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LEASE DATED AS OF APRIL 1, 2000
BY AND BETWEEN
THE RECTOR, CHURCH-WARDENS AND VESTRYMEN
OF TRINITY CHURCH IN THE CITY OF NEW YORK, AS LANDLORD
AND
PHOTODISC, INC., AS TENANT
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ENTIRE 4TH AND 6TH FLOORS AND PORTION OF 5TH FLOOR
75 VARICK STREET
NEW YORK, NEW YORK
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PARISH OF TRINITY CHURCH IN THE CITY OF NEW YORK
REAL ESTATE DEPARTMENT
74 TRINITY PLACE
NEW YORK, NEW YORK 10006-2088
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TABLE OF CONTENTS
<TABLE>
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ARTICLE ONE TERM; RENT; FREE RENT........................................................................2
ARTICLE TWO USE..........................................................................................3
ARTICLE THREE REPAIRS; NOISE AND VIBRATION...............................................................4
ARTICLE FOUR ALTERATIONS AND FIXTURES....................................................................5
ARTICLE FIVE COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS..........................................8
ARTICLE SIX RULES AND REGULATIONS........................................................................8
ARTICLE SEVEN PLATE GLASS................................................................................9
ARTICLE EIGHT CARE OF SIDEWALKS..........................................................................9
ARTICLE NINE LANDLORD'S ACCESS TO THE PREMISES...........................................................9
ARTICLE TEN ELECTRIC CURRENT; LIVE STEAM................................................................10
ARTICLE ELEVEN CONDEMNATION AND DEMOLITION..............................................................11
ARTICLE TWELVE MECHANIC'S LIENS.........................................................................12
ARTICLE THIRTEEN SUBORDINATION..........................................................................12
ARTICLE FOURTEEN CERTIFICATE OF OCCUPANCY...............................................................14
ARTICLE FIFTEEN VAULTS..................................................................................14
ARTICLE SIXTEEN FIRE AND OTHER CASUALTY.................................................................14
ARTICLE SEVENTEEN CHANGE IN USE OF PREMISES, SUBLETTING AND ASSIGNMENT..................................16
ARTICLE EIGHTEEN WAIVER AND SURRENDER; REMEDIES CUMULATIVE..............................................22
</TABLE>
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ARTICLE NINETEEN NO REPRESENTATIONS AS TO PREMISES, CERTIFICATE OF OCCUPANCY AND USE....................23
ARTICLE TWENTY LIMITATION OF LANDLORD'S LIABILITY.......................................................23
ARTICLE TWENTY-ONE INDEMNITY BY TENANT..................................................................24
ARTICLE TWENTY-TWO NOTICES..............................................................................25
ARTICLE TWENTY-THREE INSOLVENCY.........................................................................25
ARTICLE TWENTY-FOUR REMEDIES OF THE LANDLORD ON DEFAULT IN PERFORMANCE BY THE TENANT....................27
ARTICLE TWENTY-FIVE DEFAULT.............................................................................27
ARTICLE TWENTY-SIX REMEDIES AND DAMAGES.................................................................29
ARTICLE TWENTY-SEVEN SURRENDER AT EXPIRATION............................................................30
ARTICLE TWENTY-EIGHT QUIET ENJOYMENT....................................................................31
ARTICLE TWENTY-NINE SECURITY DEPOSIT....................................................................31
ARTICLE THIRTY REAL ESTATE TAX AND OPERATING EXPENSE ESCALATION.........................................33
ARTICLE THIRTY-ONE SERVICES.............................................................................35
ARTICLE THIRTY-TWO INSURANCE............................................................................37
ARTICLE THIRTY-THREE DEFAULT UNDER OTHER LEASES.........................................................38
ARTICLE THIRTY-FOUR WORK TO BE DONE BY LANDLORD.........................................................38
ARTICLE THIRTY-FIVE CONSENT TO JURISDICTION.............................................................38
ARTICLE THIRTY-SIX TENANT LIABILITY.....................................................................38
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ARTICLE THIRTY-SEVEN ADJACENT EXCAVATION-SHORING........................................................39
ARTICLE THIRTY-EIGHT FAILURE TO GIVE POSSESSION.........................................................39
ARTICLE THIRTY-NINE BROKER..............................................................................39
ARTICLE FORTY RENT RESTRICTIONS.........................................................................40
ARTICLE FORTY-ONE CERTIFICATES BY TENANT................................................................40
ARTICLE FORTY-TWO RESTRICTIONS ON TENANT'S USE..........................................................40
ARTICLE FORTY-THREE HAZARDOUS MATERIALS.................................................................41
ARTICLE FORTY-FOUR MISCELLANEOUS........................................................................41
ARTICLE FORTY-SIX LANDLORD'S CONTRIBUTION...............................................................43
ARTICLE FORTY-SIX GENERATOR.............................................................................47
SCHEDULE A RULES AND REGULATIONS........................................................................(i)
SCHEDULE B CLEANING SPECIFICATIONS......................................................................(v)
EXHIBIT A - FLOOR PLANS
EXHIBIT B - CERTIFICATE OF OCCUPANCY
EXHIBIT C - WORK LETTER
</TABLE>
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THIS LEASE made as of the 1st day of April, 2000 between THE RECTOR,
CHURCH-WARDENS AND VESTRYMEN OF TRINITY CHURCH IN THE CITY OF NEW YORK, a
religious corporation (hereafter referred to as "the Landlord"), having its
offices at 74 Trinity Place, Borough of Manhattan, City, County and State of New
York, and PHOTODISC, INC. (hereafter referred to as "the Tenant"), a corporation
organized under the laws of the state of Washington, having an address at 701
North 34th Street, Suite 400, Seattle, Washington 98103
W I T N E S S E T H :
That the Landlord hereby lets and leases to the Tenant, and the Tenant
hereby takes and hires from the Landlord, the following described spaces in the
building known as 1 Hudson Square, having a street address of 75 Varick Street,
in the Borough of Manhattan, City, County and State of New York (hereafter
referred to as "the building"), with the privilege to the Tenant of using
(subject to such reasonable rules and regulations as the Landlord shall from
time to time prescribe) the necessary entrances and appurtenances to the
premises, reserving to the Landlord all other portions of the building not
herein specifically demised:
<TABLE>
<CAPTION>
Shown By
Cross-Hatching
Unit of Space on Exhibit Referred to as
-------------- -------------- --------------
<S> <C> <C>
Portion of Basement A-1 the "Basement Space"
Portion of 4th Floor A-2 the "4th Floor Initial Space"
Portion of 4th Floor A-3 the "Europadisk Space"
Portion of 4th Floor A-4 the "Dean Witter Space"
Portion of 5th Floor A-5 the "5th Floor Initial Space"
Portion of 6th Floor A-6 the "6th Floor Initial Space"
Portion of 6th Floor A-7 the "Tri-Don Space"
Portion of 6th Floor A-8 the "Astoria Space"
Portion of 6th Floor A-9 the "Power Color Space"
Portion of 5th Floor A-10 the "Mason Tender Space"
</TABLE>
The Basement Space, 4th Floor Initial Space, the 5th Floor Initial
Space, and the 6th Floor Initial Space are hereinafter collectively referred to
as the "Initial Premises"; all other spaces described above are hereinafter
collectively referred to as "Additional Space"; and all of the units of space
described above are hereinafter referred to the "Premises". At such time as
Tenant occupies the entire 4th Floor or entire 6th Floor, the Premises shall
include that portion of the 4th or 6th Floors, as the case may be, which is
presently a common corridor, so that, with respect to such floor, the Premises
shall be as shown by hatching on Exhibit A-11, which is a typical floor plan.
The several portions of the Premises shall become available at different times.
The Commencement Date and proportionate share for the Initial Premises and each
portion of Additional Space are set forth below. Other than the Initial
Premises, the Commencement Date for each portion of Additional Space is an
estimate and the Commencement Date for each such portion shall be as set forth
in Article One. Subject to paragraph (g) of Article One below, Tenant's right to
occupy the various units of space constituting the Premises, and the obligation
to pay rent, additional rent and other charges with respect to the various units
of space shall commence as of the later of (a) the Commencement Date indicated
below or (b) the date upon which possession is delivered to Tenant.
Unit of Commencement Proportionate
Space Date Share
Initial Premises April 1, 2000 8.64%
Europadisk Space July 1, 2000* 3.56%
Dean Witter Space February 1, 2002 1.14%
Tri-Don Space August 1, 2000* 2.25%
Astoria Space June 1, 2000* 1.38%
Power Color Space July 1, 2000* 1.19%
Mason Tender Space October 1, 2007 1.01%
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* Landlord is negotiating with the tenants occupying these units of
space in order to obtain early lease terminations so that Landlord may deliver
the spaces on or before the dates set forth above. Tenant has been advised of
the actual lease expiration dates applicable to each portion of space, and
Tenant acknowledges that Landlord cannot guaranty delivery of such portions of
the Premises by the estimated Commencement Date stated above. As more fully set
forth in Article Thirty-Eight hereof, Landlord shall have no liability to Tenant
if Landlord is unable to deliver one or more of such portions of the Premises to
Tenant by the dates set forth above, Tenant agreeing to accept the risk of such
non-delivery by Landlord. Landlord shall continue to negotiate in good faith
with these tenants to bring the negotiations to a successful conclusion to meet
the estimated Commencement Date.
This letting is upon the following covenants and conditions, each and
every one of which the Tenant covenants and agrees with the Landlord to keep and
perform, and the Tenant agrees that the covenants herein contained on the part
of the Tenant to be performed, shall be deemed conditional limitations, as well
as covenants and conditions.
ARTICLE ONE
TERM; RENT; FREE RENT
(a) The term shall commence (1) with respect to the Initial Premises,
April 1, 2000 (the "Initial Premises Commencement Date"), and (2) with respect
to the other portions of the Premises, upon delivery to Tenant of vacant
possession of such Premises (such delivery dates being referred to hereinafter
as the "_______ Space Commencement Date,"), and shall expire on March 31, 2015
(or until such term shall sooner cease and expire or be terminated as
hereinafter provided) (the "Expiration Date"), at an annual rent ( the "fixed
rent") of :
<TABLE>
<CAPTION>
Unit of Fixed Rent Fixed Rent Fixed Rent
Space 4/1/00-3/31/05 4/1/05-3/31/10 4/1/10-3/31/15
<S> <C> <C> <C>
Initial Premises $2,861,552 $2,944,857 $3,157,285
Europadisk Space $1,218,985 $1,255,427 $1,348,354
Dean Witter Space $ 390,261 $ 401,928 $ 431,679
Tri-Don Space $ 771,123 $ 794,176 $ 852,961
Astoria Space $ 470,909 $ 484,987 $ 520,886
Power Color Space $ 406,217 $ 418,361 $ 449,328
Mason Tender Space $ 346,475 $ 356,833 $ 383,246
Total Fixed Rent $6,465,522 $6,656,569 $7,143,739
</TABLE>
(b) Fixed rent shall be payable in advance on the first day of each
month during the term of this lease at the offices of the Landlord or at such
other place as the Landlord may designate. The Tenant shall pay the fixed rent
without demand therefor and without any set-off, deduction, abatement or offset
whatsoever, except that the Tenant shall pay the first monthly installment of
fixed rent (with respect to the Initial Premises only) upon the execution of
this lease. If the Commencement Date applicable to any portion of the Premises
occurs on a day other than the first day of a calendar month, the fixed rent for
such calendar month shall be pro-rated based on the number of days in the month.
All rent payments shall be paid in lawful money of the United States of America,
which shall be legal tender in payment of any debts and dues, public and
private, at the time of payment by good and sufficient check subject to
collection and drawn on a New York City bank or trust company which is a member
of the New York Clearinghouse Association.
(c) All sums and charges other than fixed rent due and payable by the
Tenant pursuant to this lease, including, without limitation, charges for
electricity (as defined in Article TEN), escalation charges (as defined in
Article THIRTY) and late charges assessed pursuant to this lease are called
"additional rent". All regularly recurring items of additional rent, including,
without limitation, escalation charges which are payable on a monthly basis
pursuant to the provisions of Article
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THIRTY, shall be due and payable together with the fixed rent on the first day
of each month during the term of this lease. All other items of additional rent
shall be paid to the Landlord within fifteen days after delivery of a notice or
demand therefor, unless otherwise set forth herein. Fixed rent and additional
rent are collectively referred to herein as "rent". The failure of the Tenant to
make any payment of additional rent shall entitle the Landlord to exercise all
of the rights and remedies provided herein for the non-payment of fixed rent.
