determine, at Tenant's expense.
(d) Landlord, by notice given to Tenant at any time prior to the
Expiration Date or not later than 30 days after any earlier termination of this
Lease, may require Tenant, notwithstanding Section 4.03(a), to remove all or any
Fixtures that do not constitute a standard office installation, such as, by way
of example only, kitchens (but not pantries), vaults, safes, raised flooring and
stairwells. If Landlord shall give such notice, then Tenant, at Tenant's
expense, prior to the Expiration Date, or, in the case of an earlier termination
of this Lease, within 15 days after the giving of such notice by Landlord (given
upon such earlier termination), shall remove the same from the Premises, shall
repair and restore the Premises to the condition existing prior to installation
thereof and shall repair any damage to the Premises or to the Building due to
such removal.
4.04 ACCESS AND CHANGES TO BUILDING. (a) Landlord reserves the
right, at any time, to make changes in or to the Project as Landlord may deem
necessary or desirable, and
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Landlord shall have no liability to Tenant therefor, provided any such change
does not (i) reduce in a material way the visibility of the Pylon, (ii)
materially adversely affect Tenant's access to the Premises or render access to
the elevators serving same materially less obvious than such access is on the
date of this Lease; or (iii) adversely affect the first-class nature of the
Project or cause same to appear other than as a first-class office building
dedicated to use by multiple tenants. Landlord may install and maintain pipes,
fans, ducts, wires and conduits within or through the walls, floors or ceilings
of the Premises. In exercising its rights under this Section 4.04, Landlord
shall use reasonable efforts to minimize any interference with Tenant's use of
the Premises for the ordinary conduct of Tenant's business. Tenant shall not
have any easement or other right in or to the use of any door or any passage or
any concourse or any plaza connecting the Building with any other building or to
any public conveniences, and the use of such doors, passages, concourses, plazas
and conveniences may, without notice to Tenant, be regulated or discontinued at
any time by Landlord.
(b) Except for the space within the inside surfaces of all walls,
floors, windows and doors bounding the Premises, all of the Building, including,
without limitation, exterior Building walls, core corridor walls and doors and
any core corridor entrance, any terraces or roofs adjacent to the Premises, and
any space in or adjacent to the Premises used for shafts, stacks, pipes,
conduits, fan rooms, ducts, electric or other utilities, sinks or other Building
facilities, and the use thereof, as well as access thereto through the Premises,
are reserved to Landlord and are not part of the Premises. Landlord reserves the
right to name the Building and to change the name or address of the Building at
any time and from time to time.
(c) Landlord shall have no liability to Tenant if at any time any
windows of the Premises are either temporarily darkened or obstructed by reason
of any repairs, improvements, maintenance and/or cleaning in or about the
Building (or permanently darkened or obstructed if required by Law) or covered
by any translucent material for the purpose of energy conservation, or if any
part of the Building, other than the Premises, is temporarily or permanently
closed or inoperable.
(d) Landlord and persons authorized by Landlord shall have the
right, upon prior notice to Tenant and at reasonable times (except in an
emergency), to enter the Premises (together with any necessary materials and/or
equipment), to inspect, clean or perform such work or repairs as Landlord may
reasonably deem necessary or to exhibit the Premises to prospective lenders or
purchasers, or, during the last 24 months of the Term, to prospective tenants,
or for any other purpose as Landlord may deem reasonably necessary or desirable.
Landlord shall have no liability to Tenant by reason of any such entry. Landlord
shall not be required to make any improvements or repairs of any kind or
character to the Premises during the Term except as expressly provided in this
Lease. Tenant shall also be subject to Prime Lessor's rights of access under
Article 22 of the Prime Lease.
(e) Landlord intends to renovate the lobby of the Building and
perform cosmetic upgrades to the elevator cabs serving the Premises
substantially in accordance with the renderings to renovate and restore the
elevators and lobby prepared by Team Design and dated November 22, 1999 and
attached hereto as Exhibit G; provided however that Tenant's obligations under
this Lease shall not be affected to the extent that Landlord elects to modify
any
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of the designs of such renovation or cosmetic upgrade or based on the timing of
the performance of such renovation or cosmetic upgrade.
4.05 MAINTENANCE OF PREMISES. (a) Tenant shall keep the Premises,
and all doors, windows and glass (other than exterior doors, windows and glass)
in and about the Premises (including, without limitation, all Fixtures), in good
condition and repair and, upon expiration or earlier termination of the Term,
Tenant shall surrender the same to Landlord in good condition, reasonable wear
and tear excepted. Without limiting the foregoing, Tenant shall, subject to
Landlord's obligation as set forth in Section 3.01 (a)(v) of this Lease to
provide cleaning services to the Premises, keep the Premises clean in a manner
commensurate with the standards of first-class mixed use office/retail buildings
located in the Borough of Manhattan. Tenant's obligation shall include, without
limitation, (i) the obligation to repair all damage caused by Tenant, its
agents, employees, invitees and licensees to the equipment and other
installations in the Premises or anywhere in the Building. Subject to Section
7.03, any maintenance, repair or replacement to the windows (including, without
limitation, any solar film attached thereto), the Building systems, the
Building's structural components or any areas outside the Premises and which is
Tenant's obligation to perform shall be performed by Landlord at Tenant's
expense.
(b) Tenant shall not commit or allow to be committed any waste or
damage to any portion of the Premises or commit any waste or damage to any
portion of the Building.
(c) Landlord shall operate and maintain the Building in a manner
comparable to the operation and maintenance of similar Class A office buildings
in midtown Manhattan.
4.06 COMPLIANCE WITH LAWS. (a) Tenant shall comply with all laws,
ordinances, rules, orders and regulations (present, future, ordinary,
extraordinary, foreseen or unforeseen) of any governmental, public or
quasi-public authority and of the New York Board of Underwriters, the New York
Fire Insurance Rating Organization and any other entity performing similar
functions, at any time duly in force (collectively "Laws"), attributable to any
work, installation or manner of use by Tenant of the Premises or any part
thereof. Nothing contained in this Section 4.06 shall require Tenant to make any
structural changes unless the same are necessitated by reason of Tenant's
performance of any Alterations, Tenant's manner of use of the Premises or the
use by Tenant of the Premises for purposes other than normal and customary
ordinary office purposes. Tenant shall procure and maintain all licenses and
permits required for its business. Subject to Tenant's responsibility under this
Section 4.06, Landlord shall comply with all Laws affecting the Building.
(b) Anything contained in this Lease to the contrary
notwithstanding, as part of Tenant's initial Alterations, and if required in
connection therewith, Tenant shall perform all work and make all installations
necessary in order to relocate any sprinkler equipment in the Premises in order
to maintain compliance with the provisions of Local Law 5 of the New York City
Administrative Code, as approved January 18, 1973, as amended from time to time
(whether or not the Building is sprinklered or required to be sprinklered by
such law).
(c) Tenant agrees to comply with the terms of Article 38 (Toxic
Waste) of the Prime Lease to the extent applicable to the Premises with all
references therein to
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"Tenant" being deemed to refer to the Tenant hereunder and all references
therein to Landlord being deemed to refer to the Landlord hereunder and Prime
Lessor; provided that any responsibility for Hazardous Substances (as defined in
the Prime Lease) (including, without limitation, the responsibility for
complying with Laws relating thereto) introduced into the Premises prior to the
Commencement Date applicable to such portion of the Premises shall remain the
responsibility of Landlord.
4.07 TENANT ADVERTISING. Tenant shall not use, and shall cause each
of its Affiliates not to use, the name or likeness of the Building or the
Project in any advertising (by whatever medium) without Landlord's consent (not
to be unreasonably withheld or delayed).
4.08 RIGHT TO PERFORM TENANT COVENANTS. If Tenant fails to perform
any of its obligations under this Lease, Landlord, any Superior Lessor or any
Superior Mortgagee (each, a "Curing Party") may perform the same at the expense
of Tenant (a) immediately and without notice in the case of emergency (except
that Landlord shall endeavor to give Tenant such notice as is practicable), (b)
after 2 days' prior notice to Tenant in case such failure interferes with the
use of space by any other tenant in the Building or with the efficient operation
of the Building or may result in a violation of any Law or in a cancellation of
any insurance policy maintained by Landlord and (c) in any other case if such
failure continues beyond any applicable notice and grace period. If a Curing
Party performs any of Tenant's obligations under this Lease, Tenant shall pay to
Landlord (as Additional Rent) the costs thereof, together with interest at the
Interest Rate from the date paid by the Curing Party until paid by Tenant,
within 15 days after receipt by Tenant of a statement as to the amounts of such
costs. If the Curing Party effects such cure by bonding any lien which Tenant is
required to bond or otherwise discharge, Tenant shall obtain and substitute a
bond for the Curing Party's bond and shall reimburse the Curing Party for the
cost of the Curing Party's bond.
ARTICLE 5
ASSIGNMENT AND SUBLETTING
5.01 ASSIGNMENT; ETC. (a) Subject to the further provisions of this
Article 5, neither this Lease nor the term and estate hereby granted, nor any
part hereof or thereof, shall be assigned, mortgaged, pledged, encumbered or
otherwise transferred voluntarily, involuntarily, by operation of law or
otherwise, and neither the Premises, nor any part thereof, shall be subleased,
be licensed, be used or occupied by any person or entity other than Tenant or be
encumbered in any manner by reason of any act or omission on the part of Tenant,
and no rents or other sums receivable by Tenant under any sublease of all or any
part of the Premises shall be assigned or otherwise encumbered, without the
prior consent of Landlord. The dissolution or direct or indirect transfer of a
majority of the interest in, or control of, Tenant (however accomplished
including, by way of example, the addition of new partners or members or
withdrawal of existing partners or members, or transfers of interests in
distributions of profits or losses of Tenant, issuance of additional stock,
redemption of stock, stock voting agreement, or change in classes of stock)
shall be deemed an
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assignment of this Lease regardless of whether the transfer is made by one or
more transactions, or whether one or more persons or entities hold the
controlling interest prior to the transfer or afterwards. An agreement under
which another person or entity becomes responsible for all or a portion of
Tenant's obligations under this Lease shall be deemed an assignment of this
Lease. No assignment or other transfer of this Lease and the term and estate
hereby granted, and no subletting of all or any portion of the Premises shall
relieve Tenant of its liability under this Lease or of the obligation to obtain
Landlord's prior consent to any further assignment, other transfer or
subletting. Any attempt to assign this Lease or sublet all or any portion of the
Premises in violation of this Article 5 shall be null and void.
(b) Notwithstanding Section 5.01(a), without the consent of Landlord
and without complying with Sections 5.02 or 5.05 below, this Lease may be
assigned to (i) an entity created by merger, reorganization or recapitalization
of or with Tenant or (ii) a purchaser of all or substantially all of Tenant's
stock or assets; provided, in the case of both clause (i) and clause (ii), that
(A) Landlord shall have received a notice of such assignment from Tenant, (B)
the assignee assumes by written instrument all of Tenant's obligations under
this Lease thereafter first arising, (C) such assignment is for a valid business
purpose and not to avoid any obligations under this Lease, and (D) the assignee
is a reputable entity of good character.
(c) Notwithstanding Section 5.01(a), without the consent of
Landlord, and without complying with Sections 5.02 or 5.05 below, Tenant may
assign this Lease or sublet all or any part of the Premises to an Affiliate of
Tenant; provided, that (i) Landlord shall have received a notice of such
assignment or sublease from Tenant; and (ii) in the case of any such assignment,
(A) the assignment is for a valid business purpose and not to avoid any
obligations under this Lease, and (B) the assignee assumes by written instrument
satisfactory to Landlord all of Tenant's obligations under this Lease thereafter
first arising. "Affiliate" means, as to any designated person or entity, any
other person or entity which controls, is controlled by, or is under common
control with, such designated person or entity. "Control" (and with correlative
meaning, "controlled by" and "under common control with") means ownership or
voting control, directly or indirectly, of 50% or more of the voting stock,
partnership interests or other beneficial ownership interests of the entity in
question.
5.02 LANDLORD'S RIGHT OF FIRST OFFER. (a) If Tenant desires to
assign this Lease or sublet all or part of the Premises (other than in
accordance with Sections 5.01(b) or (c)) for all or substantially all of the
remaining Term, Tenant shall give to Landlord notice ("Tenant's Offer Notice")
thereof, specifying (i) in the case of a proposed subletting, the location of
the space to be sublet and the term of the subletting of such space, (ii) (A) in
the case of a proposed assignment, Tenant's good faith offer of the
consideration Tenant desires to receive or pay for such assignment or (B) in the
case of a proposed subletting, Tenant's good faith offer of the fixed annual
rent which Tenant desires to receive for such proposed subletting (assuming that
a subtenant will pay for Taxes, Wage Increase Charges and electricity in the
same manner, and utilizing the same base year or base amount, as Tenant pays for
such amounts under this Lease or if Tenant desires, Tenant may assume a new base
year provided that such new base year shall be taken into account in the
calculation of sublease profits under Section 5.05 below) and (iii) the proposed
assignment or sublease commencement date.
(b) Tenant's Offer Notice shall be deemed an offer from Tenant to
Landlord whereby Landlord (or Landlord's designee) may, at Landlord's option,
terminate this Lease (i) in the case of a proposed assignment or a proposed
sublease of all or substantially all of the Premises for all or substantially
all of the remaining Term or (ii) with respect to the space covered by the
proposed sublease if the proposed sublease is for part of the Premises for all
or
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substantially all of the remaining Term. Said option may be exercised by
Landlord by notice to Tenant within 60 days after a Tenant's Offer Notice,
together with all information required pursuant to Section 5.02(a), has been
given by Tenant to Landlord.
(c) If Landlord exercises its option under Section 5.02(b) to
terminate this Lease as to the entire Premises, then this Lease shall terminate
on the proposed assignment or sublease commencement date specified in the
applicable Tenant's Offer Notice and all Rent shall be paid and apportioned to
such date, and if Tenant's Offer Notice provides that Tenant will pay any
consideration or grant any concessions in connection with the proposed
assignment or sublease, then Tenant shall pay such consideration and/or grant
any such concessions to Landlord (or Landlord's designee) on the date that this
Lease is terminated.
(d) If Landlord exercises its option under Section 5.02(b), upon the
termination of this Lease as to the entire Premises, Landlord shall return the
Letter of Credit to Tenant as if such termination date were the LC Date and
Tenant shall have no further liability under this Lease, except as may be
otherwise expressly provided herein.
