\n23. FAILURE TO GIVE POSSESSION………………………………………………………………. 40<\/p>\n24. NO WAIVER……………………………………………………………………………… 40<\/p>\n
25. WAIVER OF TRIAL BY JURY…………………………………………………………………. 41<\/p>\n
26. INABILITY TO PERFORM……………………………………………………………………. 42<\/p>\n
27. BILLS AND NOTICES………………………………………………………………………. 42<\/p>\n
28. ESCALATION…………………………………………………………………………….. 42<\/p>\n
29. SERVICES………………………………………………………………………………. 46<\/p>\n
30. PARTNERSHIP TENANT……………………………………………………………………… 52<\/p>\n
31. VAULT SPACE……………………………………………………………………………. 53<\/p>\n
32. SECURITY DEPOSIT\/LETTER OF CREDIT………………………………………………………… 53<\/p>\n
33. CAPTIONS………………………………………………………………………………. 54<\/p>\n
34. ADDITIONAL DEFINITIONS………………………………………………………………….. 54<\/p>\n
35. PARTIES BOUND………………………………………………………………………….. 55<\/p>\n
36. BROKER………………………………………………………………………………… 55<\/p>\n
37. INDEMNITY……………………………………………………………………………… 55<\/p>\n
38. ADJACENT EXCAVATION-SHORING……………………………………………………………… 56<\/p>\n
39. MISCELLANEOUS………………………………………………………………………….. 56<\/p>\n
40. TENANT RELOCATION………………………………………………………………………. 57
\n<\/c><\/s><\/caption>\n<\/table>\n
ii<\/p>\n
AGREEMENT OF LEASE, made as of this _______ day of March, 1998 between
\nZAPCO 1500 INVESTMENT L.P., a Delaware limited partnership, having an office c\/o
\nIntertech Corporation, 1301 Pennsylvania Avenue, Washington, D.C. 20004
\n(hereinafter called “LANDLORD”) and SALON INTERNET, INC., a California
\ncorporation, having an office at 706 Mission Street, 2nd Floor, San Francisco,
\nCalifornia 94103 (hereinafter called “TENANT”).<\/p>\n
W I T N E S S E T H:<\/p>\n
The parties hereto, for themselves, their heirs, distributees, executors,
\nadministrators, legal representatives, successors and assigns, hereby covenant
\nas follows:<\/p>\n
1. DEMISE, PREMISES, TERM, RENT.<\/p>\n
1.1 Landlord hereby leases to Tenant and Tenant hereby hires from
\nLandlord a portion of the fourteenth (14th) floor also known as Suite 1402 as
\nindicated on Exhibit 1 annexed hereto and made a part hereof (hereinafter called
\nthe “PREMISES”) in the building known as 1500 Broadway, in the Borough of
\nManhattan, City, County and State of New York (said building is hereinafter
\ncalled the “BUILDING” and the Building, together with the plot of land upon
\nwhich it stands, is hereinafter called the “REAL PROPERTY”) for a term
\n(hereinafter called the “TERM”) to commence on the Commencement Date
\n(hereinafter defined) and to end on the Expiration Date (hereinafter defined)
\nboth dates inclusive unless the Term shall sooner end pursuant to any of the
\nterms, covenants or conditions of this Lease or pursuant to law for the Rent
\nherein reserved. Tenant agrees to pay the Rent provided for herein in lawful
\nmoney of the United States which shall be legal tender in payment of all debts
\nand dues, public and private, at the time of payment. in equal monthly
\ninstallments, in advance, on the first (lst) day of each calendar month during
\nthe Term from and after the Rent Commencement Date at the office of Landlord or
\nsuch other place as Landlord may designate, without any set-off, offset,
\nabatement or deduction whatsoever (except as otherwise expressly provided in
\nthis Lease), provided, however, that Tenant shall pay the first monthly
\ninstallment on the execution of this Lease. The Rent for any portion of a
\ncalendar month included in the Term shall be prorated in the ratio that the
\nnumber of days in such portion bears to the actual number of days in such month.
\nIn the event that, on the Rent Commencement Date, or thereafter, Tenant shall be
\nin default in the payment of Rent to Landlord pursuant to the terms of another
\nlease of space in the Building with Landlord or with Landlord’s predecessor-in-
\ninterest, Landlord may, at Landlord’s option and without notice to Tenant add
\nthe amount of such arrearages to any monthly installment of the Rent and the
\nsame shall be payable to Landlord as additional rent.<\/p>\n
1.2 The following definitions contained in this subsection 1.2 of this
\nArticle 1 shall have the meanings hereinafter set forth used throughout this
\nLease, Exhibits, Schedules, and Riders (if any).<\/p>\n
(i) “COMMENCEMENT DATE” shall mean the date upon which Landlord
\ndelivers possession of the Premises to the Tenant, provided that upon such date
\n(i) Landlord shall have substantially completed construction of the demising
\nwall located within the Premises and (ii) electrical service to the Premises
\nshall be in good working order, subject to the provisions of subsection 1.3 of
\nthis Article 1.<\/p>\n
1<\/p>\n
(ii) “EXPIRATION DATE” shall mean the last day of the month in which
\nthe sixth (6th) anniversary of the Commencement Date occurs, or such earlier or
\nlater date on which the Term shall sooner or later end pursuant to any of the
\nterms or provisions of this Lease or pursuant to law.<\/p>\n
(iii) “RENT” shall mean:<\/p>\n
(a) One Hundred Fifty-Two Thousand Two Hundred Seventeen and
\nNo\/1 Dollars ($152,217.00) annually, payable in equal monthly installments, in
\nadvance, of Twelve Thousand Six Hundred Four and 75\/100 Dollars ($12,684.75),
\nfrom the Commencement Date through and including the last day preceding the one
\n(1) year anniversary of the Commencement Date;<\/p>\n
(b) One Hundred Fifty-Six Thousand Four Hundred Thirty-Two and
\n24\/100 Dollars ($156,432.24) annually, payable in equal monthly installments, in
\nadvance, of Thirteen Thousand Thirty-Six and 02\/100 Dollars ($13,036.02), from
\nthe one (1) year anniversary of the Commencement Date through and including the
\nlast day preceding the two (2) year anniversary of the Commencement Date;<\/p>\n
(c) One Hundred Sixty Thousand Seven Hundred Sixty-Four and
\n57\/100 Dollars ($160,764.57) annually, payable in equal monthly installments, in
\nadvance, of Thirteen Thousand Three Hundred Ninety-Seven and 05\/100 Dollars
\n($13,397.05), from the two (2) year anniversary of the Commencement Date through
\nand including the last day preceding the three (3) year anniversary of the
\nCommencement Date;<\/p>\n
(d) One Hundred Seventy-Three Thousand Fifty-Nine and 02\/100
\nDollars ($173,059.02) annually, payable in equal monthly installments, in
\nadvance, of Fourteen Thousand Four Hundred Twenty-One and 59\/100 Dollars
\n($14,421.59), from the three (3) year anniversary of the Commencement Date
\nthrough and including the last day preceding the four (4) year anniversary of
\nthe Commencement Date;<\/p>\n
(e) One Hundred Seventy-Seven Thousand Eight Hundred Ninety-
\nEight and 74\/100 Dollars ($177,898.74) annually, payable in equal monthly
\ninstallments, in advance, of Fourteen Thousand Eight Hundred Twenty-Four and
\n90\/100 Dollars ($14,824.90) from the four (4) year anniversary of the
\nCommencement Date through and including the last day preceding the five (5) year
\nanniversary of the Commencement Date; and<\/p>\n
(f) One Hundred Eighty-Two Thousand Eight Hundred Fifty-Five
\nand 55\/100 Dollars ($182,855.55) annually, payable in equal monthly
\ninstallments, in advance, of Fifteen Thousand Two Hundred Thirty-Seven and
\n96\/100 Dollars ($15,237.96), from the five (5) year anniversary of the
\nCommencement Date through and including the Expiration Date;<\/p>\n
together with any increases in Rent provided for in this Lease, all additional
\nrent and any other sums payable hereunder.<\/p>\n
(iv) “PERMITTED USES” shall mean as executive and general offices,
\nand for no other purpose.<\/p>\n
2<\/p>\n
(v) “BASE TAX YEAR” shall mean the fiscal tax year commencing July
\n1, 1998 and ending June 30, 1999.<\/p>\n
(vi) “BASE TAXES” shall mean an amount equal to the Taxes payable
\nfor the Base Tax Year.<\/p>\n
(vii) “TENANT’S PROPORTIONATE SHARE” shall mean nine hundred eighty-
\nseven thousandths percent (.987%).<\/p>\n
(viii) “ELECTRICAL INCLUSION FACTOR” shall mean $11,709.00.<\/p>\n
(ix) “SECURITY DEPOSIT” shall mean the sum of $35,127.00.<\/p>\n
(x) “BROKER” shall mean, collectively, (a) Cushman & Wakefield,
\nInc. and (b) Williamson, Picket, Gross, Inc.<\/p>\n
(xi) “RENT COMMENCEMENT DATE” shall mean the date which is two (2)
\nmonths after the Commencement Date.<\/p>\n
1.3 Tenant agrees, upon demand of Landlord, to execute, acknowledge
\nand deliver to Landlord an instrument, in form reasonably satisfactory to
\nLandlord and Tenant, setting forth the Commencement Date, the Rent Commencement
\nDate and the Expiration Date, provided that Tenant’s failure or refusal to
\ndeliver such instrument shall have no effect on such dates.<\/p>\n
1.4 Anything in subsections 1.1 or 1.2 of this Lease to the contrary
\nnotwithstanding, the Rent described in subsection 1.2 above shall be partially
\nabated in the amount of Eleven Thousand Seven Hundred Nine and No\/100 Dollars
\n($11,709.00) per month for the period (the “PARTIAL ABATEMENT PERIOD”)
\ncommencing on the Commencement Date and ending on the day immediately preceding
\nthe Rent Commencement Date so that, during the Partial Abatement Period Tenant
\nshall be required to pay Rent in the amount of Nine Hundred Seventy-Five and
\n75\/100 Dollars ($975.75) per month; provided that, if at any time during the
\nfirst eighteen (18) months of the term of this Lease Tenant shall be in default
\nin the payment of Rent or any other monetary obligation due hereunder beyond any
\napplicable grace or cure period hereunder, the Rent so abated shall immediately
\nbe due and payable.<\/p>\n
2. USE AND OCCUPANCY.<\/p>\n
2.1 Tenant shall use and occupy the Premises for the Permitted Uses,
\nand for no other purpose. Tenant may use a portion of the Premises for a pantry
\ninstalled for use by Tenant’s employees, subject to the terms and provisions of
\nthis Lease, including the Building Rules and Regulations.<\/p>\n
2.2 Anything contained herein to the contrary notwithstanding, Tenant
\nshall not use the Premises or any part thereof, or permit the Premises or any
\npart thereof to be used in a manner or for a purpose that (a) violates any
\ncertificate of occupancy in force for the Premises, or the Building; (b) causes
\nor is likely to cause damage to the Building, the Premises or any equipment,
\nfacilities or other systems therein; (c) impairs the character, reputation,
\nimage or<\/p>\n
3<\/p>\n
appearance of the Building as a first-class office building, (d) interferes with
\nthe proper, efficient and economic maintenance, operation and repair of the
\nBuilding or its equipment, facilities or systems, including without limitation,
\nthe Building service systems; (e) constitutes a nuisance, annoyance or
\ninconvenience to other tenants or occupants of the Building or interferes with
\nor disrupts the use or occupancy of any area of the Building (other than the
\nPremises) by other tenants or occupants; (f) results in demonstrations, bomb
\nthreats or other events that require evacuation of or increased security for the
\nBuilding or otherwise disrupts the use, occupancy or quiet enjoyment of the
\nBuilding by other tenants and occupants; (g) interferes with the transmission or
\nreception of microwave, television, radio or other communication signals by
\nantennae located on the roof of, or elsewhere in, the Building; (h) violates any
\nprovision of any financing documents from time to time encumbering the Building,
\nall covenants, conditions and restrictions affecting the Building, or any
\nmodifications, amendments, substitutions. replacements, supplements or additions
\nto any of the foregoing; or (i) violates any requirement or condition of any
\ninsurance policy maintained by Landlord in connection with the Building or of
\nthe standard fire insurance policy issues for office building in the City of New
\nYork or the rules and regulations of the New York Board of Fire Underwriters or
\nInsurance Services Office (or similar bodies). In addition to the foregoing,
\nprohibited uses also include the use of any part of the Premises for: (i) a
\nrestaurant or bar; (ii) the preparation, consumption, storage, manufacture or
\nsale of food, beverages, liquor, tobacco or drugs (excluding the sale, storage
\nand consumption of food or beverages from or in connection with vending machines
\nor the pantry installed for use by Tenant’s employees); (iii) the business of
\nphotocopying, multilith or offset printing (but Tenant may use part of the
\nPremises for photocopying in connection with its own business); (iv) a typing or
\nstenography business; (v) a school or classroom; (vi) cooking, lodging or