(d) Intentionally omitted.
(e) If any installment of rent shall not be paid within ten (10) days
following the date on which the same shall be due and payable pursuant to this
lease then, in addition to, and without waiving or releasing any other rights
and remedies of the Landlord, the Tenant shall pay to the Landlord a late charge
of one and one-half (1 1/2%) percent per month computed (on the basis of a
30-day month) from the date on which each such installment became due and
payable to the date of payment of the installment on the amount of each such
installment or installments, as liquidated damages for the Tenant's failure to
make prompt payment, and the same may be collected on demand.
(f) In the event any check issued by the Tenant is dishonored for any
reason, the Tenant shall submit a replacement check within three (3 ) business
days following notice from the Landlord that the check was dishonored. Tenant's
failure to submit a replacement check within such time period shall constitute
an Event of Default under this lease.
(g) Notwithstanding the foregoing, provided no Event of Default shall
have occurred which shall remain uncured, the Tenant shall not be required to
pay fixed rent with respect to a particular portion of the Premises (i) subject
to the last sentence of this paragraph (g), for the period beginning on the
Commencement Date for that portion of the Premises and ending three months after
the completion of the Landlord's Initial Work applicable to such Premises (as
described in the Work Sheet attached hereto and made a part hereof) and (ii) for
the seventeenth, eighteenth, nineteenth and twentieth calendar months following
completion of such Landlord's Initial Work; provided, however, that the Tenant
shall during such abatement period pay all other amounts due under this lease
including, but not limited to, any additional rent payable pursuant to Article
THIRTY of this lease and any service charges for electric current, and overtime
elevator, air-conditioning or heat services. Upon the occurrence of an Event of
Default, the fixed rent at the monthly rate set forth in this lease shall be
payable during the period in which the Tenant would otherwise be entitled to the
use of the Premises free of fixed rent. Any such rent payment shall be paid
within five days after demand therefore and shall constitute additional rent
under this lease. After the date on which any existing tenant shall surrender
its portion of the Premises and prior to the Commencement Date applicable to
that portion of the Premises, Landlord shall afford to Tenant access to such
portion of the Premises for the purpose of taking measurements and planning its
initial alterations. Notwithstanding the first sentence of this paragraph (g),
with respect to the Initial Premises, the free rent period shall be one full
month following the completion of Landlord's Initial Work with respect to the
Initial Premises, and for the second month following the completion of
Landlord's Initial Work, Tenant shall pay the sum of $11,537.33.
ARTICLE TWO
USE
(a) The Tenant shall use the Premises (other than the Basement Space)
only for executive and general offices in connection with Tenant's business of
providing high-quality photography, moving images, art prints and related
products, except that if all or a portion of the Premises (other than the
Basement Space) shall be sublet in accordance with the terms of this lease, or
if this lease shall be assigned in accordance with the terms of this lease, then
the use shall be for executive and general offices in connection with the
business of the permitted subtenant or permitted assignee. The Basement Space
shall be used solely for "dead" storage purposes.
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(b) If any portion of the Premises consists of basement space, such
portion shall be used only for storage purposes.
(c) No auction sale and no other sale of all or substantially all of
the Tenant's property, stock, fixtures and machinery, except a sale made in
connection with an assignment of this lease to another tenant for which the
Landlord's consent shall have been obtained, shall be held at the Premises
unless the provisions of Article THIRTY-ONE (g) of this lease shall have been
complied with.
(d) Tenant shall take reasonable steps to limit the number of
messengers having access to the Premises, including, but not limited to,
installing a messenger center on the Canal Street side of the ground floor of
the building in a location to be designated by the Landlord. Construction of the
messenger center shall be subject to the provisions of Article Four hereof.
ARTICLE THREE
REPAIRS; NOISE AND VIBRATION
(a) The Tenant shall take good care of the Premises and the fixtures,
appurtenances, equipment and facilities therein and shall make, as and when
needed, all repairs in and about the Premises required to keep them in good
order and condition; such repairs to be equal in quality to the original work
provided that the Tenant shall not be obligated for structural or exterior
repairs to the building or for repairs to the systems and facilities of the
building for the use or service of tenants generally, except where structural or
exterior repairs or repairs to such systems and facilities are made necessary by
reason of one or more of the occurrences described below in clauses (i) through
(iv) of this Article THREE (a). All repairs for which the Tenant is responsible
pursuant to this Article shall be made by a contractor reasonably approved by
the Landlord. Should the Tenant fail to repair any condition in or about the
Premises or the fixtures, appurtenances, equipment and facilities therein which
is of such a nature that its neglect would result in damage or danger to the
building, its fixtures, appurtenances, facilities and equipment, or to its
occupants (of which Landlord's judgment, reasonably exercised, shall be
conclusive) or, in the case of repairs of any other nature, should the Tenant
have failed to make the required repairs or to have begun in good faith, the
work necessary to make them within five business days after notice from the
Landlord of the condition requiring repair, the Landlord may, in either such
case, immediately enter the Premises and make the required repairs at the
expense of the Tenant. The Landlord may make, at the expense of the Tenant, any
repairs to the building or to its fixtures, appurtenances, facilities or
equipment, whether of a structural or any other nature, which are required by
reason of damage or injury due (i) to the negligence or willful misconduct of
the Tenant or its employees, agents, licensees or visitors; (ii) to the moving
into or out of the building, of property being delivered to the Tenant or taken
from the Premises by or on behalf of the Tenant; (iii) to the installation,
repair or removal, use or operation of the property of the Tenant in the
Premises; or (iv) to the faulty operation of any machinery, equipment, or
facility installed in the Premises by or for the Tenant. The Tenant will pay the
cost of any repairs made by the Landlord pursuant to this paragraph within
fifteen days after presentation of bills therefor, or the Landlord may, at its
option, add such amounts to any installment or installments of rent due under
this lease and collect the same as additional rent. The liability of the Tenant
under this Article THREE shall survive the expiration or other termination of
this lease for a period of one year.
(b) Except to the extent hereinabove set forth, and subject to the
provisions of Article SIXTEEN, the Landlord shall maintain in working order and
repair the exterior and the structural portions of the building, including the
structural portions of the Premises, and the public portions of the building
interior and the building plumbing, electrical, heating, fire protection, life
safety, sprinkler and ventilating systems, (excluding all ductwork, diffusers,
thermostat controls and any other part of the ventilating system located outside
of the machine room, if any, on the floor) serving the Premises. The Tenant
shall give prompt notice of any defective condition in the Premises for which
the Landlord may be responsible hereunder. There shall be no allowance to the
Tenant for diminution in rental value and no liability on the part of the
Landlord by reason of inconvenience, annoyance or injury to business arising
from the Landlord or others making repairs, alterations, additions or
improvements in or to any portion of the building or the Premises or in and to
the
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fixtures, appurtenances or equipment thereof. It is specifically agreed that the
Tenant shall not be entitled to any set off or reduction of rent by reason of
any failure of the Landlord to comply with the provisions of this or any other
Article of the lease. Landlord shall use reasonable commercial efforts to
minimize any interference with the conduct of Tenant's business on account of
the work undertaken by Landlord in accordance with this Article Three, but
Landlord shall not be required to perform any such work on an overtime basis.
(c) Tenant shall not install or maintain equipment, machinery or
manufacturing equipment of any description in the Premises, the operation of
which produces noise or vibration which is transmitted beyond the Premises. If
the Tenant does install such equipment or machinery and the Landlord deems it
necessary that the noise or vibration of such machinery or equipment be
diminished, eliminated, prevented or confined to the Premises, the Landlord may,
at its election, give written notice to the Tenant, requiring that the Tenant
provide and install rubber or other approved settings for absorbing, preventing
or decreasing the noise or vibration of such machinery or equipment within
fifteen days and if such measures are unsuccessful that the Tenant immediately
remove said equipment from the Premises within fifteen days. The judgment of the
Landlord of the necessity of such installation shall be conclusive, and the
installation shall be made in such manner and of such material as the Landlord
may direct. Should the Tenant fail to comply with such request within fifteen
days, the Landlord may do the work necessary to absorb, prevent or decrease the
noise or vibration of such machinery or equipment and the Tenant will pay to the
Landlord the cost of such work within fifteen days after demand or such cost
may, at the option of the Landlord, be added to any installment or installments
of rent under this lease and shall be payable by the Tenant as additional rent.
ARTICLE FOUR
ALTERATIONS AND FIXTURES
(a) The Tenant shall not make any alteration, addition or improvement
in or upon the Premises, nor incur any expense therefor, without having first
obtained the written consent of the Landlord therefor. The Tenant shall not be
required to obtain the Landlord's consent for alterations, additions or
improvements which are decorative in nature, such as painting or carpeting
(although the Tenant shall give the Landlord prior written notice of the
performance of such work). If the Tenant shall desire to make alterations,
additions or improvements to fit out the Premises for the Tenant's use which
will not affect the exterior of the building or adversely affect the structure
of the building or the operation of any of the systems or facilities of the
building for the use of any tenant or violate the requirements of government
hereafter referred to, the Landlord's approval will not be unreasonably withheld
or delayed. In no event shall the Tenant make any alteration at any time when an
Event of Default is outstanding. Any and all alterations may be made only
subject to and in compliance with the following, as well as all other reasonable
rules and regulations promulgated by the Landlord with respect to the
performance of alterations:
(i) Prior to the commencement of any alteration, the Tenant shall,
except in an emergency, give at least 30 days' notice to Landlord for
all alterations and shall obtain the Landlord's prior approval of the
licensed architect and/or licensed professional engineer and the
contractors and/or mechanics selected by the Tenant, as well as the
Landlord's prior written approval of detailed plans and specifications
prepared by the approved architect and/or engineer and shall reimburse
the Landlord for its out-of-pocket expenses for outside consultants to
review such plans and specifications; and no alterations shall be made
except as are in all material respects in accordance with such plans
and specifications or any approved changes thereto. If requested by the
Landlord, the Tenant shall submit a copy of the general contractor's
contract or other contract for the alterations which shall show the
cost thereof.
(ii) No alteration shall be commenced until the Tenant shall have
obtained and paid for all required permits and authorizations of any
City, State or Federal governmental agency or any board, bureau,
department or body thereof, having or asserting jurisdiction, copies of
which shall be supplied to the Landlord. Landlord shall reasonably and
diligently cooperate with
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Tenant in connection with the performance of its alterations, additions
or improvements, and with respect to alterations approved by Landlord,
shall cooperate (but at no expense to Landlord) with Tenant and execute
such documents as may be reasonably required by Tenant to obtain such
permits and authorizations, including, without limitation, alteration
applications.
(iii) Prior to the commencement of any alteration, the Tenant shall
submit to the Landlord duplicate original policies or certificates
thereof of worker's compensation insurance covering all persons
employed in connection with the work, and builder's all risk and
comprehensive general public liability insurance in such reasonable and
customary amounts and with such companies as may be reasonably approved
by the Landlord and such coverage shall be maintained until all such
alterations have been completed. Such policies shall name the Landlord
and any mortgagee or holder of any ground or underlying lease as
additional named insureds.
(iv) Upon completion of the alterations, the Tenant, at the Tenant's
expense shall obtain certificates of final approval as may be required
by any governmental agency, board, bureau, department or body thereof,
and shall deliver such approvals to the Landlord, together with
"as-built" plans and specifications for such alterations. In addition,
one copy of final drawings shall be delivered to the Landlord in
AutoCad, Release 14 format, either on a 3 1/2" disk or CD Rom, or such
other format as shall from time to time be reasonably designated by the
Landlord.
(v) The cost of all alterations shall be paid when due so that the
Premises shall at all times be free of liens for labor and materials
supplied or claimed to have been supplied to the Premises and free from
any encumbrances, or security interests.
(vi) All alterations, additions or improvements shall be made and
installed in a good and workmanlike manner and shall comply with all
requirements, by law, regulation or rule, of the Federal, State and
City Governments and all subdivisions and agencies thereof, and with
the requirements of the New York Fire Insurance Exchange, New York
Board of Fire Underwriters and all other bodies exercising similar
functions, and shall conform to any particular reasonable requirements
of the Landlord expressed in its consent for the making of any such
alterations, additions, and improvements. The Landlord's review and
approval of the Tenant's plans shall not constitute, nor be deemed to
constitute a representation or agreement by the Landlord that such
plans and specifications comply with such requirements. Such compliance
shall be the sole responsibility of the Tenant.
