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AGREEMENT OF LEASE, made as of this 24th day of November, 1992, between TISMAN
SPEYER SILVERSTEIN PARTNERSHIP, a New York limited partnership, having an office
at 520 Madison Avenue, New York, New York.
party of the first part, hereinafter referred to as OWNER, or LANDLORD, and TIME
PUBLISHING VENTURES, INC., a Delaware corporation qualified to transact business
in New York State, having an address at 1271 Avenue of the Americas, New York,
New York.
party of the second part, hereinafter referred to as TENANT,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner
that portion of the twenty-fourth (24th) as shown by diagonal markings on the
rental plan attached hereto as Exhibit A and made a part hereof (the "demised
premises")
in the building known as 11 West 42nd Street (the "building") in the Borough of
Manhattan, City of New York, for the term of ELEVEN (11) YEARS
(or until such term shall sooner cease and expire as
hereinafter provided) to commence on the 1st day of December nineteen
hundred and ninety-two, and to end on the 30th day of November two
thousand and three
both dates inclusive, at an annual rental rate of THREE HUNDRED THIRTY-THREE
THOUSAND NINE HUNDRED EIGHTY-FOUR AND 00/100 ($333,984.00) DOLLARS per annum for
the period commencing December 1, 1992 and ending November 30, 1998; and THREE
HUNDRED SIXTY-ONE THOUSAND TWO HUNDRED FORTY-EIGHT AND 00/100 ($361,248.00)
DOLLARS per annum for the balance of the term hereof.
which Tenant agrees to pay in lawful money of the United States which shall be
legal tender in payment of all debts and dues, public an private, at the time of
payment, in equal monthly installments in advance on the first day of each month
during said term, at the office of Owner or such other place as Owner may
designate, without any set off or deduction whatsoever.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
RENT OCCUPANCY:
1. Tenant shall pay the rent as above and as hereinafter provided.
2. Tenant shall use and occupy demised premises for Executive and
administrative offices in connection with Tenant's business [1] and consistent
with a first-class office building, and for no other purpose.
TENANT ALTERATIONS:
3. [1a] Tenant shall make no changes in or to the demised premises of
any nature without Owner's prior written consent. Tenant shall, before making
any alterations, additions, installations or improvements, at its expense,
obtain all permits, approvals and certificates required by any governmental or
quasi-governmental bodies and (upon completion) certificates of final approval
thereof and shall deliver promptly duplicates of all such permits, approvals and
certificates to Owner and Tenant agrees to carry and will cause Tenant's
contractors and sub-contractors to carry such workman's compensation, general
liability, personal and property damage insurance as Owner may require. If any
mechanic's lien is filed against the demised premises, or the building of which
the same forms a part, for work claimed to have been done for, or materials
furnished to, Tenant, whether not done pursuant to this article, the same shall
be discharged by Tenant within thirty days thereafter, at Tenant's expense, by
filing the bond required by law. All fixtures and all paneling, partitions,
railings and like installations, installed in the premises at any time, either
by Tenant or by Owner in Tenant's behalf, shall, upon installation, become the
property of Owner and shall remain upon and be surrendered with the demised
premises unless Owner, by notice to Tenant no later than twenty days prior to
the date fixed as the termination of this lease, elects to relinquish Owner's
right thereto and to have them removed by Tenant, in which event the same shall
be removed from the premises by Tenant prior to the expiration of the lease, at
Tenant's expense. [2] Nothing in this article shall be construed to give Owner
title to or to prevent Tenant's removal of trade fixtures, moveable office
furniture and equipment, but upon removal of any such from the premises or upon
removal of other installations as may be required by Owner, Tenant shall
immediately and at its expense repair any damage in the demised premises or the
building due to such removal. All property permitted or required to be removed,
by Tenant at the end of the term remaining in the premises after Tenant's
removal shall be deemed abandoned and may, at the election of Owner, either be
retained as Owner's property or may be removed from the premises by Owner, at
Tenant's expense. (see Article 42)
MAINTENANCE AND REPAIRS:
4. Tenant shall, throughout the term of this lease, take good care of
the demised premises and the fixtures and appurtenances therein. Tenant shall be
responsible for all damage or injury to the demised premises or any other part
of the building and the systems and equipment thereof, whether requiring
structural or nonstructural repairs caused by or resulting from carelessness,
omission, neglect or improper conduct of Tenant, Tenant's subtenants, agents,
employees, invitees or licensees, or which arise out of any work, labor, service
or equipment done for or supplied to Tenant or any subtenant or arising out of
the installation, use or operation of the property or equipment of Tenant or any
subtenant. Tenant shall also repair all damage to the building and the demised
premises caused by the moving of Tenant's fixtures, furniture and equipment.
Tenant shall promptly make, at Tenant's expense, all repairs in and to the
demised premises for which Tenant is responsible, using only [3]. Any other
repairs in or to the building or the facilities and systems thereof for which
Tenant is responsible shall be performed by Owner at the Tenant's expense. Owner
shall maintain in good working order and repair the exterior and the structural
portions of the building, including the structural portions of its demised
premises, and the public portions of the building interior and the building
plumbing, electrical, heating and ventilating systems serving the demised
premises. Tenant agrees to give prompt notice of any defective condition in the
premises for which Owner may be responsible hereunder. There shall be no
allowance to Tenant for diminution of rental value and no liability on the part
of Owner by reason of inconvenience, annoyance or injury to business arising
from
<PAGE> 2
Owner or others making repairs, alterations, additions or improvements in or in
any portion of the building or the demised premises or in and to the fixtures,
appurtenances or equipment thereof. It is specifically agreed that Tenant shall
not be entitled to any setoff or reduction of rent by reason of any failure of
Owner to comply with the covenants of this or any other article of this Lease.
Tenant agrees that Tenant's sole remedy at law in such instance will be by way
of an action for damages for breach of contract. The provisions of this Article
4 shall not apply in the case of fire or other casualty which are dealt with in
Article 9 hereof. [4]
WINDOW CLEANING:
5. Tenant will not clean nor require, permit, suffer or allow any
window in the demised premises to be cleaned from the outside in violation of
Section 202 of the Labor Law or any other applicable law or of the Rules of the
Board of Standards and Appeals, or of any other Board or body having or
asserting jurisdiction. [5]
REQUIREMENTS OF LAW, FIRE INSURANCE, FLOOR LOADS:
6. Prior to the commencement of the lease term, if Tenant is then in
possession, and at all times thereafter, Tenant, at Tenant's sole cost and
expense, shall promptly comply with all present and future laws, orders and
regulations of all state, federal, municipal and local governments, departments,
commissions and boards and any direction of any public officer pursuant to law,
and all orders, rules and regulations of the New York Board of Fire
Underwriters, Insurance Services Office, or any similar body which shall impose
any violation, order or duty upon Owner or Tenant with respect to the demised
premises, whether or not arising out of Tenant's use or manner of use thereof,
(including Tenant's permitted use) or, with respect to the building if arising
out of Tenant's use or manner of use of the premises or the building (including
the use permitted under the lease). Nothing herein shall require Tenant to make
structural repairs or alterations unless Tenant has, by its manner of use of the
demised premises or method of operation therein, violated any such laws,
ordinances, orders, rules, regulations or requirements with respect thereto.
Tenant may, after securing Owner to Owner's satisfaction against all damages,
interest, penalties and expenses, including, but not limited to, reasonable
attorney's fees, by cash deposit or by surety bond in an amount and in a company
satisfactory to Owner, contest and appeal any such laws, ordinances, orders,
rules, regulations or requirements provided same is done with all reasonable
promptness and provided such appeal shall not subject Owner to prosecution for a
criminal offense or constitute a default under any lease or mortgage under which
Owner may be obligated, or cause the demised premises or any part thereof to be
condemned or vacated. Tenant shall not do or permit any act or thing to be done
in or to the demised premises which is contrary to law, or which will invalidate
or be in conflict with public liability, fire or other policies of insurance at
any time carried by or for the benefit of Owner with respect to the demised
premises or the building of which the demised premises form a part, or which
shall or might subject Owner to any liability or responsibility to any person or
for property damage. Tenant shall not keep anything in the demised premises
except as now or hereafter permitted by the Fire Department, Board of Fire
Underwriters, Fire Insurance Rating Organization or other authority having
jurisdiction, and then only in such manner and such quantity so as not to
increase the rate for fire insurance applicable to the building, nor use the
premises in a manner which will increase the insurance rate for the building or
any property located therein over that in effect prior to the commencement of
Tenant's occupancy. Tenant shall pay all costs, expenses, fines, penalties, or
damages, which may be imposed upon Owner by reason of Tenant's failure to comply
with the provisions of this article and if by reason of such failure the fire
insurance rate shall, at the beginning of this lease or at any time thereafter,
be higher than it otherwise would be, then Tenant shall reimburse Owner, as
additional rent hereunder, for that portion of all fire insurance premiums
thereafter paid by Owner which shall have been charged because of such failure
by Tenant. In any action or proceeding wherein Owner and Tenant are parties, a
schedule or "make-up" of rate for the building or demised premises issued by the
New York Fire Insurance Exchange, or other body making fire insurance rates
applicable to said premises. Tenant shall not place a load upon any floor of the
demised premises exceeding the floor load per square foot area which it was
designed to carry and which is allowed by law. Owner reserves the right to
prescribe the weight and position of all safes, business machines and mechanical
equipment. Such installments shall be placed and maintained by Tenant, at
Tenant's expense, in settings sufficient, in Owner's judgment, to absorb and
prevent vibration, noise and annoyance. (See Article 47)
SUBORDINATION:
7. This lease is subject and subordinate to all ground or underlying
leases and to all mortgages which may now or hereafter affect such leases or the
real property of which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall execute promptly any certificate that Owner may request.
PROPERTY - LOSS, DAMAGE, REIMBURSEMENT, INDEMNITY:
8. Owner or its agents shall not be liable for any damage to property
of Tenant or other others entrusted to employees of the building, nor for loss
of or damage to any property of Tenant by theft or otherwise, nor for any injury
or damage to persons or property resulting from any cause of whatsoever nature,
unless caused by or due to the negligence of Owner, its agents, servants or
employees. Owner or its agents will not be liable for any such damage caused by
other tenants or persons in, upon or about said building or caused by operations
in construction of any private, public or quasi public work. If at any time any
windows of the demised premises are temporarily closed, darkened or bricked up
(or permanently closed, darkened or bricked up, if required by law) for any
reason whatsoever including, but not limited to Owner's own acts, Owner shall
not be liable for any damage Tenant may sustain thereby and Tenant shall not be
entitled to any compensation therefor nor abatement or diminution of rent nor
shall the same release Tenant from its obligations hereunder nor constitute an
eviction. Tenant shall indemnify and save harmless Owner against and from all
liabilities, obligations, damages, penalties, claims, costs and expenses for
which Owner shall not be reimbursed by insurance, including reasonable attorneys
fees, paid, suffered or incurred as a result of any breach by Tenant, Tenant's
agents, contractors, employees, invitees, or licensees, of any covenant or
condition of this lease, or the carelessness, negligence or improper conduct of
the Tenant, Tenant's agents, contractors, employees, invitees or licensees.
Tenant's liability under the lease extends to the acts and omissions of any
sub-tenant, and any agent, contractor, employee, invitee or licensee of any
sub-tenant. In case any action or proceeding is brought against Owner by reason
of any such claim, Tenant, upon written notice from Owner, will, at Tenant's
expense, resist or defend such action or proceeding by counsel approved by Owner
in writing, such approval not to be unreasonably withheld.