\nsleeping; (vii) the operation of retail facilities of a savings and loan
\nassociation or retail facilities of any financial, lending, securities brokerage
\nor investment activity; (viii) medical or dental offices or laboratories; (ix) a
\nbarber, beauty or manicure shop; (x) an employment agency, executive search firm
\nor similar enterprise; (xi) a consulate; (xii) the manufacture, retail sale,
\nstorage of merchandise or auction of merchandise, goods or property of any kind;
\nor (xiii) any immoral or illegal purposes.<\/p>\n
2.3 Tenant, at its expense, shall procure and at all times comply with the
\nterms and conditions of any license or permit required for the proper and lawful
\nconduct of the Permitted Uses in the Premises. Tenant shall pay to any taxing
\nauthority any fee, tax or other charge levied or assessed by any governmental
\nauthority in connection with Tenant’s use and\/or occupancy of the Premises,
\nincluding the New York City commercial occupancy tax.<\/p>\n
2.4 Tenant acknowledges that its use of the Premises in contravention
\nof the limitations in this Article 2, or the Building’s Rules and Regulations,
\nwould cause irreparable harm to Landlord, and acknowledges that Landlord is
\nentitled to interim and permanent injunctive relief against Tenant and any other
\nperson so using the Premises, as a remedy in addition to all of Landlord’s other
\nrights and remedies. Tenant shall cooperate with Landlord in seeking an
\ninjunction against any use other than permitted herein by any other person
\nTenant may have admitted to the Premises.<\/p>\n
3. ALTERATIONS.<\/p>\n
4<\/p>\n
3.1 Tenant shall not make or perform or permit the making or performance
\nof, any alterations, installations, improvements, additions or other physical
\nchanges in or about the Premises (hereinafter collectively called “ALTERATIONS”)
\nwithout Landlord’s prior consent, provided, however, that Landlord’s consent
\nshall not be required for Alterations consisting only of painting, installing or
\nremoving wall covering or carpeting and other similar minor alterations costing
\nless than $15,000 in the aggregate, in each case, which are solely of a cosmetic
\nor decorative nature (“DECORATIVE ALTERATIONS”) so long as such Decorative
\nAlterations are not visible from the exterior of the Building and provided
\nTenant shall notify Landlord of the nature of such Decorative Alteration and the
\ncontractors to be performing the same at least fifteen (15) days prior to
\ncommencement and perform such Decorative Alteration in accordance with all other
\nprovisions of this Article 3. Landlord’s consent to Alterations may be withheld
\nfor any reason or for no reason, provided, however, that with respect to
\nnonstructural Alterations which do not require electrical, plumbing, or HVAC
\nwork and which do not affect any other Building systems or space outside of the
\nPremises (“NON-STRUCTURAL ALTERATIONS”), Landlord’s consent shall not be
\nunreasonably withheld or delayed.<\/p>\n
3.2 All Alterations shall be done in compliance with all applicable
\nlaws, regulations and codes, at Tenant’s expense and at such times and in such
\nmanner as Landlord may from time to time reasonably designate. All Alterations
\nmade and installed by Tenant, or at Tenant’s expense, upon or in the Premises
\nwhich are of a permanent nature and which cannot be removed without damage to
\nthe Premises or Building shall become and be the property of Landlord, and shall
\nremain upon and be surrendered with the Premises as a part thereof at the end of
\nthe term of this Lease, except that Landlord may require as a condition of
\nLandlord granting its consent to any of such Alterations (which requirement
\nLandlord may exercise no later than ten (10) business days after Landlord grants
\nsuch consent) that, prior to the termination of the Lease and Tenant’s surrender
\nof the Premises, any of such Alterations shall be removed and, in the event of
\nservice of such notice, Tenant will, at Tenant’s own cost and expense, remove
\nthe same in accordance with such request, and restore the Premises to its
\noriginal condition, ordinary wear and tear and casualty excepted. All
\nfurniture, furnishings and movable fixtures and partitions installed by Tenant
\nand all Alterations in and to the Premises which may be made by Tenant at its
\nown cost and expense prior to and during the Term, or any renewal thereof, shall
\nremain the property of Tenant and upon the Expiration Date or earlier end of the
\nTerm or any renewal thereof, shall be removed from the Premises by Tenant,
\nprovided, however, that Tenant shall repair any damage to the Premises or the
\nBuilding caused by such removal.<\/p>\n
3.3 Prior to making any Alterations, Tenant (i) shall submit to Landlord
\ndetailed plans and specifications (including layout, architectural, mechanical,
\nelectrical, plumbing and structural drawings) for each proposed Alteration
\n(other than Decorative Alterations not requiring plans to be submitted to, or
\npermits to be obtained from, any governmental authority) and shall not commence
\nany such Alteration (other than a Decorative Alteration not requiring Landlord’s
\nconsent) without first obtaining Landlord’s approval of such plans and
\nspecifications, (ii) shall, at its expense, obtain all permits, approvals and
\ncertificates required by any governmental or quasi-governmental bodies and
\nfurnish copies of the same to Landlord, and (iii) shall furnish to Landlord
\nduplicate original policies of worker’s compensation (covering all persons to be
\nemployed by Tenant, and Tenant’s contractors and subcontractors in connection
\nwith such Alteration), comprehensive public liability insurance (including
\nproperty damage coverage,<\/p>\n
5<\/p>\n
completed operations\/product liability),and builder’s risk insurance (issued on
\na completed value basis), all in such form, with such companies, for such
\nperiods and in such amounts as Landlord may reasonably require, naming Landlord
\nand its agents as additional insureds. With respect only to the plans and
\nspecifications for the initial Alterations to be performed by Tenant in the
\nPremises in connection with Tenant’s initial build-out of the Premises (“Initial
\n ——-
\nAlterations”), Landlord shall notify Tenant of its approval or disapproval of
\n———–
\nthe same within five (5) business days after Landlord’s receipt thereof. Tenant
\nshall pay to Landlord an amount equal to ten percent (10%) of the cost of the
\nAlterations (other than Tenant’s Initial Alterations and any Decorative
\nAlterations) to compensate Landlord for Landlord’s indirect costs, field
\nsupervision and coordination in connection with the work. In addition, Tenant
\nagrees to reimburse Landlord for Landlord’s out-of-pocket expenses incurred in
\nconnection with Landlord’s (or Landlord’s agents) review of the proposed
\nAlteration within ten (10) days of receipt of an invoice. Before commencing any
\nwork, Tenant shall furnish to Landlord such bonds for payment and completion or
\nsuch other security for completion thereof and payment therefor as Landlord
\nshall reasonably require and in such form as is reasonably satisfactory to
\nLandlord and in an amount which shall be 120% of Landlord’s estimate of the cost
\nof performing such work. Upon completion of such Alteration, Tenant, at Tenant’s
\nexpense, shall obtain certificates of final approval of such Alteration required
\nby any governmental or quasi-governmental bodies and shall furnish Landlord with
\ncopies thereof, together with copies of “as-built” plans for such Alteration.<\/p>\n
3.4 Prior to commencing any Alteration (including a Decorative
\nAlteration), Tenant shall submit to Landlord for its approval (which shall not
\nbe unreasonably withheld or delayed) a list of the contractors and
\nsubcontractors (categorized by trade) which Tenant proposes to use or from which
\nTenant proposes to solicit bids in connection therewith. Tenant shall not
\ncommence any Alteration until Landlord has approved of Tenant’s proposed
\ncontractors or subcontractors. If, prior to or after commencement of any
\nAlteration, there is a change in the contractors or subcontractors, Tenant shall
\nsubmit a new or supplemental list and the foregoing provisions shall be
\napplicable thereto. Notwithstanding anything to the contrary contained herein,
\nconnections to, and disconnections from, the Building’s fire safety system, the
\nBuilding’s sprinkler, and the Building’s condenser or chilled water system shall
\nbe performed, in each case, solely at Tenant’s expense, and only by contractors
\ndesignated by Landlord charging market rates. All Alterations shall be made and
\nperformed in accordance with the Rules and Regulations (hereinafter defined);
\nall materials and equipment to be incorporated in the Premises as a result of
\nall Alterations shall be new and first quality; no such materials or equipment
\nshall be subject to any lien, encumbrance, chattel mortgage or title retention
\nor security agreement. Any mechanic’s lien filed against the Premises, or the
\nReal Property, for work claimed to have been done for, or materials claimed to
\nhave been furnished to, Tenant shall be discharged by Tenant within thirty (30)
\ndays thereafter, at Tenant’s expense, by payment or filing the bond required by
\nlaw. Notice is hereby given that Landlord shall not be liable for any labor or
\nmaterials furnished or to be furnished to Tenant upon credit, and that no
\nmechanic’s or other lien for any such labor or materials shall attach to or
\naffect the reversion or other estate or interest of Landlord in and to the
\nPremises, and Tenant agrees to so notify any contractor performing work in the
\nPremises. Tenant shall not, at any time prior to or during the Term, directly or
\nindirectly employ, or permit the employment of, any contractor, mechanic or
\nlaborer in the Premises, whether in connection with any Alteration or otherwise,
\nif, in Landlord’s sole discretion, such employment will interfere or<\/p>\n
6<\/p>\n
cause any conflict with other contractors, mechanics, or laborers engaged in the
\nconstruction, maintenance or operation of the Building by Landlord, Tenant or
\nothers. In the event of any such interference or conflict or if any union
\nestablishes a picket line with respect to such employment, and Tenant does not,
\nwithin 24 hours and without expense to Landlord, obtain an order from a court or
\ngovernmental agency enjoining such picketing, Tenant, upon demand of Landlord,
\nshall cause all contractors, mechanics or laborers causing such interference or
\nconflict to leave the Building immediately.<\/p>\n
3.5 All Alterations performed by Tenant in and to the Premises shall
\nbe done in a fashion such that the Premises and the Building shall be in
\ncompliance with the requirements of Local Law 5 of 1973 of The City of New York,
\nas heretofore and hereafter amended (“LOCAL LAW 5 LAWS”). The foregoing shall
\ninclude, without limitation, (i) compliance with the compartmentalization
\nrequirements of Local Law 5, (ii) relocation of existing fire detection devices,
\nalarm signals and\/or communication devices necessitated by such Alterations and
\n(iii) installation of such additional fire control or detection devices as may
\nbe required by applicable governmental or quasi-governmental rules, regulations
\nor requirements (including, without limitation, any requirements of the New York
\nBoard of Fire Underwriters) as a result of Tenant’s manner of use of the
\nPremises or the Alterations. Landlord shall not be responsible for any damages
\nto Tenant’s fire control or detection devices nor shall Landlord have any
\nresponsibility for the maintenance or replacement thereof unless any such damage
\nshall have been caused directly by the negligence or wilful misconduct of
\nLandlord or its agents or employees. Tenant shall submit to Landlord for
\nLandlord’s approval all design specifications and requirements prepared in
\nconnection with Tenant’s installation of said fire control or detection devices.
\nNotwithstanding the foregoing, Landlord will determine what modifications, if
\nany, to the base building fire alarm system will be required as a result of
\nTenant’s fire control system and peripheral devices. Such modifications shall
\nbe performed by Landlord at Tenant’s sole, but reasonable, cost and expense.