Any such work once begun shall be completed with all reasonable
dispatch, but shall be done at such time and in such manner as not to interfere
unreasonably with the occupancy of any other tenant or the progress of any work
being performed by or on account of the Landlord. If requested to do so by the
Tenant in connection with the Landlord's approval of any alteration, addition or
improvement, the Landlord will advise the Tenant whether the alteration,
addition or improvement will be required to be removed by the Tenant at the
expiration or earlier termination of this lease or may remain upon the Premises
to become the property of the Landlord. If no such advice is given by the
Landlord, the provision of subdivision (b) of this Article shall apply.
(b) All alterations, additions or improvements, which may be made or
installed in or upon the Premises (whether made during or prior to the term of
this lease or during the term of any prior lease of the Premises by the
Landlord, the Tenant or any previous tenant), except the furniture, trade
fixtures, stock in trade, and like personal property of the Tenant, shall be
conclusively deemed to be part of the freehold and the property of the Landlord,
and shall remain upon the Premises, and, upon the expiration or any termination
of the term of this lease, shall be surrendered therewith as a part thereof,
except for any Specialty Alterations which shall, unless the Landlord advises
the Tenant to the contrary, be removed by the Tenant, at the Tenant's expense,
upon the expiration or earlier termination of this lease, provided, however,
that alterations, additions and improvements installed by the Tenant at Tenant's
expense shall remain the property of Tenant until the expiration or earlier
termination of this lease, but Tenant shall not remove, destroy or alter such
alterations, additions and improvement without Landlord's consent and, in any
event, shall replace such alterations, additions
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and improvements with alterations, additions or improvements of equal or greater
value. A "Specialty Alteration" shall mean an alteration which is in excess of
standard office installations such as kitchens, cafeterias, vaults, sloping,
terraced or raised floors, internal staircases, and other slab penetrations,
data centers, fire suppression or uninterrupted power supply systems,
generators, fuel tanks, dumbwaiters, and other improvements of a similar nature.
The Tenant, at or prior to the expiration or any termination of the term of this
lease shall, at its own expense, remove all its furniture, trade fixtures, stock
in trade and like personal property. The Tenant shall restore and repair, at its
own cost and expense, any damage or disfigurement of the Premises occasioned by
any such removals or remaining after such removals, so as to leave the Premises
in good order and condition or, the Landlord, at its option, may do such
restoration and repair and the Tenant will pay the reasonable cost thereof upon
demand. If any furniture, trade fixtures, stock in trade or other personal
property of the Tenant shall not be removed at the expiration or any termination
of this lease, the Landlord, at the Landlord's option, may treat the same as
having been irrevocably abandoned, in which the Tenant shall have no further
right, title or interest therein and the Landlord may remove the same from the
Premises, disposing of them in any way which the Landlord sees fit to do, and
the Tenant shall, on demand, pay to the Landlord the expense incurred by the
Landlord for the removal thereof, as well as the cost of any restoration of the
Premises above provided. The Tenant's obligations under this subdivision (b) of
this Article FOUR shall survive the expiration of this lease for a period of one
year.
(c) The Landlord may at any time during the term of this lease, change
the arrangement or location of the entrance or passageways, doors and doorways,
and the corridors, elevators, stairs, toilets or other parts of the building
used by the public or in common by the Tenant and other tenants (including,
without limitation, the conversion of elevators from a manually-operated to an
automatic self-service basis) and may alter staffing of the building and the
scale and manner of the operation thereof, provided that the services to which
the Tenant is entitled as specified in this lease are not diminished and may
alter the facilities, fixtures, appurtenances and equipment of the building as
it may deem the same advisable, or as it may be required so to do by any
governmental authority, law, rule or regulation, and provided further that
Landlord shall use commercially reasonable efforts to minimize interference with
the conduct of Tenant's business in making such changes and provided that such
changes do not materially reduce the accessibility of the Premises. The Landlord
may change the name, street number or designation by which the building is
commonly known.
(d) The Tenant shall not at any time prior to or during the term of
this lease, directly or indirectly, employ or permit the employment of any
contractor, mechanic or laborer in or about the Premises, whether in connection
with any alteration or improvement or the providing of any services or
otherwise, if such employment would, in the reasonable judgment of the Landlord,
disrupt, or interfere or cause any conflict with, any other contractors,
mechanics, or laborers engaged by the Landlord or any other tenant in the
building. In the event of any such disruption, interference or conflict, the
Tenant, upon demand of the Landlord, shall immediately cause all contractors,
mechanics or laborers causing such disruption, interference or conflict to leave
the building.
(e) The Tenant, at its own sole cost and expense, shall defend the
Premises and the Landlord against all suits for the enforcement of any mechanics
lien or any bond in lieu of such lien, and the Tenant hereby indemnifies the
Landlord and the Premises against any and all damages, expenses, or liabilities
resulting from any such lien or suit. Should the Tenant fail to commence or
diligently proceed to timely discharge any such lien, the Landlord may do so by
payment, bond, or otherwise on thirty days' prior written notice to the Tenant
and the amount paid or incurred therefor by the Landlord shall be payable by the
Tenant as additional rent. Tenant represents and warrants that it has not
performed any alterations in the Premises prior to the Initial Premises
Commencement Date.
(f) If, in connection with the performance of any alterations,
additions or improvements to the Premises, there is any violation against the
building, the curing of which shall be the responsibility of Landlord, which
shall result in actual delay to Tenant or prevent Tenant from obtaining any
governmental permits, consents, approvals or other documentation to commence or
complete Tenant's alterations, additions or improvements, or prevent the
physical (as opposed to legal) occupancy of the Premises, or if any governmental
agency with jurisdiction orders Tenant not
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to occupy the Premises, then Landlord shall promptly and diligently proceed to
cure and remove of record such violations and Tenant shall be entitled to an
abatement of rent equal to the fixed rent and additional rent allocable to the
portion of the Premises in which such alterations, additions or improvements are
prevented from being performed or completed, or with respect to which Tenant has
been ordered not to occupy, for the period during which Tenant shall be so
prevented from performing such alterations, additions or improvements. Such
abatement period shall not commence any earlier than the date which is ten
business days following notice from Tenant to Landlord of a violation which
prevents Tenant from proceeding with its alterations, additions or improvements,
and such abatement period shall only commence if Landlord has not cured such
violation within the ten-business-day period following Tenant's notice.
ARTICLE FIVE
COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS
The Tenant shall promptly comply, at the Tenant's own expense, with all
laws, ordinances, regulations and requirements now or hereinafter enacted, of
the City, State and Federal Government, and all subdivisions and agencies
thereof, and the New York Fire Insurance Exchange, the New York Board of Fire
Underwriters, and of any fire insurance rating organization, and of all other
departments, bureaus, officials, boards and commissions with regard to the
Premises or the use thereof by the Tenant, and (if the Premises are situated on
the ground floor) the sidewalks adjoining the same in so far as such compliance
is made necessary by the Tenant's use of the sidewalks, provided that the Tenant
shall not be required to make structural alterations or additions to the
Premises, alterations to any building systems servicing the Premises, or
alterations to any common areas in the building utilized by Tenant and other
tenants, except where the same are required by reason of the nature of the
Tenant's use of the Premises, the alterations performed in the Premises by the
Tenant, the manner in which its business is carried on in the Premises, or a
failure on the part of the Tenant to conform to the provisions of this lease.
Tenant shall not be required to comply with any such laws, ordinances,
regulations and requirements for so long as Tenant shall be contesting,
diligently and in good faith, Tenant's obligation to comply therewith through
appropriate proceedings brought in accordance with applicable law, provided that
Tenant's failure to comply shall have no adverse effect on Landlord or on other
tenants in the building. The Tenant will not permit the maintenance of any
nuisance upon the Premises or permit its employees, licensees or visitors to do
any illegal act therein, or in and about the building after notice thereof from
the Landlord. If any such law, ordinance, regulation or requirement shall not be
promptly complied with by the Tenant, then the Landlord may, at its option,
enter upon the Premises to comply therewith, and should any fine or penalty be
imposed for failure to comply therewith or by reason of any such illegal act,
the Tenant agrees that the Landlord may, at its option, pay such fine or
penalty, which the Tenant agrees to repay to the Landlord, with interest (as set
forth in Article Twenty-Four) from the date of payment, as additional rent.
ARTICLE SIX
RULES AND REGULATIONS
The Tenant and the Tenant's employees, and any other persons subject to
the control of the Tenant, shall well and faithfully observe all the rules and
regulations annexed hereto as SCHEDULE A, and also any and all reasonable rules
and regulations affecting the Premises, the building or the equipment,
appurtenances, facilities and services thereof, hereafter promulgated by the
Landlord. The Landlord may at any time, and from time to time, prescribe and
regulate the placing of safes, machinery and other things, and regulate which
elevator and entrance shall be used by the Tenant's employees, and for the
Tenant's shipping; and may make such other and further rules and regulations as
in its reasonable judgment may, from time to time, be needed or desirable for
the safety, care or cleanliness of the building and for the preservation of good
order therein. The Landlord shall not be liable to the Tenant for violations of
any rules and regulations by any other tenant, its servants, employees, agents,
visitors or licensees. Notwithstanding the foregoing, the Landlord agrees that
it shall not discriminate against the Tenant in the enforcement of the rules and
regulations promulgated by the Landlord for the building.
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ARTICLE SEVEN
PLATE GLASS
The Landlord may, at its option, either (i) at the Tenant's expense,
keep the plate glass, if any, in the Premises insured in the name of the
Landlord against loss or damage, the premium for which, whether by separate
policy or as a part of a schedule of another policy, shall be paid by the Tenant
to the Landlord, upon demand, or (ii) require the Tenant, at the Tenant's
expense, to keep the plate glass, if any, in the Premises insured in the name of
the Landlord against loss or damage, in which event, the Tenant shall deliver
such policy and evidence of due payment of the premium therefor to the Landlord.
The Tenant shall promptly replace, at its own expense, any and all plate and
other glass damaged or broken from any cause whatsoever in and about the
Premises. If the Tenant fails to do so, the Landlord shall have the right to
replace such glass at the Tenant's expense.
ARTICLE EIGHT
CARE OF SIDEWALKS
If the Premises, or any part thereof, consist of a first floor or any
part thereof, the Tenant shall, at the Tenant's own expense, keep the sidewalk,
gutter and curb in front thereof in a clean condition, but Tenant shall not be
responsible for removal of snow and ice from the sidewalk.
ARTICLE NINE
LANDLORD'S ACCESS TO THE PREMISES
(a) The Tenant shall, without in any way affecting the Tenant's
obligations hereunder, and without constituting any eviction, permit the
Landlord and its agents and designees: (i) at all reasonable hours, upon
reasonable notice, to enter the Premises and have access thereto, for the
purpose of inspecting or examining them and to show them to other persons; or
(ii) to enter the Premises (including, specifically, all mechanical and air
conditioning rooms located therein) to make repairs and alterations, and to do
any work on the Premises or any adjoining premises and any work in connection
with excavation or construction on any adjoining premises or property
(including, but not limited to, the shoring up of the building) and to take in
any of the foregoing instances, any space needed therefor, provided that any
space so taken shall not be material to the conduct of Tenant's business in the
Premises. The Tenant shall permit the Landlord to erect and maintain ducts,
pipes and conduits in and through the Premises. In the exercise of the rights of
the Landlord reserved under this Article NINE, the Landlord will do so in a
manner which minimizes, so far as is practicable, the interference with the
Tenant's use of the Premises or Tenant's wiring or improvements to the Premises
and where ducts, pipes or conduits are to be erected through the Premises will
locate them along walls or ceilings wherever practicable.
(b) In the event that the Premises shall, in the Landlord's reasonable
judgment, become substantially vacated before the expiration of this lease, or
in the event the Tenant shall be removed by summary proceedings or in the event
that, during the last month of the term, the Tenant shall have removed all or
substantially all of the Tenant's property therefrom, the Landlord may
immediately enter into and upon said Premises for the purpose of decorating,
renovating or otherwise preparing same for a new tenant, without thereby causing
any abatement of rent or liability on the Landlord's part for other
compensation, and such acts shall have no effect upon this lease.