(e) If Landlord exercises its option under Section 5.02(b) to
terminate this Lease with respect to a portion of the Premises, then (i) this
Lease shall terminate with respect to such part of the Premises on the effective
date of the proposed sublease and Tenant shall have no further liability under
this Lease with respect to such part of the Premises except as otherwise may be
expressly provided herein; (ii) from and after such date the Rent and the amount
of the Letter of Credit shall be reduced based upon the proportion that the
rentable area of the Premises remaining bears to the total rentable area of the
Premises, and (iii) Tenant shall pay to Landlord, upon demand, the costs
incurred by Landlord in demising separately such part of the Premises and in
complying with any Laws relating to such demise.
(f) If Landlord exercises its option under Section 5.02(b) to
terminate this Lease with respect to a portion of the Premises, then (A) the
Fixed Rent payable by Tenant hereunder shall be reduced by the lesser (i) of the
Fixed Rent payable under this Lease with respect to the portion of the Premises
which is the subject of the proposed sublease and (ii) the annual rent that
Tenant would have received pursuant to such sublease if Landlord had not
terminated this Lease with respect to the applicable space and Tenant had, in
fact, entered into the sublease in accordance with the terms of the Offer Notice
and (B) Tenant's Share shall be appropriately reduced to reflect the reduction
in the rentable square footage of the Premises and (C) the Multiplication Factor
shall be appropriately reduced to reflect the reduction in the rentable square
footage of the Premises. Further, if Tenant's Offer Notice provides that Tenant
will pay any consideration or grant any concessions in connection with the
proposed sublease, then Tenant shall pay such consideration and/or grant any
such concessions to Landlord (or Landlord's designee) on the effective date of
the partial termination of this Lease.
(g) In the case of a proposed sublease of all or substantially all
of the Premises for all or substantially all of the remaining Term, Tenant shall
not sublet any space to a third party at a rental which is less by more than 7%
(on a net effective rent per rentable square foot basis) than the rental (on a
net effective rent per rentable square foot basis) specified in Tenant's Offer
Notice with respect to such space, without complying once again with all of the
provisions of this Section 5.02 and re-offering such space to Landlord at such
lower rental. In the case of a
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proposed assignment, Tenant shall not assign this Lease to a third party where
Tenant pays greater consideration by more than 7% or grants a greater concession
by more than 7% to such third party for such assignment than the consideration
offered to be paid or concession offered to be granted to Landlord in Tenant's
Offer Notice without complying once again with all of the provisions of this
Section 5.02 and re-offering to Landlord the right to terminate this Lease in
whole or in part and pay such consideration or grant such concession to
Landlord; provided that Landlord's time period in which to exercise its option
to terminate this in whole or in part Lease under Section 5.02(b) shall be
shortened to 20 days (from 60 days as provided in such Section).
5.03 ASSIGNMENT AND SUBLETTING PROCEDURES. (a) If Tenant delivers to
Landlord a Tenant's Offer Notice with respect to any proposed assignment of this
Lease or subletting of all or part of the Premises for all or substantially all
of the balance of the Term and Landlord does not timely exercise any of its
options under Section 5.02, and Tenant thereafter desires to assign this Lease
or sublet the space specified in Tenant's Offer Notice or if the term of the
proposed sublease is not for all or substantially all of the balance of the Term
such that Section 5.02 is not applicable, Tenant shall notify Landlord (a
"Transfer Notice") of such desire, which notice shall be accompanied by (i) a
copy of the proposed assignment or sublease and all related agreements, the
effective date of which shall be at least 1 day after Tenant's receipt of
Landlord's approval of the Transfer 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 and (iii) current financial
information with respect to the proposed assignee or subtenant, including
without limitation, its most recent financial statements. Tenant shall also
supply Landlord with such other information as Landlord may reasonably request.
Landlord shall respond to Tenant's Transfer Notice within 30 days after receipt
thereof, provided that if Landlord shall fail to respond in such 30-day period,
then Tenant shall have the right to give Landlord a reminder notice, and if such
notice states in bold-faced capital letters that "THIS NOTICE IS BEING GIVEN
UNDER SECTION 5.03(a) OF OUR LEASE. YOUR FAILURE TIMELY TO RESPOND WILL RESULT
IN THE DEEMED APPROVAL OF THE TRANSFER NOTICE PREVIOUSLY GIVEN BY TENANT", and
Landlord shall fail to respond to Tenant within 5 Business Days after Landlord's
receipt of such reminder notice, then the applicable Transfer Notice shall be
deemed approved by Landlord. Landlord's consent to the proposed assignment or
sublease shall not be unreasonably withheld, conditioned or delayed, provided
that:
(i) Such Transfer Notice shall be delivered to Landlord within
six months after the delivery to Landlord of the applicable Tenant's Offer
Notice, if any.
(ii) In Landlord's judgment the proposed assignee or subtenant
will use the Premises in a manner that (A) is in keeping with the then standards
of the Building and (B) is limited to the use expressly permitted under this
Lease.
(iii) The proposed assignee or subtenant is, in Landlord's
reasonable judgment, a reputable person or entity of good character and with
sufficient financial worth considering the responsibility involved.
(iv) Neither the proposed assignee or sublessee, nor any
Affiliate of such assignee or sublessee, is then an occupant of any part of the
Building, if comparable space
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is then available or is coming available within the 150-day period following
receipt by Landlord of the Transfer Notice.
(v) The proposed assignee or sublessee is not a person with
whom Landlord is then negotiating or has within the prior 3 months negotiated to
lease space in the Building. Upon request by Tenant, Landlord will advise Tenant
if a proposed assignee or sublessee is such a party.
(vi) The form of the proposed sublease shall be reasonably
satisfactory to Landlord and shall comply with the applicable provisions of this
Article 5.
(vii) There shall not be more than 1 subtenant per floor of
the Premises.
(viii) Tenant shall reimburse Landlord on demand for the
reasonable, actual out-of-pocket costs incurred by Landlord in connection with
said assignment or sublease, including, without limitation, the costs of making
investigations as to the acceptability of the proposed assignee or subtenant,
and legal costs incurred in connection with the granting of any requested
consent.
(b) If Landlord consents to a proposed assignment or sublease and
Tenant fails to execute and deliver the assignment or sublease to which Landlord
consented within 60 days after the giving of such consent, then Tenant shall
again comply with this Article 5 before assigning this Lease or subletting all
or part of the Premises.
5.04 GENERAL PROVISIONS. (a) If this Lease is assigned, whether or
not in violation of this Lease, Landlord may collect rent from the assignee. If
the Premises or any part thereof are sublet or occupied by anybody other than
Tenant, whether or not in violation of this Lease, Landlord may, after default
by Tenant, and expiration of Tenant's time to cure such default, collect rent
from the subtenant or occupant. In either event, Landlord may apply the net
amount collected against Rent, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of Section 5.01(a),
or the acceptance of the assignee, subtenant or occupant as tenant, or a release
of Tenant from the performance of Tenant's obligations under this Lease.
(b) No assignment or transfer shall be effective until the assignee
delivers to Landlord an agreement, in customary and reasonable form and with no
limitation on the assignee's prospective recourse, whereby the assignee assumes
Tenant's obligations under this Lease first arising after the effective date of
such agreement. No assignee shall be permitted to take possession of any portion
of the Premises unless and until such assignee has provided Landlord with
evidence that the assignee, as Tenant hereunder, has complied with the
requirements of Sections 7.02 and 7.03 of this Lease.
(c) Notwithstanding any assignment or transfer, whether or not in
violation of this Lease, and notwithstanding the acceptance of any Rent by
Landlord from an assignee, transferee, or any other party, the original named
Tenant and each successor Tenant shall remain fully liable for the payment of
the Rent and the performance of all of Tenant's other obligations under this
Lease. The joint and several liability of Tenant and any immediate or remote
successor in interest of Tenant shall not be discharged, released or impaired in
any respect by any
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agreement made by Landlord extending the time to perform, or otherwise
modifying, any of the obligations of Tenant under this Lease, or by any waiver
or failure of Landlord to enforce any of the obligations of Tenant under this
Lease.
(d) Each subletting by Tenant shall be subject to the following:
(i) No subletting shall be for a term (including any renewal
or extension options contained in the sublease) ending later than one day prior
to the Expiration Date.
(ii) No sublease shall be valid, until there has been
delivered to Landlord, an executed counterpart of such sublease. No subtenant
shall be permitted to take possession of the Premises or any part thereof unless
and until such subtenant has provided to Landlord a certificate of insurance
evidencing that (x) Landlord is an additional insured under the insurance
policies required to be maintained by occupants of the Premises pursuant to
Section 7.02, and (y) there is in full force and effect, the insurance otherwise
required by Section 7.02.
(iii) Each sublease shall provide that it is subject and
subordinate to this Lease, and that in the event of termination, reentry or
dispossess by Landlord under this Lease Landlord may, at its option, take over
all of the right, title and interest of Tenant, as sublessor, under such
sublease, and such subtenant shall, at Landlord's option, attorn to Landlord
pursuant to the then executory provisions of such sublease, except that Landlord
shall not be liable for, subject to or bound by any item of the type that a
Successor Landlord is not so liable for, subject to or bound by in the case of
an attornment by Tenant to a Successor Landlord under Section 6.01(a).
(e) Each sublease shall provide that the subtenant may not assign
its rights thereunder or further sublet the space demised under the sublease, in
whole or in part, without Landlord's consent and without complying with all of
the terms and conditions of this Article 5, including, without limitation,
Section 5.04, which for purposes of this Section 5.04(e) shall be deemed to be
appropriately modified to take into account that the transaction in question is
an assignment of the sublease or a further subletting of the space demised under
the sublease, as the case may be.
(f) Tenant shall not publicly advertise the rental rate for any
space that Tenant desires to sublet.
5.05 ASSIGNMENT AND SUBLEASE PROFITS. (a) Except with respect to
transfers pursuant to Section 5.01(b) and (c) above and the subletting by Tenant
of one (1) full floor of the Premises for a term ending no later than the day
immediately preceding the 2nd anniversary of the Commencement Date for such
floor, if the aggregate of the amounts payable as fixed rent and as additional
rent on account of Taxes, operating expenses and electricity by a subtenant
under a sublease of any part of the Premises and the amount of any Other
Sublease Consideration payable to Tenant by such subtenant, whether received in
a lump-sum payment or otherwise shall be in excess of Tenant's Basic Cost
therefor at that time then, promptly after the collection thereof, Tenant shall
pay to Landlord in monthly installments as and when collected, as Additional
Rent 50% of such excess. Tenant shall deliver to Landlord within 90 days after
the
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end of each calendar year and within 90 days after the expiration or earlier
termination of this Lease a statement specifying each sublease in effect during
such calendar year or partial calendar year, the rentable area demised thereby,
the term thereof and a computation in reasonable detail showing the calculation
of the amounts paid and payable by the subtenant to Tenant, and by Tenant to
Landlord, with respect to such sublease for the period covered by such
statement. "Tenant's Basic Cost" for sublet space at any time means the sum of
(i) the portion of the Fixed Rent, Tax Payments and Wage Increase Charges which
is attributable to the sublet space, plus (ii) the amount payable by Tenant on
account of electricity in respect of the sublet space, plus (iii) the amount of
any costs reasonably incurred by Tenant in making changes in the layout and
finish of the sublet space for the subtenant amortized on a straight-line basis
over the term of the sublease, plus (iv) the amount of any reasonable brokerage
commissions and reasonable legal fees paid by Tenant in connection with the
sublease amortized on a straight-line basis over the term of the sublease.
"Other Sublease Considerations" means all sums paid for the furnishing of
guaranteed services by Tenant and 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.
(b) Upon any assignment of this Lease, Tenant shall pay to Landlord
50% of the Assignment Consideration received by Tenant for such assignment,
after deducting therefrom customary and reasonable closing expenses including
the amount of any costs reasonably incurred by Tenant in making changes in the
layout and finish of the Premises for such assignee amortized on a straight line
basis over the term of the assignment and the amount of reasonable brokerage
commissions and reasonable legal fees paid by Tenant in connection with the
assignment amortized on a straight line basis over the term of the assignment.
"Assignment Consideration" means an amount equal to all sums and other
considerations paid to Tenant by the assignee for or by reason of such
assignment (including, without limitation, the sale or rental 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).
ARTICLE 6
SUBORDINATION; DEFAULT; INDEMNITY
6.01 SUBORDINATION. (a) This Lease is subject and subordinate to
each mortgage (a "Superior Mortgage") and each underlying lease (a "Superior
Lease") which may now or hereafter affect all or any portion of the Project or
any interest therein. The lessor under a Superior Lease is called a "Superior
Lessor" and the mortgagee under a Superior Mortgage is called a "Superior
Mortgagee". Tenant shall execute, acknowledge and deliver any instrument
reasonably requested by Landlord, a Superior Lessor or Superior Mortgagee to
evidence such subordination, but no such instrument shall be necessary to make
such subordination effective. Tenant shall execute any amendment of this Lease
requested by a Superior Mortgagee or a Superior Lessor, provided such amendment
shall not result in an increase (except to a de minimis extent) in Tenant's
obligations under this Lease or a reduction (except to a de minimis extent) in
the benefits available to Tenant. In the event of the enforcement by a Superior
Mortgagee of the remedies provided for by law or by such Superior Mortgage, or
in the event of the termination or
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expiration of a Superior Lease, Tenant, upon request of such Superior Mortgagee,
Superior Lessor or any person succeeding to the interest of such mortgagee or
lessor (each, a "Successor Landlord"), shall automatically become the tenant of
such Successor Landlord without change in the terms or provisions of this Lease
(it being understood that Tenant shall, if requested, enter into a new lease on
terms identical to those in this Lease); provided, that, except as otherwise may
be provided in any non-disturbance agreement or attornment agreement, Successor
Landlord shall not be (i) liable for any act, omission or default of any prior
landlord (including, without limitation, Landlord); (ii) liable for the return
of any moneys paid to or on deposit with any prior landlord (including, without
limitation, Landlord), except to the extent such moneys or deposits are
delivered to such Successor Landlord; (iii) subject to any offset, claims or
defense that Tenant might have against any prior landlord (including, without
limitation, Landlord); (iv) bound by any Rent which Tenant might have paid for
more than the current month to any prior landlord (including, without
limitation, Landlord) unless actually received by such Successor Landlord; (v)
bound by any covenant to perform or complete any construction in connection with
the Project or the Premises or to pay any sums to Tenant in connection
therewith; or (vi) bound by any waiver or forbearance under, or any amendment,
modification, abridgment, cancellation or surrender of, this Lease made without
the consent of such Successor Landlord. Upon request by such Successor Landlord,
Tenant shall execute and deliver an instrument or instruments, reasonably
requested by such Successor Landlord, confirming the attornment provided for
herein, but no such instrument shall be necessary to make such attornment
effective.