\nAll such fire control devices shall be manufactured by a company designated by
\nLandlord charging market rates. In the event a local panel is required to be
\ninstalled in the Premises in accordance with the foregoing provisions, such
\nlocal panel shall be a type designated by Landlord.<\/p>\n
3.6 (A) Subject to the provisions of this Section 3.6, Landlord shall
\ncontribute an amount not to exceed Thirty-Nine Thousand Thirty and 00\/100
\nDollars ($39,030.00) (the “TENANT FUND”) toward (x) the cost of the performance
\nof Tenant’s Initial Alterations (other than Soft Costs) to be performed by
\nTenant in the Premises and (y) the fees of architects, engineers, expediters and
\nconsultants incurred in connection with the performance of the Initial
\nAlterations (the costs described in this clause (y) being collectively referred
\nto herein as “SOFT COSTS”). Notwithstanding, the foregoing, Landlord shall not
\nbe required to contribute toward Soft Costs an amount in excess of twenty
\npercent (20%) of the Tenant Fund.<\/p>\n
(B) Landlord shall disburse a portion of the Tenant Fund to Tenant
\nfrom time to time, within fifteen (15) business days after receipt of the items
\nset forth in Section 3.6(C) hereof, provided that such request is received by
\nLandlord by the tenth (10th) day of the calendar month in which Landlord
\nreceives such request, and further provided that on the date of a request and on
\nthe date of disbursement from the Tenant Fund, no Event of Default shall have
\noccurred and be continuing. Disbursements from the Tenant Fund shall not be
\nmade more frequently than<\/p>\n
7<\/p>\n
monthly, and shall be in an amount equal to ninety percent (90%) of the
\naggregate amount theretofore paid or which is then due (as certified by the
\nchief executive or financial officer of Tenant and Tenant’s independent,
\nlicensed architect) to Tenant’s contractors, subcontractors and materialmen, or
\non account of Soft Costs which in either case have not been the subject of a
\nprevious disbursement from the Tenant Fund; provided, however, that in no event
\nshall Tenant be entitled to a disbursement from the Tenant Fund on account of
\nany Soft Costs (other than architect’s and engineer’s fees and expenses) unless
\nand until the performance of the Initial Alterations has been completed, and all
\nof the costs incurred in connection therewith (other than Soft Costs) shall have
\nbeen paid in fall.<\/p>\n
(C) Landlord’s obligation to make disbursements from the Tenant Fund
\nshall be subject to receipt of: (a) a request for such disbursement from Tenant
\nsigned by the chief executive or financial officer of Tenant, together with the
\ncertification required by Section 3.6(B) hereof, (b) copies of all receipts,
\ninvoices and bills for the work completed and materials furnished in connection
\nwith the Initial Alterations and incorporated in the Premises, or with respect
\nto Soft Costs, which in either case have been paid by Tenant or which is then
\ndue and for which Tenant is seeking reimbursement, (c) with respect to
\ndisbursements of the Tenant Fund to cover costs other than Soft Costs, a
\ncertificate of Tenant’s independent licensed architect stating (i) that, in his
\nopinion, the portion of the Initial Alterations theretofore completed and for
\nwhich the disbursement is requested was performed in a good and workerlike
\nmanner in accordance with the final detailed plans and specifications for such
\nInitial Alterations, as approved by Landlord, (ii) the percentage of completion
\nof the initial Alteration as of the date of such certificate, and (iii) the
\nestimated total cost to complete the performance of the Initial Alterations, and
\n(d) partial lien waivers, to the extent permitted by law, from each contractor,
\nsubcontractor and materialman who performed work in connection with the Initial
\nAlterations, to the extent of the amount theretofore paid to such contractor,
\nsubcontractor or materialman.<\/p>\n
(D) In no event shall the aggregate amount paid by Landlord to Tenant
\nunder this Section 3.6 exceed the amount of the Tenant Fund. Upon the
\ncompletion of the Initial Alterations (which shall include completion of all
\n“punch list” items and payment of Soft Costs, and satisfaction of the conditions
\nset forth in Section 3.6(E) hereof), any amount of the Tenant Fund which has not
\nbeen previously disbursed shall be credited by Landlord against the ensuing Rent
\npayments. Upon the disbursement or credit of the entire Tenant Fund, Landlord
\nshall have no further obligation or liability whatsoever to Tenant for further
\ndisbursement of any portion of the Tenant Fund to Tenant. It is expressly
\nunderstood and agreed that Tenant shall complete, at its sole cost and expense,
\nthe Initial Alterations, and pay Soft Costs, whether or not the Tenant Fund is
\nsufficient to fund such completion and Soft Costs: provided that, subject to
\nLandlord’s reasonable prior approval, in the event of some unforeseen expense,
\nTenant may eliminate some improvements to keep costs within the amount of the
\nTenant Fund. Any costs to complete the Initial Alterations and pay Soft Costs
\nin excess of the Tenant Fund shall be the sole responsibility and obligation of
\nTenant.<\/p>\n
(E) Within thirty (30) days after completion of the Initial
\nAlterations, Tenant shall deliver to Landlord final waivers of lien from all
\ncontractors, subcontractors and materialmen involved in the performance of the
\nInitial Alterations and the materials furnished in connection therewith, and a
\ncertificate from Tenant’s independent licensed architect certifying<\/p>\n
8<\/p>\n
that (i) in his opinion the Initial Alterations have been performed in a good
\nand workerlike manner and completed in accordance with the final detailed plans
\nand specifications for such Initial Alterations as approved by Landlord, and
\n(ii) all contractors, subcontractors and materialmen have been paid for the
\nInitial Alterations and materials furnished through such date.<\/p>\n
4. REPAIRS-FLOOR LOAD.<\/p>\n
Landlord shall maintain and repair the public portions of the Building,
\nboth exterior and interior, including the roof in conformance with the standards
\nof non-institutional office buildings in Manhattan comparable to the Building.
\nIn making such repairs, Landlord shall use reasonable efforts to minimize
\ninterference with Tenant’s occupancy of the Premises, provided that (i) the
\nLandlord shall not be obligated to use overtime or premium pay labor, and (ii)
\nthe foregoing shall not apply to repairs in an emergency situation. Tenant
\nshall, throughout the Term, take good care of the Premises and the fixtures and
\nappurtenances therein and at Tenant’s sole cost and expense, make all
\nnonstructural repairs thereto as and when needed to preserve them in good
\nworking order and condition, reasonable wear and tear and damage for which
\nTenant is not responsible under the terms of this Lease excepted. Tenant shall
\npay Landlord the reasonable cost of all replacements to the lamps, tubes,
\nballasts and starters in the lighting fixtures installed in the Premises.
\nNotwithstanding the foregoing, all damage or injury to the Premises or to any
\nother part of the Building, or to its fixtures, equipment and appurtenances,
\nwhether requiring structural or nonstructural repairs, caused by or resulting
\nfrom carelessness, omission, neglect or improper conduct of or Alterations made
\nby Tenant, Tenant’s servants, employees, invitees or licensees, shall be
\nrepaired promptly by Landlord at Tenant’s sole cost and expense, to the
\nreasonable satisfaction of Landlord. Tenant also shall repair all damage to the
\nBuilding and the Premises caused by the moving of Tenant’s fixtures, furniture
\nor equipment. All the aforesaid repairs shall be of quality or class equal to
\nthe original work or construction and shall be made in accordance with the
\nprovisions of Article 3 hereof. If Tenant fails after ten (10) days’ notice to
\nproceed with due diligence to make repairs required to be made by Tenant or if
\nsuch repairs are structural in nature or affect a Building system, the same may
\nbe made by Landlord, at the expense of Tenant and the expenses thereof incurred
\nby Landlord, shall be collectible by Landlord as additional rent within ten (10)
\ndays after rendition of a bill or statement therefor. Tenant shall give Landlord
\nprompt notice of any defective condition in any plumbing, electrical, air-
\ncooling or heating system located in, servicing or passing through the Premises.
\nTenant shall not place a load upon any floor of the Premises exceeding the floor
\nload per square foot area which such floor was designed to carry and which is
\nallowed by law. Landlord reserves the right to prescribe the weight and position
\nof all safes, business machines and heavy equipment and installations. Business
\nmachines and mechanical equipment shall be placed and maintained by Tenant at
\nTenant’s expense in settings sufficient in Landlord’s reasonable judgment to
\nabsorb and prevent vibration, noise and annoyance. Except as provided in Article
\n10 hereof or if directly caused by the negligence or wilful misconduct of
\nLandlord or its agents or employees, there shall be no allowance to Tenant for a
\ndiminution of rental value and no liability on the part of Landlord by reason of
\ninconvenience, annoyance or injury to business arising from Landlord, Tenant or
\nothers making, or failing to make, any repairs, alterations, additions or
\nimprovements in or to any portion of the Building, or the Premises, or in or to
\nfixtures, appurtenances, or equipment thereof. If the Premises are or become
\ninfested with vermin, Tenant, at Tenant’s expense, shall cause the same to be
\nexterminated from time to time<\/p>\n
9<\/p>\n
to the satisfaction of Landlord and shall employ such exterminators and such
\nexterminating company or companies as shall be approved by Landlord. The water
\nand wash closets and other plumbing fixtures shall not be used for any purposes
\nother than those for which they were designed or constructed, and no sweepings,
\nrubbish, rags, acids or other substances shall be deposited therein.<\/p>\n
5. WINDOW CLEANING.<\/p>\n
Tenant shall not clean, nor require, permit, suffer or allow any
\nwindow in the Premises to be cleaned, from the outside in violation of Section
\n202 of the Labor Law, or any other applicable law, or of the rules of the Board
\nof Standards and Appeals, or of any other board or body having or asserting
\njurisdiction.<\/p>\n
6. REQUIREMENTS OF LAW.<\/p>\n
6.1 Tenant at its sole expense shall comply with all existing or future
\nlaws, orders and regulations of federal, state, county and municipal authorities
\nand with any existing or future direction of any public officer or officers,
\npursuant to law, and all existing or future rules, orders, regulations or
\nrequirements of the New York Board of Fire Underwriters, or any other similar
\nbody which shall impose any violation, order or duty upon Landlord or Tenant
\nwith respect to the Premises or Tenant’s occupancy of the Premises.
\nNotwithstanding the foregoing, Tenant’s obligations under the preceding sentence
\nshall impose no obligation on Tenant to make any alterations to the Premises or
\nthe Building, whether structural or otherwise, or to otherwise comply with any
\nof such laws, orders and regulations, unless such obligations under the
\npreceding sentence arise as a result of (i) the manner of conduct of Tenant’s
\nbusiness or operation of its equipment therein, but excluding any use of the
\nPremises merely as general office space; (ii) any cause or condition created by
\nor at the instigation of Tenant, including, without limitation, any Alteration;
\n(iii) the breach of any of Tenant’s obligations hereunder; or (iv) any Hazardous
\nMaterial brought into the Building by Tenant, any subtenant of Tenant or any of
\ntheir agents, contractors or invitees. Tenant shall promptly forward to Landlord
\nany notice it receives of the violation of any law involving the Premises.