DESTRUCTION, FIRE AND OTHER CASUALTY:
9. (a) If the demised premises or any part thereof shall be damaged by
fire or other casualty, Tenant shall give immediate notice thereof to Owner and
this lease shall continue in full force and effect except as hereinafter set
forth. (b) If the demised premises are partially damaged or rendered partially
unusable by fire or other casualty, the damages thereto shall be repaired by and
at the expense of Owner and the rent, until such repair shall be substantially
completed, shall be apportioned from the day following the casualty according to
the part of the premises which is usable. (c) If the demised premises are
totally damaged or rendered wholly unusable by fire or other casualty, then the
rent shall be proportionately paid up to the time of the casualty and
thenceforth shall cease until the date when the premises shall have been
repaired and restored by Owner, subject to Owner's right to elect not to restore
the same as hereinafter provided. (d) If the demised premises are rendered
wholly unusable or (whether or not the demised premises are damaged in whole or
in part) if the building shall be so damaged that Owner shall decide to demolish
it or to rebuild it, then, in any of such events, Owner may elect to terminate
this lease by written notice to Tenant, given within 90 days after such fire or
casualty, specifying a date for the expiration of the lease, which date shall
not be more than 60 days after the giving of such notice, and upon the date
specified in such notice the term of this lease shall expire as fully and
completely as if such date were the date set forth above for the termination of
this lease and Tenant shall forthwith quit, surrender and vacate the premises
without prejudice however, to Landlord's rights and remedies against Tenant
under the lease provisions in effect prior to such termination, and any rent
owing shall be paid up to such date and any payments of rent made by Tenant
which were on account of any period subsequent to such date shall be returned to
Tenant. Unless Owner shall serve a termination notice as provided for herein,
Owner shall make the repairs and restorations under the conditions of (b) and
(c) hereof, with all reasonable expedition, subject to delays due to adjustment
of insurance claims, labor troubles and causes beyond Owner's
<PAGE> 3
control. After any such casualty, Tenant shall cooperate with Owner's
restoration by removing from the premises as promptly as reasonably possible,
all of Tenant's salvageable inventory and movable equipment, furniture, and
other property. Tenant's liability for rent shall resume five (5) days after
written notice from Owner that the premises are substantially ready for Tenant's
occupancy. (e) Nothing contained hereinabove shall relieve Tenant from liability
that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, each party shall 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, Owner
and Tenant each hereby releases and waives all right of recovery against the
other or any one claiming through or under each of them by way of subrogation or
otherwise. The 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. If, and to the extent, that such
waiver can be obtained only by the payment of additional premiums, then the
party benefitting from the waiver shall pay such premium within ten days after
written demand or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under the provisions
hereof with respect to waiver of subrogation. Tenant acknowledges that Owner
will not carry insurance on Tenant's furniture and/or furnishings or any
fixtures or equipment, improvements, or appurtenances removable by Tenant and
agrees that Owner will not be obligated to repair any damage thereto or replace
the same. (f) Tenant hereby waives the provisions of Section 227 of the Real
Property Law and agrees that the provisions of this article shall govern and
control in lieu thereof.
EMINENT DOMAIN:
10. If the whole or any part of the demised premises shall be acquired
or condemned by Eminent Domain for any public or quasi public use or purpose,
then and in that event, the term of this lease shall cease and terminate from
the date of title vesting in such proceeding and Tenant shall have no claim for
the value of any unexpired term of said lease and assigns to Owner, Tenant's
entire interest in any such award.
ASSIGNMENT, MORTGAGE, ETC.:
11. Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this agreement, nor
underlet, or suffer or permit the demised premises or any part thereof to be
used by others, without the prior written consent of Owner in each instance.
Transfer of the majority of the stock of a corporate Tenant shall be deemed an
assignment. If this lease be assigned, or if the demised premises or any part
thereof be underlet or occupied by anybody other than Tenant, Owner may, after
default by Tenant, collect rent from the assignee, under-tenant or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, underletting, occupancy or collection shall be deemed a waiver of
this covenant, or the acceptance of assignee, under-tenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to any
assignment or underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any further assignment
or underletting.
(See Article 41)
ELECTRIC CURRENT:
12. Rates and conditions in respect to submetering or rent inclusion,
as the case may be, to be added in RIDER attached hereto. Tenant covenants and
agrees that at all times its use of electric current shall not exceed the
capacity of existing feeders to the building or the risers or wiring
installation and Tenant may not use any electrical equipment which, in Owner's
opinion, reasonably exercised, will overload such installations or interfere
with the use thereof by other tenants of the building. The change at any time of
the character of electric service shall in no wise make Owner liable or
responsible to Tenant, for any loss, damages or expenses which Tenant may
sustain. (See Article 46)
ACCESS TO PREMISES:
13. Owner or Owner's agents shall have the right (but shall not be
obligated) to enter the demised premises in any emergency at any time, and, at
other reasonable times [6] to examine the same and to make such repairs,
replacements and improvements as Owner may deem necessary and reasonably
desirable to the demised premises or to any other portion of the building or
which Owner may elect to perform. Tenant shall permit Owner to use and maintain
and replace pipes and conduits in and through the demised premises and to erect
new pipes and conduits therein provided they are concealed within [7] walls,
floor, or ceiling. Owner may, during the progress of any work in the demised
premises, take all necessary materials and equipment into said premises without
the same constituting an eviction nor shall the Tenant be entitled to any
abatement of rent while such work is in progress nor to any damages by reason of
loss or interruption of business or otherwise. Throughout the term hereof Owner
shall have the right to enter the demised premises at reasonable hours for the
purpose of showing the same to prospective purchasers or mortgagees of the
building, and during the last six months of the terms for the purpose of showing
the same to prospective tenants. If Tenant is not present to open and permit an
entry into the premises, Owner or Owner's agents may enter the same whenever
such entry may be necessary or permissible by master key or [8] forcibly and
provided reasonable care is exercised to safeguard Tenant's property, such entry
shall not render Owner or its agents liable therefor, nor in any event shall the
obligations of Tenant hereunder be affected. If during the last month of the
term Tenant shall have removed all or substantially all of Tenant's property
therefrom, Owner may immediately enter, alter, renovate or redecorate the
demised premises without limitation or abatement of rent, or incurring liability
to Tenant for any compensation and such act shall have no effect on this lease
or Tenant's obligations hereunder.
VAULT, VAULT SPACE, AREA:
14. No Vaults, vault space or area, whether or not enclosed or covered,
not within the property line of the building is leased hereunder, anything
contained in or indicated on any sketch, blue print or plan, or anything
contained elsewhere in this lease to the contrary notwithstanding, Owner makes
no representation as to the location of the property line of the building. All
vaults and vault space and all such areas not within the property line of the
building, which Tenant may be permitted to use and/or occupy, is to be used
and/or occupied under a revocable license, and if any such license be revoked,
or if the amount of such space or area by diminished or required by any federal,
state or municipal authority or public utility, Owner shall not be subject to
any liability nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation, diminution or requisition be
deemed constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by Tenant.
OCCUPANCY:
15. Tenant will not at any time use or occupy the demised premises in
violation of the certificate of occupancy issued for the building of which the
demised premises are a part. [9] Tenant has inspected the premises and accepts
them as is, subject to the riders annexed hereto with respect to Owner's work,
if any. In any event, Owner makes no representation as to the condition of the
premises and Tenant agrees to accept the same subject to violations, whether or
not of record. [10]
BANKRUPTCY:
16 (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be cancelled by Owner by the sending or a
written notice to Tenant within a reasonable time after the happening of any one
or more of the following events: (1) the commencement of a case in bankruptcy or
under the laws of any state naming Tenant as the debtor; or (2) the making by
Tenant of an assignment or any other arrangement for the benefit of creditors
under any state statute. Neither Tenant nor any person claiming through or under
Tenant, or by reason of any statute or order of court, shall thereafter by
entitled to possession of the premises demised but shall forthwith quit and
surrender the premises. If this lease shall be assigned in accordance with its
terms, the provisions of this Article 16 shall be applicable only to the party
then owning Tenant's interest in this lease.
(b) It is stipulated and agreed that in the event of the termination of
this lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any
other provisions of this lease to the contrary, be entitled to recover from
Tenant as and for liquidated damages an amount equal to the difference between
the rent reserved hereunder for the unexpired portion of the term demised and
the fair and reasonable rental value of the demised premises for the same
period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such premises or any
part thereof be relet by the Owner for the unexpired term of said lease, or any
part thereof, before presentation of proof of such liquidated damages
<PAGE> 4
to any court, commission or tribunal, the amount of rent reserved upon such
reletting shall be deemed to be the fair and reasonable rental value for the
part or the whole of the premises so relet during the term of the reletting.
Nothing herein contained shall limit or prejudice the right of the Owner to
prove for and obtain as liquidated damages by reason of such termination, an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, such damages are to be
proved, whether or not such amount be greater, equal to, or less than the amount
of the difference referred to above.
(See Article 55)
DEFAULT:
17. (1) If Tenant defaults in fulfilling any of the covenants of this
lease other than the covenants for the payment of rent or additional rent; or if
the demised premises become [11]; or if any execution or attachment shall be
issued against Tenant or any of Tenant's property whereupon the demised premises
shall be taken or occupied by someone other than Tenant; or if this lease be
rejected under Section 235 of Title 11 of the U.S. Code (bankruptcy code); or if
Tenant shall be in default under any other lease for space in the building,
then, in any one or more of such events, upon Owner serving a written 15 days
notice upon Tenant specifying the nature of said default and upon the expiration
of said 15 days, if Tenant shall have failed to comply with or remedy such
default, or if the said default or omission complained of shall be of a nature
that the same cannot be completely cured or remedied within said 15 day period,
and if Tenant shall not have diligently commenced during such default within
such 15 day period, and shall not thereafter with reasonable diligence and in
good faith, proceed to remedy or cure such default, then Owner may serve a
written 5 days notice of cancellation of this lease upon Tenant, and upon the
expiration of said 5 days this lease and the term thereunder shall end and
expire as fully and completely as if the expiration of such 5 day period were
the day herein definitely fixed for the end and expiration of this lease and the
term thereof and Tenant shall then quit and surrender the demised premises to
Owner but Tenant shall remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given, and
the term shall expire as aforesaid; or if Tenant shall make default in the
payment of the rent reserved herein or any item of additional rent herein
mentioned or any part of either or in making any other payment herein required;
then and in any of such events Owner may without notice, re-enter the demised
premises either by force or otherwise, and dispossess Tenant by summary
proceedings or otherwise, and the legal representative of Tenant or other
occupant of demised premises and remove their effects and hold the premises as
if this lease had not been made. If Tenant shall made default hereunder prior to
the date fixed as the commencement of any renewal or extension of this lease,
Owner may cancel and terminate such renewal or extension agreement by written
notice.