(b) Tenant shall give each Superior Mortgagee and each Superior
Lessor a copy of any notice of default served upon Landlord, provided that
Tenant has been notified of the address of such mortgagee or lessor. If Landlord
fails to cure any default as to which Tenant is obligated to give notice
pursuant to the preceding sentence within the time provided for in this Lease,
then each such mortgagee or lessor shall have an additional 30 days after
receipt of such notice within which to cure such default or if such default
cannot be cured within that time, then such additional time as may be necessary
if, within such 30 days, any such mortgagee or lessor has commenced and is
diligently pursuing the remedies necessary to cure such default (including,
without limitation, commencement of foreclosure proceedings or eviction
proceedings, if necessary to effect such cure), in which event this Lease shall
not be terminated and Tenant shall not exercise any other rights or remedies
under this Lease or otherwise while such remedies are being so diligently
pursued. Nothing herein shall be deemed to imply that Tenant has any right to
terminate this Lease or any other right or remedy, except as may be otherwise
expressly provided for in this Lease.
(c) Upon Tenant's request, Landlord shall request from Prime Lessor
a non-disturbance agreement in the form attached hereto as Exhibit F (the
"Non-Disturbance Agreement"); provided that from and after the date that Tenant
is required to attorn to Prime Lessor under such Non-Disturbance Agreement,
Tenant shall pay to Prime Lessor, as Rent under this Lease, the greater of (i)
an amount equal to 100% of the product of (A) the proportion (expressed as a
percentage) that the net usable area of the Premises bears to the net usable
area of the office portion of the Building, multiplied by (B) the total of (w)
the Fixed Annual Rent (as defined in the Prime Lease) (including all increases
thereto as provided in the Prime Lease) allocable to the office portion of the
Building, (x) Impositions (as defined in the Prime Lease) which would have been
payable under the Prime Lease by Landlord but for the termination of the
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Prime Lease, and (y) the operating expenses (including Required Premiums, as
defined in the Prime Lease) of the office portion of the "Premises" leased to
Landlord pursuant to the Prime Lease or (ii) the Rent payable by Tenant to
Landlord under this Lease. Promptly following the execution and delivery of this
Lease by both Landlord and Tenant, Landlord agrees to inform Tenant of the
Annual Fixed Rent, Impositions and Required Premiums, if any, payable by
Landlord to Prime Lessor under the Prime Lease. If Landlord is unable in good
faith to obtain such a Non-Disturbance Agreement by making such a request and
using reasonable efforts to pursue (by making an additional request) such
Non-Disturbance Agreement, Landlord shall have no liability to Tenant, it being
intended that Landlord's sole obligation shall be to request that Prime Lessor
enter into such Non-Disturbance Agreement and, in no event shall Landlord be
required to expend any sums in its effort to obtain such Non-Disturbance
Agreement. In no event shall Landlord be required to commence any litigation in
order to obtain a Non-Disturbance Agreement, nor shall Landlord be required to
take any step which may, in Landlord's judgment, have an adverse effect on its
relationship with Prime Lessor.
(d) Without limiting Tenant's obligations under paragraph (a) above,
Tenant covenants and agrees that if by reason of a default under any underlying
lease through which Landlord derives its leasehold estate in the Project (an
"Underlying Lease"), the Underlying Lease and the leasehold estate of the
Landlord in the Project is terminated, Tenant will attorn to the then holder of
the reversionary interest in the Project (the "Underlying Landlord") and will
recognize the Underlying Landlord as Tenant's landlord under this Lease, at the
election of such Underlying Landlord. Tenant agrees to execute and deliver, at
any time and from time to time, upon the request of Landlord or of the
Underlying Landlord any instrument which may be necessary or appropriate to
evidence such attornment and Tenant hereby appoints Landlord or the Underlying
Landlord under such Underlying Lease the attorney-in-fact, irrevocable, of
Tenant to execute and deliver for and on behalf of Tenant any such instrument.
Tenant further waives the provisions of any statute or rule or law now or
hereafter in effect which may give or purport to give Tenant any right of
election to terminate this Lease or to surrender possession of the Premises in
the event any proceeding is brought by the Underlying Landlord to terminate the
Underlying Lease, and agrees that unless and until the Underlying Landlord, in
connection with any such proceeding, shall elect to terminate this Lease and the
rights of the Tenant hereunder, this Lease shall not be affected in any way
whatsoever by any such proceeding.
6.02 ESTOPPEL CERTIFICATE. Each party shall, at any time and from
time to time, within 10 days after request by the other party, execute and
deliver to the requesting party (or to such person or entity as the requesting
party may designate) a statement certifying that this Lease is unmodified and in
full force and effect (or if there have been modifications, that the same is in
full force and effect as modified and stating the modifications), certifying the
Commencement Date, Expiration Date and the dates to which the Fixed Rent and
Additional Rent have been paid and stating whether or not, to the best knowledge
of such party, the other party is in default in performance of any of its
obligations under this Lease, and, if so, specifying each such default of which
such party has knowledge, it being intended that any such statement shall be
deemed a representation and warranty to be relied upon by the party to whom such
statement is addressed. Landlord and Tenant also shall each include or confirm
in any such statement such other information concerning this Lease as the other
may reasonably request.
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6.03 DEFAULT. This Lease and the term and estate hereby granted are
subject to the limitation that:
(a) if Tenant defaults more than two (2) times in any 18 month
period in the payment of Fixed Rent, and any such default after the second such
default continues for 5 days after Landlord gives Tenant a notice specifying
such default, or
(b) if Tenant defaults in the keeping, observance or performance of
any covenant or agreement, (other than a default of the character referred to in
Sections 6.03(a), (c), or (d)) and if such default continues and is not cured
within 30 days after Landlord gives to Tenant a notice specifying the same, or,
in the case of a default which for causes beyond Tenant's reasonable control
cannot with due diligence be cured within such period of 30 days, if Tenant
shall not within such 30 day period after receipt of such notice, (i) advise
Landlord of Tenant's intention duly to institute all steps necessary to cure
such default and (ii) institute and thereafter diligently prosecute to
completion all steps necessary to cure the same, or
(c) if this Lease or the estate hereby granted, by operation of law
or otherwise, devolves upon or passes to any person or entity other than Tenant,
except as permitted by Article 5, and such transaction is not reversed within 30
days after notice, or
(d) if Tenant fails to deliver to Landlord any Letter of Credit
within the time period required under Section 2.09 and such default continues
for 5 Business Days after Landlord gives to Tenant a notice specifying such
default,
then, in any of such cases, in addition to any other remedies
available to Landlord at law or in equity, Landlord shall be entitled to give to
Tenant a notice of intention to end the Term at the expiration of 5 days from
the date of the giving of such notice, and, in the event such notice is given,
this Lease and the term and estate hereby granted shall terminate upon the
expiration of such 5 days with the same effect as if the last of such 10 days
were the Expiration Date, but Tenant shall remain liable for damages as provided
herein or pursuant to law.
6.04 RE-ENTRY BY LANDLORD. If Tenant defaults in the payment of any
Rent (including, without limitation, any Additional Rent) and such default
continues for 5 days after notice and demand, or if this Lease shall terminate
as in Section 6.03 provided, Landlord or Landlord's agents and servants may
immediately or at any time thereafter re-enter into or upon the Premises, or any
part thereof, either by summary dispossess proceedings or by any suitable action
or proceeding at law, without being liable to indictment, prosecution or damages
therefor, and may repossess the same, and may remove any persons therefrom, to
the end that Landlord may have, hold and enjoy the Premises. The words
"re-enter" and "re-entering" as used in this Lease are not restricted to their
technical legal meanings. Upon such termination or re-entry, Tenant shall pay to
Landlord any Rent then due and owing (in addition to any damages payable under
Section 6.05).
6.05 DAMAGES. If this Lease is terminated under Section 6.03, or if
Landlord re-enters the Premises by summary dispossess proceedings or otherwise
under Section 6.04, Tenant shall pay to Landlord as damages, at the election of
Landlord, either:
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(a) a sum which, at the time of such termination, represents the
then value of the excess, if any, of (1) the aggregate of the Rent which, had
this Lease not terminated, would have been payable hereunder by Tenant for the
period commencing on the day following the date of such termination or re-entry
to and including the Expiration Date over (2) the aggregate fair rental value of
the Premises for the same period (for the purposes of this clause (a) the amount
of Additional Rent which would have been payable by Tenant under Sections 2.04
and 2.05 shall, for each calendar year ending after such termination or
re-entry, be deemed to be an amount equal to the amount of such Additional Rent
payable by Tenant for the calendar year immediately preceding the calendar year
in which such termination or re-entry shall occur), or
(b) sums equal to the Rent that would have been payable by Tenant
through and including the Expiration Date had this Lease not terminated or had
Landlord not re-entered the Premises, payable upon the due dates therefor
specified in this Lease; provided, that if Landlord shall relet all or any part
of the Premises for all or any part of the period commencing on the day
following the date of such termination or re-entry to and including the
Expiration Date, Landlord shall credit Tenant with the net rents received by
Landlord from such reletting, such net rents to be determined by first deducting
from the gross rents as and when received by Landlord from such reletting the
expenses incurred or paid by Landlord in terminating this Lease and of
re-entering the Premises and of securing possession thereof, as well as the
expenses of reletting, including, without limitation, altering and preparing the
Premises for new tenants, brokers' commissions, and all other expenses properly
chargeable against the Premises and the rental therefrom in connection with such
reletting, it being understood that any such reletting may be for a period equal
to or shorter or longer than said period; provided, further, that (i) in no
event shall Tenant be entitled to receive any excess of such net rents over the
sums payable by Tenant to Landlord under this Lease, (ii) in no event shall
Tenant be entitled, in any suit for the collection of damages pursuant to this
Section 6.05(b), to a credit in respect of any net rents from a reletting except
to the extent that such net rents are actually received by Landlord prior to the
commencement of such suit, (iii) if the Premises or any part thereof should be
relet in combination with other space, then proper apportionment on a square
foot rentable area basis and with respect to the applicable term shall be made
of the rent received from such reletting for the applicable term and of the
expenses of reletting, and (iv) Landlord shall have no obligation to so relet
the Premises and Tenant hereby waives any right Tenant may have, at law or in
equity, to require Landlord to so relet the Premises.
Suit or suits for the recovery of any damages payable hereunder by Tenant, or
any installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall require Landlord to postpone suit
until the date when the Term would have expired but for such termination or
re-entry.
6.06 OTHER REMEDIES. Nothing contained in this Lease shall be
construed as limiting or precluding the recovery by Landlord against Tenant of
any sums or damages to which, in addition to the damages particularly provided
above, Landlord may lawfully be entitled by reason of any default hereunder
beyond applicable notice and grace periods on the part of Tenant. Anything in
this Lease to the contrary notwithstanding, during the continuation of any
default by Tenant, Tenant shall not be entitled to exercise any rights or
options, or to receive any funds or proceeds being held, under or pursuant to
this Lease.
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6.07 RIGHT TO INJUNCTION. In the event of a breach or threatened
breach by Tenant or Landlord of any of its obligations under this Lease, either
party shall also have the right of injunction. The specified remedies to which
the parties may resort hereunder are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which the parties may
lawfully be entitled, and the parties may invoke any remedy allowed at law or in
equity as if specific remedies were not herein provided for.
6.08 CERTAIN WAIVERS. Tenant waives and surrenders all right and
privilege that Tenant might have under or by reason of any present or future law
to redeem the Premises or to have a continuance of this Lease after Tenant is
dispossessed or ejected therefrom by process of law or under the terms of this
Lease or after any termination of this Lease. Tenant also waives the provisions
of any law relating to notice and/or delay in levy of execution in case of any
eviction or dispossession for nonpayment of rent, and the provisions of any
successor or other law of like import. Landlord and Tenant each waive trial by
jury in any action in connection with this Lease.
6.09 NO WAIVER. Failure by either party to declare any default
immediately upon its occurrence or delay in taking any action in connection with
such default shall not waive such default but such party shall have the right to
declare any such default at any time thereafter. Any amounts paid by Tenant to
Landlord may be applied by Landlord, in Landlord's discretion, to any items then
owing by Tenant to Landlord under this Lease. Receipt by Landlord of a partial
payment shall not be deemed to be an accord and satisfaction (notwithstanding
any endorsement or statement on any check or any letter accompanying any check
or payment) nor shall such receipt constitute a waiver by Landlord of Tenant's
obligation to make full payment. No act or thing done by Landlord or its agents
shall be deemed an acceptance of a surrender of the Premises, and no agreement
to accept such surrender shall be valid unless in writing and signed by Landlord
and by each Superior Lessor and Superior Mortgagee of whose lease or mortgage
Tenant has received notice provides that any such surrender may not be accepted
without its consent.
6.10 HOLDING OVER. If Tenant holds over without the consent of
Landlord after expiration or termination of this Lease, Tenant shall (a) pay as
holdover rental for each month of the holdover tenancy an amount equal to (x)
150% for the first 90 days of such holdover, and (y) 200% thereafter, multiplied
by the Rent which Tenant was obligated to pay for the month immediately
preceding the end of the Term; (b) be liable to Landlord for and indemnify
Landlord against any payment or rent concession which Landlord may be required
to make to any tenant obtained by Landlord for all or any part of the Premises
(a "New Tenant") by reason of (i) the late delivery of space to the New Tenant
as a result of Tenant's holding over or in order to induce such New Tenant not
to terminate its lease by reason of the holding over by Tenant, (ii) the loss of
the benefit of the bargain if any New Tenant shall terminate its lease by reason
of the holding over by Tenant and (iii) any claim for damages by any New Tenant;
and (c) be liable to Landlord for and indemnify Landlord against any payment
which Landlord may be required to make to Prime Lessor pursuant to the Prime
Lease by reason of (i) Landlord's late delivery of the Premises, or any part
thereof, to Prime Lessor pursuant to the Prime Lease as a result of Tenant's
holding over and (ii) any claim for damages made by Prime Lessor as a result of
Tenant's holding over. No holding over by Tenant after the Term shall operate to
extend the Term. Notwithstanding the foregoing, the acceptance of any rent paid
by Tenant pursuant to this
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Section 6.10 shall not preclude Landlord from commencing and prosecuting a
holdover or summary eviction proceeding.