\nTenant shall pay, within twenty (20) days after demand thereof, all the costs,
\nexpenses, fines, penalties and damages that may be imposed upon Landlord by
\nreason of or arising out of Tenant’s failure to comply with the provisions of
\nthis Subsection 6. 1.<\/p>\n
6.2 Landlord represents, that to the best of its knowledge, no asbestos
\ncontaining materials (“ACM”) exist in the Premises. Notwithstanding the
\nforegoing, to the extent any ACM is found to exist in the Premises during the
\nterm of the Lease (other than any ACM placed in the Premises by Tenant), which
\nACM shall be required to be removed, encapsulated or otherwise treated as a
\nresult of Alterations being performed by Tenant, or pursuant to applicable law,
\nthen Landlord, at Landlord’s sole cost and expense, shall remove, treat or
\nencapsulate such ACM in accordance with applicable law and Landlord shall use
\nreasonable efforts to minimize interference with Tenant’s occupancy of the
\nPremises, provided that the (i) Landlord shall not be obligated to use overtime
\nor premium pay labor, and (ii) the foregoing shall not apply to repairs in an
\nemergency situation.<\/p>\n
10<\/p>\n
6.3 Tenant shall not do or permit to be done any act or thing upon
\nthe Premises which will invalidate or be in conflict with any insurance policies
\ncovering the Building and fixtures and property therein; and shall not do, or
\npermit anything to be done in or upon the Premises, or bring or keep anything
\ntherein, except as now or hereafter permitted by the New York City Fire
\nDepartment, New York Board of Fire Underwriters, New York Fire Insurance Rating
\nOrganization or other authority having jurisdiction and then only in such
\nquantity and manner of storage as not to increase the rate for fire insurance
\napplicable to the Building, or use the Premises in a manner which shall increase
\nthe rate of fire insurance on the Building or on property located therein, over
\nthat in similar type buildings or in effect prior to this Lease. Any work or
\ninstallations made or performed by or on behalf of Tenant or any person claiming
\nthrough or under Tenant pursuant to this Article shall be made in conformity
\nwith, and subject to the provisions of, Article 3 hereof. If by reason of
\nfailure of Tenant to comply with the provisions of this Article, the fire
\ninsurance rate shall at the beginning of this Lease or at any time thereafter be
\nhigher than it otherwise would be, then Tenant shall reimburse Landlord, as
\nadditional rent hereunder, for that part of all fire insurance premiums
\nthereafter paid by Landlord which shall have been charged because of such
\nfailure or use by Tenant, and shall make such reimbursement upon the first day
\nof the month following such outlay by Landlord. In any action or proceeding
\nwherein Landlord and Tenant are parties, a schedule or “make up” of rates for
\nthe Building or the Premises issued by the New York Fire Insurance Rating
\nOrganization, or other body fixing such fire insurance rates, shall be
\nconclusive evidence of the facts therein stated and of the several items and
\ncharges in the fire insurance rates then applicable to the Premises. If either
\nLandlord or Tenant is required to provide cleaning and\/or rubbish removal
\nservices at the Premises, Tenant shall take such steps, and shall cause its
\nemployees, agents, contractors and business visitors to observe such rules,
\nregulations and requirements as may, from time to time. be imposed or enacted by
\nLandlord by notice to Tenant with respect to such cleaning or rubbish removal,
\nas are, in Landlord’s reasonable judgment, necessary to ensure that such
\ncleaning and\/or rubbish removal services are performed in accordance with all
\napplicable ordinances, laws, statutes or other rules, regulations or
\nrequirements related thereto as are, or shall be, enacted or imposed in
\nconnection with the Building or the Premises. Tenant shall indemnify and hold
\nLandlord harmless from and against any loss, cost, liability or expense of any
\nkind or nature incurred by Landlord as a result of the Tenant’s failure to
\ncomply, or cause its employees, agents, contractors or business visitors to
\ncomply with all such rules, regulations and requirements as may be imposed or
\nenacted by Landlord in connection herewith.<\/p>\n
6.4 Neither Tenant nor any of its officers, partners, employees,
\nagents, subtenants, contractors or invitees shall cause or permit any Hazardous
\nMaterial (including asbestos or asbestos containing materials) to be used,
\nstored, released, handled, produced or installed in, on or from the Premises or
\nthe Building, other than customary amounts of office and cleaning supplies for
\nwhich no special governmental permit, approval or license is required and only
\nso long as the same are stored, used and disposed of in strict compliance with
\nall laws. For purposes of this Lease, “HAZARDOUS MATERIALS” shall mean any
\nelement, compound, chemical mixture, contaminant, pollutant, material, waste or
\nother substance which is defined, determined or identified as a “hazardous
\nsubstance”, “hazardous waste” or “hazardous material” under any federal, state
\nor local statute, regulation or ordinance applicable to the Premises, as well as
\nany <\/p>\n
11<\/p>\n
amendments and successors to such statutes and regulations, as may be enacted
\nand promulgated from time to time.<\/p>\n
6.5 Tenant shall promptly comply with all requirements relating to
\nthe Americans with Disabilities Act, 42 U. S. C. (S) 12,101 et seq.., and the
\n — —-
\nregulations promulgated thereunder as in effect from time to time and with all
\nsimilar state and local laws (“ADA REQUIREMENTS”). Tenant shall have exclusive
\nresponsibility for compliance with ADA Requirements pertaining to the interior
\nof the Premises, including for the design and construction of the access thereto
\nand egress therefrom. Landlord shall have responsibility for compliance with
\nADA Requirements which affect the public areas of the Building to the extent
\nfailure to comply will affect Tenant’s use or occupancy of the Premises or the
\nperformance by Tenant of Alterations. Tenant shall comply with any reasonable
\nplan adopted by Landlord which is designed to comply with ADA Requirements.<\/p>\n
7. SUBORDINATION.<\/p>\n
7.1 This Lease is subject and subordinate to each and every ground or
\nunderlying lease of the Real Property or the Building heretofore or hereafter
\nmade by Landlord (collectively the “SUPERIOR LEASES”) and to each and every
\ntrust indenture and mortgage (collectively the “MORTGAGES”) which may now or
\nhereafter affect the Real Property, the Building or any such Superior Lease and
\nthe leasehold interest created thereby, and to all renewals, extensions,
\nsupplements, amendments, modifications, consolidations, and replacements thereof
\nor thereto, substitutions therefor, and advances made thereunder. This clause
\nshall be self-operative and no further instrument of subordination shall be
\nrequired to make the interest of any lessor under a Superior Lease, or trustee
\nor mortgagee of a Mortgage superior to the interest of Tenant hereunder. In
\nconfirmation of such subordination, however, Tenant shall execute promptly any
\ncertificate that Landlord may reasonably request and Tenant hereby irrevocably
\nconstitutes and appoints Landlord as Tenant’s attorney-in-fact to execute any
\nsuch certificate or certificates for and on behalf of Tenant. If the date of
\nexpiration of any Superior Lease shall be the same day as the Expiration Date,
\nthe Term shall end and expire twelve (12) hours prior to the expiration of the
\nSuperior Lease. Tenant covenants and agrees that, except as expressly provided
\nherein, Tenant shall not do anything that would constitute a default under any
\nSuperior Lease or Mortgage, or omit to do anything that Tenant is obligated to
\ndo under the terms of this Lease so as to cause Landlord to be in default under
\nany of the foregoing. If, in connection with the financing of the Real
\nProperty, the Building or the interest of the lessee under any Superior Lease,
\nany lending institution shall request reasonable modifications of this Lease
\nthat do not materially increase the obligations or materially and adversely
\naffect the rights of Tenant under this Lease, Tenant covenants to make such
\nmodifications.<\/p>\n
7.2 If at ant time prior to the expiration of the Term (i) any
\nSuperior Lease shall terminate or be terminated for any reason or (ii) any
\nmortgagee shall foreclose upon Landlord’s interest in the Building, Tenant
\nagrees, at the election and upon demand of any owner of the Real Property or the
\nBuilding, or the lessor under any such Superior Lease, or of any mortgagee in
\npossession of the Real Property or the Building, to attorn, from time to time,
\nto any such owner, lessor or mortgagee, upon the then executory terms and
\nconditions of this Lease, for the remainder of the term originally demised in
\nthis Lease. The provisions of this subsection 7.2 <\/p>\n
12<\/p>\n
shall inure to the benefit of any such owner, lessor or mortgagee, shall apply
\nnotwithstanding that, as a matter of law, this Lease may terminate upon the
\ntermination of any such Superior Lease, and shall be self-operative upon any
\nsuch demand, and no further instrument shall be required to give effect to said
\nprovisions. Tenant, however, upon demand of any such owner, lessor or mortgagee,
\nagrees to execute, from time to time, instruments in confirmation of the
\nforegoing provisions of this subsection 7.2, satisfactory to any such owner,
\nlessor or mortgagee, acknowledging such attornment and setting forth the terms
\nand conditions of its tenancy. Nothing contained in this subsection 7.2 shall be
\nconstrued to impair any right otherwise exercisable by any such owner, lessor or
\nmortgagee.<\/p>\n
7.3 If any act or omission of Landlord would give Tenant the right,
\nimmediately or after the giving of notice and\/or a lapse of time, to cancel or
\nterminate this Lease, or to claim a partial or total eviction, Tenant shall not
\nexercise such right until: (i) it has given written notice of the act or
\nomission to Landlord and each owner, lessor or mortgagee whose name and address
\nhad been furnished to Tenant, which notice shall describe Landlord’s default
\nwith reasonable detail, specifying the section of this Lease as to which
\nLandlord is in default, and a reasonable period for remedying the act or
\nomission shall have elapsed following the giving of such notice and no remedy
\nshall have been commenced. If within such reasonable period, such owner, lessor
\nor mortgagee gives Tenant notice of its intention to remedy the act or omission
\nand thereafter commences and diligently prosecutes the required remedial action
\nto completion, Tenant shall have no right to terminate this Lease on account of
\nthe act or omission.<\/p>\n
8. RULES AND REGULATIONS.<\/p>\n
Tenant and Tenant’s servants, employees, agents, visitors, and
\nlicensees shall observe faithfully, and comply strictly with, the Rules and
\nRegulations annexed hereto and made a part hereof as Schedule A (the “RULES AND
\nREGULATIONS”), and such other and further reasonable Rules and Regulations as
\nLandlord or Landlord’s agents may from time to time adopt on such notice to be
\ngiven as Landlord may reasonably elect. Nothing in this Lease contained shall
\nbe construed to impose upon Landlord any duty or obligation to enforce the Rules
\nand Regulations or terms, covenants or conditions in any other lease, against
\nany other tenant and Landlord shall not be liable to Tenant for violation of the
\nsame by any other tenant, its servants. employees, agents, visitors or
\nlicensees, provided that Landlord shall endeavor to apply the Rules and
\nRegulations in a non-discriminatory manner. No sign, advertisement, object,
\nnotice or lettering shall be exhibited, inscribed, painted or affixed by Tenant,
\nin or on the windows or doors, or on any part of the outside of the Premises or
\nthe Building, or on any point inside the Premises where the same might be
\nvisible outside of the Premises, without the prior written consent of Landlord
\nin each instance. Signs and lettering on doors shall be inscribed, painted or
\naffixed for Tenant by Landlord at the expense of Tenant, and shall be of a size
\nand color reasonably acceptable to Landlord. Tenant acknowledges that Landlord
\nintends to have a uniform signage program for the Building and all signage in
\nthe elevator lobby on the floor on which the Premises is located, as well as all
\nsignage within the Premises which is visible from public portions of the
\nBuilding, shall be required to conform to such program. Landlord may remove any
\nsuch signage and lettering which does not conform to such program or which has
\nnot been approved by Landlord without any liability and may charge the expense
\nincurred by such removal to Tenant.<\/p>\n
13<\/p>\n
9. INSURANCE.<\/p>\n
9.1 Tenant shall obtain and keep in full force and effect during the
\nTerm:<\/p>\n
(i) a policy of commercial general public liability insurance,
\nincluding bodily injury and property damage coverage, with a broad form
\ncontractual liability endorsement or its equivalent, naming, Tenant as insured
\nand protecting Landlord, Landlord’s employees and agents, and any mortgagees or
\nlessors having an interest in the Real Property of which Tenant shall have been
\nnotified, as additional insureds (issued on an “occurrence” basis and not a
\n“claims made” basis) against claims for personal injury, death and\/or third-
\nparty property damage occurring in or about the Premises or the Building, and
\nunder which the insurer agrees to waive any right of recovery such insurer may
\nhave had against Landlord, Landlord’s employees and agents, and any mortgagees
\nor lessors having an interest in the Real Property and to indemnify, defend and
\nhold Landlord harmless from and against, among other things, all cost, expense
\nand\/or liability (including, without limitation, reasonable attorneys’ fees)
\narising out of or based upon any and all claims, accidents, injuries and damages
\nmentioned in Article 37 hereof. Such policy shall contain a provision that no
\nact or omission of Tenant shall affect or limit the obligation of the insurance
\ncompany to pay the amount of any loss sustained to Landlord. The minimum limits
\nof liability applicable exclusively to the Premises shall be a combined single
\nlimit with respect to each occurrence in an amount of not less than $3,000,000
\n(or in any increased amount (or in the form of an umbrella liability policy for
\n“excess” liability coverage) required by Landlord in the exercise of Landlord’s
\ncommercially reasonable discretion); and<\/p>\n
(ii) insurance against loss or damage by fire and such other risks and
\nhazards (including burglary, theft, vandalism, sprinkler leakage, breakage of
\nglass within the Premises and, if the Premises are located at or below grade,
\nbroad form flood insurance) as are insurable under then available standard forms
\nof “all risk” insurance policies, to Tenant’s personal property and business
\nequipment and fixtures (hereinafter, “TENANT’S PROPERTY”) and, whether or not
\nsuch alterations or tenant improvements had been paid for or performed by
\nTenant, any Alterations and tenant improvements in and to the Premises
\n(hereinafter, “TENANT’S WORK”) for the full replacement cost value thereof (with
\nsuch policy having a deductible not in excess of an amount to be determined by
\nLandlord in the exercise of Landlord’s commercially reasonable discretion)
\nprotecting Tenant, Landlord, Landlord’s employees and agents, and any mortgagees
\nor lessors having an interest in the Real Property of which Tenant shall have
\nbeen notified; and<\/p>\n
(iii) business interruption insurance in an amount sufficient to
\nprevent Tenant from becoming a co-insurer.<\/p>\n
9.2 Prior to the time such insurance is first required to be carried
\nby Tenant and thereafter, at least thirty (30) days prior to the expiration or
\nother termination of any such policies, Tenant agrees to deliver to Landlord,
\nupon Landlord’s request therefor, evidence of payment for the policies and true
\nand complete copies of the actual policies together with certificates evidencing
\nsuch insurance. All such policies shall contain endorsements that (a) such
\ninsurance may not be modified or canceled or allowed to lapse except upon thirty
\n(30) days’ written notice to Landlord containing the policy number and the names
\nof the insured and the certificate holder, and (b) Tenant shall be solely
\nresponsible for payment of all premiums under <\/p>\n
14<\/p>\n
such policies and Landlord shall have no obligation for the payment thereof
\nnotwithstanding that Landlord is or may be named as an additional insured.