REMEDIES OF OWNER AND WAIVER OF REDEMPTION:
18. In case of any such default [12] re-entry, expiration and/or
dispossess by summary proceedings or otherwise, (a) the rent shall become due
thereupon and be paid up to the time of such re-entry, dispossess and/or
expiration, (b) Owner may re-let the premises or any part or parts thereof,
either in the name of Owner or otherwise, for a term or terms, which may at
Owner's option be less than or exceed the period which would otherwise have
constituted the balance of the term of this lease and may grant concessions or
free rent or charge a higher rental than that in this lease, and/or (c) Tenant
or the legal representatives of Tenant shall also pay Owner as liquidated
damages for the failure of Tenant to observe and perform said Tenant's covenants
herein contained, any deficiency between the rent hereby reserved and/or
covenanted to be paid and the net amount, if any, of the rents collected on
account of the lease or leases of the demised premises for each month of the
period which would otherwise have constituted the balance of the term-of-this
lease. The failure of Owner to re-let the premises or any part or parts thereof
shall not release or affect Tenant's liability for damages. In computing such
liquidated damages there shall be added to the said deficiency such expenses as
Owner may incur in connection with re-letting, such as legal expenses,
attorneys' fees, brokerage, advertising and for keeping the demised premises in
good order or for preparing the same for re-letting. Any such liquidated damages
shall be paid in monthly installments by Tenant on the rent day specified in
this lease and any suit brought to collect the amount of the deficiency for any
month shall not prejudice in any way the rights of Owner to collect the
deficiency for any subsequent month by a similar proceeding. Owner, in putting
the demised premises in good order or preparing the same for re-rental may, at
Owner's option, make such alterations, repairs, replacements, and/or decorations
in the demised premises as Owner, in Owner's sole judgment, considers advisable
and necessary for the purpose of re-letting the demised premises, and the making
of such alterations, repairs, replacements, and/or decorations shall not operate
or be construed to release Tenant from liability hereunder as aforesaid. Owner
shall in no event be liable in any way whatsoever for failure to re-let the
demised premises, or in the event that the demised premises are re-let, for
failure to collect the rent thereof under such re-letting, and in no event shall
Tenant be entitled to receive any excess, in any, of such net rents collected
over the sums payable by Tenant to Owner hereunder. In the event of a breach or
threatened breach by Tenant of any of the covenants or provisions hereof, Owner
shall have the right of injunction and the right to invoke any remedy allowed at
law or in equity as if re-entry, summary proceedings and other remedies were not
herein provided for. Mention in this lease of any particular remedy, shall not
preclude Owner from any other remedy, in law or in equity. Tenant hereby
expressly waivers any and all rights of redemption granted by or under any
present or future laws in the event of Tenant being evicted or dispossessed for
any cause, or in the event of Owner obtaining possession of demised premises, by
reason of the violation by Tenant of any of the covenants and conditions of this
lease, or otherwise.
FEES AND EXPENSES
19. If Tenant shall default [13] in the observance or performance of
any term or covenant on Tenant's part to be observed or performed under or by
virtue or any of the terms or provisions in any article of this lease, then,
unless otherwise provided elsewhere in this lease, Owner may immediately or at
any time thereafter and without notice perform the obligation of Tenant
thereunder. If Owner, in connection with the foregoing or in connection with any
default by Tenant in the covenant to pay rent hereunder, makes any expenditures
or incurs any obligations for the payment of money, including but not limited to
attorney's fees, in instituting, prosecuting or defending any action or
proceeding, then Tenant will reimburse Owner for such sums so paid or
obligations incurred with interest and costs. The foregoing expenses incurred by
reason of Tenant's default shall be deemed to be additional rent hereunder and
shall be paid by Tenant to Owner within 15 days of rendition of any bill or
statement to Tenant therefor. If Tenant's lease term shall have expired at the
time of making of such expenditures or incurring of such obligations, such sums
shall be recoverable by Owner as damages.
BUILDING ALTERATIONS AND MANAGEMENT:
20. Owner shall have the right at any time without the same
constituting an eviction and without incurring liability to Tenant therefor to
change the arrangement and/or location of public entrances, passageways, doors,
doorways, corridors, elevators, stairs, toilets or other public parts of the
building and to change the name, number or designation by which the building may
be known. There shall be no allowance to Tenant for diminution of rental value
and no liability on the part of Owner by reason of inconvenience, annoyance or
injury to business arising from Owner or other Tenants making any repairs in the
building or any such alterations, additions and improvements. Furthermore,
Tenant shall not have any claim against Owner by reason of Owner's imposition of
such controls of the manner of access to the building by Tenant's social or
business visitors as the Owner may [13a] deemed necessary for the security of
the building and its occupants.
NO REPRESENTATIONS BY OWNER:
21. Neither Owner nor Owner's agents have made any representations or
promises with respect to the physical condition of the building, the land upon
which it is erected or the demised premises, the rents, leases, expenses of
operation or any other matter or thing affecting or related to the premises
except as herein expressly set forth and no rights, easements or licenses are
required by Tenant by implication or otherwise except as expressly set forth in
the provisions of this lease. Tenant has inspected the building and the demised
premises and is thoroughly acquainted with their condition and [14] agrees to
take the same "as is" and acknowledges that the taking of possession of the
demised premises by Tenant shall be conclusive evidence that the said premises
and the building of which the same form a part were in good and satisfactory
condition at the time such possession was so taken, except as to latent defects.
All understandings and agreements heretofore made between the parties hereto are
merged in this contract, which alone fully and completely expresses the
agreement between Owner and Tenant and any executory agreement hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of it
in whole or in part, unless such executory agreement is in writing and signed by
the party
<PAGE> 5
against whom enforcement of the change, modification, discharge or abandonment
is sought.
END OF TERM:
22. Upon the expiration or other termination of the term of this lease,
Tenant shall quit and surrender to Owner the demised premises, broom clean, in
good order and condition, ordinary wear and damages which Tenant is not required
to repair as provided elsewhere in this lease excepted, and Tenant shall remove
all its property. Tenant's obligation to observe or perform this covenant shall
survive the expiration or other termination of this lease. If the last day of
the term of this lease or any renewal thereof, falls on Sunday, this lease shall
expire at noon on the preceding Saturday unless it be a legal holiday in which
case it shall expire at noon on the preceding business day.
QUIET ENJOYMENT:
23. Owner covenants and agrees with Tenant that upon Tenant paying the
rent and additional rent and observing and performing all the terms, covenants
and conditions, on Tenant's part to be observed and performed, Tenant may
peaceably and quietly enjoy the premises hereby demised, subject, nevertheless,
to the terms and conditions of this lease including, but not limited to, Article
31 hereof and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
FAILURE TO GIVE POSSESSION:
24. If Owner is unable to give possession of the demised premises on
the date of the commencement of the term hereof, because of the holding-over or
retention of possession of any tenant, undertenant or occupants or if the
demised premises are located in a building being constructed, because such
building has not been sufficiently completed to make the premises ready for
occupancy or because of the fact that a certificate of occupancy has not been
procured or for any other reason, Owner shall not be subject to any liability
for failure to give possession on said date and the validity of the lease shall
not be impaired under such circumstances, nor shall the same be construed in any
wise to extend the term of this lease, but the rent payable hereunder shall be
abated (provided Tenant is not responsible for Owner's inability to obtain
possession) until after Owner shall have given Tenant written notice that the
premises are substantially ready for Tenant's occupancy. If permission is given
to Tenant to enter into the possession of the demised premises or to occupy
premises other than the demised premises prior to the date specified as the
commencement of the term of this lease, Tenant covenants and agrees that such
occupancy shall be deemed to be under all the terms, covenants, conditions and
provisions of this lease, except as to the covenant to pay rent. The provisions
of this article are intended to constitute "an express provision to the
contrary" within the meaning of Section 223-a of the New York Real Property Law.
NO WAIVER:
25. The failure of Owner to seek redress for violation of, or to insist
upon the strict performance of any covenant or condition of this lease or of
any of the Rules or Regulations, set forth or hereafter adopted by Owner, shall
not prevent a subsequent act which would have originally constituted a violation
from having all the force and effect of an original violation. The receipt by
Owner of rent with knowledge of the breach of any covenant of this lease shall
not be deemed a waiver of such breach and no provision of this lease shall be
deemed to have been waived by Owner unless such waiver be in writing signed by
Owner. No payment by Tenant or receipt by Owner of a lesser amount than the
monthly rent herein stipulated shall be deemed to be other than on account of
the earliest stipulated rent, nor shall any endorsement or statement of any
check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Owner may accept such check or payment without
prejudice to Owner's right to recover the balance of such rent or pursue any
other remedy in this lease provided. No act or thing done by Owner or Owner's
agents during the term hereby demised shall be deemed an acceptance of a
surrender of said premises, and no agreement to accept such surrender shall be
valid unless in writing signed by Owner. No employee of Owner or Owner's agent
shall have any power to accept the keys of said premises prior to the
termination of the lease and the delivery of keys in any such agent or employee
shall not operate as a termination of the lease or a surrender of the premises.
WAIVER OF TRIAL BY JURY:
26. It is mutually agreed by and between Owner and Tenant that the
respective parties hereto shall and they hereby do waive trial by jury in any
action, proceeding or counterclaim brought either of the parties hereto against
the other (except for personal injury or property damage) on any matters
whatsoever arising out of or in any way connected with this lease, the
relationship of Owner and Tenant. Tenant's use or occupancy of said premises,
and any emergency statutory or any other statutory remedy. It is further
mutually agreed in the event Owner commences any summary proceeding for
possession of the premises, Tenant will not interpose any counterclaim of
whatever nature or description in any such proceeding including a counterclaim
under Article 4.
INABILITY TO PERFORM:
27. This Lease and the obligation of Tenant it pay rent hereunder and
perform all of the other covenants and agreements hereunder on part of Tenant to
be performed shall in any wise be affected, impaired or excused because Owner is
unable to fulfill any of its obligations under this lease or to supply or is
delayed in supplying any service expressly or impliedly to be supplied or is
unable to make, or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures if Owner is prevented or delayed from so doing by reason of strike or
labor troubles or any cause whatsoever including, but not limited to, government
preemption in connection with a National Emergency or by reason of any rule,
order or regulation of any department or subdivision thereof of any government
agency or by reason of the conditions of supply and demand which have been or
are affected by war or other emergency.
BILLS AND NOTICES:
28. Except as otherwise in this lease provided, a bill, statement,
notice or communication which Owner may desire or be required to give to Tenant,
shall be deemed sufficiently given or rendered if, in writing, delivered to
Tenant personally or sent by registered or certified mail addressed to Tenant at
the building of which the demised premises form a part or at the last known
residence address or business address of Tenant or left at any of the aforesaid
premises addressed to Tenant, and the time of the rendition of such bill or
statement and of the giving of such notice or communication shall be deemed to
be the time when the same is delivered to Tenant, mailed, or left at the
premises as herein provided. Any notice by Tenant to Owner must be observed by
registered or certified mail addressed to Owner at the address first hereinabove
given or at such other address as Owner shall designate by written notice.
SERVICES PROVIDED BY OWNERS:
29. As long as Tenant is not in default under any of the covenants of
this lease, Owner shall provide: (a) necessary elevator facilities on business
days from 8 a.m. to 6 p.m. and have one elevator subject to call at all times;
(b) heat to the demised premises when and as required by law, on business days
from 8 a.m. to 6 p.m.; (c) water for ordinary purposes, but if Tenant uses or
consumes water for any other purposes or in unusual quantities (of which fact
Owner shall be the sole judge), Owner may install a water meter at Tenant's
expense which Tenant shall thereafter maintain at Tenant's expense in good
working order and repair to register such water consumption and Tenant shall pay
for water consumed as shown on said meter as additional rent as and when bills
are rendered; (d) cleaning service for the demised premises on business days at
Owner's expense provided that the same are kept in order by Tenant. [14a] If,
however, said premises are to kept clean by Tenant, it shall be done at Tenant's
sole expense, in a manner satisfactory to Owner and no one other than persons
approved by Owner shall be permitted to enter said premises or the building of
which they are a part for such purpose. Tenant shall pay Owner the cost of
removal of any of Tenant's refuse and rubbish from the building; (e) if the
demised premises are serviced by Owner's air conditioning/cooling and
ventilating system, air conditioning/cooling will be furnished to Tenant from
May 15th through September 30th on business days (Mondays through Fridays,
holidays excepted) from 8:00 a.m. to 6:00 p.m., and ventilation will be
furnished on business days during the aforesaid hours except when air
conditioning/cooling is being furnished as aforesaid. If Tenant requires air
conditioning/cooling or ventilation for more extended hours or on Saturdays,
Sundays or on holidays, as defined under Owner's contract with Operating
Engineers Local 94-94A, Owner will furnish the same at Tenant's expense. RIDER
to be added in respect to rates and conditions for such additional service; [15]
(f) Owner reserves the right to stop services of the heating, elevators,
plumbing, air-conditioning, power systems or cleaning or other services, if any,
when necessary by reason of accident or for repairs, alterations, replacements
or improvements necessary or desirable in the judgment of Owner for as long as
may be reasonably required by reason thereof. If the building of which the
demised premises are a part supplies manually-operated elevator service, Owner
at any time may substitute automatic-control elevator service and upon ten days'
written notice to Tenant, proceed with alterations necessary
<PAGE> 6
therefor without in any wise affecting this lease or the obligation of Tenant
hereunder. The same shall be done with a minimum of inconvenience to Tenant and
Owner shall pursue the alteration with due diligence.