(c) If the Tenant or an officer or authorized employee of the Tenant
shall not be personally present to open and permit an entry into said Premises,
at any time, when for any reason an entry therein shall be necessary or
permissible hereunder, the Landlord or the Landlord's agents, may enter the same
by a master key, or may forcibly enter the same without rendering the Landlord
or such agents liable therefor (if during such entry the Landlord shall accord
reasonable care to the Tenant's property) and without in any manner affecting
the obligations and covenants of this lease and in no event shall any such entry
by the Landlord or its agents be deemed an acceptance of a surrender of this
lease, either expressed or implied, nor a waiver by the Landlord of any covenant
of this lease on the part of the Tenant to be performed.
ARTICLE TEN
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ELECTRIC CURRENT; LIVE STEAM
(a) So long as electric current is to be supplied by the Landlord, the
Tenant covenants and agrees to purchase the Tenant's requirements therefor at
the Premises from the Landlord or the Landlord's designated agent at a price
equal to 108% of the Rates (as hereinafter defined) set forth in the rate
schedule of Consolidated Edison Company of New York, Inc. applicable to the
building (or the conjunctional group in which the building is included), plus an
amount equal to all sales, use and gross receipt taxes and other governmental
charges or levies, generally applicable to the purchase and sale of electricity
in New York City (and without regard to whether the Landlord is exempt from
paying or collecting any such tax, charge or levy), including any adjustment for
time-of-day for either demand or consumption. As used herein, the term "Rates"
shall mean the rates for all components of the aggregate cost of purchasing
electricity for the building, including, without limitation, all charges related
to the generation, transmission, distribution and service and all charges for
consumption and demand (including, without limitation, all seasonal and
time-of-day adjustments and fuel escalation charges relating to such consumption
and demand charges). All amounts payable under this Article TEN shall constitute
additional rent for the purpose of the enforcement of the Landlord's rights.
(b) Where more than one meter measures the service of the Tenant in the
building, the service rendered through each meter may be computed and billed
separately in accord with the rates herein provided for. No current shall be
furnished until the equipment of the Tenant has been approved by the proper
authorities, and after such approval, no changes shall be made in such equipment
without the written consent of the Landlord. The Tenant shall pay, upon demand,
the bills for electric current furnished and the use of meters or the Landlord
may, at its option, add such amounts to any installment or installments of fixed
rent due under this lease and collect the same as additional rent. The Tenant
shall comply with such rules, regulations and contract provisions as are
customarily prescribed by public service corporations supplying such services,
for consumption similar to that of the Tenant.
(c) The Landlord may discontinue the supply of electric current under
subdivision (a) at any time on sixty (60) days' notice to the Tenant without
being liable to the Tenant therefor or without in any way affecting this lease
or the liability of the Tenant hereunder or causing the diminution of rent, and
the same shall not be deemed to be a lessening or diminution of services within
the meaning of any law, rule, or regulation now or hereafter enacted,
promulgated, or issued. Should the Landlord give such notice of discontinuance,
the Tenant shall make the Tenant's own arrangements to receive such service
direct from such public utility corporation serving the building and the
Landlord shall permit the Landlord's wires, conduits and meters, to the extent
to which they are safely available for such use and to the extent to which they
may be used under any applicable governmental regulations or the regulations of
such public utility, to be used for the purpose. Should any additional or other
wiring, conduits, meters or any other or different distribution equipment be
required in order to permit the Tenant to receive such service directly from the
public utility, the same will be installed, as the Landlord shall elect, either
by the Landlord or by the Tenant, the cost of which shall be shared equally by
Landlord and Tenant. In the case of central distribution equipment which is used
in connection with the distribution or metering of current supplied to the
Tenant and other tenants of the building, and which is required to be installed
under governmental regulations or the regulations of such utility, the cost of
installation thereof will be prorated among the several tenants, serviced
through the distribution facility in the proportion which their average
consumption of electric current over the next preceding period of not less than
six month's duration bears to the total consumption of electric current by all
tenants during such period, and the Tenant shall pay to the Landlord the fifty
percent (50%) of Tenant's share of such cost of installation, apportioned as
above, within five (5) days following receipt of a statement showing the cost of
the distribution equipment and the manner in which the cost has been allocated
to the Tenant. (The costs described in the immediately preceding sentence are
not intended to include the costs of the upgrading of the building by Landlord
currently in progress.) All such facilities installed by the Tenant shall be
installed in a workmanlike manner which complies with applicable governmental
regulations and the regulations of the public utility. The Landlord will in any
such case permit any pipe-chases or channels available in the building to be
used by the Tenant for the Tenant's cables and conduits, to the extent that the
same may be available and may be safely used for the purpose.
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(d) The Landlord shall not in any way be liable or responsible to the
Tenant for any loss or damage or expense which the Tenant may sustain or incur
if either the quantity or character or electric service is changed or is no
longer available or suitable for the Tenant's requirements, nor shall the
Landlord be in any way responsible for any interruption of service due to
breakdowns, repairs, malfunction of electrical equipment or any other cause
relating to electrical service which is beyond the Landlord's reasonable
control. The Tenant covenants and agrees that at all times its use of electric
current shall never exceed the capacity of existing feeders to the Tenant's
floor(s) or space (if less than an entire floor) or the capacity of the risers
or wiring installation in the building. The Tenant agrees not to connect any
additional electrical equipment to the building electrical distribution system,
other than lamps, typewriters, computers, scanners, printers, servers, copiers,
and other small office machines which consume comparable amounts of electricity,
without the Landlord's prior written consent. If, in the Landlord's sole
judgment, reasonably exercised, the Tenant's electrical requirements necessitate
installation of an additional riser, risers or other necessary equipment, the
same may be installed by the Landlord at the sole cost and expense of the Tenant
(together with Tenant's Proportionate Share of any electrical panels which are
required to be installed as a result of the installation of such additional
risers), which shall be chargeable and collectible as additional rent. If the
Tenant makes written request to install a riser or risers to supply the Tenant's
electrical requirements, such request shall be subject to the prior written
consent of the Landlord in each instance, and such riser, risers or other
equipment shall be installed by the Landlord at the sole cost and expense of the
Tenant, if in the Landlord's sole judgment, reasonably exercised, the same are
necessary and will not cause or create a dangerous or hazardous condition or
entail excessive or unreasonable alterations, repairs or expense or interfere
with or disturb other tenants or occupants. If the Tenant is not utilizing the
full electrical capacity available to the Premises, the Landlord shall have the
right to make such excess capacity available to other occupants of the building.
Prior to taking such excess capacity, Landlord shall notify Tenant of its
intention to do so, and Tenant shall have two weeks in which to demonstrate that
Tenant has an impending need for such electrical capacity. If in Landlord's
reasonable judgment, Tenant fails to demonstrate an impending need for such
electrical capacity, Landlord shall be entitled to proceed to make such excess
capacity available to other occupants of the building.
(e) If there be any facilities for the supply of live steam in the
building, such steam shall be supplied to the Tenant only if separate agreements
are made therefor and pursuant to such arrangements. In the event that such
separate agreements shall be made, the appropriate provisions of this Article
TEN shall be applicable thereto.
ARTICLE ELEVEN
CONDEMNATION AND DEMOLITION
If the Premises or any part thereof, shall be taken or condemned for
any public or quasi public use (other than for temporary use or occupancy), this
lease and the term hereby granted shall terminate as of the date of vesting of
title by reason of such taking. If any other part of the building shall be so
taken and such taking shall, in the reasonable judgment of the Landlord, make
the operation of the building impractical, unprofitable or uneconomical or would
make substantial structural alterations or reconstruction of the building
necessary (even though no part of the Premises be taken), the Landlord may, at
its option, give to the Tenant, at any time after the vesting of title and prior
to the actual taking of possession, thirty (30) days' notice of intention to
terminate this lease, and upon the date designated in such notice, this lease
and the term hereby granted shall terminate. Anything herein to the contrary
notwithstanding, if ten (10%) percent or less of the Premises shall be so
acquired or condemned, the Landlord, at its option, may elect not to terminate
this lease and, in such case, the Landlord shall, at its expense, restore that
part of the Premises not so acquired or condemned to a self-contained rental
unit exclusive of the Tenant's alterations. In no event shall any condemnation
award be apportioned, and the Tenant hereby assigns to the Landlord all right
and claim to any part of such award, but the rent, and all other sums payable by
the Tenant, shall be apportioned as of the date of any such termination of this
lease with respect to all or part of the
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Premises, as the case may be, and in the case of a partial taking, prospective
rent obligations which are based on square footage shall be adjusted
accordingly. Nothing contained in the foregoing portion of this Article ELEVEN
shall be deemed to prevent the Tenant's making claim for and retaining an award
for the damage to or loss of value of its trade fixtures and such of the
installations made by the Tenant as remain the Tenant's property or from making
claim for and retaining any award which may be made to the Tenant for the
Tenant's moving expenses if, and to the extent that, the award to be claimed and
retained by the Tenant is independent of and does not result in a diminution of
the award, and is not payable out of the award to the Landlord for the taking of
the land, building and the Landlord's other property.
ARTICLE TWELVE
MECHANIC'S LIENS
The Tenant will not permit, during the term hereby granted, any
mechanic's or other lien or order for payment of work, labor, services, or
materials furnished or to be furnished to attach to or affect the Premises or
any portion thereof, and agrees that no such lien or order shall under any
circumstances attach to or affect the fee, leasehold or other estate of the
Landlord herein, or the building. The Tenant's obligation to keep the Premises
in repair, and its right to make alterations therein, if any, shall not be
construed as the consent of the Landlord to the furnishing of any such work,
labor or materials within the meaning of any present or future lien law. Notice
is hereby given that the Tenant has no power, authority or right to do any act
or to make any contract which may create, or be the foundation for, any lien
upon the fee or leasehold estate of the Landlord in the Premises or upon the
land or building of which they are a part or the improvements now erected or
hereafter to be erected upon the Premises or the land, or building of which the
Premises are a part; and if any such mechanic's or other lien or order shall be
filed against the Premises or the land or building of which the Premises are a
part, the Tenant shall, within sixty (60) days thereafter, discharge said lien
or order by payment, deposit or by bond fixed in a proper proceeding according
to law. If the Tenant shall fail to take such action, or shall not cause such
lien or order to be discharged within sixty (60) days after the filing thereof,
the Landlord may, after five (5) days' notice to Tenant, pay the amount of such
lien or discharge the same by deposit or by bond or in any other manner
according to law, and pay any judgment recovered in any action to establish or
foreclose such lien or order, and any amount so paid, together with the expenses
incurred by the Landlord, including all reasonable attorneys' fees and
disbursements incurred in any defense of any such action, bonding or other
proceeding, shall be deemed additional rent. Any reasonable expenses incurred by
the Landlord in connection with the examination of title to the Premises in
order to ascertain the existence of any lien or encumbrance and the discharge of
record thereof, shall be payable by the Tenant to the Landlord on demand,
together with interest as aforesaid as additional rent.
ARTICLE THIRTEEN
SUBORDINATION
(a) Subject to the Tenant obtaining a non-disturbance agreement as
provided in paragraph (d) of this Article THIRTEEN from any existing or future
mortgagee(s) or underlying lessors, this lease, and all the rights of the Tenant
hereunder, are and shall be subject and subordinate to any and all mortgages now
or hereafter liens either in whole or in part on the building, or the land on
which it stands, and also to any and all other mortgages covering other lands or
lands and buildings, which may now or hereafter be consolidated with any
mortgage or mortgages upon the building and the land on which it stands or which
may be consolidated and spread to cover the building and such land and any such
other lands or lands and buildings, and any extension, renewal or modification
of any such mortgages, and to any and all ground or underlying leases which may
now or hereafter affect the buildings or the land on which it stands, and any
extensions, renewals or modifications thereof. This clause shall be
self-operative and no further instrument of subordination (other than the
non-disturbance agreement referred to above and in paragraph (d) below) shall be
required by any ground or underlying lessor or by any mortgagee, affecting any
lease or the building or the land on which it stands. In confirmation of such
subordination, the Tenant shall execute promptly any certificate, in recordable
form, that the Landlord may reasonably request.