\nTenant’s failure to provide and keep in force the aforementioned insurance shall
\nbe regarded as a material default hereunder, entitling Landlord to exercise any
\nor all of the remedies as provided in this Lease in the event of Tenant’s
\ndefault. All insurance required to be carried by Tenant pursuant to the terms of
\nthis Lease shall be effected under valid and enforceable policies issued by
\nreputable and independent insurers permitted to do business in the State of New
\nYork which rate, in Best’s Insurance Guide, or any successor thereto (or if
\nthere be none, an organization having a national reputation), as having a
\ngeneral policy-holder rating of “A” and a financial rating of at least “XIII”.
\nTenant shall not carry separate or additional insurance, whether concurrent or
\ncontributing, in the event of any loss or damage, with any insurance required to
\nbe obtained by Tenant under this Lease.<\/p>\n
9.3 The parties hereto shall procure an appropriate clause in, or
\nendorsement on, any “all risk” or fire or extended coverage insurance covering
\nthe Premises, the Building, the personal property, fixtures or equipment located
\nthereon or therein, pursuant to which the insurance companies waive subrogation
\nor consent to a waiver of right of recovery by the insured prior to any loss.
\nThe waiver of subrogation or permission for waiver of the right of recovery in
\nfavor of Tenant shall also extend to all other persons or entities occupying or
\nusing the Premises in accordance with the terms of the Lease. If the payment of
\nan additional premium is required for the inclusion of such waiver of
\nsubrogation provisions or consent to a waiver of right of recovery, each party
\nshall advise the other of the amount of any such additional premiums by written
\nnotice and the other party shall pay the same or shall be deemed to have agreed
\nthat the party obtaining the insurance coverage in question shall be free of any
\nfurther obligations under the provisions hereof relating to such waiver or
\nconsent. It is expressly understood and agreed that Landlord will not be
\nobligated to carry insurance on and will not be responsible for Tenant’s
\nProperty or any Alterations performed by Tenant or insurance against
\ninterruption of Tenant’s business.<\/p>\n
9.4 As to each party hereto, provided such party’s right of full
\nrecovery under the applicable policy is not adversely affected, such party
\nhereby releases the other (along with its servants, agents, employees and
\ninvitees) with respect to any claim (including a claim for negligence) which it
\nmight otherwise have against the other party for loss, damages or destruction
\nwith respect to its property by fire or other casualty i.e. in the case of
\n —-
\nLandlord, as to the Building, and, in the case of Tenant, as to Tenant’s
\nProperty and Tenant’s Work (including rental value or business interruption, as
\nthe case may be) occurring during the Term of this Lease.<\/p>\n
9.5 Nothing in this Article 9 shall prevent Tenant from taking out
\ninsurance of the kind and in the amounts provided for under this Article 9 under
\na blanket insurance policy or policies covering other properties as well as the
\nPremises provided, however, that any such policy or policies of blanket
\ninsurance (i) shall specify therein, or Tenant shall furnish Landlord with a
\nwritten statement from the insurers under such policy or policies specifying,
\nthe amount of the total insurance allocated to the Premises, which amounts shall
\nnot be less than the amounts required by this Article 9, and (ii) such amounts
\nso specified shall be sufficient to prevent Tenant from becoming a co-insurer
\nwithin the terms of the applicable policy or policies, and provided further,
\nhowever, that any such policy or policies of blanket insurance shall, as to the
\nPremises, otherwise comply as to endorsements and coverage with the provisions
\nof this Article 9.<\/p>\n
15<\/p>\n
10. DESTRUCTION OF THE PREMISES: PROPERTY LOSS OR DAMAGE.<\/p>\n
10.1 If the Premises shall be damaged by fire or other casualty, and
\nif Tenant shall give prompt notice thereof to Landlord, the damages shall be
\nrepaired by and at the expense of Landlord and the Rent until such repairs shall
\nbe made shall be reduced in the proportion which the area of the part of the
\nPremises which is not usable by Tenant bears to the total area of the Premises.
\nNotwithstanding anything to the contrary contained herein, Landlord shall have
\nno obligation to repair any damage to, or to replace, any of Tenant’s Property,
\nany Alterations performed by Tenant or other property or effects of Tenant.<\/p>\n
10.2 (a) Anything in subsection 10:1 of this Article 10 to the
\ncontrary notwithstanding, if the Premises are totally damaged or are rendered
\nwholly untenantable, and if Landlord shall decide not to restore the Premises,
\nor if the Building shall be so damaged by fire or other casualty that, in
\nLandlord’s opinion, substantial alteration, demolition, or reconstruction of the
\nBuilding shall be desirable (whether or not the Premises shall have been damaged
\nor rendered untenantable), then in any of such events, Landlord, at Landlord’s
\noption, may, not later than sixty (60) days following the damage, give Tenant a
\nnotice in writing terminating this Lease. If Landlord elects to terminate this
\nLease, the Term shall expire upon the tenth (10th) day after such notice is
\ngiven, and Tenant shall vacate the Premises and surrender the same to Landlord.
\nUpon the termination of this Lease under the conditions provided for in the next
\npreceding sentence, Tenant’s liability for Rent due from and after the date of
\nsuch damage shall cease as of the day following such damage.<\/p>\n
(b) If the Premises are totally damaged or are rendered wholly
\nuntenantable, and if Landlord shall decide to restore the Premises, Landlord
\nshall, within the aforesaid sixty (60) day period, give notice to Tenant of the
\ndate by which Landlord reasonably believes the restoration of the Premises shall
\nbe substantially completed (the “RESTORATION DATE”). If such notice shall
\nindicate that such restoration shall not be completed on or before a date which
\nshall be twelve (12) months following the date of such damage, then Tenant shall
\nhave the right to terminate this Lease by giving notice to Landlord no later
\nthan ten (10) days after receiving such notice. If Tenant shall not so elect to
\nterminate this Lease, but Landlord shall thereafter fail to substantially
\ncomplete the restoration of the Premises on or before the Restoration Date
\n(subject, however, to extension of such restoration period and deferral of such
\nRestoration Date on account of force majeure as to which Tenant shall be
\nnotified), Tenant shall have the right to terminate this Lease by giving written
\nnotice (the “TERMINATION NOTICE”) to Landlord not later than ten (10) days
\nfollowing the Restoration Date (as so extended) and if Landlord shall fail to so
\ncomplete such restoration within thirty (30) days following Landlord’s receipt
\nof such Termination Notice, this Lease shall be deemed canceled and terminated
\nas of the date of the Termination Notice as if such date were the Expiration
\nDate of this Lease. Upon the termination of this Lease under the conditions
\nprovided for in this Section, Tenant’s liability for Rent and additional rent
\nfrom and after the date of such total casualty (but not for any period prior to
\nthe date of such casualty) shall cease as of the day following such casualty.<\/p>\n
10.3 No penalty shall accrue for reasonable delay which may arise by
\nreason of adjustment of fire insurance on the part of Landlord and\/or Tenant,
\nand for reasonable delay on account of “labor troubles” or any other cause
\nbeyond Landlord’s control.<\/p>\n
16<\/p>\n
10.4 The parties agree that this Article 10 constitutes an express
\nagreement governing any case of damage or destruction of the Premises or the
\nBuilding by fire or other casualty, and that Section 227 of the Real Property
\nLaw of the State of New York, which provides for such contingency in the absence
\nof an express agreement, and any other law of like import now or hereafter in
\nforce shall have no application in any such case.<\/p>\n
10.5 Any Building employee to whom any property shall be entrusted by
\nor on behalf of Tenant shall be deemed to be acting as Tenant’s agent with
\nrespect to such property and neither Landlord nor its agents shall be liable for
\nany damage to property of Tenant or of others entrusted to employees of the
\nBuilding, nor for the loss of or damage to any property of Tenant by theft or
\notherwise. Neither Landlord nor its agents shall be liable for any injury or
\ndamage to persons or property or interruption of Tenant’s business resulting
\nfrom fire, explosion, falling plaster, steam, gas, electricity, water, rain or
\nsnow or leaks from any part of the Building or from the pipes, appliances or
\nplumbing works or from the roof, street or subsurface or from any other place or
\nby dampness or by any other cause of whatsoever nature; nor shall Landlord or
\nits agents be liable for any such damage caused by other tenants or persons in
\nthe Building or caused by construction of any private, public or quasi-public
\nwork; nor shall Landlord be liable for any latent defect in the Premises or in
\nthe Building. Anything in this Article 10 to the contrary notwithstanding,
\nnothing in this Lease shall be construed to relieve Landlord from responsibility
\ndirectly to Tenant for any loss or damage caused directly to Tenant wholly or in
\npart by the negligence or willful misconduct of Landlord. Nothing in the
\nforegoing sentence shall affect any right of Landlord to the indemnity from
\nTenant to which Landlord may be entitled under Article 37 hereof in order to
\nrecoup for payments made to compensate for losses of third parties. If at any
\ntime any windows of the Premises are temporarily closed, darkened or bricked-up
\nfor any reason whatsoever including, but not limited to, Landlord’s own acts, or
\nany of such windows are permanently closed, darkened or bricked-up if required
\nby law or related to any construction upon the Building or the Real Property or
\nupon property adjacent to the Real Property by Landlord or others, (including,
\nwithout limitation the construction of any signage on the Building), Landlord
\nshall not be liable for any damage Tenant may sustain thereby and Tenant shall
\nnot be entitled to any compensation therefor nor abatement of Rent nor shall the
\nsame release Tenant from its obligations hereunder nor constitute an eviction.