CAPTIONS:
30. The Captions are inserted only as a matter of convenience and for
reference and no way define, limit or describe the scope of this lease nor the
intent of any provisions thereof.
DEFINITIONS:
31. The term "office", or "offices", wherever used in this lease, shall
not be construed to mean premises used as a store or stores, for the sale or
display, at any time, of goods, wares or merchandise, of any kind, or as a
restaurant, shop, booth, bootblack or other stand, barber shop, or for other
similar purposes or for manufacturing. The term "Owner" means a landlord or
lessor, and as used in this lease means only the owner, or the mortgagee in
possession, for the time being of the land and building (or the owner of a lease
of the building or of the land and building) of which the demised form a part,
so that in the event of any sale or sales of said land and building or of said
lease, or in the event of a lease of said building, or of the land and building,
the said Owner shall be and hereby is entirely freed and relieved of all
covenants and obligations of Owner hereunder, and it shall be deemed and
construed without further agreement between the parties or their successors in
interest, or between the parties and the purchaser, at any such sale, or the
said lessee of the building, or of the land and building, that the purchaser or
the lessee of the building has assumed and agreed to carry out any and all
covenants and obligations of Owner, hereunder. The words "re-enter" and
"re-entry" as used in this lease are not restricted in their technical legal
meaning. The term "business days" as used in this case shall exclude Saturdays,
Sundays and all days observed by the State or Federal Government as legal
holidays and those designated as holidays by the applicable building service
union employees service contract or by the applicable Operating Engineers
contract with respect to HVAC service.
ADJACENT EXCAVATION -- SHORING:
32. If an excavation shall be made upon land adjacent to the demised
premises, or shall be authorized to be made, Tenant shall afford to the person
causing or authorized in cause such excavation, license to enter upon the
demised premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the building of which demised premises form a
part from injury or damage and to support the same by proper foundations without
any claim for damages or indemnity against Owner, or diminution or abatement of
rent.
RULES AND REGULATIONS:
33. Tenant and Tenant's servants, employees, agents, visitors, and
licensees shall observe faithfully, and comply strictly with, the Rules and
Regulations and such other and further reasonable Rules and Regulations as Owner
or Owner's agents may from time to time adopt. Notice of any additional rules or
regulations shall be given in such manner as Owner may elect. In case Tenant
disputes the reasonableness of any additional Rule or Regulation hereafter made
or adopted by Owner or Owner's agents, the parties hereto agree to submit the
question of the reasonableness of such Rule or Regulation for decision to the
New York office of the American Arbitration Association, whose determination
shall be final and conclusive upon the parties hereto. The right to dispute the
reasonableness of any additional Rule or Regulation upon Tenant's part shall be
deemed waived unless the same shall be asserted by service of a notice, in
writing upon Owner with 30 days after the giving of notice thereof. Nothing in
these lease contained shall be construed to impose upon Owner any duty or
obligation to enforce the Rules and Regulations or terms, covenants or
conditions in any other lease, as against any other tenant and Owner shall not
be liable to Tenant for violation of the same by any other tenant, its servants,
employees, agents, visitors or licensees. [16]
SECURITY:
34. Tenant has deposited with Owner the sum of $57,936.00 as security
for the faithful performance and observance by Tenant of the terms, provisions
and conditions of this lease; it is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this lease, including,
but not limited to, the payment of rent and additional rent, Owner may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any rent and additional rent or any other sum as to
which Tenant is in default or for any sum which Owner may expend or may be
required to expend by reason of Tenant's default in respect of any of the terms,
covenants and conditions of this lease, including but not limited to, any
damages or deficiency in the re-letting of the premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Owner. In the event that Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this lease, the security
shall be returned to Tenant after the date fixed as the end of the Lease and
after delivery of entire possession of the demised premises to Owner. In the
event of a sale of the land and building or leasing of the building, of which
the demised premises for a part, Owner shall have the right to transfer the
security to the vendee or lessee and Owner shall thereupon be released by Tenant
from all liability for the return of such security; and Tenant agrees to look to
the new Owner solely for the return of said security, and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
security to a new Owner. Tenant further covenants that it will not assign or
encumber or attempt to assign or encumber the monies deposited herein as
security and that neither Owner nor its successors or assigns shall be bound by
any such assignment, encumbrance, attempted assignment or attempted encumbrance.
ESTOPPEL CERTIFICATE:
35. (See Article 43)
SUCCESSORS AND ASSIGNS:
36. The covenants, conditions and agreements contained in this lease
shall bind and inure to the benefit of Owner and Tenant and their respective
heirs, distributors, executors, administrators, successors, and except as
otherwise provided in this lease, their assigns.
<PAGE> 7
SEE RIDER PAGES ANNEXED HERETO AND MADE A PART
HEREOF CONTAINING ARTICLES 37-59
In Witness Whereof, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
Witness for Owner:
/s/
------------------------------------------------
Witness for Tenant:
/s/
------------------------------------------------
ACKNOWLEDGMENTS
CORPORATE OWNER
STATE OF NEW YORK, ss.
County of
On this day of , 19 before me personally came to me known,
who being by me duly sworn, did depose and say that he resides in , that
he is the of the corporation described in and which executed the foregoing
instrument, as OWNER that he knows the seal of said corporation, that the seal
affixed to said instrument is such corporate seal, that it was so affixed by
order of the Board of Directors of said corporation, ant that he signed his name
thereto by like order.
INDIVIDUAL OWNER
STATE OF NEW YORK, ss.
County of
On this day of , 19 , before me personally came
to me known and known to me to be the individual described in and who, as OWNER,
executed the foregoing instrument and acknowledged to me that
he executed the same.
TISHMAN SPEYER SILVERSTEIN PARTNERSHIP, Owner
By: TISHMAN SPEYER 42ND ST. ASSOCIATES, General
Partner
By: /s/
------------------------------------------------
a General Partner
By: 11 West Associates, a General Partner
By: /s/
------------------------------------------------
a General Partner
TIME PUBLISHING VENTURES, INC., Tenant
By: /s/ Joseph A. Ripp
--------------------------------------------
Name: Joseph A. Ripp
Title: Vice President
CORPORATE TENANT
STATE OF NEW YORK, ss.
County of New York
On this 8th day of September, 1992, before me personally came Joseph A. Ripp, to
me known, who being by me duly sworn, did depose and say that he resides in
Wilton, Ct.; that he is the Vice President of Time Publishing Ventures, Inc.,
the corporation described in and which executed the foregoing instrument, as
TENANT; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation; and that he signed his name thereto by
like order.
/s/ Betty Perlish [seal of notary]
--------------------------------------------------
Notary Public
INDIVIDUAL TENANT
STATE OF NEW YORK, ss.
County of
On this day of , 19 , before me personally came to me known
and known to me to be the individual described in and who, as TENANT,
executed the foregoing instrument and acknowledged to me that he executed
the same.
<PAGE> 8
INSERTS TO LEASE
DATED DECEMBER 24, 1992 BETWEEN
TISHMAN SPEYER SILVERSTEIN PARTNERSHIP, AS OWNER,
AND TIME PUBLISHING VENTURES, INC., AS TENANT
1. (and/or any permitted occupant's business)
la. Subject to the provisions of Article 42 herein,
2. In no event shall Tenant be required to remove any installation (and
restore the demised premises with respect thereto) unless Owner shall
have reserved the right to require Tenant to remove same at the time
Owner granted its consent thereto.
3. contractors approved by Owner for the performance of Tenant's Changes
in accordance with Article 42 hereof.
4. In making any repairs or alterations in or to the demised premises
pursuant to the provisions of this Article or elsewhere in this lease,
Owner shall use reasonable efforts to minimize interference with the
conduct of Tenant's business in the demised premises; provided,
however, that in no event shall Owner be required to employ labor on an
overtime or premium pay basis.
5. Owner shall cause the windows of the demised premises to be cleaned not
less frequently than three (3) times per year.
6. , upon reasonable prior notice,
7. then existing
8. (in case of emergency)
9. Annexed hereto as Exhibit "B" is a copy of the current Certificate of
Occupancy for the building.
10. ; provided, however, that Tenant shall not be responsible for any
violations of record against the demised premises as of the
Commencement Date (except to the extent same would customarily be cured
and removed in connection with the initial build-out of space in the
building for occupancy by a tenant)
11. abandoned;
12. beyond any applicable notice and cure period,
13. beyond (except in the case of an emergency) any applicable notice and
cure period
13a. reasonably
14. , except as expressly provided otherwise in this lease,
14a. A copy of the current building cleaning specifications is annexed
hereto as Exhibit "C".
<PAGE> 9
15. Subject to Articles 27 and 29 hereof, Owner shall furnish Tenant, at no
expense to Tenant, with year round condenser water during business
hours for the operation of Tenant's supplemental air-conditioning
system, if any, serving the demised premises; provided, however, that
the cost of making any connections into the building condenser water
system shall be borne by Tenant. In addition, Landlord shall furnish
Tenant, as and when required by Tenant, at the then building standard
charges therefor, with (i) after-hours condenser water required by
Tenant for the operation of Tenant's supplemental air-conditioning
system, if any, and/or (ii) after-hours chilled water, during the
building cooling season, for the operation of the building
air-conditioning system servicing the demised premises. Landlord's
charges for such after-hours condenser water and/or chilled water
requested by Tenant shall. be paid for by Tenant to Landlord within ten
(10) days after demand therefor.
16. Owner shall not discriminate against Tenant in the promulgation or
enforcement of any Rules and Regulations.
-2-
<PAGE> 10
RIDER ANNEXED TO LEASE DATED AS OF DECEMBER 24, 1991 BETWEEN TISHMAN SPEYER
SILVERSTEIN PARTNERSHIP, AS LANDLORD, AND TIME PUBLISHING VENTURES, INC., AS
TENANT
37. RIDER PROVISIONS PREVAIL:
If and to the extent that any of the provisions of this Rider conflict
or are otherwise inconsistent with any of the preceding printed provisions of
this lease, or of the Rules and Regulations attached to this lease, whether or
not such inconsistency is expressly noted in this Rider, the provisions of this
Rider shall prevail, and in case of inconsistency with said Rules and
Regulations, shall be deemed a waiver of such Rules and Regulations with respect
to Tenant to the extent of such inconsistency.
38. ADDITIONAL DEFINITIONS:
For the purposes of this lease and all agreements supplemental to this
lease, and all communications with respect thereto, unless the context otherwise
requires:
1. The term "fixed rent" shall mean rent at the annual rental rate
or rates provided for in the granting clause appearing at the beginning of this
lease.
2. The term "additional rent" shall mean all sums of money, other
than fixed rent, and which become due and payable from Tenant to Landlord
hereunder, and Landlord shall have the same remedies therefor as for a default
in payment of fixed rent.
3. The term "rent" and "rents" shall mean and include fixed rent
and/or additional rent hereunder.
4. The terms "Commencement Date" and "Expiration Date" shall mean
the dates fixed in this lease, or to be determined pursuant to the provisions of
this lease, respectively, as the beginning and the end of the term for which the
demised premises are hereby leased.
5. The terms "include", "including" and "such as" shall each be
construed as if followed by the phrase "without being limited to".