6.11 ATTORNEYS' FEES. If Landlord or Tenant shall prevail against
the other with respect to any claim relating to the enforcement of this Lease or
any part thereof, or the collection of any Rent due or to become due hereunder,
or recovery of the possession of the Premises, then the non-prevailing party
shall, upon demand, reimburse the prevailing party for the prevailing party's
attorneys' fees and disbursements and court costs.
6.12 NONLIABILITY AND INDEMNIFICATION. (a) Neither Landlord, any
Superior Lessor or any Superior Mortgagee, nor any direct or indirect member,
partner, director, officer, shareholder, principal, agent, servant or employee
of Landlord, any Superior Lessor or any Superior Mortgagee (whether disclosed or
undisclosed), shall be liable to Tenant for (i) any loss, injury or damage to
Tenant or to any other person, or to its or their property, irrespective of the
cause of such injury, damage or loss, nor shall the aforesaid parties be liable
for any loss of or damage to property of Tenant or of others entrusted to
employees of Landlord; provided, that, except to the extent of the release of
liability and waiver of subrogation provided in Section 7.03 hereof, the
foregoing shall not be deemed to relieve Landlord of any liability to the extent
resulting from the negligence of Landlord, its agents, servants or employees in
the operation or maintenance of the Premises or the Building, (ii) any loss,
injury or damage described in clause (i) above caused by other tenants or
persons in, upon or about the Building, or caused by operations in construction
of any private, public or quasi-public work, or (iii) even if negligent,
consequential damages arising out of any loss of use of the Premises or any
equipment, facilities or other Tenant's Property therein or otherwise.
(b) Tenant shall indemnify and hold harmless Landlord, all Superior
Lessors and all Superior Mortgagees and each of their respective direct and
indirect member, partners, directors, officers, shareholders, principals, agents
and employees (each, an "Indemnified Party"), from and against any and all
claims arising from or in connection with (i) the conduct or management of the
Premises or of any business therein, or any work or thing done, or any condition
created, in or about the Premises, (ii) any act, omission or negligence of
Tenant or any person claiming through or under Tenant or any of their respective
direct or indirect members, partners, shareholders, directors, officers, agents,
employees or contractors, (iii) any accident, injury or damage occurring in, at
or upon the Premises, (iv) any default by Tenant in the performance of Tenant's
obligations under this Lease and (v) any brokerage commission or similar
compensation claimed to be due by reason of any proposed subletting or
assignment by Tenant (irrespective of the exercise by Landlord of any of the
options in Section 5.02(b)); together with all costs, expenses and liabilities
incurred in connection with each such claim or action or proceeding brought
thereon, including, without limitation, all reasonable attorneys' fees and
disbursements; provided, that the foregoing indemnity shall not apply to the
extent such claim results from the negligence (other than negligence to which
the release of liability and waiver of subrogation provided in Section 7.03
applies) or willful misconduct of the Indemnified Party and the foregoing
indemnity shall not be deemed to extend to consequential damages suffered by
Landlord except as may be otherwise expressly provided under this Lease. If any
action or proceeding is brought against any Indemnified Party by reason of any
such claim, Tenant, upon notice from such Indemnified Party shall resist and
defend such action or
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proceeding (by counsel reasonably satisfactory to such Indemnified Party; it
being agreed that counsel designated by an insurer shall be deemed to be
satisfactory).
ARTICLE 7
INSURANCE; CASUALTY; CONDEMNATION
7.01 COMPLIANCE WITH INSURANCE STANDARDS. (a) Tenant shall not
violate any condition imposed by any insurance policy then issued in respect of
the Project and shall not do, or permit anything to be done, or keep or permit
anything to be kept in the Premises, which would subject Landlord, any Superior
Lessor or any Superior Mortgagee to any liability or responsibility for personal
injury or death or property damage, or which would increase any insurance rate
in respect of the Project over the rate which would otherwise then be in effect
or which would result in insurance companies of good standing refusing to insure
the Project in amounts reasonably satisfactory to Landlord, or which would
result in the cancellation of, or the assertion of any defense by the insurer in
whole or in part to claims under, any policy of insurance in respect of the
Project.
(b) If, by reason of any failure of Tenant to comply with this
Lease, the premiums on Landlord's insurance on the Project shall be higher than
they otherwise would be, Tenant shall reimburse Landlord, on demand, for that
part of such premiums attributable to such failure on the part of Tenant. A
schedule or "make up" of rates for the Building, Project or the Premises, as the
case may be, issued by the New York Fire Insurance Rating Organization or other
similar body making rates for insurance for the Project or the Premises, as the
case may be, shall be conclusive evidence of the facts therein stated and of the
several items and charges in the insurance rate then applicable to the Project
or the Premises, as the case may be.
7.02 INSURANCE. (a) Tenant shall maintain at all times during the
Term (a) "All Risk" property insurance covering all present and future Tenant's
Property, Fixtures and Tenant's Improvements and Betterments to a limit of not
less than the full replacement cost thereof, and (b) Commercial General
Liability insurance, including contractual liability, and personal injury
liability coverage, in respect of the Premises and the conduct or operation of
business therein, with Landlord and its managing agent, if any, and each
Superior Lessor and Superior Mortgagee whose name and address shall have been
furnished to Tenant, as additional insureds, with limits of not less than
$5,000,000 combined single limit for bodily injury and property damage liability
in any one occurrence and (c) Boiler and Machinery, if there is a boiler,
supplemental air conditioning unit or pressure object or similar equipment in
the Premises, with Landlord and its managing agent, if any, and each Superior
Lessor and Superior Mortgagee whose name and address shall have been furnished
to Tenant, as loss payees, with limits of not less than the full replacement
value of such machinery, and (d) when Alterations are in process, the insurance
specified in Section 4.02(f) hereof. The limits of such insurance shall not
limit the liability of Tenant. Tenant shall deliver to Landlord and any
additional insureds (or loss payees, as the case may be), at least 2 Business
Days prior to the Commencement Date for each floor, such certificates of
insurance, in form reasonably satisfactory to Landlord issued by the insurance
company or its authorized agent. Tenant shall procure and pay for renewals of
such insurance from time to time before the expiration thereof, and Tenant shall
deliver to Landlord and any additional insureds (or loss payees, as the case may
be) such certificate thereof at least 30 days
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before the expiration of any existing policy. All such policies shall be issued
by companies of recognized responsibility licensed to do business in New York
State and rated by Best's Insurance Reports or any successor publication of
comparable standing as A/VIII or better or the then equivalent of such rating,
and all such policies shall contain a provision whereby the same may not be
canceled, allowed to lapse or be materially modified unless Landlord and any
additional insureds (or loss payees, as the case may be) are given at least 30
days prior written notice of such cancellation, lapse or material modification.
Tenant shall cooperate with Landlord in connection with the collection of any
insurance moneys that may be due in the event of loss and Tenant shall execute
and deliver to Landlord such proofs of loss and other instruments which may be
required to recover any such insurance moneys. Landlord may from time to time
require that the amount of the insurance to be maintained by Tenant under this
Section 7.02 be reasonably increased, so that the amount thereof adequately
protects Landlord's interest.
(b) Landlord shall maintain insurance in accordance with its
obligations under the Prime Lease.
7.03 SUBROGATION WAIVER. Landlord and Tenant shall each include in
each of its insurance policies (insuring the Building in case of Landlord, and
insuring Tenant's Property, Fixtures and Improvements and Betterments in the
case of Tenant, against loss, damage or destruction by fire or other casualty) a
waiver of the insurer's right of subrogation against the other party during the
Term or, if such waiver should be unobtainable or unenforceable, (a) an express
agreement that such policy shall not be invalidated if the assured waives the
right of recovery against any party responsible for a casualty covered by the
policy before the casualty or (b) any other form of permission for the release
of the other party. Each party hereby releases the other party with respect to
any claim (including a claim for negligence) which it might otherwise have
against the other party for loss, damage or destruction with respect to its
property occurring during the Term to the extent to which it is insured under a
policy or policies containing a waiver of subrogation or permission to release
liability. Nothing contained in this Section 7.03 shall be deemed to relieve
either party of any duty imposed elsewhere in this Lease to repair, restore or
rebuild or to nullify any abatement of rents provided for elsewhere in this
Lease.
7.04 CONDEMNATION. (a) If there shall be a total taking of the
Building in condemnation proceedings or by any right of eminent domain, this
Lease and the term and estate hereby granted shall terminate as of the date of
taking of possession by the condemning authority and all Rent shall be prorated
and paid as of such termination date. If there shall be a taking which shall
result in the termination of the Prime Lease or if there shall otherwise be a
taking of any material (in Landlord's reasonable judgment) portion of the Land
or the Building (whether or not the Premises are affected by such taking), then
Landlord shall terminate this Lease and the term and estate granted hereby by
giving notice to Tenant within 60 days after the date of taking of possession by
the condemning authority. If there shall be a taking of the Premises of such
scope (but in no event less than 20% thereof) that the untaken part of the
Premises would in Tenant's reasonable judgment be uneconomic to operate, then
Tenant may terminate this Lease and the term and estate granted hereby by giving
notice to Landlord within 60 days after the date of taking of possession by the
condemning authority. If either Landlord or Tenant shall give a termination
notice as aforesaid, then this Lease and the term and estate granted hereby
shall terminate as of the date of such notice and all Rent shall be prorated and
paid as of such termination date. In the event of a taking of the Premises which
does not result in the
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termination of this Lease (i) the term and estate hereby granted with respect to
the taken part of the Premises shall terminate as of the date of taking of
possession by the condemning authority, (ii) all Rent shall be appropriately
abated for the period from such date to the Expiration Date, (iii) the Letter of
Credit shall be appropriately reduced to reflect the taken portion of the
Premises and (iv) Landlord shall with reasonable diligence restore the remaining
portion of the Premises (exclusive of Tenant's Property) as nearly as
practicable to its condition prior to such taking.
(b) In the event of any taking of all or a part of the Building,
Landlord shall be entitled to receive the entire award in the condemnation
proceeding, including, without limitation, any award made for the value of the
estate vested by this Lease in Tenant or any value attributable to the unexpired
portion of the Term, and Tenant hereby assigns to Landlord any and all right,
title and interest of Tenant now or hereafter arising in or to any such award or
any part thereof, and Tenant shall be entitled to receive no part of such award;
provided, that nothing shall preclude Tenant from intervening in any such
condemnation proceeding to claim or receive from the condemning authority any
compensation to which Tenant may otherwise lawfully be entitled in such case in
respect of Tenant's Property or moving expenses, provided the same do not
include any value of the estate vested by this Lease in Tenant or of the
unexpired portion of the Term and do not reduce the amount available to Landlord
or materially delay the payment thereof.
(c) If all or any part of the Premises shall be taken for a limited
period, Tenant shall be entitled, except as hereinafter set forth, to that
portion of the award for such taking which represents compensation for the use
and occupancy of the Premises, for the taking of Tenant's Property and for
moving expenses, and Landlord shall be entitled to that portion which represents
reimbursement for the cost of restoration of the Premises. This Lease shall
remain unaffected by such taking and Tenant shall continue responsible for all
of its obligations under this Lease to the extent such obligations are not
affected by such taking and shall continue to pay in full all Rent when due. If
the period of temporary use or occupancy shall extend beyond the Expiration
Date, that part of the award which represents compensation for the use and
occupancy of the Premises shall be apportioned between Landlord and Tenant as of
the Expiration Date. Any award for temporary use and occupancy for a period
beyond the date to which the Rent has been paid shall be paid to, held and
applied by Landlord as a trust fund for payment of the Rent thereafter becoming
due.
(d) In the event of any taking which does not result in termination
of this Lease, (i) Landlord, whether or not any award shall be sufficient
therefor, shall proceed with reasonable diligence to repair the remaining parts
of the Building and the Premises (other than those parts of the Premises which
constitute Tenant's Property, Fixtures and Improvements and Betterments) to
substantially their former condition to the extent that the same may be feasible
(subject to reasonable changes which Landlord deems desirable) and so as to
constitute a complete and rentable Building and Premises and (ii) Tenant,
whether or not any award shall be sufficient therefor, shall proceed with
reasonable diligence to repair the remaining parts of the Premises which
constitute Tenant's Property, Fixtures and Improvements and Betterments, to
substantially their former condition to the extent that the same may be
feasible, subject to reasonable changes which shall be deemed Alterations.
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7.05 CASUALTY. (a) If the Building or the Premises shall be
partially or totally damaged or destroyed by fire or other casualty (each, a
"Casualty") and if this Lease is not terminated as provided below, then (i)
Landlord shall repair and restore the Building and the Premises (excluding
Tenant's Improvements and Betterments, Tenant's Property and Fixtures) with
reasonable dispatch (but Landlord shall not be required to perform the same on
an overtime or premium pay basis) after notice to Landlord of the Casualty and
the collection of the insurance proceeds attributable to such Casualty and (ii)
Tenant shall repair and restore in accordance with Section 4.01 all Tenant's
Improvements and Betterments, Tenant's Property and Fixtures with reasonable
dispatch after the Casualty.
(b) If all or part of the Premises shall be rendered untenantable by
reason of a Casualty, the Fixed Rent and the Additional Rent under Sections 2.04
and 2.05 shall be abated in the proportion that the untenantable area of the
Premises bears to the total area of the Premises, for the period from the date
of the Casualty to the earlier of (i) the date the Premises is made tenantable
(provided, that if the Premises would have been tenantable at an earlier date
but for Tenant having failed diligently to prosecute repairs or restoration,
then the Premises shall be deemed to have been made tenantable on such earlier
date and the abatement shall cease) or (ii) the date Tenant or any subtenant
reoccupies a portion of the Premises for the ordinary conduct of business (in
which case the Fixed Rent and the Additional Rent allocable to such reoccupied
portion shall be payable by Tenant from the date of such occupancy). Landlord's
determination of the date the Premises is tenantable shall be controlling unless
Tenant disputes same by notice to Landlord within 30 days after such
determination by Landlord and pending resolution of such dispute, Tenant shall
pay Rent in accordance with Landlord's determination. Notwithstanding the
foregoing, if by reason of any act or omission solely attributable to Tenant,
any subtenant or any of their respective partners, directors, officers,
servants, employees, agents or contractors, Landlord, any Superior Lessor or any
Superior Mortgagee shall be unable to collect all of the insurance proceeds
(including, without limitation, rent insurance proceeds) applicable to the
Casualty, then, without prejudice to any other remedies which may be available
against Tenant, there shall be no abatement of Rent to the extent of the
insurance proceeds so rendered uncollectible. Nothing contained in this Section
7.05 shall relieve Landlord or Tenant from any liability that may exist as a
result of any Casualty.