\nTenant shall reimburse and compensate Landlord as additional rent within ten
\n(10) days after rendition of a statement for all expenditures made by, or
\ndamages or fines sustained or incurred by, Landlord due to non-performance or
\nnon-compliance with or breach or failure to observe any term, covenant or
\ncondition of this Lease upon Tenant’s part to be kept, observed, performed or
\ncomplied with. Tenant shall give immediate notice to Landlord in case of fire
\nor accident in the Premises or in the Building. Tenant shall not move any safe,
\nheavy machinery, heavy equipment, freight, bulky matter or fixtures into or out
\nof the Building without Landlord’s prior consent and payment to Landlord of
\nLandlord’s reasonable costs in connection therewith.<\/p>\n
11. EMINENT DOMAIN.<\/p>\n
11.1 If the whole of the Real Property or the Building or the whole
\nor any material part of the Premises shall be acquired or condemned for any
\npublic or quasi-public use or purpose, this Lease and the Term shall end as of
\nthe date of the vesting of title with the same effect as if said date were the
\nExpiration Date. In the event of any termination of this Lease and the Term<\/p>\n
17<\/p>\n
pursuant to the provisions of this subsection 11.1, the Rent shall be
\napportioned as of the date of sooner termination and any prepaid portion of Rent
\nfor any period after such date shall be refunded by Landlord to Tenant.<\/p>\n
11.2 In the event of any such acquisition or condemnation of all or
\nany part of the Real Property, Landlord shall be entitled to receive the entire
\naward for any such acquisition or condemnation, Tenant shall have no claim
\nagainst Landlord or the condemning authority for the value of any unexpired
\nportion of the Term and Tenant hereby expressly assigns to Landlord all of its
\nright in and to any such award. Nothing contained in this subsection 11.2 shall
\nbe deemed to prevent Tenant from making a separate claim in any condemnation
\nproceedings for the then value of any furniture, furnishings and fixtures
\ninstalled by and at the sole expense of Tenant and included in such taking,
\nprovided that such award shall not reduce the amount of the award otherwise
\npayable to Landlord.<\/p>\n
12. ASSIGNMENT AND SUBLETTING.<\/p>\n
12.1 Except as otherwise set forth in this Article 12, Tenant, for
\nitself, its heirs, distributees, executors, administrators, legal
\nrepresentatives, successors and assigns, expressly covenants that it shall not
\nassign, mortgage, pledge, encumber, or otherwise transfer this Lease, nor
\nunderlet, nor suffer, nor permit the Premises or any part thereof to be used or
\noccupied by others (whether for desk space, mailing privileges or otherwise),
\nwithout the prior written consent of Landlord in each instance. If this Lease
\nbe assigned, or if the Premises or any part thereof be underlet or occupied by
\nanybody other than Tenant, Landlord may, after default by Tenant, collect rent
\nfrom the assignee, undertenant or occupant, and apply the net amount collected
\nto the rent herein reserved, and after Tenant shall have defaulted in respect of
\nany of its obligations under this Lease, Tenant shall hold any amounts it
\nreceives from any undertenant or occupant in constructive trust for payment of
\nTenant’s obligations hereunder; but no assignment, underletting, occupancy or
\ncollection shall be deemed a waiver of the provisions hereof, the acceptance of
\nthe assignee, undertenant or occupant as tenant, or a release of Tenant from the
\nfurther performance by Tenant of covenants on the part of Tenant herein
\ncontained. The consent by Landlord to an assignment or underletting shall not
\nin any way be construed to relieve Tenant from obtaining the express consent in
\nwriting of Landlord to any further assignment or underletting. In no event
\nshall any permitted sublessee assign or encumber its sublease or further sublet
\nall or any portion of its sublet space, or otherwise suffer or permit the sublet
\nspace or any part thereof to be used or occupied by others, without Landlord’s
\nprior written consent in each instance. Any assignment, sublease, mortgage,
\npledge, encumbrance or transfer in contravention of the provisions of this
\nArticle 12 shall be void.<\/p>\n
12.2 If Tenant shall at any time or times during the Term desire to
\nassign this Lease or sublet all or part of the Premises and Landlord’s consent
\nthereto is required under this Article 12, Tenant shall give notice thereof to
\nLandlord, which notice shall be accompanied by (i) the essential terms and
\nconditions of proposed assignment or sublease, including the effective or
\ncommencement date thereof, which shall be not less than thirty (30) nor more
\nthan one hundred and eighty (180) days after the giving of such notice, (ii) a
\nstatement setting forth in reasonable detail the identity of the proposed
\nassignee or subtenant, the nature of its business and its proposed use of the
\nPremises, (iii) current financial information with respect to the proposed<\/p>\n
18<\/p>\n
assignee or subtenant, and (iv) an agreement by Tenant to indemnify Landlord
\nagainst liability resulting from any claims that may be made against Landlord by
\nthe proposed assignee or sublessee or by any brokers or other persons claiming a
\ncommission or similar compensation in connection with the proposed assignment or
\nsublease. The aforesaid notice shall be deemed an offer from Tenant to Landlord
\nwhereby Landlord (or Landlord’s designee) may, at its option, (a) sublease such
\nspace (hereinafter called the “LEASEBACK SPACE”) from Tenant upon the terms and
\nconditions hereinafter set forth (if the proposed transaction is a sublease of
\nall or part of the Premises), or (b) terminate this Lease (if the proposed
\ntransaction is an assignment or a sublease of all or substantially all of the
\nPremises). Said options may be exercised by Landlord by notice to Tenant at any
\ntime within thirty (30) days after the aforesaid notice has been given by Tenant
\nto Landlord; and during such thirty (30) day period Tenant shall not assign this
\nLease nor sublet such space to any person.<\/p>\n
12.3 If Landlord exercises its option to terminate this Lease in the
\ncase whereby Tenant desires either to assign this Lease or sublet all or
\nsubstantially all of the Premises, then, this Lease shall end and expire on the
\ndate that such assignment or sublet was to be effective or commence, as the case
\nmay be, and the Rent and additional rent due hereunder shall be paid and
\napportioned to such date.<\/p>\n
12.4 If Landlord exercises its option to terminate this Lease
\npursuant to subsection 12.2 of this Article 12, Landlord shall be free to and
\nshall have no liability to Tenant if Landlord should lease the Premises (or any
\npart thereof) to Tenant’s prospective assignee or subtenant.<\/p>\n
12.5 If Landlord exercises its option to sublet the Leaseback Space,
\nsuch sublease to Landlord or its designee (as subtenant) shall be at a rental
\nrate equal to the lesser of (x) the rental rate provided for in the proposed
\nsublease and (y) the rental rate per rentable square foot of Rent and additional
\nrent then payable pursuant to this Lease, and shall be for the same term as that
\nof the proposed subletting, and such sublease:<\/p>\n
(a) shall be expressly subject to all of the covenants, agreements,
\nterms, provisions and conditions of this Lease except such as are irrelevant or
\ninapplicable. and except as otherwise expressly set forth to the contrary in
\nthis Article 12;<\/p>\n
(b) shall be upon the same terms and conditions as those contained in
\nthe proposed sublease, except such as are irrelevant or inapplicable and except
\nas otherwise expressly set forth to the contrary in this Article 12;<\/p>\n
(c) shall give the sublessee the unqualified and unrestricted right,
\nwithout Tenant’s permission, to assign such sublease or any interest therein
\nand\/or to sublet the space covered by such sublease or any part or parts of such
\nspace and to make any and all changes, alterations and improvements in the space
\ncovered by such sublease, provided, however, that if such sublease is for less
\nthan all or substantially all of the Term of the lease, then at the end of the
\nterm of such sublease and if requested to do so by Tenant, the Premises shall be
\nrestored by Landlord to a condition reasonably suitable for general office
\npurposes;<\/p>\n
19<\/p>\n
(d) shall provide that any assignee or further subtenant of Landlord
\nor its designee, may, at the election of Landlord, be permitted to make
\nalterations, decorations and installations in such space or any part thereof and
\nshall also provide in substance that any such alterations, decorations and
\ninstallations in such space therein made by any assignee or subtenant of
\nLandlord or its designee may be removed, in whole or in part, by such assignee
\nor subtenant, at its option, prior to or upon the expiration or other
\ntermination of such sublease provided that such assignee or subtenant, at its
\nexpense, shall repair any damage and injury to such space so sublet caused by
\nsuch removal, provided, however, that if such sublease is for less than all or
\nsubstantially all of the Term of the lease, then at the end of the term of such
\nsublease and if requested to do so by Tenant, the Premises shall be restored by
\nLandlord to a condition reasonably suitable for general office purposes; and<\/p>\n
(e) shall also provide that (i) the parties to such sublease expressly
\nnegate any intention that any estate created under such sublease be merged with
\nany other estate held by either of said parties, (ii) any assignment or
\nsubletting by Landlord or its designee (as the subtenant) may be for any purpose
\nor purposes that Landlord, in Landlord’s uncontrolled discretion, shall deem
\nsuitable or appropriate, (iii) Tenant, at Tenant’s expense, shall and will at
\nall times provide and permit reasonably appropriate means of ingress to and
\negress from such space so sublet by Tenant to Landlord or its designee, (iv)
\nLandlord, at Tenant’s expense, to the extent required by the proposed sublease,
\nmay make such alterations as may be required or deemed necessary by Landlord to
\nphysically separate the subleased space from the balance of the Premises and to
\ncomply with any legal or insurance requirements relating to such separation, and
\n(v) that at the expiration of the term of such sublease, Tenant will accept the
\nspace covered by such sublease in its then existing conditions, subject to the
\nobligations of the sublessee to make such repairs thereto as may be necessary to
\npreserve the premises demised by such sublease in good order and condition.<\/p>\n
12.6 (i) If Landlord exercises its option to sublet the Leaseback
\nSpace, Landlord shall indemnify and save Tenant harmless from all obligations
\nunder this Lease as to the Leaseback Space during the period of time it is so
\nsublet to Landlord.<\/p>\n
(ii) Performance by Landlord, or its designee, under a sublease of the
\nLeaseback Space shall be deemed performance by Tenant of any similar obligation
\nunder this Lease and any default under any such sublease shall not give rise to
\na default under a similar obligation contained in this Lease nor shall Tenant be
\nliable for any default under this Lease or deemed to be in default hereunder if
\nsuch default is occasioned by or arises from any act or omission of the tenant
\nunder such sublease or is occasioned by or arises from any act or omission of
\nany occupant holding under or pursuant to any such sublease.<\/p>\n
(iii) Tenant shall have no obligation, at the expiration or earlier
\ntermination of the Term, to remove any alteration, installation or improvement
\nmade in the Leaseback Space by Landlord (or its designee).<\/p>\n
12.7 In the event Landlord does not exercise either option provided
\nto it pursuant to subsection 12.2 and provided that Tenant is not in default of
\nany of Tenant’s obligations under this Lease (after notice and the expiration of
\nany applicable grace period) as of the time of <\/p>\n
20<\/p>\n
Landlord’s consent, and as of the effective date of the proposed assignment or
\ncommencement date of the proposed sublease, Landlord’s written consent to the
\nproposed assignment or sublease shall be given within five (5) business days
\nafter the expiration of the thirty (30) day period described in Section 12.2,
\nprovided and upon condition that:<\/p>\n
(i) Tenant shall have complied with the provisions of subsection
\n12.2 and Landlord shall not have exercised any of its options under said
\nsubsection 12.2 within the time permitted therefor;<\/p>\n
(ii) In Landlord’s reasonable judgment the proposed assignee or
\nsubtenant is engaged in a business or activity, and the Premises, or the
\nrelevant part thereof, will be used in a manner, which (a) is in keeping with
\nthe then standards of the Building, (b) is limited to the use of the Premises
\nfor the Permitted Uses, and (c) will not violate any negative covenant as to use
\ncontained in any other lease of office space in the Building;<\/p>\n
(iii) The proposed assignee or subtenant is a reputable person of
\ngood character and with sufficient financial worth considering the
\nresponsibility involved, and Landlord has been furnished with reasonable proof
\nthereof;<\/p>\n
(iv) Neither (a) the proposed assignee or sublessee nor (b) any
\nperson which, directly or indirectly, controls, is controlled by, or is under
\ncommon control with, the proposed assignee or sublessee, is then an occupant of
\nany part of the Building provided Landlord has comparable space available in the
\nBuilding,<\/p>\n
(v) The proposed assignee or sublessee is not a person with whom
\nLandlord is then negotiating to lease space in the Building or a person who has
\nleased or negotiated to lease space in the Building during the six (6) month
\nperiod ending on the date of the proposed assignment or sublet;<\/p>\n
(vi) The form of the proposed sublease or instrument of assignment
\nshall be in form reasonably satisfactory to Landlord and shall comply with the
\napplicable provisions of this Article 12;<\/p>\n
(vii) There shall not be more than two (2) subtenants (including
\nLandlord or its designee) of the Premises;<\/p>\n
(viii) The rental and other terms and conditions of the sublease are
\nsubstantially similar to those contained in the notice furnished to Landlord
\npursuant to subsection 12.2;<\/p>\n
(ix) Tenant shall reimburse Landlord on demand for the reasonable
\ncosts that may be incurred by Landlord in connection with said assignment or
\nsublease, including, without limitation, the costs of making investigations as
\nto the acceptability of the proposed assignee or subtenant, and reasonable legal
\ncosts incurred in connection with the granting of any requested consent;<\/p>\n
(x) Tenant shall not have advertised or publicized in any way the
\navailability of the Premises without prior notice to and approval by Landlord,
\nwhich approval shall not be <\/p>\n
21<\/p>\n
unreasonably withheld, nor shall any advertisement state the name (as
\ndistinguished from the address) of the Building or proposed rental rate lower
\nthan the rental rate then payable under this Lease; provided, however, that
\nnothing contained herein shall preclude Tenant from entering into a sublease at
\nsuch a lower rental rate;<\/p>\n
(xi) The proposed occupancy shall not increase the office cleaning
\nrequirements or impose an extra burden upon services to be supplied by Landlord
\nto Tenant, unless Tenant agrees to pay any extra costs incurred thereby; and<\/p>\n
(xii) The proposed subtenant or assignee shall not be entitled,
\ndirectly or indirectly, to diplomatic or sovereign immunity and shall be subject
\nto the service of process in, and the jurisdiction of the courts of New York
\nState.<\/p>\n
Except for any subletting by Tenant to Landlord or its designee pursuant to
\nthe provisions of this Article 12, each subletting pursuant to this subsection
\n12.7 shall be subject to all of the covenants, agreements, terms, provisions and
\nconditions contained in this Lease. Notwithstanding any such subletting to
\nLandlord or any such subletting to any other subtenant and\/or acceptance of Rent
\nor additional rent by Landlord from any subtenant, Tenant shall and will remain
\nfully liable for the payment of the Rent and additional rent due and to become
\ndue hereunder and for the performance of all the covenants, agreements, terms,
\nprovisions and conditions contained in this Lease on the part of Tenant to be
\nperformed and all acts and omissions of any licensee or subtenant or anyone
\nclaiming under or through any subtenant which shall be in violation of any of
\nthe obligations of this Lease shall be deemed to be a violation by Tenant.