6. The term "obligations of this lease", and words of like import,
shall mean the covenants to pay rent and additional rent under this lease and
all of the other covenants and conditions contained in this lease. Any provision
in this lease that one party or the other or both shall do or not do or shall
cause or permit or not cause or permit a particular act, condition, or
circumstance shall be deemed to mean that such party so covenants or both
parties so covenant, as the case may be.
7. The term "Tenant's obligations hereunder", and words of like
import, and the term "Landlord's obligations hereunder", and words of like
import, shall mean the obligations of this lease which are to be performed or
observed by Tenant, or by Landlord, as the case may be. Reference to
"performance" of either party's obligations under this lease shall be construed
as "performance and observance".
8. Reference to Tenant being or not being "in default hereunder",
or words of like import, shall mean that Tenant is in default beyond any
applicable notice and cure period in the performance of one or more of Tenant's
obligations hereunder, or that Tenant is not in default beyond any applicable
notice and cure period in the performance of any of Tenant's obligations
hereunder, or that a condition of the character described in Article 16(a) has
occurred and continues or has not occurred or does not continue, as the case may
be.
9. References to Landlord as having "no liability to Tenant" or
being "without liability to Tenant", shall mean that Tenant is not entitled to
terminate this lease, or to claim actual or constructive eviction, partial or
total, or to receive any abatement or diminution of rent, or to be relieved in
any manner of any of its other obligations hereunder, or to be compensated for
loss or injury suffered or to enforce any other kind of liability whatsoever
against Landlord under or with respect to this lease or with respect to Tenant's
use or occupancy
<PAGE> 11
of the demised premises. Nothing contained herein shall be deemed to relieve
Landlord of its liability at law for its own negligence.
10. The term "laws and/or requirements of public authorities" and
words of like import shall mean laws and ordinances of any or all of the
Federal, state, city, county and borough governments and rules, regulations,
orders and/or directives of any or all departments, subdivisions, bureaus,
agencies or offices thereof, or of any other governmental, public or
quasi-public authorities, having jurisdiction in the premises, and/or the
direction of any public officer pursuant to law.
11. The term "requirements of insurance bodies" and words of like
import shall mean rules, regulations, orders and other requirements of the New
York Board of Fire Underwriters and/or the New York Fire Insurance Rating
Organization and/or any other similar body performing the sane or similar
functions and having jurisdiction or cognizance of the building and/or the
demised premises.
12. The term "repair" shall be deemed to include restoration and
replacement as may be necessary to achieve and/or maintain good working order
and conditions.
13. Reference to "termination of this lease" includes expiration or
earlier termination of the term of this lease or cancellation of this lease
pursuant to any of the provisions of this lease or to law. Upon a termination of
this lease, the term and estate granted by this lease shall end at noon of the
date of termination as if such date were the date of expiration of the term of
this lease and neither party shall have any further obligation or liability to
the other after such termination (i) except as shall be expressly provided for
in this lease, or (ii) except for such obligation as by its nature or under the
circumstances can only be, or by the provisions of this lease, may be, performed
after such termination, and, in any event, unless expressly otherwise provided
in this lease, any liability for a payment which shall have accrued to or with
respect to any period ending at the time of termination shall survive the
termination of this lease.
14. The term "in full force and effect" when herein used in
reference to this lease as a condition to the existence or exercise of a right
on the part of Tenant shall be construed in each instance as including the
further condition that at the time in question no default on the part of Tenant
exists, and no event has occurred which has continued to exist for such period
of time (after the notice, if any, required by this lease), as would entitle
Landlord to terminate this lease or to dispossess Tenant.
15. The term "Tenant" shall mean Tenant herein named or any
assignee or other successor in interest (immediate or remote) of Tenant herein
named, while such Tenant or such assignee or other successor in interest, as the
case may be, is in possession of the demised premises as owner of the Tenant's
estate and interest granted by this lease and also, if Tenant is not an
individual or a corporation, all of the persons, firms and corporations then
comprising Tenant.
16. Words and phrases used in the singular shall be deemed to
include the plural and vice versa, and nouns and pronouns used in any particular
gender shall be deemed to include any other gender. The terms "person" and
"persons" as used in this lease, shall be deemed to include natural persons,
firms, corporations, associations and any other private or public entities.
17. The rule of "ejusdem generis" shall not be applicable to limit
a general statement following or referable to an enumeration of specific matters
to matters similar to the matters specifically mentioned.
18. All references in this lease to numbered Articles, lettered
Paragraphs, Sections, Subdivisions and lettered Exhibits are references to
Articles, Paragraphs, Sections and Subdivisions of this lease, and Exhibits
annexed to (and thereby made part of) this lease, as the case may be, unless
expressly otherwise designated in the context.
-2-
<PAGE> 12
39. ESCALATION FOR INCREASE IN REAL ESTATE TAXES:
A. As used herein:
1. "Taxes" shall mean all real estate taxes, assessments, sewer and
water rents, governmental levies, municipal taxes, county taxes or any other
governmental charge, general or special, ordinary or extraordinary, unforeseen
as well as foreseen, of any kind or nature whatsoever, which are or may be
assessed, levied or imposed upon all or any part of the land, the building and
the sidewalks, plazas or streets in front of or adjacent thereto, including any
tax, excise or fee measured by or payable with respect to any rent, and levied
against Landlord and/or the land and building, under the laws of the United
States, the State of New York, or any political subdivision thereof, or by the
City of New York, or any political subdivision thereof. If, due to a future
change in the method of taxation or in the taxing authority, a new or additional
real estate tax, or a franchise, income, transit, profit or other tax or
governmental imposition, however designated, shall be levied against Landlord,
and/or the land and building, in addition to, or in substitution in whole or in
part for any tax which would constitute "Taxes", or in lieu of additional Taxes,
such tax or imposition shall be deemed for the purposes hereof to be included
within the term "Taxes".
2. "Tax Year" shall mean each period of twelve (12) months,
commencing on the first day of July of each such period, in which occurs any
part of the term of this lease or such other period of twelve (12) months
occurring during the term of this lease as hereafter may be duly adopted as the
fiscal year for real estate tax purposes of the City of New York.
3. "Base Tax" shall mean the Taxes for the twelve month period
ending June 30, 1993 (the "Base Tax Year").
4. "Tenant's Proportionate Share" shall mean 1.67%.
B. If the Taxes for any Tax Year shall be greater than the Base Tax,
Tenant shall pay as additional rent for such Tax Year a sum equal to Tenant's
Proportionate Share of the amount by which the Taxes for such Tax Year are
greater than the Base Tax (which amount is hereinafter called the "Tax
Payment"). Should this lease commence or terminate prior to the expiration of a
Tax Year, such Tax Payment shall be prorated to, and shall be payable on, or as
and when ascertained after, the Commencement Date or the Expiration Date as the
case may be. Tenant's obligation to pay such additional rent and Landlord's
obligation to refund pursuant to Paragraph C below, as the case may be, shall
survive the termination of this lease. If the Taxes for any Tax Year subsequent
to the Base Tax Year, or an installment thereof, shall be reduced before such
Taxes, or such installment, shall be paid, the amount of Landlord's reasonable
costs and expenses of obtaining such reduction (but not exceeding the amount of
such reduction) shall be added to and be deemed part of the Taxes for such Tax
Year. Payment of additional rent for any Tax Payment due from Tenant shall be
made as and subject to the conditions hereinafter provided in this Article.
C. Only Landlord shall be eligible to institute proceedings to contest
the Taxes or reduce the assessed valuation of the land and building. Landlord
shall be under no obligation to contest the Taxes or the assessed valuation of
the land and the building for any Tax Year or to refrain from contesting the
same, and may settle any such contest on such terms as Landlord in its sole
judgment considers proper. If Landlord shall receive a refund for any Tax Year
for which a Tax Payment shall have been made by Tenant pursuant to Paragraph B
above, Landlord shall repay to Tenant, with reasonable promptness, Tenant's
Proportionate Share of such refund after deducting from such refund the
reasonable costs and expenses (including exports' and attorneys' fees) of
obtaining such refund. If the assessment for the Base Tax Year shall be reduced
from the amount originally imposed after Landlord shall have rendered a
comparative statement (as provided in Paragraph D below) to Tenant with respect
to a Tax Year, the amount of the Tax Payment shall be adjusted in accordance
with such change and Tenant, on Landlord's demand, shall pay any increase in
additional rent resulting from such adjustment.
D. Tenant's Tax Payment for each Tax Year shall be due and payable in
two equal semi-annual installments, in advance on the first day of each June and
December during each Tax Year, based upon the written comparative statement
furnished by Landlord prior to the
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commencement of such Tax Year, until such time as a new written statement for a
subsequent Tax Year shall become effective. If any such statement is furnished
to Tenant after the commencement of a Tax Year in respect of which such
statement is rendered, Tenant shall, within twenty (20) days thereafter, pay to
Landlord an amount equal to the amount of any underpayment of Tenant's Tax
Payment with respect to such Tax Year and, in the event of an overpayment,
Landlord will credit Tenant the amount of Tenant's overpayment against
subsequent payments under this Article. If there shall be any increase in Taxes
for any Tax Year, whether during or after such Tax Year, Landlord shall furnish
a revised statement for such Tax Year, and Tenant's Tax Payment for such Tax
Year shall be adjusted and paid substantially in the same manner as provided in
the preceding sentence. If during the term of this lease, Taxes are required to
be paid to the appropriate taxing authorities on any other date or dates than as
presently required, then at Landlord's option, Tenant's Tax Payments shall be
correspondingly accelerated or revised so that said Tenant's Tax Payments are
due at least 30 days prior to the date payments are due to the taxing
authorities or the superior mortgagee. The benefit of any discount for any early
payment or prepayment of Taxes shall accrue solely to the benefit of Landlord
and such discount shall not be subtracted from Taxes. Whenever so requested, but
not more often than once a year, Landlord will furnish Tenant with a reproduced
copy of the bill (or receipted bill) for Taxes for the current or next preceding
Tax Year.
E. Landlord's failure during the lease term to prepare and deliver any
tax statements or bills, or Landlord's failure to make a demand under this
Article or under any other provision of this lease shall not in any way be
deemed to be a waiver of, or cause Landlord to forfeit or surrender, its rights
to collect any items of additional rent which may have become due pursuant to
this Article during the term of this lease. Tenant's liability for the
additional rent due under this Article shall survive the expiration or sooner
termination of this lease; provided, however, Tenant shall not have any
liability for any Tax Payment not billed to Tenant within two (2) years after
the Expiration Date of this lease.
F. In no event shall any adjustment of Tax Payments hereunder result in
a decrease in the fixed rent or additional rent payable pursuant to any other
provision of this lease, it being agreed that the payment of additional rent
under this Article is an obligation supplemental to Tenant's obligation to pay
fixed rent.
40. ESCALATION FOR OPERATING EXPENSES:
A. For the purposes of this lease:
1. The term "Escalation Year" shall mean each calendar year which
shall include any part of the term of this lease.
2. The term "Tenant's Proportionate Share" shall be deemed to mean
1.67%.
3. "The term "Base Year" shall mean the twelve month period ending
December 31, 1992.