(c) If by reason of a Casualty (i) the Building shall be totally
damaged or destroyed, (ii) the Building shall be so damaged or destroyed
(whether or not the Premises are damaged or destroyed) that Landlord's repair or
restoration shall require more than 12 months (subject to an extension of up to
90 days for Unavoidable Delays) or the expenditure of more than 20% percent of
the full insurable value of the Building (which, for purposes of this Section
7.05(c), shall mean replacement cost less the cost of footings, foundations and
other structures below the street and first floors of the Building) immediately
prior to the Casualty, (iii) more than 30% of the Premises shall be damaged or
destroyed (as estimated in any such case by a reputable contractor, architect or
engineer designated by Landlord) or (iv) the Prime Lease shall be terminated at
the election of Landlord or Prime Lessor, then in any such case Landlord may
terminate this Lease by notice given to Tenant within 180 days after the
Casualty.
(d) If 30% or more of the Premises shall be damaged by reason of a
Casualty, then Landlord within 60 days after the date of the Casualty shall
deliver to Tenant a statement prepared by a reputable contractor, architect or
engineer designated by Landlord setting forth
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such contractor's architect's or engineer's estimate as to the time required to
substantially complete the repair of the Premises (excluding any of Tenant's
Fixtures, Improvements and Betterments, or Tenant's Property). If the estimated
time period exceeds 12 months from the date of such Casualty, Tenant may elect
to terminate this Lease by giving notice to Landlord within 30 days after
Tenant's receipt of such notice (time of the essence). If such repair is not
substantially completed on or before the date which is (i) the later of (x) 12
months (subject to an extension of up to 90 days for Unavoidable Delays) from
the date of such Casualty or (y) the contractor's architect's or engineer's
estimate of the date of substantial completion of such repair (subject to an
extension of up to 90 days for Unavoidable Delays) or (ii) if such repair is not
substantially completed by the date that is at least one year prior to the
expiration of the Term (such date described in clause (i) or (ii) above being
referred to herein as the "Outside Casualty Date"), then Tenant may elect to
terminate this Lease by giving notice to Landlord within 30 days after the
Outside Casualty Date (time of the essence). If Tenant timely gives such notice,
the Term shall expire upon 30 days after such notice is given by Tenant and
Tenant shall vacate the Premises and surrender the same to Landlord in
accordance with the provisions of this Lease.
(e) Landlord shall not carry any insurance on Tenant's Property,
Tenant's Improvements and Betterments or Fixtures and shall not be obligated to
repair or replace Tenant's Property, Tenant's Improvements and Betterments or
Fixtures. Tenant shall look solely to its insurance for recovery of any damage
to or loss of Tenant's Property, Tenant's Improvements and Betterments or
Fixtures. Tenant shall notify Landlord promptly of any Casualty in the Premises.
(f) This Section 7.05 shall be deemed an express agreement governing
any damage or destruction of the Premises by fire or other casualty, and Section
227 of the New York Real Property Law providing for such a contingency in the
absence of an express agreement, and any other law of like import now or
hereafter in force, shall have no application.
ARTICLE 8
MISCELLANEOUS PROVISIONS
8.01 NOTICE. All notices, demands, consents, approvals, advices,
waivers or other communications which may or are required to be given by either
party to the other under this Lease (each, "Notice") shall be in writing and
shall be delivered by (a) personal delivery, (b) the United States mail,
certified or registered, postage prepaid, return receipt requested, or (c) a
nationally recognized overnight courier, in each case addressed to the party to
be notified at the address for such party specified in the first paragraph of
this Lease (in the case of each Notice to Landlord to the attention of Robert
Bennis and with a copy of each notice to Landlord to Andrew Levine, Esq., Sabin,
Bermant & Gould LLP, Four Times Square, New York, New York 10036 and to Fried,
Frank, Harris, Shriver & Jacobson, One New York Plaza, New York, New York 10004,
Attention: Jonathan L. Mechanic, Esq., and in the case of each Notice to Tenant
to the attention of the Chief Financial Officer and with a copy of each Notice
to Tenant to Kramer Levin Naftalis & Frankel LLP, 919 Third Avenue, New York,
New York 10022-3852, Attention: Neil Tucker, Esq., or to such other place as the
party to be notified may from time to time designate by at least 5 days notice
to the notifying party. Notices from Landlord may be given by Landlord's
managing agent, if any whose identity and authority have been made known to
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Tenant by notice. Each Notice shall be deemed to have been given on the date
such Notice is actually received as evidenced by a written receipt therefor, and
in the event of failure to deliver by reason of changed address of which no
Notice was given or refusal to accept delivery, as of the date of such failure.
8.02 BUILDING RULES. Tenant shall comply with, and Tenant shall
cause its licensees, employees, contractors, agents and invitees to comply with,
the rules of the Building set forth in Exhibit C, as the same may be reasonably
modified or supplemented by Landlord from time to time for the safety, care and
cleanliness of the Premises and the Building and for preservation of good order
therein. Landlord shall not be obligated to enforce the rules of the Building
against Tenant or any other tenant of the Building or any other party, and
Landlord shall have no liability to Tenant by reason of the violation by any
tenant or other party of the rules of the Building; provided, that Landlord
shall not enforce the rules of the Building in a manner which discriminates
against Tenant. If any rule of the Building shall conflict with any provision of
this Lease, such provision of this Lease shall govern.
8.03 SEVERABILITY. If any term or provision of this Lease, or the
application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected, and each provision of this
Lease shall be valid and shall be enforceable to the extent permitted by law.
8.04 CERTAIN DEFINITIONS. (a) "Landlord" means only the owner, at
the time in question, of the Building or that portion of the Building of which
the Premises are a part, or of a lease of the Building or that portion of the
Building of which the Premises are a part, so that in the event of any transfer
or transfers of title to the Building or of Landlord's interest in a lease of
the Building or such portion of the Building, the transferor shall be and hereby
is relieved and freed of all obligations of Landlord under this Lease accruing
after such transfer, and it shall be deemed, without further agreement, that
such transferee has assumed all obligations of Landlord during the period it is
the holder of Landlord's interest under this Lease.
(b) "Landlord shall have no liability to Tenant" or words of similar
import mean that Tenant is not entitled to terminate this Lease, or to claim
actual or constructive eviction, partial, or total, or to receive any abatement
or diminution of Rent, or to be relieved in any manner of any of its other
obligations under this Lease, or to be compensated for loss or injury suffered
or to enforce any other right or kind of liability whatsoever against Landlord
under or with respect to this Lease or with respect to Tenant's use or occupancy
of the Premises.
8.05 QUIET ENJOYMENT. Tenant shall and may peaceably and quietly
have, hold and enjoy the Premises, subject to the other terms of this Lease and
to Superior Leases and Superior Mortgages, provided that Tenant pays the Fixed
Rent and Additional Rent to be paid by Tenant and performs all of Tenant's
covenants and agreements contained in this Lease.
8.06 LIMITATION OF LANDLORD'S PERSONAL LIABILITY. Tenant shall look
solely to Landlord's interest in the Project for the recovery of any judgment
against Landlord, and no other property or assets of Landlord or Landlord's
partners, officers, directors, shareholders or principals, direct or indirect,
disclosed or undisclosed, shall be subject to levy, execution or other
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enforcement procedure for the satisfaction of Tenant's remedies under or with
respect to this Lease.
8.07 COUNTERCLAIMS. If Landlord commences any summary proceeding or
action for nonpayment of Rent or to recover possession of the Premises, Tenant
shall not interpose any counterclaim of any nature or description in any such
proceeding or action, unless Tenant's failure to interpose such counterclaim in
such proceeding or action would result in the waiver of Tenant's right to bring
such claim in a separate proceeding under applicable law.
8.08 SURVIVAL. All obligations and liabilities of Landlord or Tenant
to the other which accrued before the expiration or other termination of this
Lease and all such obligations and liabilities which by their nature or under
the circumstances can only be, or by the provisions of this Lease may be,
performed after such expiration or other termination, shall survive the
expiration or other termination of this Lease. Without limiting the generality
of the foregoing, the rights and obligations of the parties with respect to any
indemnity under this Lease, and with respect to Tax Payments, Wage Increase
Charges and any other amounts payable under this Lease, shall survive the
expiration or other termination of this Lease.
8.09 CERTAIN REMEDIES. (a) If Tenant requests Landlord's consent and
Landlord fails or refuses to give such consent, Tenant shall not be entitled to
any damages for any withholding by Landlord of its consent, it being intended
that Tenant's sole remedy shall be an action for specific performance or
injunction, and that such remedy shall be available only in those cases where
this Lease provides that Landlord shall not unreasonably withhold its consent.
No dispute relating to this Lease or the relationship of Landlord and Tenant
under this Lease shall be resolved by arbitration unless this Lease expressly
provides for such dispute to be resolved by arbitration.
(b) Disputes under Section 4.02 and Article 5 of this Lease may be
resolved in accordance with the Commercial Arbitration Rules (Expedited
Procedures) of the Arbitration Association of America, except that the
provisions of this Section 8.09(b) shall supersede any conflicting or
inconsistent provisions of said rules. The party requesting arbitration shall do
so by giving notice to that effect to the other party, specifying in said notice
the nature of the dispute, and that said dispute shall be determined in the City
of New York, by a panel of 3 arbitrators in accordance with this Section
8.09(b). Landlord and Tenant shall each appoint their own arbitrator within 5
days after the giving of notice by either party. If either Landlord or Tenant
shall fail timely to appoint an arbitrator, the appointed arbitrator shall
select the second arbitrator, who shall be impartial, within 5 days after such
party's failure to appoint. The arbitrators so appointed shall meet and shall,
if possible, determine such matter within 10 days after the second arbitrator is
appointed and their determination shall be binding on the parties. If for any
reason such two arbitrators fail to agree on such matter within such period of
10 days, then either Landlord or Tenant may request the AAA to appoint an
arbitrator who shall be impartial within 7 days of such request and both parties
shall be bound by any appointment so made within such 7 day period. The third
arbitrator (and the second arbitrator if selected by the other arbitrator as
provided above) only shall subscribe and swear to an oath fairly and impartially
to determine such dispute. Within 7 days after the third arbitrator has been
appointed, each of the first two arbitrators shall submit their respective
determinations to the third arbitrator who must select one or the other of such
determinations (whichever the third
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arbitrator believes to be correct or closest to a correct determination) within
7 days after the first two arbitrators shall have submitted their respective
determinations to the third arbitrator, and the selection so made shall in all
cases be binding upon the parties, and judgment upon such decision may be
entered into any court having jurisdiction. In the event of the failure, refusal
or inability of an arbitrator to act, a successor shall be appointed within 10
days as hereinbefore provided. The third arbitrator shall be experienced in the
issue with which the arbitration is concerned and shall have been actively
engaged in such field for a period of at least 10 years before the date of his
or her appointment hereunder. If the second arbitrator is appointed by the first
arbitrator as provided above, such second arbitrator shall also be experienced
in the issue with which the arbitration is concerned and have been actively
engaged in such field for a period of at least 10 years before the date of his
or her appointment hereunder. The third arbitrator shall apply the laws of the
State of New York, without giving effect to any principles of conflicts of laws.
The third arbitrator shall schedule a hearing where the parties and their
advocates shall have the right to present evidence, call witnesses and experts
and cross-examine the other party's witnesses and experts. Each party shall pay
the fees and expenses of the arbitrator selected by it and the fees and expenses
of the third arbitrator shall be split evenly by the parties.
8.10 NO OFFER. The submission by Landlord of this Lease in draft
form shall be solely for Tenant's consideration and not for acceptance and
execution. Such submission shall have no binding force or effect and shall
confer no rights nor impose any obligations, including brokerage obligations, on
either party unless and until both Landlord and Tenant shall have executed a
lease and duplicate originals thereof shall have been delivered to the
respective parties.
8.11 CAPTIONS; CONSTRUCTION. The table of contents, captions,
headings and titles in this Lease are solely for convenience of reference and
shall not affect its interpretation. This Lease shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Lease to be drafted. Each covenant, agreement, obligation or other
provision of this Lease on Tenant's part to be performed, shall be deemed and
construed as a separate and independent covenant of Tenant, not dependent on any
other provision of this Lease.
8.12 AMENDMENTS. This Lease may not be altered, changed or amended,
except by an instrument in writing signed by the party to be charged.
8.13 BROKER. Each party represents to the other that such party has
dealt with no broker other than Insignia/ESG ("Broker") in connection with this
Lease or the Building, and each party shall indemnify and hold the other
harmless from and against all loss, cost, liability and expense (including,
without limitation, reasonable attorneys' fees and disbursements) arising out of
any claim for a commission or other compensation by any broker (other than
Broker) who has dealt with the indemnifying party in connection with this Lease
or the Building. Landlord shall enter into a separate agreement with Broker
which provides that, if this Lease is executed and delivered by both Landlord
and Tenant, Landlord shall pay to Broker a commission to be agreed upon between
Landlord and Broker, subject to, and in accordance with, the terms and
conditions of such agreement.
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8.14 MERGER. Tenant acknowledges that Landlord has not made and is
not making, and Tenant, in executing and delivering this Lease, is not relying
upon, any warranties, representations, promises or statements, except to the
extent that the same are expressly set forth in this Lease. Landlord
acknowledges that Tenant has not made and is not making, and Landlord, in
executing an delivering this Lease is not relying upon, any warranties,
representations, promises or statements, except to the extent that the same are
expressly set forth in this Lease. This Lease embodies the entire understanding
between the parties with respect to the subject matter hereof, and all prior
agreements, understanding and statements, oral or written, with respect thereto
are merged in this Lease.
8.15 SUCCESSORS. This Lease shall be binding upon and inure to the
benefit of Landlord, its successors and assigns, and shall be binding upon and
inure to the benefit of Tenant, its successors, and to the extent that an
assignment may be approved by Landlord, Tenant's assigns.
8.16 APPLICABLE LAW. This Lease shall be governed by, and construed
in accordance with, the laws of the State of New York, without giving effect to
any principles of conflicts of laws.
8.17 NO DEVELOPMENT RIGHTS. Tenant acknowledges that it has no
rights to any development rights, air rights or comparable rights appurtenant to
the Project, and consents, without further consideration, to any utilization of
such rights by Landlord. Tenant shall promptly execute and deliver any
instruments which may be reasonably requested by Landlord, including instruments
merging zoning lots, evidencing such acknowledgment and consent. The provisions
of this Section 8.17 shall be construed as an express waiver by Tenant of any
interest Tenant may have as a "party in interest" (as such term is defined in
Section 12-10 Zoning Lot of the Zoning Resolution of the City of New York) in
the Project.