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(b) The Tenant hereby agrees that, in the event that any mortgagee
shall succeed to the rights of the Landlord, or if any Landlord of any
underlying lease shall succeed to the position of the Landlord under this lease,
then the Tenant will recognize such successor Landlord as the Landlord of this
lease and pay the rent and attorn to and perform the provisions of this lease
for the benefit of any such successor Landlord. No documentation other than this
lease shall be necessary to evidence such attornment but the Tenant agrees to
execute any documents, in recordable form, reasonably requested by the successor
Landlord to confirm such attornment or to otherwise carry out the intent and
purposes of this Article THIRTEEN.
(c) If, in connection with obtaining financing or refinancing for the
building of which the Premises form a part, a lender shall request modifications
to this lease as a condition to such financing or refinancing, the Tenant will
not unreasonably withhold, delay or defer its consent thereto, provided that
such modifications do not increase the obligations of the Tenant hereunder or
adversely affect the Tenant's leasehold interest. A provision requiring the
Tenant to give notices of any defaults by the Landlord to such lender and/or
permit the curing of such defaults by such lender together with the granting of
such additional time for such curing as may be reasonably required for such
lender to get possession of the building shall not be deemed to increase the
Tenant's obligations or adversely affect the Tenant's leasehold interest. In no
event shall a requirement that the consent (not to be unreasonably withheld) of
any such lender be given for any modification, termination or surrender of this
lease be deemed to materially adversely affect the leasehold interest hereby
created.
(d) Anything herein to the contrary notwithstanding, the Landlord
represents and warrants to the Tenant that as of the date of this lease there is
no mortgage or superior lease encumbering the Premises. The Landlord, at no cost
to Tenant, shall obtain from any future mortgagee or from any future lessor of
any underlying lease, an agreement to the effect that, so long as no Event of
Default shall at the time have occurred and be continuing hereunder, the Tenant
shall not be made party to any proceeding to foreclose the mortgage or to
terminate the underlying lease; that the Tenant's possession of the Premises
under the term of this lease, shall not be terminated or disturbed as a result
of the foreclosure of any mortgage or termination of any underlying lease; that
such mortgagee or underlying lessor, as the case may be, will recognize the
Tenant as the direct tenant of such mortgagee or lessor on all of the terms and
conditions of this lease subject to the provisions hereinafter set forth;
together with such other terms as are customarily contained in a subordination,
non-disturbance and attornment agreement (any such agreement from a mortgagee or
lessor is called a "Nondisturbance Agreement"). The Tenant agrees it will
execute any agreement consistent with the foregoing provisions which may be
required to confirm the subordination of this lease subject to the
non-disturbance provisions above outlined. In any such agreement the Tenant
shall agree that, in the event that the mortgagee shall succeed to the rights of
the Landlord herein named, or if any landlord of any underlying lease shall
succeed to the position of the Landlord under this lease, then the Tenant will
recognize such successor landlord as the Landlord of this lease and pay the rent
and attorn to and perform the provisions of this lease for the benefit of any
such successor Landlord.
(e) Any Nondisturbance Agreement may be made on the condition that, and
the Tenant hereby agrees that, neither the mortgagee nor the lessor, as the case
may be, nor anyone claiming by, through or under such mortgagee or lessor, as
the case may be, including a purchaser at a foreclosure sale, shall be:
(i) liable for any previous act or omission of the Landlord under this
lease, except to the extent that a default continues after the date of
foreclosure or purchase of the Premises (in which case such default shall be
deemed to have occurred on the date of transfer of title to the Premises); or
(ii) subject to any credit, claim, counterclaim, demand, defense or
offset that previously accrued to the Tenant against the Landlord under the
lease; or
(iii) bound by any previous modification of this lease (after notice to
Tenant of the existence of such mortgage or underlying lease), or by any
previous prepayment of rent for a period greater than one month, unless such
modification or prepayment shall have been expressly approved in
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writing by any lessor or any mortgagee who shall have succeeded to the rights of
the Landlord under this lease; or
(iv) obligated to perform any alteration or improvements of the
Premises not expressly required under this lease; or
(v) be responsible for (1) the performance or completion of any
construction work to be performed by the Landlord under the lease, or (2) any
reimbursement or payment required by the Landlord to the Tenant or its designees
pursuant to the Lease on account of work performed by, or for the account of,
the Tenant; or
(vi) be liable for the repayment of any monies owed by the Landlord to
the Tenant; or
(vii) have any obligation with respect to any security deposited under
the lease unless and to the extent such security shall have been transferred to
the mortgagee or lessor, as the case may be, or anyone claiming by, through or
under such party.
(f) The provisions of paragraph (e) shall not be deemed to vitiate the
obligations of any mortgagee or lender succeeding to the Landlord's obligations
hereunder from and after the date such party succeeds to the Landlord's interest
under this lease.
ARTICLE FOURTEEN
CERTIFICATE OF OCCUPANCY
(a) A true copy of the Certificate of Occupancy of the building is
annexed hereto as EXHIBIT B.
(b) The Tenant shall immediately discontinue any use of the Premises,
which may, at any time, be claimed or declared by the City or State of New York
or other governmental authority to be in violation of or contrary to the
Certificate of Occupancy of the building, or by reason of which any attempt may
be made to penalize the Landlord or require the Landlord to secure any
Certificate of Occupancy other than the one, if any, now issued for the
building.
ARTICLE FIFTEEN
VAULTS
Notwithstanding anything herein contained, or shown on any sketch, plan
or schedule hereto attached, to the contrary, if any vault space forms a part of
the Premises, or adjoins the same, or any part or portion of the Premises is not
within the property line of the building or Premises, and if the use of the said
space shall hereafter be prevented or curtailed by exercise of any governmental
authority, the Tenant shall have no claim whatever upon the Landlord for the
loss of such space, by any abatement of the rent, or otherwise, nor shall the
Tenant be relieved from any obligations under this lease, and the Landlord's
covenant of quiet enjoyment hereinafter contained, shall not be deemed to apply
to any such space. The Landlord makes no representation as to the location of
the property line of the building. The Tenant shall reimburse the Landlord for
the vault charge or tax, if any, imposed by the City of New York in respect of
any such vault space.
ARTICLE SIXTEEN
FIRE AND OTHER CASUALTY
(a) If the Premises shall be damaged by fire, action of the elements or
other casualty or cause which is within the risks covered by standard fire and
extended coverage insurance, the Tenant shall give immediate notice thereof to
the Landlord, and said damage shall be repaired by the Landlord, at the
Landlord's expense, with all reasonable speed, making due allowance for delay
due to labor troubles, settlement of loss and other causes beyond the control of
the Landlord, and the Tenant shall, in every reasonable way, facilitate the
making of such repairs, and the rent shall be suspended
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during such period as the Premises shall have been rendered wholly untenantable
until five (5) days after the Landlord notifies the Tenant that the Premises are
substantially ready for the Tenant's occupancy (or the Premises are sooner
occupied by the Tenant) and, in the event that the Premises are rendered
partially untenantable, the rent shall be abated during such period, in the
proportion which the area of the Premises which is rendered untenantable bears
to the area of the whole Premises. In addition to the foregoing rental
abatement, provided that (i) Tenant promptly commences and diligently prosecutes
such alterations to the Premises as are necessary for Tenant to recommence
operations within the Premises, and (ii) Landlord continues to be reimbursed by
Landlord's insurance company for its rental loss, then Tenant shall be entitled
to a further abatement of rent during Tenant's refixturing of the Premises,
which abatement shall be coextensive with the rental loss reimbursement received
by Landlord from Landlord's insurance company. The decision of Landlord's
insurance company shall be conclusive and Landlord shall have no obligation to
contest the same, by litigation or otherwise. No damage to the Premises or the
building by fire, or other cause, however extensive, shall terminate this lease,
or give the Tenant the right to quit and surrender the Premises, or impair any
obligations of the Tenant hereunder, except with respect to the payment of rent
(and with respect thereto to the extent above provided) and except that (i) if
the damage shall be so extensive that the Landlord shall determine to demolish
or substantially alter the building, whether or not the Premises are affected,
the Landlord may at any time within one hundred twenty (120) days following the
occurrence of the damage give to the Tenant thirty (30) days' notice of
intention to terminate this lease; (ii) if the damage to the Premises is
substantial so that the whole or substantially the whole of the Premises is
rendered untenantable by the Tenant or if 50% or more of the common areas of the
building are destroyed or substantially damaged and the Landlord does not within
60 days following the occurrence of the damage notify the Tenant of the
Landlord's intention to repair the damage to the Premises so that the Premises
are again useable by the Tenant within a period of not more than 180 days
following the occurrence of the damage subject to delays due to settlement of
loss or causes of the kinds described in Article THIRTY-FOUR of this lease, the
Tenant may cancel this lease by notice given within 10 days following the
expiration of the said 60-day period for the Landlord's notice of election to
repair, time being of the essence; (iii) if the Landlord has given notice of its
intention to restore the Premises, but fails to substantially complete such
restoration within 180 days following the occurrence of the damage, subject to
delays due to settlement of loss or delays of the kind described in Article
THIRTY-FOUR of this lease, the Tenant may cancel this lease by notice given
within 10 days following the expiration of the said 180-day period, time being
of the essence; and (iv) in the event of the occurrence of damage to the
Premises of the degree described above in clause (ii) of this paragraph (a), the
Landlord may also elect to terminate this lease by notice of election to do so
given within 60 days following the occurrence of the damage. If notice of
election to terminate this lease shall be given as above provided, then, upon
the date for termination designated in any such notice, this lease and the term
hereby granted shall terminate and the rent shall be apportioned as of the date
of the damage or as of such later date as the Tenant may actually surrender
possession. Nothing herein contained shall be deemed to obligate the Landlord to
restore the Tenant's trade fixtures, equipment, stocks, furnishings,
improvements or other property remaining the property of the Tenant. The Tenant
acknowledges that the Landlord will not carry insurance on the Tenant's
furniture or any fixtures or equipment, improvements or appurtenances removable
by Tenant and agrees that the Landlord will not be obligated to repair any
damage thereto or replace the same. The Tenant hereby waives the provisions of
Section 227 of the Real Property Law and agrees that the provisions of this
Article SIXTEEN shall govern and control in lieu thereof.
(b) The Tenant shall conduct its business and use the Premises in such
a manner and so as not to increase the rate of fire insurance applicable to the
building or any property located therein over the rates in effect prior to the
commencement of the Tenant's occupancy, and the Tenant shall install and
maintain all its furniture, fixtures, equipment, stocks and materials in such a
manner as to accomplish the foregoing purposes. The Tenant further agrees not to
permit any act to be done or anything brought into or kept upon the Premises
which will void or avoid the insurer's liability under any contract of fire
insurance on the building or its contents. Should the fire insurance rate on the
building be increased beyond the present rate, by reason of the Tenant's
occupancy or character of its business, or the Tenant's failure to comply with
the terms hereof, the Tenant agrees to pay to the Landlord, on demand, the
additional cost of such insurance, or, at the option of the Landlord, the same
may be added to any installment of rent and be payable as additional rent. The
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schedule of the makeup of a rate issued by an authorized rating organization
shall be conclusive evidence of the facts therein stated and of the items in the
rate applicable to the Premises.
(c) The Landlord, as to the Premises, and the Tenant, as to the
improvements made therein at the Tenant's expense and all of the Tenant's stock,
trade fixtures and other property in the Premises shall each look first to any
insurance in its favor before making any claim against the other party for
recovery for loss or damage resulting from fire or other casualty, and to the
extent that such insurance is in force and collectible and to the extent
permitted by law, the Landlord and the Tenant each hereby release one another or
any one claiming through or under each of them by way of subrogation or
otherwise from all liability for any loss or damage caused by fire or any of the
risks enumerated in standard extended coverage insurance. This foregoing release
and waiver shall be in force only if both releasors' insurance policies contain
a clause providing that such a release or waiver shall not invalidate the
insurance, and also provided that such a policy can be obtained without
additional premiums. The Landlord and Tenant agree that their respective
insurance policies will include the aforesaid clause so long as the same is
obtainable without extra cost or if extra cost be charged, so long as the party
for whose benefit the clause is obtained shall pay such extra cost. If extra
cost shall be chargeable therefor the party so affected shall advise the other
thereof, of the amount of the extra cost and the other party at its election may
pay the same or decline to so pay, in which event the release from liability
given to said party by this Article SIXTEEN shall be deemed to be withdrawn and
of no force and effect.