4. The term "Operating Expenses" shall mean all costs and expenses
(and taxes thereon, if any) paid or incurred by Landlord or on behalf of
Landlord with respect to the operation, cleaning, repair, safety, management,
security and maintenance of the land and the building, building equipment,
sidewalks, curbs and other areas immediately adjacent to the building, and with
respect to the services provided tenants, including: (i) salaries, wages and
bonuses paid to, and the cost of any hospitalization, medical, surgical, union
and general welfare benefits (including group life insurance), any pension,
retirement or life insurance plan and other benefit or similar expense
(collectively "Wages") relating to employees of Landlord or employees whose
wages are chargeable to Landlord engaged in the operation, cleaning, repair,
safety, management, security or maintenance of the building and the building
equipment or in providing building maintenance services to tenants; (ii) social
security, unemployment and other payroll taxes, the cost of providing disability
and worker's compensation coverage imposed by any legal requirements, union
contract or otherwise with respect to said employees; (iii) the cost of
electricity, gas, steam, water, air conditioning and other fuel and utilities;
(iv) the cost of casualty, rent, liability, fidelity, plate glass and any other
insurance; (v) the cost of repairs, maintenance and painting; (vi) the cost or
rental of all building and cleaning supplies, tools,
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materials and equipment; (vii) the cost of uniforms, work clothes and dry
cleaning; (viii) window cleaning, concierge, guard, watchman or other security
personnel or service, if any; (ix) management fees or, if no managing agent is
employed by Landlord, a sum in lieu thereof not in excess of then prevailing
rates for management fees payable in the Borough of Manhattan, City of New York
for first-class office buildings; (x) charges of independent contractors
performing work included within this definition of Operating Expenses; (xi)
telephone and stationary; (xii) holiday and other decorations customarily found
in first-class Manhattan office buildings; (xiii) association fees and dues; and
(xvii) exterior and interior landscaping.
Provided, however, that the foregoing costs and expenses shall exclude
or have deducted from them, as the case may be:
(a) executives' salaries above the grade of building manager;
(b) expenditures for capital improvements, other than those which
under generally applied real estate practice are expenses or regarded as
deferred expenses and other than capital expenditures made by reason of
mandatory legal or insurance requirements first effective (or first requiring
such improvements to be made) after the date hereof, or which actually reduce
energy consumption, in any of which cases the cost thereof shall be included in
Operating Expenses for the Escalation Year in which the costs are incurred and
subsequent Escalation Years, on a straight-line basis, to the extent that such
items are amortized over the useful life thereof (as determined in accordance
with generally accepted accounting principles, consistently applied), with an
interest factor equal to two (2) percentage points above the prime commercial
lending rate of Citibank, N.A., charged to its customers of highest credit
standing for ninety (90) day unsecured loans ("Expense Interest Rate), at the
time of Landlord's having made said expenditure;
(c) amounts received by Landlord through proceeds of insurance to
the extent they are compensation for sums previously included in Operating
Expenses hereunder;
(d) costs of repairs or replacements incurred by reason of fire or
other casualty or condemnation to the extent Landlord is compensated therefor;
(e) advertising and promotional expenditures;
(f) costs incurred in performing work or furnishing services for
any tenant (including Tenant), whether at such tenant's or Landlord's expense,
to the extent that such work or service is in excess of any work or service that
Landlord is obligated to furnish to Tenant at Landlord's expense;
(g) depreciation or amortization, except as provided above;
(h) brokerage commissions;
(i) Tenant's Proportionate Share of Taxes plus Taxes allocated to
other space leased to tenants as reasonably estimated by Landlord;
(j) refinancing costs and mortgage interest and amortization
payments;
(k) the cost of electricity furnished by Landlord to space leased
by tenants (including Tenant) of the building; and the cost of installing any
meters or performing electrical surveys in any such space;
(l) legal and other professional fees and expenses incurred in
connection with the leasing of space in the building and disputes with tenants
of the building;
(m) franchise, estate, succession, inheritance, profit, use,
occupancy, gross receipts, rental, capital gains, capital stock, transfer and
income taxes upon Landlord or the land and building;
(n) interest or penalties for late payment by Landlord;
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(o) the cost (including, without limitation, attorneys' fees and
disbursements) of any judgment, settlement or arbitration award resulting from
any tort liability;
(p) the cost of installing, operating and maintaining any specialty
service such as an observatory, broadcasting facilities, luncheon club, athletic
or recreational club;
(q) the cost (including increased Taxes and Operating Expenses) of
any addition of rentable square footage to the building after the original
construction;
(r) lease payments for rented equipment, the cost of which
equipment would constitute a capital expenditure if the equipment were purchased
(except, with respect to equipment falling within the scope of clause (b) or
which reduces energy consumption (as provided herein);
(s) the cost of furnishing and installing replacement light bulbs
and ballasts in tenanted areas of the building;
(t) any fee for the management of the building other than the fees
specified in clause (x) in this Paragraph A.4;
(u) arbitration expenses unrelated to the maintenance, operation
and security of the building and any other arbitration expenses incurred in
applying for any reduction of Taxes or in connection with the leasing of space
in the building or with prosecuting default or eviction proceedings against
tenants or relating in any other way to tenant disputes;
(v) legal and auditing fees, other than those reasonably incurred
in connection with the maintenance and operation of the land and building or
with prosecuting default or eviction proceedings against tenants or relating in
any other way to tenant disputes;
(w) any rent, additional rent or other charge under any lease or
sublease to or assumed, directly or indirectly, by Landlord;
(x) expenditures on account of Landlord's acquisition or air
rights;
(y) the cost of repairs or replacements incurred by reason of fire
or other casualty or caused by the exercise of the right of eminent domain to
the extent Landlord is compensated therefor by insurance proceeds or a
condemnation award;
(z) there shall be deducted from Operating Expenses an amount equal
to all amounts received by Landlord through proceeds of insurance to the extent
the proceeds are compensation for expenses which (i) previously were included in
Operating Expenses hereunder, (ii) are included in Operation Expenses for the
Escalation Year in which the insurance proceeds are received, or (iii) will be
included as Operating Expenses in a subsequent Escalation Year;
(aa) costs and expenses of governmental licenses and permits, or
renewals thereof, unless the same are for governmental licenses or permits
normal to the operation or maintenance of the land and building; and
(bb) the cost of any work or service performed for any facility or
property other than the land and building.
If Landlord shall purchase any item of capital equipment or make any
capital expenditure which has the effect of reducing the expenses which would
otherwise be included in Operating Expenses, then the costs of such capital
equipment or capital expenditure are to be included in Operating Expenses for
the Escalation Year in which the costs are incurred and subsequent Escalation
Years (but not in excess of the savings actually realized in each such year), on
a straight-line basis, to the extent that such items are amortized over such
period of time as Landlord reasonably estimates such savings or reductions in
Operating Expenses are expected to equal Landlord's costs for such capital
equipment or capital expenditure, with an interest factor equal to the Expense
Interest Rate at the time of Landlord's having made said expenditure. If
Landlord shall lease any items of capital equipment designed to result in
savings or reductions in expenses which would otherwise be included in Operating
Expenses, then the rentals and other
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costs paid pursuant to such leasing shall be included in Operating Expenses for
the Escalation Year in which they were incurred.
If during all or part of the Base Year and/or any Escalation Year,
Landlord shall not furnish any particular item(s) of work or service (which
would otherwise constitute an Operating Expense hereunder) to portions of the
building due to the fact that (i) such portions are not occupied or leased, (ii)
such item of work or service is not required or desired by the tenant of such
portion, (iii) such tenant is itself obtaining and providing such item of work
or service or (iv) for other reasons, then, for the purposes of computing
Operating Expenses, the amount for such item and for such period shall be deemed
to be increased by an amount equal to the additional costs and expenses (as
reasonably estimated by Landlord) which would reasonably have been incurred
during such period by Landlord if it had at its own expense furnished such item
of work or services to such portion of the building or to such tenant.
B. 1. For each Escalation Year commencing during the term of this
lease, Tenant shall pay ("Tenant's Operating Payment") to Landlord, as
additional rent, a sum equal to Tenant's Proportionate Share of the amount by
which Operating Expenses for such Escalation Year exceeds the Operating Expenses
for the Base Year.
2. Landlord shall furnish to Tenant, prior to the commencement of
each Escalation Year, a written statement setting forth Landlord's estimate of
Tenant's Operating Payment for such Escalation Year, and the method of
calculation of Tenant's Operating Payment for such Escalation Year. Tenant shall
pay to Landlord on the first day of each month during such Escalation Year an
amount equal to one-twelfth (1/12th) of Landlord's estimate of Tenant's
Operating Payment for such Escalation Year. If, however, Landlord shall furnish
any such estimate for an Escalation Year subsequent to the commencement thereof,
then (a) until the first day of the month following the month in which such
estimate is furnished to Tenant, Tenant shall pay to Landlord on the first day
of each month an amount equal to the monthly sum payable by Tenant to Landlord
under this Paragraph B in respect of the last month of the preceding Escalation
Year; (b) promptly after such estimate is furnished to Tenant or together
therewith, Landlord shall give notice to Tenant stating whether the installments
of Tenant's Operating Payment previously made for such Escalation Year were
greater or less than the installments of the Tenant's Operating Payment to be
made for such Escalation Year in accordance with such estimate, and (i) if there
shall be a deficiency, Tenant shall pay the amount thereof within twenty (20)
days after demand therefor, or (ii) if there shall have been an overpayment,
Landlord shall either refund to Tenant the amount thereof or permit Tenant to
credit the amount thereof against subsequent payments under this Section; and
(c) on the first day of the month following the month in which such estimate is
furnished to Tenant, and monthly thereafter throughout the remainder of such
Escalation Year, Tenant shall pay to Landlord an amount equal to one-twelfth
(1/12th) of Tenant's Operating Payment shown on such estimate. Landlord may at
any time or from time to time (but not more than twice with respect to any
Escalation Year) furnish to Tenant a revised statement of Landlord's estimate of
Tenant's Operating Payment for such Escalation Year, and in such case, Tenant's
Operating Payment for such Escalation Year shall be adjusted and paid or
refunded, as the case may be, substantially in the same manner as provided in
the preceding sentence.
3. After the end of each Escalation Year Landlord shall furnish to
Tenant a Landlord's Statement for such Escalation Year. Each such year-end
Landlord's Statement shall be accompanied by a computation of Operating Expenses
for the building prepared by a certified public accountant or managing agent
designated by Landlord from which Landlord shall make the computation of
Operating Expenses hereunder. If the Landlord's Statement shall show that the
sums paid by Tenant under this Section exceeded Tenant's Operating Payment paid
by Tenant for such Escalation Year, Landlord shall either refund to Tenant the
amount of such excess or permit Tenant to credit the amount of such excess
against subsequent payments under this Section; and if the Landlord's Statement
for such Escalation Year shall show that the sums so paid by Tenant were less
than Tenant's Operating Payment paid by Tenant for such Escalation Year, Tenant
shall pay the amount of such deficiency within ten (10) days after demand
therefore.
4. If the Commencement Date or the Expiration Date shall occur on a
date other than January 1 or December 31, respectively, any additional rent
under this Article for the
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Escalation Year in which such Commencement Date or Expiration Date shall occur
shall be apportioned in that percentage which the number of days in the period
from the Commencement Date to December 31 or from January I to the Expiration
Date, as the case may be, both inclusive, shall bear to the total number of days
in such Escalation Year. In the event of a termination of this lease, any
additional rent under this Article shall be paid or adjusted within thirty (30)
days after submission of a Landlord's Statement. In no event shall fixed rent
ever be reduced by operation of this Article and the rights and obligations of
Landlord and Tenant under the provisions of this Article with respect to any
additional rent shall survive the termination of this lease.
C. 1. Landlord's failure to render Landlord's Statements with
respect to any Escalation Year shall not prejudice Landlord's right to
thereafter render a Landlord's Statement with respect thereto or with respect to
any subsequent Escalation Year. Nothing herein contained shall restrict Landlord
from issuing Landlord's Statements at any time there is an increase in Operating
Expenses during any Escalation Year or any time thereafter.