8.18 CONDOMINIUM. This Lease and all rights of Tenant hereunder are
and shall be subject and subordinate in all respects to any condominium
declaration and any other documents (collectively, the "Declaration") which
shall be recorded in order to convert the Land and the improvements erected
thereon to a condominium form of ownership in accordance with the provisions of
Article 9-B of the Real Property Law, or any successor thereto, provided the
Declaration does not include other terms which increase Tenant's obligations (in
any material respect) or decrease Tenant's rights (in any material respect). If
any such Declaration is to be recorded, Tenant, upon the request of Landlord,
shall enter into an amendment of this Lease confirming such subordination and
modifying the Lease in such respects as shall be necessary to conform to such
condominiumization, including, without limitation, appropriate adjustments to
Tenant's Share and appropriate reductions in the Base Tax Amount; provided,
that, such amendment shall not reduce Tenant's rights or increase Tenant's
obligations under this Lease (in either case in any material respect) or
increase Tenant's monetary obligations under the Lease.
8.19 THIS LEASE IS A SUBLEASE. (a) Notwithstanding the reference to
this document as a "lease", Landlord is the tenant of the Building pursuant to a
lease entitled Consolidated, Modified and Restated Lease dated November 14, 1990
between The Durst Buildings Corporation (the "Prime Lessor"), as landlord and
Random House, Inc., as tenant (the "Prime Lease") for the Building. Pursuant to
that certain Assignment and Assumption of Lease,
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dated as of April 27, 1998, by and between Random and Landlord, all of Random's
right, title and interest in, to and under the Prime Lease has been assigned to
Landlord. Only the terms and conditions contained herein, however, shall govern
the rights and liabilities of Landlord and Tenant as between themselves, it not
being intended that any of the terms or conditions of the Prime Lease be deemed
incorporated herein except to the extent expressly provided in this Lease.
(b) Neither Landlord nor Tenant shall do or permit anything to be
done which would violate or breach the terms and provisions of the Prime Lease
or cause the Prime Lease to be terminated or forfeited by reason of any right of
termination or forfeiture reserved or vested in Prime Lessor under the Prime
Lease. Provided that Tenant is not in default under this Lease beyond any
applicable notice and grace period, Landlord shall not voluntarily cancel or
surrender the Prime Lease or voluntarily modify the Prime Lease in any respect
that impacts the terms of this Lease (other than to a de minimis extent) without
the prior written consent of Tenant. Nothing contained herein shall be deemed to
prohibit any assignment by Landlord of its interest under the Prime Lease.
8.20 SIGNAGE. (a) So long as Caminus Corporation, or an Affiliate or
successor by merger or acquisition of all or substantially all of the assets,
stock or other interests thereof, actually occupies two full floors of the
Premises Landlord shall permit Tenant to install, at Tenant's expense (i)
identification signage similar (but not necessarily exactly the same) in size to
other tenant identification signs installed on the Pylon, containing Tenant's
name and/or trade logo only ("Tenant's Sign") on the pylon sign to be erected by
Landlord, at Landlord's cost, at 50th Street and Third Avenue (the "Pylon")
provided that the construction of the Pylon containing Tenant's Sign is legally
permitted (including, without limitation the issuance of any and all approvals
by applicable governmental agencies or authorities which Landlord agrees to seek
using reasonable efforts).
(b) Subject to Section 8.20(a) above, any signage installed by
Tenant shall be subject to Landlord's prior written approval (which approval
shall not be unreasonably withheld, delayed or conditioned) as to color, size,
material and other features and components. If Caminus Corporation, or an
Affiliate or successor by merger or acquisition of all or substantially all of
the assets, stock or other interests thereof, ceases to occupy two full floors
of the Premises, then Tenant shall remove Tenant's Sign from the Pylon and shall
repair any damage resulting from such removal.
ARTICLE 9
RENEWAL RIGHT
9.01 RENEWAL RIGHT. (a) Provided that on the date Tenant exercises
the Renewal Option and at the commencement of the Renewal Term (i) this Lease
shall not have been terminated, (ii) Tenant shall not be in default beyond any
applicable notice and grace periods under this Lease and (iii) Tenant, or an
Affiliate or successor by merger or acquisition of all or substantially all of
the assets, stock or other interests thereof, shall occupy the entire Premises,
Tenant shall have the option (the "Renewal Option") to extend the term of this
Lease until April 29, 2019 (the "Renewal Term"), to commence at the expiration
of the initial Term.
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(b) The Renewal Option shall be exercised with respect to the entire
Premises only and shall be exercisable by Tenant giving notice to Landlord (the
"Renewal Notice") at least 12 months before the last day of the initial Term.
Time is of the essence with respect to the giving of the Renewal Notice.
9.02 RENEWAL RENT AND OTHER TERMS. (a) The Renewal Term shall be
upon all of the terms and conditions set forth in this Lease, except that (i)
the Fixed Rent shall be as determined pursuant to the further provisions of this
Section 9.02; (ii) Tenant shall accept the Premises in its "as is" condition at
the commencement of the Renewal Term, and Landlord shall not be required to
perform any work or pay any amount to make the Premises ready for Tenant's use
and occupancy or provide any abatement of Fixed Rent or Additional Charges, in
each case with respect to the Renewal Term; (iii) Tenant shall have no option to
renew this Lease beyond the expiration of the Renewal Term; (iv) the Base Tax
Amount shall be the Taxes for the Tax Year ending immediately before the
commencement of the Renewal Term; and (v) the Base Wage Rate for computing the
Wage Increase Charge shall be the Wage Rate for the calendar year ending
immediately before the commencement of the Renewal Term.
(b) The annual Fixed Rent for the Premises for the Renewal Term
shall be 100% of the Fair Market Rent for the Premises during the 6 months
immediately preceding the commencement of the Renewal Term (the "Annual Rent").
"Fair Market Rent" means the fixed annual rent that a willing lessee would pay
and a willing lessor would accept for the Premises during the Renewal Term,
taking into account all relevant factors.
(c) If Tenant timely exercises the Renewal Option, Landlord shall
notify Tenant (the "Rent Notice") at least 90 days before the last day of the
initial Term of Landlord's determination of the Fair Market Rent ("Landlord's
Determination"). If Landlord fails to timely notify Tenant of Landlord's
Determination, Landlord shall not waive any rights by reason thereof, but agrees
to give such determination within five (5) Business Days after being requested
to do so by Tenant in a notice. Tenant shall notify Landlord ("Tenant's
Notice"), within 30 days after Tenant's receipt of the Rent Notice, whether
Tenant accepts or disputes Landlord's Determination, and if Tenant disputes
Landlord's Determination, Tenant's Notice shall set forth Tenant's determination
of the Fair Market Rent. If Tenant fails to give Tenant's Notice within such 30
day period, Landlord shall give Tenant a five (5) Business Day reminder notice
stating, in bold-faced capital letters that "THIS NOTICE IS BEING GIVEN UNDER
SECTION 9.02(c) OF OUR LEASE. YOUR FAILURE TO TIMELY RESPOND WILL RESULT IN THE
FIXED RENT FOR THE PREMISES FOR THE RENEWAL TERM BEING LANDLORD'S
DETERMINATION," and if Tenant fails to give Tenant's Notice within such five (5)
Business Day period, then Tenant shall be deemed to have accepted Landlord's
Determination.
(d) If Tenant timely disputes Landlord's Determination and Landlord
and Tenant fail to agree as to the Fair Market Rent within 20 days after the
giving of Tenant's Notice, then the Fair Market Rent shall be determined as
follows: Such dispute shall be resolved by arbitration conducted in accordance
with the Real Estate Valuation Arbitration Rules (Expedited Procedures) of the
AAA, except that the provisions of this Section 9.02(d) shall supersede any
conflicting or inconsistent provisions of said rules. The party requesting
arbitration shall do so by giving notice to that effect to the other party,
specifying in said notice
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the nature of the dispute, and that said dispute shall be determined in the City
of New York, by a panel of 3 arbitrators in accordance with this Section
9.02(d). Landlord and Tenant shall each appoint their own arbitrator within 7
days after the giving of notice by either party. If either Landlord or Tenant
shall fail timely to appoint an arbitrator, the appointed arbitrator shall
select the second arbitrator, who shall be impartial, within 7 days after such
party's failure to appoint. Such two arbitrators shall have 7 days to appoint a
third arbitrator who shall be impartial. If such arbitrators fail to do so, then
either Landlord or Tenant may request the AAA to appoint an arbitrator who shall
be impartial within 14 days of such request and both parties shall be bound by
any appointment so made within such 14-day period. If no such third arbitrator
shall have been appointed within such 14 days, either Landlord or Tenant may
apply to any court having jurisdiction to make such appointment. The third
arbitrator only shall subscribe and swear to an oath fairly and impartially to
determine such dispute. Within 14 days after the third arbitrator has been
appointed, each arbitrator shall render its determination of the Fair Market
Rent in writing and shall submit same to each of the other arbitrators, and to
Landlord and Tenant. If at least two of the three arbitrators shall concur in
their determination of the Fair Market Rent, their determination shall be final
and binding upon the parties. If the arbitrators fail to concur, then the Fair
Market Rent shall be equal to 50% of the sum of the two determinations by the
arbitrators closest in amount (provided that if the highest and lowest
determinations are exactly equidistant from the middle determination, then the
Fair Market Rent shall be equal to such middle determination), and such amount
shall be final and binding upon the parties. The fees and expenses of any
arbitration pursuant to this Section 9.02(d) shall be borne by the parties
equally, but each party shall bear the expense of its own arbitrator, attorneys
and experts and the additional expenses of presenting its own proof. The
arbitrators shall not have the power to add to, modify or change any of the
provisions of this Lease. Each arbitrator shall have at least 10 years'
experience in leasing and valuation of properties which are similar in character
to the Building. After a determination has been made of the Fair Market Rent,
the parties shall execute and deliver an instrument setting forth the Fair
Market Rent, but the failure to so execute and deliver any such instrument shall
not effect the determination of Fair Market Rent.
(e) If Tenant disputes Landlord's Determination and if the final
determination of Fair Market Rent shall not be made on or before the first day
of the Renewal Term, then, pending such final determination, Tenant shall pay,
as Fixed Rent for the Renewal Term, an amount equal to Landlord's Determination.
If, based upon the final determination of the Fair Market Rent, the Fixed Rent
payments made by Tenant for such portion of the Renewal Term were (i) less than
the Fair Market Rent payable for the Renewal Term, Tenant shall pay to Landlord
the amount of such deficiency within 10 days after demand therefor or (ii)
greater than the Fair Market Rent payable for the Renewal Term, Landlord shall
credit the amount of such excess against future installments of Fixed Rent and
Additional Rent payable by Tenant with interest thereon at the Base Rate.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as
of the day and year first written above.
Landlord: ADVANCE MAGAZINE PUBLISHERS INC.
By:/s/ Robert Bennis
.......................
Name: Robert Bennis
Title: Vice President
Tenant: CAMINUS CORPORATION.
By:/s/ Mark A. Herman
........................
Name: Mark A. Herman
Title: Chief Financial Officer
Tenant's Federal Tax I.D. No.: 13-4081739
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EXHIBIT A
DESCRIPTION OF LAND
ALL that certain plot, piece of parcel of land, situate, lying and being in the
City, County and State of New York, bounded and described as follows:
BEGINNING at the corner formed by the intersection of the northerly side of East
50th Street with the easterly side of Third Avenue;
THENCE Northerly along the easterly side of Third Avenue, 100 feet 2-3/4 inches;
THENCE Easterly parallel with East 50th Street, 76 feet;
THENCE Northerly parallel with the easterly side of Third Avenue, 40 feet 9-3/4
inches;
THENCE Westerly parallel with the southerly side of East 51st Street, 9 feet 6
inches;
THENCE Northerly parallel with the easterly side of Third Avenue and part of the
distance through a party wall, 59 feet 9-1/2 inches to a point in the southerly
side of East 51st Street distant 66 feet 6 inches easterly from the southwest
corner of East 51st Street and Third Avenue;
THENCE Easterly along the southerly side of East 51st Street, 38 feet 2 inches;
THENCE Southerly parallel with Third Avenue, part of the way through a party
wall, 59 feet 8-1/4 inches;
THENCE Easterly 45 feet 5-1/2 inches to a point;
THENCE Southerly parallel with Third Avenue 40 feet 8-3/4 inches to the center
line of the block;
THENCE Easterly along the same, 34 feet 10-1/2 inches to a point distant 185
feet easterly from the easterly side of Third Avenue;
THENCE Southerly along said parallel line, 100 feet 5 inches to the northerly
side of East 50th Street;
THENCE Westerly along the same, 185 feet to the point of place of BEGINNING.
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EXHIBIT B
PREMISES FLOOR PLAN
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EXHIBIT C
RULES AND REGULATIONS
1. The rights of each tenant in the entrances, corridors, elevators and
escalators servicing the Building are limited to ingress and egress from such
tenant's premises for the tenant and its employees, licensees and invitees, and
no tenant shall use, or permit the use of, the entrances, corridors, escalators
or elevators for any other purpose. No tenant shall invite to the tenant's
premises, or permit the visit of, persons in such numbers or under such
conditions as to interfere with the use and enjoyment of any of the plazas,
entrances, corridors, escalators, elevators and other facilities of the Building
by any other tenants. Fire exits and stairways are for emergency use only, and
they shall not be used for any other purpose by the tenants, their employees,
licensees or invitees. No tenant shall encumber or obstruct, or permit the
encumbrance or obstruction of, any of the sidewalks, plazas, entrances,
corridors, escalators, elevators, fire exits or stairways of the Building.
Landlord reserves the right to control and operate the public portions of the
Building and the public facilities, as well as facilities furnished for the
common use of the tenants, in such manner as it in its reasonable judgment deems
best for the benefit of the tenants generally.
2. Landlord may refuse admission to the Building outside of Business
Hours on Business Days (or at such other appropriate times) to any person not
known to the watchman in charge or not having a pass issued by Landlord or the
tenant whose premises are to be entered or not otherwise properly identified,
and Landlord may require all persons admitted to or leaving the Building outside
of Business Hours on Business Days (or at other appropriate times) to provide
appropriate identification. Tenant shall be responsible for all persons for whom
it issues any such pass and shall be liable to Landlord for all acts or
omissions of such persons. Any person whose presence in the Building at any time
shall, in the reasonable judgment of Landlord, be prejudicial to the safety,
character or reputation of the Building or of its tenants may be ejected
therefrom. During any invasion, riot, public excitement or other commotion,
Landlord may prevent all access to the Building by closing the doors or
otherwise for the safety of the tenants and protection of property in the
Building.