(d) The Landlord shall keep in full force and effect a policy of
insurance against loss or damage by fire and such other risks and hazards as are
insurable under standard forms of "all risk" insurance policies, with extended
coverage, covering the building, in an amount sufficient to avoid the effects of
co-insurance, in such amounts as the Landlord, acting reasonably, may deem
appropriate.
(e) If notwithstanding the recovery of insurance proceeds by the Tenant
for loss, damage or destruction to its property, the Landlord is liable to the
Tenant with respect thereto or is obligated under this lease to repair or
restore such damage to Tenant's property, the amount of the net proceeds paid to
the Tenant shall either be offset against the Landlord's liability to the
Tenant, or shall be made available to the Landlord to pay for the cost of such
repair or restoration.
ARTICLE SEVENTEEN
CHANGE IN USE OF PREMISES, SUBLETTING AND ASSIGNMENT
(a) The use to be made of the Premises by the Tenant and the identity
of the Tenant being among the inducements to the making of this lease by the
Landlord, the Tenant shall not (except as otherwise permitted herein), without
first having obtained the Landlord's prior written consent thereto, and
otherwise in accordance with the terms of this lease, (i) sublet or underlet, or
permit the subletting or underletting of the Premises or any part thereof; (ii)
assign or transfer, by operation of law or transfer of stock or otherwise, this
lease or any interest therein; (iii) use or permit the Premises or any part
thereof to be used for any purposes other than those specified in the lease;
(iv) permit the Premises or any part thereof to be occupied by anyone other than
the Tenant or its officers or employees; or (v) mortgage or encumber this lease
or any interest therein.
(b) If the Tenant shall desire to assign this lease or to sublet the
Premises, in whole or in part, the Tenant shall send to the Landlord a written
notice (the "Tenant's Notice") stating (i) the action which the Tenant proposes;
(ii) the portion of the Premises with respect to which the Tenant proposes to
take such action (the "Affected Premises"); (iii) the principal terms and
conditions of the desired assignment or subletting, including without
limitation, the rent payable, the proposed commencement and expiration dates of
the terms of the desired subletting, or the effective date of the desired
assignment; and (iv) such other information as the Landlord shall reasonably
request. The Tenant's Notice shall also contain a statement directing the
Landlord's attention to the provisions of Article SEVENTEEN (c) of the lease.
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(c) Within sixty (60) days after receipt of Tenant's Notice which
contains all the information required in paragraph (b) above, the Landlord shall
notify the Tenant (the "Landlord's Notice") whether it elects to (i) terminate
the lease in its entirety, if the desired transaction is an assignment of lease
or a subletting of all or substantially all of the Premises or (ii) terminate
the lease as to the Affected Premises only if the desired transaction is a
subletting of less than substantially all of the Premises. For purposes of this
Article SEVENTEEN, a Tenant shall be deemed to be subletting "substantially all
of the Premises" if the Affected Premises constitutes seventy five (75%) percent
or more of the rentable square footage of the Premises. Landlord's recapture
rights specified above shall not apply (y) to any subletting of five years or
less (unless such term exceeds 75% of the remaining term of this lease), or (z)
to any subletting where the subtenant's space is not separately demised (this
does not include sublettings of all or substantially all of Tenant's space on a
given floor), provided in either case that Tenant is subletting not more than
one third of the total rentable area of the Premises.
(d) If the Landlord exercises the option set forth in paragraph (c) (i)
above to terminate this lease in its entirety, then (i) the term of this lease
shall end and expire with respect to the entire Premises on the ninetieth (90th)
day following the date of Landlord's Notice and (ii) the Tenant shall surrender
the entire Premises to the Landlord on such date, in the same manner and
condition as is required by this lease, as if such date were the Expiration Date
set forth in this lease, and (iii) fixed rent and additional rent shall be
apportioned as of such expiration date. Instead of terminating the lease, the
Landlord may, at its option, elect to have the Tenant assign all of its right,
title and interest in and to this lease to the Landlord, such assignment to be
effective as of the date such lease termination would be effective and otherwise
on the terms and conditions set forth in this paragraph (d). Upon such
assignment, the Tenant shall be relieved of all liability accruing under this
lease after the effective date of such assignment, and the Landlord may
thereafter further assign this lease or sublet all or part of the Premises to
any party and the Tenant shall have no right to any proceeds derived from such
assignment or subletting. In no event shall the provisions of this paragraph (d)
relieve the Tenant of any obligations which accrued prior to the termination of
this lease or the assignment to the Landlord, as the case may be.
(e) If the Landlord exercises the option set forth in paragraph (c)(ii)
above to terminate the lease with respect to the Affected Premises, then (i) the
term of this lease shall end and expire with respect to the Affected Premises on
the ninetieth (90th) day following the date of the Landlord's Notice and (ii)
the Tenant shall surrender the Affected Premises to the Landlord on such date,
in the same manner and condition as is required by this lease, as if such date
were the Expiration Date set forth in this lease and (iii) fixed rent and
additional rent with respect to the Affected Premises shall be apportioned as of
such Expiration Date and the Tenant's prospective rent obligations which are
based on square footage (including, without limitation, fixed rent and
additional rent payable pursuant to Article THIRTY of this lease) shall be
reduced accordingly, and (iv) at the Landlord's election, either the Landlord,
at the Tenant's expense, or the Tenant, at its own expense, shall erect the
partitioning required to separate the Affected Premises from the remainder of
the Premises, create any doors required to provide an independent means of
access to the Affected Premises from elevators and lavatories and segregate the
wiring and meters and electric current facilities, so that the Affected Premises
may be used as a unit for commercial purposes, separate from the remainder of
the Premises. If the remaining Premises contain the core lavatories, the
occupant of the Affected Premises shall have the right to use such lavatories in
common with the Tenant. If the Tenant performs such work, it shall commence such
work promptly upon receipt of Landlord's Notice and shall proceed to complete
such work in a diligent and workmanlike manner. Instead of terminating the lease
with respect to the Affected Premises, the Landlord may, at its option, elect to
have the Tenant assign all of its right, title and interest with respect to the
Affected Premises to the Landlord, such assignment to be effective as of the
date such lease termination would be effective and otherwise on the terms and
conditions set forth in this paragraph (e). Upon the assignment of the lease to
the Landlord with respect to the Affected Premises, the Landlord may further
assign the lease or sublet all or part of the Affected Premises to any party and
the Tenant shall have no right to any proceeds derived from such assignment or
subletting. In no event shall the provisions of this paragraph (e) relieve the
Tenant of any obligations with respect to the Affected Premises which accrued
with respect to the Affected Premises prior to the termination of the lease or
the assignment to the Landlord, as the case may be.
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(f) In the event the Landlord does not elect either of the alternatives
set forth in paragraph (c) (i) or (ii) above, or in the event the Landlord fails
to timely deliver the Landlord's Notice, the Landlord agrees not to unreasonably
withhold or delay its consent to any proposed assignment or subletting,
provided, however, that the Landlord shall have the right to condition its
consent to any proposed assignment or sublease on the following:
(1) No Event of Default shall have theretofore occurred and be
continuing under this lease beyond any applicable notice or cure
period.
(2) The Tenant shall have delivered to the Landlord the Tenant's Notice
as required by paragraph (b) above.
(3) With respect to a sublease, the Tenant shall collaterally assign to
the Landlord, and grant the Landlord a security interest in, the
sublease and the rents payable thereunder and shall take all necessary
steps required to perfect such assignment and security interest.
(4) The sublease shall include provisions to the effect that (i) if the
Landlord shall notify the sublessee that the Tenant is in default in
the payment of rent or in the performance of its other obligations
under this lease, the subtenant shall, if so requested by the Landlord,
pay all rent and other amounts due under the sublease directly to the
Landlord, (ii) notwithstanding any such payment by the subtenant
directly to the Landlord, the term of the sublease shall terminate
simultaneously with the termination of the term of this lease and the
subtenant shall surrender the subleased premises upon such termination,
(iii) the sublease shall be subject and subordinate to this lease and
to all matters to which this lease is or shall be subordinate, and (iv)
any act or omission by the subtenant which, if performed by the Tenant
would constitute an Event of Default under the lease, shall also
constitute an Event of Default under the sublease provided notice
thereof shall have been provided to the Tenant named herein.
(5) The proposed subtenant or assignee shall have a financial standing,
be of a character, be engaged in a business, and propose to use the
Premises in a manner, which in the Landlord's reasonable judgment, is
in keeping with the Landlord's standards in such respect of the other
office tenancies in the building. The parties acknowledge that the
Landlord, as a religious institution, may have special considerations
in determining if the business or proposed use of a proposed subtenant
or assignee is objectionable, and the parties agree that the Landlord's
judgment in such matters shall be conclusive.
(6) The proposed assignee or subtenant shall not then be a tenant,
subtenant or assignee of any space in the building or any other
building then owned, directly or indirectly, by the Landlord, provided
that Landlord then has comparable space available in any of its
buildings, nor shall the proposed subtenant or assignee be a person or
entity with whom the Landlord is then negotiating to lease space in the
building or any other building then owned, directly or indirectly, by
the Landlord.
(7) The Premises shall not, without the Landlord's prior consent, have
been publicly advertised (but may be listed with brokers) for
subletting at a rental rate less than the prevailing asking rental rate
then set by the Landlord for comparable space in the building, and if
no comparable space is then available, at the prevailing rental rate
set by the Landlord.
(8) The character of the business to be conducted or the proposed use
of the Premises by the proposed assignee or subtenant shall not (i) be
likely to increase the Landlord's operating expenses beyond that which
would be incurred for use by the Tenant or for use in accordance with
the standards of use of other tenancies in the
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building, (ii) materially increase the burden on elevators over the
burden prior to such proposed assignment or subletting, (iii)
unreasonably interfere with the use and enjoyment by other tenants in
the building of their premises, or (iv) violate or be likely to violate
any provisions or restrictions contained herein relating to the use or
occupancy of the Premises.
(9) Any proposed sublease shall provide that in the event of the
termination of this lease, or the re-entry or dispossession of the
Tenant by the Landlord under this lease, such subtenant shall, at the
Landlord's option, attorn to the Landlord as its sublessor pursuant to
the then applicable terms of such sublease for the remaining term
thereof, except that the Landlord shall not be (i) liable for any
previous act or omission of Tenant as sublessor under such sublease,
(ii) subject to any offset which theretofore accrued to such subtenant
against the Tenant, (iii) bound by any modification of such sublease
not consented to in writing by the Landlord or by any prepayment of
rent more than one month in advance, (iv) bound to return such
subtenant's security deposit until it has come into its actual
possession and the subtenant would be entitled to its return pursuant
to the terms of the sublease, and (v) bound by any obligation to make
any payment to any subtenant or perform any work in the Premises.
(10) The proposed assignee or subtenant is not entitled, directly or
indirectly, to diplomatic or sovereign immunity, and/or is subject to
the service or process in, and the jurisdiction of the courts of New
York.
(11) At any time during the term of the lease, there shall be no more
than three (3) occupants in the Premises on any floor where Tenant has
leased half or more than half of the rentable area of such floor, or
two (2) occupants in the Premises on any floor where Tenant has leased
less than half the rentable area of such floor, in both such cases,
"occupants" includes Tenant if Tenant is actually occupying any portion
of such floor.
(12) The subletting shall end no later than one (1) day before the
Expiration Date and shall be for a term of no less than two (2) years,
unless it commences less than two (2) years before the Expiration Date
of the term.
(13) Intentionally omitted.
(14) The assignee shall assume, in writing, all obligations of the
Tenant under this lease from and after the date of such assignment.
(15) A fully executed counterpart of the assignment or sublease shall
be delivered to the Landlord within five (5) days after execution
thereof.
(g) In the event the Landlord waives its rights set forth in paragraph
(c) (i) and (ii) above, or consents to any assignment or subletting pursuant to
this Article SEVENTEEN, and the Tenant fails to execute and deliver an
assignment or sublease document, as approved by the Landlord, within six (6)
months after the date of Landlord's Notice, then the Tenant shall again comply
with all of the requirements of this Article SEVENTEEN before assigning its
interest in this lease, or subletting all or part of the Premises, respectively.