\nTenant further agrees that notwithstanding any such subletting, no other and
\nfurther subletting of the Premises by Tenant or any person claiming through or
\nunder Tenant shall or will be made except upon compliance with and subject to
\nthe provisions of this Article 12. If Landlord shall decline to give its consent
\nto any proposed assignment or sublease, or if Landlord shall exercise either of
\nits options under subsection 12.2, Tenant shall indemnify, defend and hold
\nharmless Landlord against and from any and all loss, liability, damages, costs,
\nand expenses (including reasonable counsel fees) resulting from any claims that
\nmay be made against Landlord by the proposed assignee or sublessee or by any
\nbrokers or other persons claiming a commission or similar compensation in
\nconnection with the proposed assignment or sublease.<\/p>\n
12.8 In the event that (i) Landlord fails to exercise either of its
\noptions under subsection 12.2 and consents to a proposed assignment or sublease,
\nand (ii) Tenant fails to execute and deliver the assignment or sublease to which
\nLandlord consented within ninety (90) days after the giving of such consent,
\nthen, Tenant shall again comply with all of the provisions and conditions of
\nsubsection 12.2 before assigning this Lease or subletting all or part of the
\nPremises, subject to the provisions of Section 20.2 of this Lease.<\/p>\n
12.9 With respect to each and every sublease or subletting authorized by
\nLandlord under the provisions of this Lease, it is further agreed that:<\/p>\n
(i) No subletting shall be for a term ending later than one (1)
\nday prior to the Expiration Date of this Lease;<\/p>\n
22<\/p>\n
(ii) No sublease shall be delivered, and no subtenant shall take
\npossession of the Premises or any part thereof, until an executed counterpart of
\nsuch sublease has been delivered to Landlord;<\/p>\n
(iii) Each sublease shall provide that it is subject and subordinate
\nto this Lease and to the matters to which this Lease is or shall be subordinate,
\nand that in the event of termination, re-entry or dispossession by Landlord
\nunder this Lease Landlord may, at its option, take over all of the right, title
\nand interest of Tenant, as sublessor, under such sublease, and such subtenant
\nshall, at Landlord’s option, attorn to Landlord pursuant to the then executory
\nprovisions of such sublease, except that Landlord shall not (a) be liable for
\nany previous act or omission of Tenant under such sublease, (b) be subject to
\nany counterclaim, offset or defense, or (c) be bound by any previous
\nmodification of such sublease or by any previous prepayment of more than one (1)
\nmonth’s rent. The provisions of this Article 12 shall be self-operative and no
\nfurther instrument shall be required to give effect to this provision; and<\/p>\n
(iv) In the event that there is any purported assignment,
\nsubletting or other occupancy of the Premises in violation of this Article 12,
\nthen, in addition to and without waiver of any other of Landlord’s rights and
\nremedies, such person agrees, by entering into such purported assignment, sublet
\nor other occupancy, without need for any further writing, to, at Landlord’s
\nelection, attorn to Landlord as if such person too was named as Tenant
\nhereunder.<\/p>\n
12.10 If the Landlord shall give its consent to any assignment of
\nthis Lease or to any sublease for which Landlord’s consent is required under
\nthis Article 12, Tenant shall in consideration therefor, pay to Landlord, as
\nadditional rent:<\/p>\n
(i) in the case of an assignment, an amount equal to fifty percent
\n(50%) of all sums and other considerations paid to Tenant by the assignee for or
\nby reason of such assignment (including, but not limited to, sums paid for the
\nsale of Tenant’s fixtures, leasehold improvements, equipment, furniture,
\nfurnishings or other personal property less, in the case of a sale thereof, the
\nthen net unamortized or undepreciated cost thereof determined on the basis of
\nTenant’s federal income tax returns) less all reasonable expenses actually
\nincurred by Tenant including, without limitation, on account of brokerage
\ncommissions, work allowances, advertising costs, and architect and legal fees in
\nconnection with such assignment; and<\/p>\n
(ii) in the case of a sublease, fifty percent (50%) of any rents,
\nadditional charges or other consideration actually paid under the sublease to
\nTenant by the subtenant which is in excess of the Rent and additional rent
\naccruing during the term of the sublease in respect of the subleased space (at
\nthe rate per square foot payable by Tenant hereunder) pursuant to the terms
\nhereof (including, but not limited to, sums paid for the sale or rental of
\nTenant’s fixtures, leasehold improvements, equipment, furniture or other
\npersonal property, less, in the case of the sale thereof, the then net
\nunamortized or undepreciated cost thereof determined on the basis of Tenant’s
\nfederal income tax returns), less all reasonable expenses actually incurred by
\nTenant including, without limitation, on account of brokerage commissions, work
\nallowances, advertising costs, and architect and legal fees, and the cost of
\ndemising the premises so sublet (including the cost of constructing any
\nnecessary entranceways) in connection with such <\/p>\n
23<\/p>\n
sublease. The sums payable under this subsection 12.10(ii) shall be paid to
\nLandlord as and when received by Tenant from the subtenant.<\/p>\n
12.11 (i) If Tenant is a corporation, the provisions of subsection 12.1
\nshall apply to (x) a transfer (by one or more transfers occurring within any
\ntwelve (12) month period) of a majority of the stock of Tenant, (y) the creation
\nof new stock (by one or more transactions occurring within any twelve (12) month
\nperiod) resulting in the vesting of a majority of the stock of Tenant in a party
\nor parties who are not stockholders as of the date immediately prior to such
\ntransaction, as if such transfer or vesting of a majority of the stock of Tenant
\nwere an assignment of this Lease or (z) an initial public offering of the stock
\nof the Tenant on a nationally recognized stock exchange; but said provisions
\nshall not apply to the circumstances set forth in clause (z) or to transactions
\nwith a corporation into or with which Tenant is merged or consolidated or to
\nwhich substantially all of Tenant’s assets are transferred, provided that in any
\nof such events (a) the successor to Tenant has a net worth computed in
\naccordance with generally accepted accounting principles at least equal to the
\ngreater of (1) the net worth of Tenant immediately prior to such merger,
\nconsolidation, transfer or initial public offering, or (2) the net worth of
\nTenant herein named on the date of this Lease, (b) proof satisfactory to
\nLandlord of such net worth shall have been delivered to Landlord at least ten
\n(10) days prior to the effective date of any such transaction, and (c) such
\ntransaction is not entered into for the purpose of avoiding the provisions of
\nthis Article 12.<\/p>\n
(ii) If Tenant is a partnership, the provisions of subsection 12.1
\nshall apply to a transfer (by one or more transfers occurring within any twelve
\n(12) month period) of a majority interest in the partnership, as if such
\ntransfer were an assignment of this Lease.<\/p>\n
(iii) Notwithstanding anything to the contrary contained in this
\nArticle 12, Tenant may assign this Lease and sublease all or any part of the
\nPremises to any Affiliate of Tenant without obtaining Landlord’s consent but
\nsubject to all of the other provisions of this Article 12. For purposes of this
\nArticle 12 “AFFILIATE OF TENANT” shall mean any person or entity directly or
\nindirectly controlling, controlled by, or under common control with, Tenant. For
\npurposes of this definition “control” (including with correlative meanings, the
\nterms “controlling,” “controlled by” and “under common control with”), as
\napplied to any person or entity, means the possession, directly or indirectly,
\nof the power to direct or cause the direction of the management and policies of
\nthat person or entity, whether through the ownership of voting securities, by
\ncontract, or otherwise, together with ownership of at least 51 % of the equity
\nand voting interests in such person or entity.<\/p>\n
(iv) Notwithstanding anything to the contrary contained in this
\nArticle 12, as long as Salon Internet, Inc. is the Tenant hereunder, Tenant
\nshall have the privilege, subject to the terms and conditions hereinafter set
\nforth, in connection with an on-going business relationship with Tenant, to
\npermit any temporary use or occupancy of desk space in the Premises of not more
\nthan ten percent (10%) of the Premises by customers, clients or investors of
\nSalon Internet, Inc. (each individually, the “Desk Space Occupant”) without (A)
\nobtaining the prior consent of Landlord and (B) such arrangement being subject
\nto the subletting and assignment provisions of this Lease, provided any such
\noccupancy is maintained in accordance with the following terms and conditions:
\n(1) such arrangement will terminate automatically upon the occurrence of a<\/p>\n
24<\/p>\n
default continuing beyond any applicable notice and\/or grace period under this
\nLease; (2) the Desk Space Occupant shall use the Premises in conformity with all
\napplicable provisions of this Lease; (3) in no event shall the use of any
\nportion of the Premises by the Desk Space Occupant be deemed to create any
\nright, title or interest in or to the Premises; (4) the portion of the Premises
\noccupied by the Desk Space Occupant and the portion of the Premises occupied by
\nTenant shall not be, shall not be required by law to be, separated by demising
\nwall so as to create a separate entrance from the elevator landing or public
\ncorridors; (5) Tenant shall receive no rent, payment or other consideration in
\nconnection with the occupancy by the Desk Space Occupant (except for any
\nexpenses incurred by Tenant in connection with the Desk Space Occupant’s use of
\nsuch Premises; and any such arrangement shall be for a bona fide and valid
\nbusiness purpose, and the Desk Space Occupant shall be receiving substantial
\nservices to or supplying substantial economic benefit to, the Tenant. Tenant
\nhereby represents and covenants that the Desk Space Occupant is substantially in
\nthe same business as Tenant, and Tenant hereby agrees that the foregoing
\nprovisions of this Section 12.11(iv) shall apply for only such period as the
\nDesk Space Occupant continues in such business, and that Tenant shall give
\nLandlord written notice of any change in the nature of the Desk Space Occupant’s
\nbusiness. In the event that the nature of the Desk Space Occupant’s business
\nchanges, Tenant’s rights under this Section 12.11(iv) shall be contingent upon
\nLandlord’s approval of such business, which approval may be withheld in
\nLandlord’s sole discretion. Any such use of all or any portion of the Premises
\nby the Desk Space Occupant shall not relieve Tenant of any of its obligations or
\nliabilities under this Lease.<\/p>\n
12.12 Any assignment or transfer, whether made with Landlord’s consent
\npursuant to subsection 12.1 or without Landlord’s consent pursuant to subsection
\n12.11, shall be made only if, and shall not be effective until, the assignee
\nshall execute, acknowledge and deliver to Landlord an agreement in form and
\nsubstance reasonably satisfactory to Landlord whereby the assignee shall assume
\nthe obligations of this Lease on the part of Tenant to be performed or observed
\nfrom and after the date of such assignment as if it was the original named
\nTenant and whereby the assignee shall agree that the provisions in subsection
\n12.1 shall, notwithstanding such assignment or transfer, continue to be binding
\nupon it in respect of all future assignments and transfers. The original named
\nTenant covenants that, notwithstanding (i) any assignment or transfer, whether
\nor not in violation of the provisions of this Lease, (ii) the acceptance of Rent
\nand\/or additional rent by Landlord from an assignee, transferee or any other
\nparty, (iii) any modification of this Lease entered into between Landlord and an
\nassignee, (iv) any exercise by an assignee of any option to extend, expand or
\nrenew this Lease set forth herein, or (v) any default by an assignee, whether or
\nnot the original named Tenant has notice thereof, the original named Tenant
\nshall remain fully liable for the payment of the Rent and additional rent and
\nfor the other obligations of this Lease on the part of Tenant to be performed or
\nobserved.<\/p>\n
12.13 The joint and several liability of Tenant and any immediate or remote
\nsuccessor in interest of Tenant and the due performance of the obligations of
\nthis Lease on Tenant’s part to be performed or observed shall not be discharged,
\nreleased or impaired in any respect by any agreement or stipulation made by
\nLandlord extending the time, or modifying any of the obligations, of this Lease,
\nor by any waiver or failure of Landlord to enforce any of the obligations of
\nthis Lease.<\/p>\n
25<\/p>\n
12.14 The listing of any name other than that of Tenant, whether on the
\ndoors of the Premises or the Building directory, or otherwise, shall not operate
\nto vest any right or interest in this Lease or in the Premises, nor shall it be
\ndeemed to be the consent of Landlord to any assignment or transfer of this Lease
\nor to any sublease of the Premises or to the use or occupancy thereof by others,