3. Only Landlord or persons approved by Landlord shall be permitted to
furnish to the Premises floor polishing, cleaning or other similar services.
Landlord may exclude from the Building any person or service provider who
Landlord reasonably believes has or will cause damage to the Building or create
a nuisance. Any person or service provider engaged by Tenant to furnish ice,
drinking water, food, beverage, linen, towel, barbering or bootblacking services
within the Premises shall not cause labor disharmony within the Building and
shall not cause any violation of any agreement that Landlord may have with any
provider of such services to the Building.
4. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, blinds, shades or screens which are
different from the standards adopted by Landlord for the Building shall be
attached to or hung in, or used in connection with, any exterior window or door
of the premises of any tenant, without the prior written consent of Landlord.
Such curtains, blinds, shades or screens must be of a quality, type, design and
color,
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and attached in the manner approved by Landlord, which approval shall not be
unreasonably withheld.
5. No lettering, sign, advertisement, notice or object shall be
displayed in or on the exterior windows or doors, or on the outside of any
tenant's premises, or at any point inside any tenant's premises where the same
might be visible outside of such premises, without the prior written consent of
Landlord. Except as otherwise specified in this Lease, in the event of the
violation of the foregoing by any tenant, Landlord may remove the same without
any liability, and may charge the expense incurred in such removal to the tenant
violating this rule.
6. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by any tenant, nor shall any
bottles, parcels or other articles be placed on the window sills or on the
peripheral air conditioning enclosures, if any.
7. No showcases or other articles shall be put in front of or affixed
to any part of the exterior of the Building, nor placed in the halls, corridors
or vestibules.
8. No bicycles, vehicles, animals, fish or birds of any kind shall be
brought into or kept in or about the premises of any tenant or the Building.
9. No noise, including, without limitation, music or the playing of
musical instruments, recordings, radios or television, which, in the reasonable
judgment of Landlord, might disturb other tenants in the Building, shall be made
or permitted by any tenant. Nothing shall be done or permitted in the premises
of any tenant which would impair or interfere with the use or enjoyment by any
other tenant of any space in the Building.
10. No tenant, nor any tenant's contractors, employees, agents,
visitors or licensees, shall at any time bring into or keep upon the premises or
the Building any inflammable, combustible, explosive, or otherwise hazardous or
dangerous fluid, chemical, substance or material.
11. Additional locks or bolts of any kind which shall not be operable
by the Grand Master Key for the Building shall not be placed upon any of the
doors or windows by any tenant, nor shall any changes be made in locks or the
mechanism thereof which shall make such locks inoperable by said Grand Master
Key. Additional keys for a tenant's premises and toilet rooms shall be procured
only from Landlord who may make a reasonable charge therefor. Each tenant shall,
upon the termination of its tenancy, turn over to Landlord all keys of stores,
offices and toilet rooms, either furnished to, or otherwise procured by, such
tenant, and in the event of the loss of any keys furnished by Landlord, such
tenant shall pay to Landlord the cost thereof. Tenant may install, at Tenant's
expense, a key card system provided that Landlord is supplied with a master key
card and provided that such system is removed by Tenant upon the expiration or
earlier termination of this Lease.
12. Other than removals in the ordinary course of Tenant's business,
all removals, or the carrying in or out of any safes, freight, furniture,
packages, boxes, crates or any other object or matter of any description must
take place during such hours and in such elevators, and in such manner as
Landlord or its agent may reasonably determine from time to time. The
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persons employed to move safes and other heavy objects shall be reasonably
acceptable to Landlord and, if so required by law, shall hold a Master Rigger's
license. Arrangements will be made by Landlord with any tenant for moving large
quantities of furniture and equipment into or out of the Building. All labor and
engineering costs incurred by Landlord in connection with any moving specified
in this rule, including a reasonable charge for overhead shall be paid by tenant
to Landlord, on demand.
13. Landlord reserves the right to inspect all objects and matter to be
brought into the Building and to exclude from the Building all objects and
matter which violate any of these Rules and Regulations or the lease of which
this Exhibit is a part. Landlord may require any person leaving the Building
with any package or other object or matter to submit a pass, listing such
package or object or matter, from the tenant from whose premises the package or
object or matter is being removed, but the establishment and enforcement of such
requirement shall not impose any responsibility on Landlord for the protection
of any tenant against the removal of property from the premises of such tenant.
Landlord shall in no way be liable to any tenant for damages or loss arising
from the admission, exclusion or ejection of any person to or from the premises
or the Building under the provisions of this Rule or of Rule 2 hereof.
14. No tenant shall occupy or permit any portion of its premises to be
occupied as an office for a public stenographer or public typist, or for the
possession, storage, manufacture, or sale of liquor, narcotics, dope, tobacco in
any form, or as a barber, beauty or manicure shop, or as a school. No tenant
shall use, or permit its premises or any part thereof to be used, for
manufacturing, or the sale at retail or auction of merchandise, goods or
property of any kind.
15. Landlord shall have the right to prohibit any advertising or
identifying sign by any tenant which, in Landlord's reasonable judgment, tends
to impair the reputation of the Building or its desirability as a building for
others, and upon written notice from Landlord, such tenant shall refrain from
and discontinue such advertising or identifying sign.
16. Landlord (acting reasonably) shall have the right to prescribe the
weight and position of safes and other objects of excessive weight, and no safe
or other object whose weight exceeds the lawful load for the area upon which it
would stand shall be brought into or kept upon any tenant's premises. If, in the
reasonable judgment of Landlord, it is necessary to distribute the concentrated
weight of any heavy object, the work involved in such distribution shall be done
at the expense of the tenant and in such manner as Landlord shall reasonably
determine.
17. No machinery or mechanical equipment other than ordinary portable
business machines may be installed or operated in any tenant's premises without
Landlord's prior written consent which consent shall not be unreasonably
withheld or delayed, and in no case (even where the same are of a type so
excepted or as so consented to by Landlord) shall any machines or mechanical
equipment be so placed or operated as to disturb other tenants; but machines and
mechanical equipment which may be permitted to be installed and used in a
tenant's premises shall be so equipped, installed and maintained by such tenant
as to prevent any disturbing noise, vibration or electrical or other
interference from being transmitted from such premises to any other area of the
Building.
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18. Landlord, its contractors, and their respective employees shall
have the right to use, without charge therefor, all light, power and water in
the premises of any tenant while cleaning or making repairs or alterations in
the premises of such tenant; provided that Landlord, its contractors and their
respective employees shall endeavor to turn off such lights as they may turn on
in connection with such cleaning or making repairs or alterations in the
Premises.
19. No premises of any tenant shall be used for lodging of sleeping or
for any immoral or illegal purpose.
20. The requirements of tenants will be attended to only upon
application at the office of the Building. Employees of Landlord shall not
perform any work or do anything outside of their regular duties, unless under
special instructions from Landlord.
21. Canvassing, soliciting and peddling in the Building are prohibited
and each tenant shall cooperate to prevent the same.
22. Tenant shall not cause or permit any unusual or objectionable
fumes, vapors or odors to emanate from the Premises which would annoy other
tenants or create a public or private nuisance. No cooking shall be done in the
Premises except as is expressly permitted in the Lease.
23. Nothing shall be done or permitted in any tenant's premises, and
nothing shall be brought into or kept in any tenant's premises, which would
impair or interfere with any of the Building's services or the proper and
economic heating, ventilating, air conditioning, cleaning or other servicing of
the Building or the premises, or the use or enjoyment by any other tenant of any
other premises, nor shall there be installed by any tenant any ventilating, air
conditioning, electrical or other equipment of any kind which, in the reasonable
judgment of Landlord, might cause any such impairment or interference.
24. No acids, vapors or other materials shall be discharged or
permitted to be discharged into the waste lines, vents or flues of the Building
which may damage them. The water and wash closets and other plumbing fixtures in
or serving any tenant's premises shall not be used for any purpose other than
the purposes of which they were designed or constructed, and no sweepings,
rubbish, rags, acids or other foreign substances shall be deposited therein. All
damages resulting from any misuse of the fixtures shall be borne by the tenant
who, or whose servants, employees, agents, visitors or licensees shall have,
caused the same. Any cuspidors or containers or receptacles used as such in the
premises of any tenant shall be emptied, cared for and cleaned by and at the
expense of such tenant.
25. All entrance doors in each tenant's premises shall be left locked
and all windows shall be left closed by the tenant when the tenant's premises
are not in use. Entrance doors shall not be left open at any time. Each tenant,
before closing and leaving its premises at any time, shall turn out all lights.
26. Hand trucks not equipped with rubber tires and side guards shall
not be used within the Building.
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27. All windows in each tenant's premises shall be kept closed, and all
blinds therein above the ground floor shall be lowered as reasonably required
because of the position of the sun, during the operation of the Building
air-conditioning system to cool or ventilate the tenant's premises. If Landlord
shall elect to install any energy saving film on the windows of the Premises or
to install energy saving windows in place of the present windows, tenant shall
cooperate with the reasonable requirements of Landlord in connection with such
installation and thereafter the maintenance and replacement of the film and/or
windows and permit Landlord to have access to the tenant's premises at
reasonable times during Business Hours to perform such work.
28. If the Premises be or become infested with vermin as a result of
the use or any misuse or neglect of the Premises by Tenant, its agents,
employees, visitors or licensees, Tenant shall at Tenant's expense cause the
same to be exterminated from time to time to the reasonable satisfaction of
Landlord and shall employ such exterminators and such exterminating company or
companies as shall be reasonably approved by Landlord.
29. To the extent there is a conflict between the provisions contained
in the Lease or this Exhibit C annexed thereto, the provisions of the Lease
shall govern and control.
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EXHIBIT D
STANDARD CLEANING SPECIFICATIONS
General Nightly Cleaning:
- Sweep flooring nightly.
- Carpet sweep rugs four nights each week.
- Vacuum once each week.
- Sweep private stairways, wash as necessary. (This is usually done by a
day porter.)
- Empty and clean wastepaper baskets, ashtrays, receptacles, etc.
- Clean cigarette urns.
- Remove wastepaper and waste materials to the designated area in the
premises. (Rubbish bags shall be supplied by Landlord).
- Dust and wipe clean furniture, fixtures, desk equipment and telephones.
- Dust baseboards, pictures and charts within reach.
- Wash drinking fountains and coolers.
Nightly Cleaning of Lavatories:
- Sweep and wash flooring with approved germicidal detergent solution.
- Wash and polish mirrors, powder shelves, bright work, etc., including
flushometers, piping and toilet seat hinges.
- Wash both sides of toilet seats, wash basins, bowls and urinals with
approved germicidal detergent solution.
- Dust partitions, tile walls, dispensers, doors and receptacles.
- Empty and clean towel and sanitary disposal receptacles.
- Remove wastepaper and refuse to a designated area in premises, using
special janitor carriages.
- Fill toilet tissue, soap and towel dispensers with supplies furnished
by Landlord.
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Periodic Cleaning:
- Remove finger marks from metal partitions and other similar surfaces as
necessary.
- Cleaning of exteriors of windows - 4 times per year.
- Cleaning of interiors of windows - 2 times per year.
High Dusting:
- Do all high dusting every three months which includes the following:
- Dust pictures, frames, charts, graphs and similar wall hangings not
reached in nightly cleaning.
- Dust exterior of light fixtures.
- Dust overhead pipes, venetian blinds and window frames.
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EXHIBIT E
HVAC SPECIFICATIONS
The HVAC system serving the Premises is designed to maintain (a) 74 degrees
Fahrenheit +/- 2 degrees Fahrenheit at 50% RH +/- 5% when Summer conditions are
92 degrees Fahrenheit dry bulb and 74 degrees Fahrenheit wet bulb and (b) 70
degrees Fahrenheit when winter outdoor conditions are 0 degrees Fahrenheit. The
HVAC system shall be capable of handling (1) an electrical load of 4 watts per
usable square foot and (2) an occupancy rate of one person per 150 usable square
feet. The HVAC System will provide minimum outside air to the Premises at 20 CFM
per person when the occupancy is not greater than one person per 150 usable
square feet.
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EXHIBIT F
SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
----------------------------------
THIS AGREEMENT, made as of the ___ day of _________, 2000 between The Durst
Buildings Corporation, a New York corporation, having an office at 1155 Avenue
of the Americas, New York, New York (the "Landlord") and ________________,
a_________________ _____________________, having an office at 201 East 50th
Street (a/k/a 825 Third Avenue), New York, New York (the "Subtenant").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Landlord is the lessor under a certain lease dated as of November 14,
1990 (the "Overlease") demising the building known as 201 East 50th Street
(a/k/a 825 Third Avenue), New York, New York (the "Building") and the land (the
"Land") under the Building, which Land is more particularly described in the
legal description attached as Exhibit A hereto and made a part hereof, to Random
House, Inc. (predecessor in interest to Advance Magazine Publishers Inc.) (the
"Tenant") a memorandum of which was recorded in Reel ____, Page ___ in the
Office of the Register of the City of New York;
WHEREAS, Subtenant is the subtenant under that certain sublease (the "Sublease")
dated ____________, 2000 between Tenant and Subtenant covering the entire ___
floor of the Building (the "Subleased Premises");
WHEREAS, Subtenant has requested that Landlord agree not to terminate the
Sublease nor disturb Subtenant's occupancy under the Sublease in the event of
the termination of the Overlease due to Tenant's default thereunder past all
applicable notice and grace periods; and
WHEREAS, Landlord is willing to enter into such an agreement on the terms and
conditions contained herein;
NOW, THEREFORE, Landlord and Subtenant agree as follows:
1. Subordination. Subtenant agrees that the Sublease and all of the terms,
covenants and provisions thereof and all rights, remedies and options of
Subtenant thereunder are and shall at all times continue to be fully subject and
subordinate in all respects to the Overlease as the same may be renewed,
amended, supplemented, extended or replaced. This provision shall be
self-operative and no further instrument shall be required to confirm or perfect
such subordination. However, at the request of Landlord, Subtenant shall execute
and deliver such other documents and take such other action as Landlord
reasonably requests to perfect, confirm or effectuate such subordination.
2. Non-Disturbance. Landlord agrees that so long as Subtenant is not in
default in its obligations for the payment of rent, additional rent, or other
charges due under the
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Sublease, or in the performance or observance of any of the other terms,
covenants and conditions on its part to be performed or observed under the
Sublease, in each case beyond any applicable notice and cure period:
(a) neither the rights, possession or enjoyment of Subtenant under the
Sublease shall be terminated or disturbed by Landlord, its successors or
assigns, subject however to the terms and the provisions of paragraph 3 hereof;
and
(b) Subtenant shall not be named as a party in any summary proceeding
or other action or proceeding instituted by reason of Tenant's default under the
Overlease nor shall such action or proceeding result in a cancellation,
modification or termination of the Sublease.