(h) The Tenant shall pay all of the reasonable Landlord's costs
(including, without limitation, attorneys' fees and expenses) related to the
Landlord's review of a proposed sublease or assignment and the preparation,
review and approval of any assignment of rents, financing statement and other
documents related to such sublease or assignment, irrespective of whether
consent is granted or the transaction is ultimately consummated. The Tenant
shall also pay the cost of recording or filing any assignment of rents and
financing statements.
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(i) Provided no Event of Default shall have theretofore occurred and be
continuing under this lease beyond any applicable notice or cure period, the
Tenant named herein is authorized to (1) assign the lease to any entity
succeeding to the business and assets of the Tenant, whether by way of merger or
consolidation or by way of acquisition of all or substantially all of the assets
of the Tenant, provided that the acquiring entity shall have assumed in writing
the Tenant's obligations under this lease; or (2) to sublease all or a portion
of the Premises or assign the lease to an entity which shall (x) control, (y) be
under the control of, or (z) be under common control with the Tenant (an entity
described in (x), (y) or (z) being a "Related Entity"). "Control" shall mean
direct or indirect ownership of more than fifty percent (50%) of each class of
stock which is authorized to vote of a corporation or other majority equity and
control interest if not a corporation, or the possession, directly or
indirectly, of power to direct or cause the direction of the management and
policy of such corporation or other entity, whether through the ownership of
voting securities, by statute or according to the provisions of a contract. Upon
making a sublease or assignment to any Related Entity, the Tenant shall notify
the Landlord and certify to the Landlord the manner in which such Related Entity
is related to the Tenant and the purposes for which the Premises will be used.
Any subletting or assignment described in this paragraph (i) shall be on notice
to Landlord but shall not require the prior written consent of the Landlord and
may only be made on the condition that (a) the subtenant or assignee shall
continue to use the Premises for executive and general offices (except for the
Basement Space, which shall only be used for the specific purpose set forth
herein), and (ii) the principal purpose of such sublease or assignment is not
the acquisition of the Tenant's interest in this lease, or to circumvent the
provisions of paragraph (a) of this Article SEVENTEEN. In the event of an
assignment pursuant to the provisions of clause (1) of this paragraph (i), the
successor entity, after giving effect to such merger, consolidation or
acquisition, shall have a tangible net worth, exclusive of good will, computed
in accordance with generally accepted accounting principles ("Net Worth") at
least equal to the Net Worth of the Tenant as of the date of this lease. The
provisions of paragraph (c) of this Article and the provisions of paragraph (k)
of this Article shall not apply to a subleasing or assignment made pursuant to
the provisions of this paragraph (i).
(j) For purposes of this Article SEVENTEEN, an "assignment" shall be
deemed to include, whether occurring at one time or over a period of time
through a series of transfers, a sale or transfer of fifty (50%) percent or more
of beneficial interest in the Tenant (whether stock, partnership or otherwise),
or of any guarantor of the Tenant's obligations under this lease, or the
issuance of additional stock where the issuance of such additional stock will
result in a change of "control" (as defined in paragraph (i)) in the Tenant or
guarantor, if applicable. The transfer of shares or issuance of additional stock
of the Tenant or any guarantor for purposes of this Article SEVENTEEN shall not
include the sale of shares by persons other than those deemed "insiders" within
the meaning of the Securities and Exchange Act of 1934, as amended, which sale
is effected through the "over-the-counter market" or through any nationally
recognized exchange.
(k) In the event the Landlord, in its sole discretion, authorizes the
Tenant to assign the lease or to sublet all or a portion of the Premises (other
than an assignment or subleasing authorized by paragraph (i) above), the Tenant
named herein shall pay to the Landlord, monthly, as additional rent, 50% of all
Tenant's Profit. "Tenant's Profit" shall mean all consideration received by the
Tenant (other than rental or consideration received by the Tenant under a
sublease or assignment entered into pursuant to paragraph (i) of this Article),
less (i) the rent, payable by the Tenant under this lease for the period in
question (exclusive of any amount payable by the Tenant under this subparagraph
(k)), such rent to be pro-rated if less than all of the Premises are sublet,
(ii) any brokerage commissions (not exceeding 110% of those set forth in
Landlord's brokerage commission schedule as published from time to time) and
reasonable legal fees paid by the Tenant in connection with such subletting or
assignment, (iii) any sums payable by the Tenant to the Landlord pursuant to the
provisions of paragraph (h) of this Article, (iv) any payments made by the
Tenant in connection with
the assignment of its interest in this lease pursuant to Article 31-B
of the Tax Law of the State of New York or any real property transfer tax of the
United States or the City or State of New York (other than income taxes), (v)
free rent granted to the assignee or subtenant, and (vi) the cost of work or
alterations or payment therefor to separate the subleased space from the balance
of the Premises or to prepare the Affected Premises for the assignee's or
subtenant's occupancy. In the case of a sublease, the expenses set forth in (ii)
and (iii) shall be amortized on a straight-line basis over the term of the
sublease. In the case of an assignment, if the consideration to be paid to the
Tenant shall
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be paid in installments, the expenses set forth in (ii) through (iv) shall be
amortized over the period during which the installments are to be paid.
(l) No consent given by the Landlord shall be deemed to permit any act
except the act to which it specifically refers, or to render unnecessary any
subsequent consent, and any assignment or subletting of the Premises shall not
relieve the Tenant or any mesne assignee from any obligations, duty or covenant
under this lease. No assignment, transfer, mortgage, encumbrance, subletting or
arrangement in respect of the occupancy of the Premises shall create any right
in the assignee, transferee, mortgagee, subtenant or occupant, unless the
consent of the Landlord shall first have been obtained, in accordance with the
provisions of this Article SEVENTEEN (except as provided in paragraph (i)
above). Any assignee by accepting an assignment shall nevertheless be
conclusively deemed to have assumed this lease and all obligations already
accrued or to accrue thereunder and further to have agreed to fully and duly
perform all the Tenant's covenants herein contained. If the Tenant shall, at any
time, be in default in the payment of rent, the Landlord shall have the right to
collect rent from any assignee or subtenant, and credit the same to the account
of the Tenant, and no such collection shall constitute a waiver of the foregoing
covenant or the acceptance of anyone other than the Tenant, as tenant, or shall
otherwise release, impair or otherwise affect any obligation of the Tenant under
this lease.
(m) The Tenant shall remain fully liable for the performance of all of
the Tenant's obligations hereunder notwithstanding anything provided for herein,
and without limiting the generality of the foregoing, shall remain fully
responsible and liable to the Landlord for all acts and omissions of any
subtenant or assignee or anyone claiming under or through any such person which
shall be in violation of any of the obligations of this lease and any such
violation shall be deemed to be a violation by the Tenant. Provided that the
Tenant named herein shall have provided Landlord with an address for notices, if
such address is different from the Premises, Landlord shall send copies of any
default notices given to an assignee or subtenant to the Tenant named herein,
and the Tenant named herein shall have the same cure period with respect to such
default as provided herein with respect to Tenant's own defaults. Landlord may
not terminate this lease for a default of an assignee or subtenant until the
Tenant named herein is given copies of such default notices and the cure period
to cure such default shall have expired. Upon any termination of this lease, it
is expressly agreed that the Tenant shall deliver to the Landlord all subleases,
security deposits (including interest), contracts, documents, rent rolls and
other records used in the operation of the Premises and, unless the sublease
shall have previously terminated and the security deposit returned to subtenant
or applied as provided by the sublease, all security deposits held by the
Tenant.
(n) With respect to any present or future subleases, the Tenant shall
not accept prepayment of rent prior to its due date in excess of one month (but
the provisions of the foregoing shall not prohibit the Tenant from collecting
from any subtenant a security deposit provided such security deposit is
delineated in the sublease as being not advance rent, but security, returnable
to the subtenant after the termination of the term of the sublease). The Tenant
agrees to indemnify and save the Landlord harmless from and against any claim or
lien against the Landlord or the Premises for the return of any security under
any subleases with a subtenant which was not previously delivered to the
Landlord and agrees further that all subleases hereafter made with subtenants
shall provide that the lease security deposited by the subtenant shall not be a
lien or claim against the interest of the Landlord.
(o) (i) If the Tenant assumes this lease and proposes to assign the
same pursuant to the provisions of 11 U.S.C. Section 101 et. seq (the
"Bankruptcy Code") to any person or entity who shall have made a bona fide offer
to accept an assignment of this lease on terms acceptable to the Tenant, then
notice of such proposed assignment shall be given to the Landlord by the Tenant
no later than twenty (20) days after receipt by the Tenant of such bona fide
offer, but in any event no later than ten (10) days prior to the date that the
Tenant shall make application to a court of competent jurisdiction for authority
and approval to enter into such assignment and assumption. Such notice shall set
forth (x) the name and address of such person, (y) all of the terms and
conditions of such offer, and (z) adequate assurance of future performance by
such person under this lease, including, without limitation, the assurance
referred to in Section 365 (b)(3) of the Bankruptcy Code. The Landlord shall
have the prior right and option, to be exercised by notice to the Tenant
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given at any time prior to the effective date of such proposed assignment, to
accept an assignment of this lease upon the same terms and conditions and for
the same consideration, if any, as the bona fide offer made by such person, less
any brokerage commission which would be payable in connection with such
assignment.
(ii) The term "adequate assurance of future performance" as used in
this lease shall mean that any proposed assignee shall, among other things: (a)
deposit with the Landlord on the assumption of this lease an amount equal to the
then-fixed rent and additional rent as security for the faithful performance and
observance by such assignee of the terms and obligations of this lease, which
sum shall be held in accordance with the provisions of Article TWENTY-NINE
hereof; (b) furnish the Landlord with financial statements of such assignee for
the prior three (3) fiscal years, as finally determined after an audit and
certified as correct by a certified public accountant, which financial
statements shall show a Net Worth of at least two (2) times the Net Worth of the
Tenant named herein as of the date of this lease for each of such three (3)
years; (c) grant to the Landlord a security interest in such property of the
proposed assignee as the Landlord shall deem necessary to secure such assignee's
future performance under this lease; and (d) provide such other information or
take such action as the Landlord, in its reasonable judgment, shall determine is
necessary to provide adequate assurance of the performance by such assignee of
its obligations under this lease.
(p) Notwithstanding anything to the contrary contained herein, no
assignment or subletting by the Tenant, nor any other transfer or vesting of the
Tenant's interest hereunder (whether by merger, operation of law or otherwise),
shall be permitted if the proposed assignment or sublease (i) provides for a
rental or other payment for the leasing, use, occupancy or utilization of all or
any part of the Premises based, in whole or in part, on the income or profits
derived by any person from the property so leased, used, occupied or utilized
other than an amount based on a fixed percentage or percentages of gross
receipts or sales or (ii) does not provide that such assignee or subtenant shall
not enter into any lease, sublease, license, concession or other agreement for
the use, occupancy or utilization of all or any portion of the Premises which
provides for a rental or other payment for such use, occupancy or utilization
based, in whole or in part, on the income or profits derived by any person from
the property so leased, used, occupied or utilized other than an amount based on
a fixed percentage or percentages of gross receipts or sales.