2. Each Landlord's Statement shall be conclusive and binding upon
Tenant unless within sixty (60) days after receipt of such Landlord's Statement
Tenant shall notify Landlord that it disputes the correctness of Landlord's
Statement, specifying the particular respects in which Landlord's Statement is
claimed to be incorrect. Tenant shall have the right, for a period of thirty
(30) days after Tenant gives Landlord timely notice that it disputes Landlord's
Statement, to inspect the books and records of Landlord solely to the extent
necessary to verify Landlord's computation of the disputed item(s) of Operating
Expenses. Such inspection shall take place during business hours at a location
designated by Landlord, upon reasonable prior notice by Tenant to Landlord. If
Tenant shall dispute the correctness of Landlord's Statement as aforesaid, and
the parties shall not be able to resolve such dispute within ninety (90) days
after the giving of such Landlord's Statement, then the parties shall refer the
matter or matters in dispute to certified public accountants mutually acceptable
to Landlord and Tenant, and the decision of such accountants shall be conclusive
and binding upon the parties. Pending settlement of such dispute, Tenant shall
pay Tenant's Operating Payment as determined by Landlord and, in the event such
dispute is resolved in favor of Tenant, Landlord shall promptly reimburse Tenant
for any overpayment(s). The fees and expenses of said accountants in determining
such matter or matters shall be borne by the unsuccessful party (and if both
parties are partially unsuccessful, the accountant shall apportion the fees and
disbursements between the parties based upon the degree of success of each
party).
41. AMENDING ARTICLE 11:
Notwithstanding the provisions of Article 11, and in modification and
amplification thereof:
A. If Tenant's interest in this lease is assigned, whether or not in
violation of the Provisions of this lease, Landlord may collect rent from the
assignee; if the demised premises or any part thereof are sublet to, or occupied
by, or used by, any person other than Tenant, whether or not in violation of
this lease, Landlord, after default by Tenant under this lease and expiration of
Tenant's time, if any, to cure such default, may collect rent from the
subtenant, user or occupant. In either case, Landlord shall apply the net amount
collected to the rents reserved in this lease, but neither any such assignment,
subletting, occupancy, nor use, nor any such collection or application shall be
deemed a waiver of any terms, covenant or condition of this lease or the
acceptance by Landlord of such assignee, subtenant, occupant or user as a
tenant. The consent by Landlord to any assignment, subletting, occupancy or use
shall not relieve Tenant from its obligation to obtain the express prior written
consent of Landlord to any further assignment, subletting, occupancy or use. The
listing of any name other than Tenant's on any door of the demised premises, or
on any directory, or on any elevator in the building, or otherwise, shall not
operate to vest in the party so named, any right or interest in this lease or in
the demised premises, or be deemed to constitute, or serve as a substitute for,
any prior written consent of Landlord required under this Article, and it is
understood that any such listing shall constitute a privilege extended by
Landlord which shall be revocable at Landlord's will by notice to Tenant. Tenant
agrees to pay to Landlord any reasonable counsel fees incurred by Landlord in
connection with any proposed assignment of Tenant's interest in this lease or
any proposed subletting of the demised premises or any part thereof. Neither any
assignment of Tenant's
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interest in this lease nor any subletting, occupancy or use of the demised
premises or any part thereof by any person other than Tenant, nor any collection
of rent by Landlord from any person other than Tenant as provided in this
Paragraph A, nor any application of any such rent as aforementioned as provided
in this Paragraph A, shall in any circumstances relieve Tenant of Tenant's
obligations fully to observe and perform the terms, covenants and conditions of
this lease on Tenant's part to be observed and performed.
B. If Tenant shall desire to assign this lease or to sublet the demised
premises, then Tenant shall submit to Landlord a written notice ("Recapture
Notice") specifying (i) in the case of a proposed assignment, the effective date
thereof; and (ii) in the case of a proposed subletting, the commencement date
and term thereof and the space to be sublet by Tenant. Landlord shall then have
the following options, to be exercised by notice ("Exercise Notice") given to
Tenant within ten (10) business days after receipt of Tenant's Recapture Notice:
1. Landlord may require Tenant to surrender the demised premises to
Landlord and to accept a termination of this lease as of a date (the
"Termination Date") to be designated by Landlord in the Exercise Notice, which
date shall be the day immediately preceding the effective date of the proposed
assignment or the commencement date of the proposed subletting, whichever is
applicable, but not less than sixty (60) days following the date of Landlord's
Exercise Notice; or
2. Landlord may require Tenant to assign this lease to Landlord
without merger of Landlord's estates effective as of the day preceding the
proposed assignment or sublease, whereupon Tenant shall be released from all
liability and obligation first accruing under this lease from and after such
effective date.
If Landlord shall elect to require Tenant to surrender the demised
premises and accept a termination of this lease, then this lease shall expire on
the Termination Date as if that date had been originally fixed as the Expiration
Date. Regardless of which option Landlord exercises under this Paragraph B,
whether to terminate this lease or to take an assignment thereof, Landlord shall
be free to, and shall have no liability to Tenant if Landlord shall, lease the
demised premises to Tenant's prospective assignee or subtenant, if any.
C. If Landlord shall not exercise either of its options under Paragraph
B above within the time period therein provided, and Tenant shall thereafter
procure a proposed subtenant or assignee and shall desire to enter into a
proposed sublease or assignment as specified in Tenant Recapture Notice, then
Tenant shall submit to Landlord a written request for Landlord's consent to such
assignment or subletting ("Tenant's Request"), which request shall contain or be
accompanied by the following information; (i) the name and address of the
proposed assignee or subtenant; (ii) the material terms and conditions of the
proposed assignment or subletting; (iii) the nature and character of the
business of the proposed assignee or subtenant and its proposed use of the
demised premises; and (iv) banking, financial and other credit information with
respect to the proposed assignee or subtenant reasonably sufficient to enable
Landlord to determine the financial responsibility of the proposed assignee or
subtenant. If Tenant shall have submitted Tenant's Request to Landlord within
four (4) months after the date of Landlord's receipt of the Recapture Notice to
which same relates, then Landlord shall not unreasonably withhold consent to
such proposed assignment or subletting of the entire demised premises, provided
that Tenant is not then in default under this lease beyond any applicable notice
and grace period, and further provided that the following further conditions
shall be fulfilled:
1. The proposed subtenant or assignee shall not be a school of any
kind, or an employment or placement agency or governmental or quasi governmental
agency, or a real estate brokerage office or medical office or executive
recruitment office;
2. The subletting or assignment shall be to a tenant whose
occupancy will be in keeping with the dignity and character of the then use and
occupancy of the building;
3. No space shall be advertised or openly promoted to the general
public;
4. The proposed sublessee or assignee shall not be a tenant,
subtenant, occupant or assignee of any premises in the building; or a party who
negotiated with Landlord or
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Landlord's agent (directly or through a broker) with respect to space in the
building during the six (6) months immediately preceding Tenant's request for
Landlord's consent;
5. Except in connection with an assignment of this lease or
subletting made pursuant to Paragraph B above, Tenant shall reimburse Landlord,
within ten (10) days after demand accompanied by invoices therefor, for any
costs that may be incurred in connection with any assignment or sublease,
including, without limitation, the reasonable costs of making investigations as
to the acceptability of the proposed assignee or subtenant, and reasonable
out-of-pocket legal costs incurred in connection with the granting of any
requested consent;
6. In case of a subletting, it shall be expressly subject to all of
the obligations of Tenant under this lease and the further condition and
restriction that the sublease shall not be assigned, encumbered or otherwise
transferred or the subleased premises further sublet by the sublessee in whole
or in part, or any part thereof suffered or permitted by the sublessee to be
used or occupied by others, without the prior written consent of Landlord in
each instance; and
7. Tenant shall deliver to Landlord, at least ten (10) days prior
to the effective date of such assignment or sublease, a fully-executed
counterpart thereof; and (i) if the terms of the executed assignment or sublease
shall materially vary in any respect from those set forth in Tenant's Request or
(ii) if such assignment or sublease shall not be executed and delivered to
Landlord within six (6) months following the date of Tenant's Request, then
Tenant shall again comply with all of the provisions of Paragraphs B and C
hereof.
* * * *
If Landlord shall decline to give its consent to any proposed
assignment or subletting pursuant to this Paragraph C, Landlord shall furnish
Tenant with an explanation, in reasonable detail, of the basis for such denial.
* * * *
D. 1. Tenant may, without Landlord's prior written consent, but upon
not less than fifteen (15) days' prior written notice to Landlord, permit any
corporations or other business entities which control, are controlled by, or are
under common control with Tenant (herein referred to as a "related corporation")
to sublet all or part of the demised premises for any of the purposes permitted
to Tenant, subject however to compliance with Tenant obligations under this
lease provided that (i) Tenant shall not be in default in the performance of any
of its obligations under this lease, (ii) prior to such subletting Tenant
furnishes Landlord with the name of any such related corporation, together with
a certification of Tenant, and such other proof as Landlord may reasonably
request, that such subtenant is a related corporation of Tenant and continues to
remain such during the term hereof, and (iii) in the reasonable judgment of
Landlord the proposed subtenant is of a character such as is in keeping with the
standards of Landlord for the building. In connection with the information to be
provided to Landlord pursuant to this Paragraph D.1, Tenant shall furnish
Landlord, upon request from time to time, with reasonable evidence that such
subtenant remains a related corporation of Tenant. Such subletting shall not be
deemed to vest in any such related corporation any right or interest in this
lease or the demised premises nor shall it relieve, release, impair or discharge
any of Tenant's obligations hereunder. For the purposes hereof, "control" shall
be deemed to mean ownership of not less than fifty (50%) percent of all of the
voting stock of such corporation or not less than fifty (50%) percent of all of
the legal and equitable interest in any other business entities.
2. Tenant may, without Landlord's prior written consent, but upon
not less than fifteen (15) days' prior written notice to Landlord, assign or
transfer its entire interest in this lease and the leasehold estate hereby
created to a successor corporation of Tenant (as hereinafter defined); provided,
however, that (i) Tenant shall not be in default in any of the terms of this
lease, (ii) the proposed occupancy shall not materially increase the office
cleaning requirements (if any) or impose an extra burden upon the building
equipment or building services and (iii) the proposed assignee shall not be
entitled, directly or indirectly, to diplomatic or sovereign immunity and shall
be subject to the service of process in, and the jurisdiction of the courts of
New York State. A "successor corporation", as used in this Paragraph shall mean
(a) a corporation into which or with which Tenant, its corporate successors or
assigns, is merged or
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consolidated, in accordance with applicable statutory provisions for the merger
or consolidation of corporations, provided that by operation of law or by
effective provisions contained in the instruments of merger or consolidation,
the liabilities of the corporations participating in such merger or
consolidation are assumed by the corporation surviving such merger or
consolidation, or (b) a corporation acquiring this lease and the term hereof and
the estate hereby granted, the goodwill and all or substantially all of the
other property and assets (other than capital stock of such acquiring
corporation) of Tenant, its corporate successors or assigns, and assuming all or
substantially all of the liabilities of Tenant, its corporate successors and
assigns, or (c) any corporate successor to a successor corporation becoming such
by either of the methods described in subdivisions (a) and (b) above; provided
that (x) such merger or consolidation, or such acquisition and assumption, as
the case may be, is for a good business purpose and not principally for the
purpose of transferring the leasehold estate created hereby, and (y) immediately
after giving effect to any such merger or consolidation, or such acquisition and
assumption, as the case may be, the corporation surviving such merger or created
by such consolidation or acquiring such assets and assuming such liabilities, as
the case may be, shall have assets, capitalization and a net worth (as
determined in accordance with generally accepted accounting principles, and
certified to Landlord by an independent certified public accountant), which, in
Landlord's sole reasonable judgment, is sufficient to fully perform the monetary
and other obligations of Tenant under this lease given any other outstanding
obligations of such corporation. The acquisition by Tenant, its corporate
successors or assigns, of all or substantially all of the assets, together with
the assumption of all or substantially all of the obligations and liabilities of
any corporation, shall be deemed to be a merger for the purposes of this
Article.