3. Non-Liability. If Landlord becomes the successor in interest of
Tenant under the Sublease, the Sublease shall, notwithstanding any provision to
the contrary therein contained, continue in full force and effect as a direct
sublease between Landlord and Subtenant, Landlord shall be subject to the
provisions of the Sublease provided that in no event shall Landlord or its
successors or assigns be:
(a) liable for any previous act, omission, or negligence of Tenant as
sublandlord or any prior sublandlord or the failure or default of any prior
sublandlord (including, without limitation, Tenant) to comply with any of its
obligations under such Sublease;
(b) subject to any counterclaims, defenses or offsets which Subtenant
may have against Tenant or any prior landlord under the Sublease or the failure
or default of any prior landlord (including, without limitation, Tenant) to
comply with any of its obligations under the Sublease;
(c) bound by any renewal, extension, amendment, cancellation,
assignment, modification or surrender of such Sublease (not previously approved
in writing by Landlord) or by any previous prepayment of more than one (1)
month's fixed rent and one billing period of additional rent which shall be
payable as provided in the Sublease;
(d) obligated to repair the Subleased Premises or the Building or any
part thereof, in the event of (i) total or partial damage due to a casualty or
(ii) total or partial condemnation which, in either event, cannot be restored
within twelve (12) months, or, if so curable within such twelve month period,
there shall be no such obligation to restore unless such casualty was covered by
insurance or the condemnation resulted in a condemnation award, and, in such
case, the obligation to restore shall be limited to the amount of insurance
proceeds or condemnation award actually received by Landlord, its successors or
assigns;
(e) obligated to perform or pay for any work in the Subleased Premises,
or to undertake to complete any construction of any portion of the Subleased
Premises or any capital improvements therein or thereon;
(f) be bound by any free rent concession provisions of the Sublease
(i.e., if Landlord succeeds to the interest of Tenant during any free rent
concession period, Subtenant must pay to Landlord the full rent payable under
the subject Sublease from and after the effective
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date of such succession and shall not be entitled to any concession, set-off or
deduction on account thereof) or by any obligation to make any work contribution
payment to Subtenant;
(g) liable to Subtenant beyond Landlord's interest in the Subleased
Premises and the rents, income, receipts, revenues, issues and profits arising
from the Subleased Premises;
(h) liable for any brokerage commissions or costs, expenses or
liabilities in connection therewith;
(i) liable for any monies owing by or on deposit with Tenant to the
credit of Subtenant except to the extent turned over to Landlord.
4. No Changes to Sublease. The Sublease constitutes an inducement to
Landlord to enter into this Agreement. Consequently, Subtenant shall not,
without obtaining the prior written consent of Landlord, (i) enter into any
agreement amending, modifying or terminating the Sublease, (ii) prepay any of
the fixed rent and one billing period of additional rent due under the Sublease
for more than one (1) month in advance of the due dates thereof, (iii)
voluntarily surrender the Subleased Premises or terminate the Sublease without
cause or shorten the term thereof, except as and to the extent provided for in
the Sublease, or (iv) assign the Sublease or sublet the Subleased Premises or
any part thereof other than pursuant to the provisions of the Sublease and any
such amendment, modification, termination, prepayment, voluntary surrender,
assignment or subletting, without Landlord's prior consent, shall not be binding
upon Landlord.
5. Attornment. If the interest of Tenant under the Sublease is
transferred (or surrendered or terminated) to Landlord by reason of Tenant's
default under the Overlease or by reason of assignment of the Overlease (or any
similar device) in lieu of transfer (or surrender or termination) following
Tenant's default, Subtenant will, at the request of Landlord, be bound to
Landlord under all of the terms, covenants and conditions of the Sublease
(except as set forth in paragraph 3) for the balance of the term thereof and of
any extensions or renewals thereof that are effected in accordance with the
Sublease, with the same effect as if Landlord were the sublandlord under the
Sublease, such attornment to be effective as of the time Landlord succeeds to
the interest of Tenant under the Sublease, without the execution of any further
agreement. However, Subtenant agrees, at its own expense, to execute and
deliver, at any time and from time to time upon request of Landlord, any
agreement that may reasonably be necessary or appropriate to evidence such
attornment. Failure of Subtenant to so execute any such an agreement shall not
vitiate such attornment. Subtenant waives the provisions of any statute or rule
of law now or hereafter in effect that may give it any right or election to
terminate or otherwise adversely affect the Sublease or the obligations of
Subtenant thereunder by reason of any proceeding in connection with Tenant's
default under the Sublease.
6. Notice of Default. Subtenant will notify Landlord of any default of
Tenant or other circumstance that would entitle Subtenant to cancel the Sublease
or to abate the rent or additional rent or any other amounts payable thereunder,
and agrees that notwithstanding any provision of the Sublease, no cancellation
thereof or abatement shall be effective unless Subtenant shall have sent
Landlord a notice in the manner herein provided and has failed to cure the
default giving rise to such right to abatement or cancellation within the time
period as Tenant
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may be entitled to under the Sublease or, if such default (which shall be a
non-monetary default) cannot be cured within such time period, unless Landlord
has failed promptly to commence such cure or thereafter diligently to prosecute
such cure to completion. No cure of Tenant's default by Landlord shall be deemed
an assumption of Tenant's other obligations under the Sublease and no right of
Landlord hereunder to receive any notice or to cure any default shall be deemed
to impose any obligation on Landlord to cure (or attempt to cure) any such
default.
7. Notices. All notices, consents, approvals, demands and other
communications ("notices") hereunder shall be in writing and shall be deemed to
have been sufficiently given or served for all purposes when delivered in
person, sent by Federal Express or overnight courier or sent by registered or
certified mail to any party hereto at its address above stated or at such other
address and to such other persons (but not more than two) of which it shall have
notified the party giving such notice in writing. Notices to Landlord shall be
addressed to Landlord at 1155 Avenue of the Americas, New York, New York 10036,
and a copy of all notices given to Landlord shall simultaneously be sent to its
counsel, Richards and O'Neill, 885 3rd Avenue, New York, New York 10022,
Attention: Robert M. Safron, Esq. Notices to Subtenant shall be addressed to
Subtenant at 825 Third Avenue, Attention: __________________, and a copy of all
notices given to Subtenant shall simultaneously be sent to its counsel,
____________________, ___________________________, Attention:
__________________. Any notice sent by registered or certified mail shall be
deemed to have been served forty-eight (48) hours after the date it is mailed in
accordance with the foregoing provisions. Any notice sent by Federal Express or
overnight courier shall be deemed to have been served the next day. Any notice
sent by personal delivery shall be deemed to have been served on the date of
such delivery. Any notice shall be deemed effective and deemed given by Landlord
or Subtenant, as the case may be, if signed and sent by its respective counsel.
8. Satisfaction. Subtenant agrees that this Agreement satisfies any
condition or requirement in the sublease relating to the granting of a
nondisturbance agreement by Landlord.
9. Miscellaneous. This Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto and may
not be modified or terminated orally. Notwithstanding anything to the contrary
herein or in the Sublease, in no event shall Landlord be liable hereunder or
under the Sublease for consequential damages. In the event of the assignment or
transfer of the interest of Landlord, all obligations and liabilities of
Landlord under this Agreement shall terminate, and thereupon all such
obligations and liability shall be the responsibility of the party to whom
Landlord's interest is assigned or transferred. This Agreement and the rights
and obligations of the parties hereunder shall be governed by and construed in
accordance with the law of the State of New York. This Agreement may be signed
in counterparts.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
THE DURST BUILDINGS CORPORATION
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By:________________________________
Name:
Title:
SUBTENANT
By:________________________________
Name:
Title:
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COUNTY OF NEW YORK )
)ss.:
STATE OF NEW YORK )
On the ____ day of ___________ in the year ______ before me, the undersigned, a
notary public in and for said state, personally appeared _____________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
______________________________
Notary Public
COUNTY OF NEW YORK )
) ss.:
STATE OF NEW YORK )
On the ____ day of ___________ in the year ______ before me, the undersigned, a
notary public in and for said state, personally appeared _____________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
______________________________
Notary Public
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EXHIBIT A
LEGAL DESCRIPTION
ALL that certain plot, piece of parcel of land, situate, lying and being in the
City, County and State of New York, bounded and described as follows:
BEGINNING at the corner formed by the intersection of the northerly side of East
50th Street with the easterly side of Third Avenue;
THENCE Northerly along the easterly side of Third Avenue, 100 feet 2-3/4 inches;
THENCE Easterly parallel with East 50th Street, 76 feet;
THENCE Northerly parallel with the easterly side of Third Avenue, 40 feet 9-3/4
inches;
THENCE Westerly parallel with the southerly side of East 51st Street, 9 feet 6
inches;
THENCE Northerly parallel with the easterly side of Third Avenue and part of the
distance through a party wall, 59 feet 9-1/2 inches to a point in the southerly
side of East 51st Street distant 66 feet 6 inches easterly from the southwest
corner of East 51st Street and Third Avenue;
THENCE Easterly along the southerly side of East 51st Street, 38 feet 2 inches;
THENCE Southerly parallel with Third Avenue, part of the way through a party
wall, 59 feet 8-1/4 inches;
THENCE Easterly 45 feet 5-1/2 inches to a point;
THENCE Southerly parallel with Third Avenue 40 feet 8-3/4 inches to the center
line of the block;
THENCE Easterly along the same, 34 feet 10-1/2 inches to a point distant 185
feet easterly from the easterly side of Third Avenue;
THENCE Southerly along said parallel line, 100 feet 5 inches to the northerly
side of East 50th Street;
THENCE Westerly along the same, 185 feet to the point of place of BEGINNING.
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EXHIBIT G
LOBBY/ELEVATOR RENDERING
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EXHIBIT H
FORM OF LETTER OF CREDIT
[ISSUING BANK'S LETTERHEAD]
Irrevocable Letter of Credit No. ______________
AMOUNT: $__________
ISSUANCE DATE: _________, 2000
EXPIRATION DATE:
BENEFICIARY:
Advance Magazine Publishers Inc.
Four Times Square
New York, New York 10036
Attention: Robert Bennis
Re: IRREVOCABLE LETTER OF CREDIT
Applicant's Name: [ ]
Property Address: 825 Third Avenue, New York, New York
Ladies and Gentlemen:
We hereby establish in your favor our Irrevocable Letter of
Credit No. _____, in the amount of $____________, which is unconditionally
available for payment by your draft at sight.
All drafts so drawn must be marked "drawn under Irrevocable
Letter of Credit of [Issuing Bank], No. _____, dated [__________, 2000]."
The term "Beneficiary" includes any successor by operation of
law of the named beneficiary, including without limitation, any liquidator,
rehabilitator, receiver, or conservator.
In the event that Applicant becomes a debtor in a case under
Title 11 of the United States Code (the "Bankruptcy Code"), or in any other
insolvency or similar proceeding, the obligations of Issuing Bank to Beneficiary
hereunder shall not be reduced, limited, impaired, discharged, deferred,
suspended, stayed, terminated or otherwise affected by reason thereof or by
reason of any provisions of the Bankruptcy Code (including, but not limited to,
sections 362 and 502(b) of the Bankruptcy Code), or the provisions of any other
insolvency or similar
It is a condition of this Letter of Credit that it shall be
deemed to be automatically extended without amendment for a period of one (1)
year from the present or each future
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expiration date, unless we shall notify you by written notice mailed at least 30
days prior to such expiration date that we elect not to renew for such
additional period (provided that this Letter of Credit shall expire not later
than June 30, 2019). In the event we elect not to renew or if Applicant holds
over in the premises leased to Applicant by Beneficiary pursuant to that certain
lease dated as of ________, 2000, the amount of this Letter of Credit is
available for payment of your draft credit at sight.
We hereby engage with you that your drawings in conformity
with the terms of this Letter of Credit will be duly honored on presentation and
will be honored on the Banking Day (as hereinafter defined) received if
presented at [Issuing Bank]'s office at [_______________________], New York, New
York prior to 2:00 P.M. All drafts presented at such office after 2:00 P.M. will
be duly honored on the next Banking Day. For the purposes hereof, "Banking Day"
means a day of the year on which banks in New York, New York are not required or
authorized, by applicable law, to close.
This Letter of Credit is transferable by Beneficiary in its
entirety without charge to Beneficiary. Transfer of this Letter of Credit may be
effected by (a) the presentation to us of the original of this Letter of Credit
and (b) presentation to us of a certificate in the form of Exhibit A, attached
hereto, appropriately completed and signed. We agree to issue a substitute
Letter of Credit in the same form of this Letter of Credit within five (5) days
of receipt of the foregoing.
Except as otherwise expressly stated hereinabove, this Letter
of Credit is subject to the "Uniform Customs and Practices for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No. 500.
Sincerely yours,
[ISSUING BANK]
By_____________________________
Its:___________________________
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EXHIBIT A
Exhibit A to Letter of Credit No. _______
Date:________________
Issuing Bank
Reference: Letter of Credit No. _________ issued on __________
Gentlemen:
For valued received, the undersigned Beneficiary hereby irrevocably transfers
to:
(Name of Transferee)
(Complete address of transferee)
all rights of the undersigned Beneficiary to draw under the above letter of
credit in its entirety.
By this transfer all rights of the undersigned Beneficiary in such letter of
credit are transferred to the transferee and the transferee shall have the sole
rights as Beneficiary thereof, including sole rights relating to any amendments
thereto whether now existing or hereafter made. All amendments are to be
directed to the transferee without necessity of any consent of or notice to the
undersigned Beneficiary.
The original letter of credit and all amendments to it are returned herewith and
we ask you to reissue it in the same form as the Letter of Credit No. _________
and forward it directly to the transferee with your customary notice of transfer
within 10 days of the date of receipt hereof.
Yours very truly,
ADVANCE MAGAZINE PUBLISHERS INC.
By:______________________________
Name:
Title:
Authorized Bank Signature:
____________________________________
Bank Name and Authorized signature of the Bank
This Letter of Credit sets forth in full the terms of our undertaking and such
undertaking shall not in any way be modified, amended or amplified by reference
to any document or instrument referred to herein or in which this Letter of
Credit is referred to or to which this Letter of Credit
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relates, and any such reference shall not be deemed to incorporate herein by
reference any documents or instrument.
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EXHIBIT I
ACP-5 CERTIFICATES
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