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ARTICLE EIGHTEEN
WAIVER AND SURRENDER; REMEDIES CUMULATIVE
No consent or waiver of any provision hereof or acceptance of any
surrender shall be implied from any act or forbearance by the Landlord. No
agreement purporting to accept a surrender of this lease, or to modify, alter,
amend or waive any term or provision thereof, shall have any effect or validity
whatever, unless the same shall be in writing, and executed by the Landlord and
by the Tenant (or, in the case of a waiver, by the party waiving such term or
provision), and be duly delivered, nor shall the delivery of any keys to anyone
have any legal effect, any rule or provision of law to the contrary
notwithstanding. Any consent, waiver or acceptance of surrender, in writing, and
properly executed and delivered as aforesaid, shall be limited to the special
instance for which it is given, and no superintendent or employee, other than an
officer of the Landlord or of its managing agent, and no renting representative
shall have any authority to accept a surrender of the Premises, or to make any
agreement or modification of this lease, or any of the terms and provisions
hereof. No provision of any lease made by the Landlord to any other tenant of
the building shall be taken into consideration in any manner whatever in
determining the rights of the Tenant herein. No payment by the Tenant or receipt
by the Landlord of a lesser amount than the monthly rent herein stipulated shall
be deemed to be other than on account of the stipulated rent, nor shall any
endorsement on any check, nor any letter accompanying any such payment of rent
be deemed an accord and satisfaction (unless an agreement to accept a lesser
amount be signed by the Landlord), but the Landlord may accept such payment
without prejudice to the Landlord's full right to recover the balance of such
rent and to institute summary proceedings therefor. If the Tenant is in arrears
in the payment of fixed rent or additional rent or any other sum which may
become payable under this lease, the Tenant waives its right, if any, to
designate the items in arrears against which any payments made by Tenant are to
be credited and Landlord may apply any of such payments to any such items in
arrears as the Landlord, in its sole discretion, shall determine, irrespective
of any such designation or request by the Tenant as to the items against which
any such payments shall be credited. The receipt by the Landlord of any fixed
rent, or additional rent or of any other sum of money which may be payable under
this lease, or of any portion thereof, shall not be deemed a waiver of the right
of the Landlord to enforce the payment of any sum of any kind previously due or
which may thereafter become due under this lease, or of the right to forfeit
this lease by such remedies as may be appropriate, or to terminate this lease or
to exercise any of the rights and remedies reserved to the Landlord hereunder,
and the failure of the Landlord to enforce any covenant or condition (although
the Tenant shall have repeatedly or continuously broken the same without
objection from the Landlord) shall not estop the Landlord at any time from
taking any action with respect to such breach which may be authorized by this
lease, or by law, or from enforcing said covenant or any other covenant or
condition on the occasion of any subsequent breach or default. The various
rights, remedies, powers and elections of the Landlord, as provided in this
lease or created by law, are cumulative, and none of them shall be deemed to be
exclusive of the others, or of such other rights, remedies, powers or elections
as are now or may hereafter be conferred upon the Landlord by law or equity.
ARTICLE NINETEEN
NO REPRESENTATIONS AS TO PREMISES,
CERTIFICATE OF OCCUPANCY AND USE
The Tenant represents to the Landlord that the Tenant has made, or
caused to be made, a careful inspection of the Premises and that the Tenant has
made an examination of the certificate of occupancy of the building and that the
area and present condition of the Premises are in all respects satisfactory to
the Tenant, except (if at all) as may herein otherwise be expressly stated in
the Work Sheet (Exhibit C) annexed hereto. The Tenant acknowledges that no
representations or promises have been made by the Landlord or the Landlord's
agents with respect to the Premises or the building or the Certificate of
Occupancy thereof, except as in this lease set forth, and no rights, easements
or licenses are acquired by the Tenant except as expressly set forth herein. The
statements contained in this lease regarding the use of the Premises by the
Tenant shall not be deemed a representation or warranty by the Landlord that
such use is lawful or permitted by the Certificate of Occupancy of the building.
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ARTICLE TWENTY
LIMITATION OF LANDLORD'S LIABILITY
(a) The Tenant shall make no claim upon the Landlord for abatement of
rent, constructive eviction, rescission, or otherwise, and the Landlord shall be
exempt from all liability, except for injuries to the Tenant's person or
property which are due to the negligence of the Landlord, its agents, servants
or employees in the management of the Premises or the real property of which the
Premises are a part, for or on account of any annoyance, inconvenience,
interference with business, or other damage, caused by: (i) any interruption,
malfunction or curtailment of the operation of the elevator service, heating
plant, sprinkler system, gas, water, sewer or steam supply, plumbing, machinery,
electric equipment or other appurtenances, facilities, equipment and
conveniences in the building, whether such interruption, malfunction or
curtailment be due to breakdowns, or repairs, or strikes or inability to obtain
electricity, fuel or water due to any such cause or any other cause beyond the
Landlord's control; (ii) any work of repair, alteration, renovation or
replacement done by or on behalf of the Landlord or any other tenant; (iii) any
water, rain, snow, steam, gas, electricity or other element, which may enter,
flow from or into the Premises or any part of the building, or any noise or
vibration audible in, or transmitted to the Premises; (iv) any vermin; (v) any
falling paint, plaster or cement; (vi) any interference with light or with other
easements or incorporeal hereditaments; (vii) any latent defect or deterioration
in the building or the appurtenances thereof, whether or not the Landlord shall
have been notified of any condition allegedly causing same; (viii) any zoning
ordinance or other acts of governmental or public authority now or hereafter in
force; and (ix) any act or omission of any other occupant of the building or
other person temporarily therein. The Tenant will not hold the Landlord liable
for any loss or theft of, or damage to, any property in the Premises done or
caused by any employee, servant, or agent of the Landlord who is invited into
the Premises by the Tenant for purposes outside the normal scope of such
employee's, servant's or agent's duties, nor for the loss, damage or theft of
any property stored or left in the basement or in any other part of the
building, which is not enclosed within the Premises or of any property, left
with any employee of the Landlord, notwithstanding such theft, loss or damage
may occur through carelessness or negligence of the Landlord's employees; and
the Tenant agrees that any employee in entering the Premises at the invitation
of the Tenant for purposes outside the normal scope of such employee's,
servant's or agent's duties or accepting custody of property shall be then
deemed agent of the Tenant or other person at whose instance he may be acting,
and not agent of the Landlord. Employees are not permitted to receive or accept
packages or property for account of Tenants. The use of storerooms or storage
space for personal property (if provided) shall be at the Tenant's risk and the
Tenant will not hold the Landlord liable for any loss of or damage to person or
property therein or thereby. Nothing in this lease contained shall impose any
obligation upon the Landlord with respect to any real property other than the
building, whether said other real property be owned by the Landlord or
otherwise, or shall in any way limit the Landlord's right to build upon or
otherwise use said other real property in such manner as the Landlord may see
fit. The Tenant shall make no claim upon the Landlord for abatement of rent,
constructive eviction or rescission, and the Landlord shall have no liability by
reason of the Landlord's failure to enforce the provisions of the lease to any
other tenant against such other tenant.
(b) Any right and authority reserved by and granted to the Landlord
under this lease, to enter upon and make repairs in the Premises shall not be
taken as obligating the Landlord to inspect and to repair the Premises and the
Landlord hereby assumes no responsibility or liability for the care, inspection,
maintenance, supervision, alteration or repair of the Premises except as herein
specifically provided. The Tenant assumes possession and control of the Premises
and exclusively the whole duty of care and repair thereof, except as herein
specifically provided, and the duty of care, if any, owed by the Tenant to the
persons on the sidewalks or in the corridors of the building.
(c) The officers, directors, employees, partners, shareholders, and
principals, direct or indirect, comprising the Landlord (collectively, the
"Parties") shall not be liable for the performance of the Landlord's obligations
under this lease. The Tenant shall look solely to the Landlord to enforce the
Landlord's obligations under this lease and shall not seek any damages against
any of the Parties. The liability of the Landlord for the Landlord's obligations
under this lease shall be limited to Landlord's Equity in the building.
"Landlord's Equity" as used herein means the lesser of (i) the interest of the
Landlord in and to the building and (ii) the interest the Landlord would have
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in the building if it were encumbered by an indebtedness held by a person not a
party to this lease in an amount equal to 75% of the then-current fair market
value of the building (as such value of such interest is determined in good
faith by the Landlord). The Tenant shall not look to any other property or
assets of the Landlord, other than Landlord's Equity, or the property or assets
of any of the Parties in seeking either to enforce the Landlord's obligations
under this lease or to satisfy a judgment for the Landlord's failure to perform
such obligations.
(d) The term "Landlord" as used in this lease, means only the owner for
the time being of the Premises. If the Landlord shall hereafter sell, exchange
or lease the entire building or the land and building wherein the Premises are
located, or, being the lessee thereof, shall assign its lease, the grantee,
lessee, or assignee thereof, as the case may be, shall, without further
agreement by any party, be conclusively deemed to be the Landlord of this lease
and to have assumed and undertaken to carry out all of the obligations hereof on
the part of the Landlord to be performed, and the Tenant does hereby release the
above-named Landlord from any claim or liability arising or accruing hereunder
subsequent to such transfer of ownership or possession, for breach of the
covenant of quiet enjoyment, or otherwise.
(e) If the lease provides that the Landlord's consent is not to be
unreasonably withheld or delayed, and it is the final order of any court having
jurisdiction thereof that the Landlord has been unreasonable, the only effect
shall be that the Landlord shall be deemed to have given such consent; but in no
event shall the Landlord be liable to the Tenant for any monetary damages by
reason of the withholding or delaying of its consent.
ARTICLE TWENTY-ONE
INDEMNITY BY TENANT
The Tenant hereby indemnifies and agrees forever to save harmless the
Landlord against any and all liabilities, penalties, claims, damages, expenses
(including, without limitation, attorneys' fees whether in a proceeding between
the Landlord and the Tenant or between the Landlord and any third party) or
judgments, arising from injury to person or property of any kind, occasioned
wholly or in part by the Tenant's failure to perform or abide by any of the
covenants of this lease or occasioned wholly or in part by any act or acts,
omission or omissions of the Tenant, or of the employees, customers, agents,
assigns, invitees or licensees or under-tenants of the Tenant, or based on any
matter or thing growing out of the Tenant's use or occupation of the Premises or
any part of the building. The Tenant shall not do or permit any act or thing to
be done upon the Premises which may subject the Landlord to any liability or
responsibility for injury, damages to persons or property or to any liability by
reason of any violations of any requirements of law with which the Tenant is
obligated to comply under this lease, and the Tenant shall exercise such control
over the Premises as to protect the Landlord against any such liability. In case
any claim, action or proceeding is made or brought against the Landlord by
reason of any such claim, the Tenant, upon written notice from the Landlord,
shall, at the Tenant's sole cost and expense, resist or defend such action or
proceeding by counsel approved by the Landlord in writing. The Landlord agrees
that counsel for the Tenant's insurance carrier shall be deemed satisfactory. If
the damages sought by the party asserting such claim exceed the limits of the
Tenant's insurance coverage, the Landlord shall be entitled to have its own
counsel participate with the Tenant's counsel in resisting or defending such
action and the Tenant shall reimburse the Landlord for any reasonable cost it
incurs in connection therewith. The provisions of this Article TWENTY-ONE shall
survive the expiration or sooner termination of this Lease.
ARTICLE TWENTY-TWO
NOTICES
Any notice which is to be given by either party to the other pursuant
to this lease shall be in writing and shall be given as follows: (a) if such
notice is to be given by the Landlord to the Tenant, such notice may be given
personally by delivering the same to the Tenant, or if the Tenant be a
corporation or partnership, to any officer, partner or other employee of the
Tenant, at the Premises or at any other place, or by registered or certified
mail, postage prepaid, return receipt requested, or by nationally recognized
overnight service providing evidence of delivery, addressed to the Tenant
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at its address given in this lease or at the Premises, or such other address as
the Tenant shall hereafter designate in writing, provided, however, that notices
of default may not be given solely by personal delivery, but shall be given by
mail or overnight service as set forth above, with a copy of such default notice
sent to Marshall J. Cohen, Esq., Stadtmauer Bailkin LLP, 850 Third Avenue, New
York, NY 10022; (b) if such notice is to be given by the Tenant to the Landlord,
such notice shall be given by registered or certified mail, postage prepaid,
return receipt requested, or by nationally recognized overnight service
providing evidence of delivery, addressed to the Landlord at 74 Trinity Place,
New York, New York, 10006, Attention: Director of Commercial Real Estate
Leasing, or at such other address as the Landlord shall hereafter designate in
writing. Notices given by overnight service shall be specified for next business
day delivery. Any notice shall be deemed to have been given on the date when
same shall have been delivered, in the case of personal delivery, or two days
after the same shall have been properly mailed in the case of certified or
registered mail, or on the first following business day if sent by overnight
mail service. The attorneys for either party shall have the right, but not the
obligation, to send notices on behalf of their respective clients.
Notwithstanding the foregoing, all bills may be sent directly to the Tenant by
regular mail.
ARTICLE TWENTY-THREE
INSOLVENCY
(a) Each of the following shall be a "Bankruptcy Event" hereunder:
(1) if the Tenant shall generally not, or shall be unable to, or shall
admit its inability to, pay its debts as they become due; or
(2) if the Tenant shall make a general assignment for the benefit of
creditors; or
(3) if the Tenant shall commence or institute any case, proceeding or
other action (i) seeking relief on its behalf as debtor, or to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, or (ii) seeking appointment of a receiver, trustee, custodian
or other similar official for it or for all or any substantial part of
its property; or
(4) if any case, proceeding or other action shal