E. No permitted or consented to assignment or subletting shall be
effective or valid for any purpose whatsoever unless and until a counterpart of
the assignment or a counterpart or reproduced copy of the sublease shall have
been first delivered to the Landlord, and, in the event of an assignment, the
Tenant shall deliver to Landlord a written agreement executed and acknowledged
by the Tenant and such assignee in recordable form wherein such assignee shall
assume jointly and severally with Tenant the due performance of this lease on
Tenant's part to be performed to the full and of the term of this lease
notwithstanding any other or further assignment.
F. Any transfer by operation of law or otherwise, of Tenant's interest
in this lease or of a fifty (50%) percent or greater interest in Tenant (whether
stock, partnership interest or otherwise) shall be deemed an assignment of this
lease for purposes of this Article, except that the transfer of the outstanding
capital stock of any corporate tenant shall be deemed not to include the sale of
such stock by persons or parties through the "over-the-counter-market" or
through any recognized stock exchange, other than those deemed "insiders" within
the meaning of the Securities Exchange Act of 1934, as amended. The foregoing
provisions of this Paragraph F shall not be deemed to obligate Tenant to obtain
Landlord's consent with respect to any assignment of this lease made pursuant to
Paragraph D.2 above.
G. Neither any assignment of Tenant's interest in this lease nor any
subletting, occupancy or use of the demised premises or any part thereof by any
person other than Tenant, nor any collection of rent by Landlord from any person
other than Tenant as provided in Article 11 hereof, nor any application of any
such rent as provided in said Article 11 shall, in any circumstances, relieve
Tenant of its obligations fully to observe and perform the terms, covenants and
conditions of this lease on Tenant's part to be observed and performed.
H. 1. Notwithstanding anything to the contrary contained herein, if
Landlord shall consent to any assignment or subletting and Tenant shall either
(i) receive any consideration from its assignee in connection with the
assignment of this lease, Tenant shall pay over to Landlord a sum equal to fifty
(50.0%) percent of any of such consideration (including, without limitation,
sums designated by the assignee as paid for the purchase of Tenant's property in
the demised premises, less the then fair market value thereof) as shall exceed
the Deductible Expenses (as defined herein) incurred by Tenant for such
assignment or (ii) sublet the demised premises or any portion thereof to anyone
for rents, additional charges or other consideration (including, without
limitation, sums designated by the subtenant as paid for the purchase of
Tenant's property in the demised premises, less the then fair market value
thereof) which for any period shall exceed the rents payable for the subleased
space under this lease for the same period, Tenant shall pay Landlord, as
additional rent, a sum equal to fifty (50.0%) percent of any such excess
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consideration as shall exceed the Deductible Expenses (as defined herein)
incurred by Tenant for such subletting. All sums payable to Landlord pursuant to
subdivision (i) of this Paragraph shall be paid on the effective date of such
assignment and all sums payable to Landlord pursuant to subdivision (ii) of this
Paragraph shall be paid on the date or dates such sums are payable to Tenant by
the subtenant.
2. For purposes of this Paragraph, the term "Deductible Expenses"
shall mean (i) the reasonable brokerage commissions, advertising costs and
attorneys' fees incurred by Tenant with respect to the instant transaction, plus
(ii) the reasonable cost incurred by Tenant of leasehold improvements made to
prepare the demised premises for occupancy by the assignee or subtenant, plus
(iii) any other reasonable, out-of-pocket costs and expenses incurred by Tenant
which are directly attributable to the instant transaction. For purposes of
computing any payments to be made by Tenant to Landlord pursuant to this
Paragraph with respect to a proposed subletting, the Deductible Expenses shall
be amortized over the entire term of the proposed subletting.
I. Without being subject to Landlord's options contained in Paragraph B
of this Article, Tenant shall have the right, with Landlord's prior written
consent (which consent shall not be unreasonably withheld subject to Tenant's
compliance with Paragraph C hereof) to sublet up to one-third (1/3) of the
rentable area of the demised premises to one (1) subtenant at any one time.
42. SUPPLEMENTING ARTICLE 3:
Landlord's consent shall not be required for minor decorative changes
to the demised premises such as painting and installation of cabinets and
shelves, floorcoverings and wallcoverings; provided, however, that same are not
visible from, and do not physically affect any part of the building, outside the
demised premises, and do not require any filings to be made with applicable
governmental bodies. All other renovations, decorations, additions,
installations, improvements and/or alterations of any kind or nature in the
demised premises (herein "Tenant's Changes") shall require the prior written
consent of Landlord thereto which, in the case of non-structural interior
Tenant's Changes, Landlord agrees not to unreasonably withhold, provided that
Tenant's Changes are performed only by Landlord's designated contractors and do
not affect the building (i) electric generating and distribution equipment,
including the building (a) fuel, storage and transfer systems, (b) electric
generation, including engine cooling and air intake and exhaust and the electric
collection, switching and load shedding systems and (c) service, distribution,
circuit protective and branch circuit systems, each up to the final utilization
device, receptacle, appliance and fixture equipment, or (ii) steam and hot water
generating equipment, including the building (w) fuel, storage and transfer
systems, (x) fuel combustion systems including waste heat boilers, (y) steam and
hot water collection systems, and (z) ancillary systems for steam and hot water
and accessories thereto, each up to and including the steam and hot water
metering equipment (all of such electric generating and distribution equipment
and steam and hot water generating equipment hereinafter collectively called the
"Electrical Systems"). Landlord may impose such conditions with respect to
Tenant's Changes (as to guarantee of completion, payment, restoration and
otherwise including, the requirement of Tenant to post a bond to insure the
completion of Tenant's Changes) as Landlord may reasonably require. In no event
shall Landlord be required to consent to any Tenant's Change which would
physically affect any part of the building outside of the demised premises or
would adversely affect the proper functioning of the mechanical, electrical,
sanitary or other service systems of the building. At the time Tenant requests
Landlord's written consent to any Tenant's Changes, Tenant shall deliver to
Landlord detailed plans and specifications therefor. Tenant shall pay to
Landlord any reasonable, actual fees or expenses incurred by Landlord in
connection with Landlord's submitting such plans and specifications, if it so
chooses, to an architect or engineer selected by Landlord for review or
examination and/or for supervision during performance of Tenant's Changes.
Tenant shall also pay to Landlord as additional rent, for services to be
performed by Landlord in connection with Tenant's Changes, a fee equal to five
(5%) percent of the total cost of Tenant's Changes; provided that no such fee
shall be payable with respect to Tenant's Changes made to prepare the demised
premises for Tenant's initial occupancy. There shall be excluded from such
computation the cost of painting, furniture, furnishings, draperies, office
equipment, carpeting, cabinetry, items of special decoration, telephone
installation and items of similar character. Landlord's approval of any plans or
specifications does not relieve
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Tenant from the responsibility for the legal sufficiency and technical
competency thereof. Before commencement of any Tenant's Changes, Tenant, at its
expense, shall obtain the necessary consents, authorizations and licenses from
all federal, state and/or municipal authorities having jurisdiction over such
work. In addition, Tenant at its expense, shall obtain all necessary
asbestos-certifications and comply with the New York City Asbestos Control Law
(Local Law 76 of 1985), as same may be amended. Notwithstanding the foregoing,
Landlord, at its sole cost and expense, shall remove and/or encapsulate, if and
to the extent required by law, any asbestos-containing materials determined to
be present in the demised premises during the term hereof and obtain all
governmental sign-offs required in connection therewith; except that Tenant, at
its sole cost and expense, shall remove and restore any of Tenant's Changes
which Landlord shall request that Tenant remove in order for Landlord to gain
access to such asbestos-containing materials.
Tenant agrees to indemnify and save Landlord harmless from and against
any and all bills for labor performed and equipment, fixtures and materials
furnished to Tenant and applicable sales taxes thereon as required by New York
law and from and against any and all liens, bills or claims therefor or against
the demised premises or the building and from and against all losses, damages,
costs, expenses, suits and claims whatsoever in connection with Tenant's
Changes. The cost of Tenant's Changes shall be paid for in cash or otherwise, so
that the demised premises and the building shall at all times be free of liens
for labor and materials supplied or claimed to have been supplied.
Tenant, at its expense, shall cause any Tenant's Changes consented to
by Landlord to be performed in compliance with all applicable requirements of
law and insurance bodies having jurisdiction and in such manner as not to
interfere with, delay or impose any additional expense upon the Landlord in the
maintenance or operation of the building and so as to maintain harmonious labor
relations in the building.
Notwithstanding the provisions of Article 3, Tenant shall not be
required to restore the demised premises to its condition prior to the making of
any Tenant's Changes except if and to the extent that such restoration is made
an express condition of Landlord's consent to such Tenant's Changes.
If the performance of Tenant's Changes shall unreasonably interfere
with the comfort and/or convenience of other tenants in the building or shall
cause damage to or otherwise interfere with the occupancy of adjacent buildings,
Tenant shall, upon Landlord's demand, take all reasonable steps necessary to
remedy or remove the condition or conditions complained of. Tenant further
covenants and agrees to indemnify and save Landlord harmless from and against
any and all claims, losses, damages, costs, expenses, suits and demands
whatsoever made or asserted against Landlord by reason of the foregoing.
Tenant agrees to utilize only contractors and subcontractors first
approved by Landlord (which approval shall not be unreasonably withheld or
delayed) for the performance of Tenant's Changes.
Tenant shall keep detailed records of Tenant's Changes estimated to
cost more than $5,000.00 and of the cost thereof. Tenant shall furnish copies of
such records to Landlord within thirty (30) days after completion of any such
Tenant's Changes. In addition, promptly after the completion of any Tenant's
Changes, Tenant shall furnish to Landlord a complete set of "as-built" plans and
specifications.
43. CERTIFICATES BY TENANT:
At any time and from time to time, Tenant, for the benefit of Landlord
and/or any other person, firm or corporation specified by Landlord, on at least
five (5) business days prior written request by Landlord, will deliver to
Landlord a duly acknowledged statement, certifying that this lease is not
modified and is in full force and effect (or if there shall have been
modifications that same is in full force and effect as modified, and stating the
modifications); the Commencement and Expiration Dates hereof; the dates to which
the fixed rent, additional rent and other charges have been paid; whether or
not, to the best knowledge of the signer of such statement, there are any then
existing defaults on the part of either Landlord or Tenant in the performance of
the
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terms, covenants and conditions of this lease, and if so, specifying the default
of which the signer of such statement has knowledge; and such other information
as Landlord may reasonably request with respect to this lease. At any time and
from time to time (but not more frequently than one (1) time in any 12-month
period), Landlord, for the benefit of Tenant, on at least five (5) business
days' prior written request by Tenant, shall deliver to Tenant a duly
acknowledged statement in the aforementioned form.
44. LIMITATION OF LIABILITY:
Tenant agrees that the liability of Landlord under this lease and all
matters pertaining to or arising out of the tenancy and the use and occupancy of
the demised premises, shall be limited to Landlord's interest in the building
and in no event shall Tenant make any claim against or seek to impose any
personal liability upon any direct or indirect general or limited partner,
shareholder, employee or director of Landlord, or any principal of any firm or
corporation that may hereafter be or become the Landlord.
45. INDEMNIFICATION AND INSURANCE:
A. Except to the extent attributable to the negligence of Landlord or
its agents, Tenant shall indemnify and save harmless Landlord and its agents
against and from (i) any and all claims (a) arising from (x) the conduct or
management of the demised premises or of any business therein, or (y) any work
or thing whatsoever done, or any condition created in or about the demised
premises during the term hereof or during the period of time, if any, prior to
the Commencement Date that Tenant may have been given access to the demised
premises, or (b) arising from any negligent or otherwise wrongful act or
omission of Tenant or any of its subtenants or licensees or its or their
employees, agents visitors, invitees or contractors or subcontractors of any
tier, and (ii) all costs, expenses and liabilities incurred in or in connection
with each such claim or action or proceeding brought thereon. In |