\nnor shall it be deemed notice to Landlord that anyone other than the original
\nnamed Tenant or an assignee or subtenant permitted hereunder is occupying the
\nPremises. Any such listing, shall constitute a privilege extended by Landlord,
\nrevocable at Landlord’s will by notice to Tenant.<\/p>\n
12.15 INTENTIONALLY DELETED.
\n ——————— <\/p>\n
12.16 If the Landlord shall recover or come into possession of the Premises
\nbefore the date herein fixed for the termination of this Lease, Landlord shall
\nhave the right, at its option, to take over any and all subleases or sublettings
\nof the Premises or any part thereof made by Tenant and to succeed to all the
\nrights of said subleases and sublettings or such of them as it may elect to take
\nover. Tenant hereby expressly assigns and transfers to Landlord such of the
\nsubleases and sublettings as Landlord may elect to take over at the time of such
\nrecovery of possession, such assignment and transfer not to be effective until
\nthe termination of this Lease or re-entry by Landlord hereunder or if Landlord
\nshall otherwise succeed to Tenant’s estate in the Premises, at which time Tenant
\nshall upon request of Landlord, execute, acknowledge and deliver to Landlord
\nsuch further instruments of assignment and transfer as may be necessary to vest
\nin Landlord the then existing subleases and sublettings. Every subletting
\nhereunder is subject to the condition and by its acceptance of and entry into a
\nsublease, each subtenant thereunder shall be deemed conclusively to have thereby
\nagreed from and after the termination of this Lease or re-entry by Landlord
\nhereunder of or if Landlord shall otherwise succeed to Tenant’s estate in the
\nPremises, that such subtenant shall waive any right to surrender possession or
\nto terminate the sublease and, at Landlord’s election, such subtenant shall be
\nbound to Landlord for the balance of the term of such sublease and shall attorn
\nto and recognize Landlord, as its landlord, under all of the then executory
\nterms of such sublease, except that Landlord shall not (i) be liable for any
\nprevious act, omission or negligence of Tenant under such sublease. (ii) be
\nsubject to any counterclaim, defense or offset, (iii) be bound by any previous
\nmodification or amendment of such sublease (unless Landlord shall have expressly
\nconsented to such modification or amendment) or by any previous prepayment of
\nmore than one (1) month’s rent and additional rent which shall be payable as
\nprovided in the sublease, (iv) be obligated to repair the subleased space or the
\nBuilding or any part thereof, in the event of total or substantial total damage
\nbeyond such repair as can reasonably be accomplished from the net proceeds of
\ninsurance actually made available to Landlord, (v) be obligated to repair the
\nsubleased space or the Building or any part thereof, in the event of partial
\ncondemnation beyond such repair as can reasonably be accomplished from the net
\nproceeds of any award actually made available to Landlord as consequential
\ndamages allocable to the part of the subleased space or the Building not taken
\nor (vi) be obligated to perform any work in the subleased space of the Building
\nor to prepare them for occupancy beyond Landlord’s obligations under this Lease,
\nand the subtenant shall execute and deliver to Landlord any instruments Landlord
\nmay reasonably request to evidence and confirm such attornment. Each subtenant
\nor licensee of Tenant shall be deemed automatically upon and as a condition of
\noccupying or using the Premises or any part thereof, to have given a waiver of
\nthe type described in and to the extent and upon the conditions set forth in
\nthis Article 12.<\/p>\n
26<\/p>\n
13. CONDITION OF THE PREMISES.<\/p>\n
Tenant agrees (i) to accept possession of the Premises in the condition
\nwhich shall exist on the Commencement Date “AS IS”, and further agrees that
\nLandlord shall have no obligation, to perform any work or make any installations
\nin order to prepare the Premises for Tenant’s occupancy, unless otherwise
\nprovided in this Lease, and (ii) Landlord and Landlord’s agents have made no
\nrepresentations, warranties or promises whatsoever with respect to the Premises,
\nthe Building, the Real Property, the rents, leases, Taxes. or any other matter
\nor thing, except as herein expressly set forth, and no rights, easements or
\nlicenses are acquired by Tenant by implication or otherwise except as expressly
\nset forth ‘in this Lease. Tenant represents and warrants that it is fully
\nfamiliar with the Premises and has thoroughly inspected same. The taking of
\npossession of the Premises by Tenant shall be conclusive evidence as against
\nTenant that, at the time such possession was so taken, the Premises were in good
\nand satisfactory condition, and that all of the Premises and appurtenances
\nthereto that are the subject of this Lease have been received by Tenant.<\/p>\n
14. ACCESS TO PREMISES.<\/p>\n
14.1 Landlord reserves the right, and Tenant shall permit Landlord,
\nwithout any of the same constituting an eviction and without incurring liability
\nto Tenant therefor, (a) to install, erect, use and maintain, repair and replace
\npipes, ducts and conduits in and through the Premises; provided, however, that
\n ——– ——-
\nLandlord shall, to the extent reasonably practicable under the circumstances,
\ndisguise, conceal or camouflage the pipes, ducts and conduits; (b) to change the
\narrangement and\/or location of public entrances, passageways, doors, doorways,
\ncorridors, elevators, stairs, toilets or other public parts of the Building,
\nprovided that any such changes will not materially decrease the useable square
\nfeet of the Premises; (c) to change the Building name or address; and (d) to
\nimpose such controls as it deems reasonably prudent with respect to access to
\nthe Building by Tenant’s visitors. Landlord or Landlord’s agents shall have the
\nright to enter the Premises at all reasonable times and, where reasonably
\nfeasible, upon reasonable advance notice to Tenant, to examine the same, to show
\nthem to prospective or existing purchasers, mortgagees, lessors or lessees of
\nthe Building or space therein, and to make such decorations, repairs,
\nalterations, improvements or additions as Landlord may deem reasonably necessary
\nor desirable to the Premises or to any other portion of the Building or which
\nLandlord may elect to perform following Tenant’s failure to make repairs or
\nperform any work which Tenant is obligated to perform under this Lease, or for
\nthe purpose of complying with laws, regulations or other requirements of
\ngovernment authorities and Landlord shall be allowed to take all material into
\nand upon the Premises that may be required therefor without the same
\nconstituting an eviction or constructive eviction of Tenant in whole or in part
\nand the rent shall in no wise abate while said repairs, alterations,
\nimprovements, or additions are being made, by reason of loss or interruption of
\nbusiness of Tenant, or otherwise. During the one year prior to the Expiration
\nDate or the expiration of any renewal or extended term, Landlord may exhibit the
\nPremises to prospective tenants thereof. If, during the last twelve (12) months
\nof the Term, Tenant shall have abandoned the Premises and removed all or
\nsubstantially all of Tenant’s property therefrom, Landlord may immediately enter
\nand alter. renovate and redecorate the Premises, without elimination or
\nabatement of rent, or incurring liability to Tenant for any compensation, and
\nsuch acts shall not be deemed an actual or constructive eviction and shall have
\nno effect upon this <\/p>\n
27<\/p>\n
Lease. If Tenant shall not be personally present to open and permit an entry
\ninto the Premises, at any time, when for any reason an entry therein shall be
\nnecessary or permissible, Landlord or Landlord’s agents may enter the same by a
\nmaster key, or may, only in an emergency, forcibly enter the same, without
\nrendering Landlord or such agents liable therefor (if during such entry Landlord
\nor Landlord’s agents shall accord reasonable care to Tenant’s property), and
\nwithout in any manner affecting the obligations and covenants of this Lease.
\nNothing herein contained, however, shall be deemed or construed to impose upon
\nLandlord any obligation, responsibility or liability whatsoever, for the care,
\nsupervision or repair of the Building or any part thereof, other than as herein
\nprovided, unless caused by Landlord’s negligence or that of its agents.<\/p>\n
14.2 (A) Tenant understands and agrees that the Landlord intends to
\nperform substantial renovation work in and to the public parts of the Building
\nand the mechanical systems serving the Building (which work may include the
\nrepair or replacement of the building exterior facade, window glass, elevators,
\nelectrical systems, air-conditioning and ventilating systems, plumbing systems,
\ncommon hallway or lobby, requiring access to the same from within the Premises)
\nat any time or from time to time during the Term, and that Landlord shall incur
\nno liability to Tenant, nor shall Tenant be entitled to any abatement of rent,
\non account of any noise, vibration or other disturbance to Tenant’s business at
\nthe Premises (provided that Tenant is not denied access to the Premises) which
\nshall arise out of the performance by Landlord of the aforesaid renovations at
\nthe Building; provided Landlord shall use reasonable efforts to minimize
\ninterference with Tenant’s occupancy of the Premises. Tenant agrees to grant
\naccess to the Premises at all reasonable times, upon reasonable notice, for the
\npurpose of performing the aforesaid renovations. Tenant acknowledges and agrees
\nthat neither the exterior walls of the Building nor the exterior of the windows
\nand the exterior areas created by the Building set-backs are part of the
\nPremises and Landlord reserves all rights with respect to those walls, windows
\nand set-back areas, including, without limitation, the right of access to such
\nset-back areas and the right to construct permanent signage or other
\nimprovements on such set-back areas and elsewhere on the exterior of the
\nBuilding which may, among other things, obstruct views from the Premises.
\nSubject to the provisions of Section 14.2 (B) below, Landlord shall have no
\nliability to Tenant, nor shall Tenant be entitled to any abatement of rent or
\nclaim of constructive eviction or other claim for damages on account of any
\nconstruction or operation of signage or other improvements on the Building or on
\naccount of the loss of light or views from the Premises due to permanent or
\ntemporary signage or signage improvements on the Building; provided, however,
\nthat in the event that Landlord shall voluntarily construct any signage or other
\nimprovement on the exterior of the Building (other than any improvement required
\nby any applicable law, rule or regulation or in the case of an emergency in
\nconnection with any repair that Landlord or Landlord’s agents is performing to
\nthe Building), Landlord shall use all reasonable efforts to notify Tenant of the
\nsame no later than five (5) business days prior to the initial construction
\nthereof.<\/p>\n
(B) Notwithstanding anything in this Lease to the contrary, provided
\nthat Tenant is not then in default beyond the expiration of any applicable
\nnotice and cure periods, in the event that Landlord has voluntarily constructed
\nany signage or other improvement on the exterior of the Building (but excluding
\nany improvement required by any applicable law, rule or regulation or otherwise
\nreasonably necessary in connection with any repair that Landlord or Landlord’s
\nagents is performing to the Building) which remains in place for longer than
\nthree (3)<\/p>\n
28<\/p>\n
months (the “TEMPORARY PERIOD”) and which has the result of substantially
\nblocking Tenant’s views from the Premises (it being understood and agreed that
\n“substantial blockage” or “substantially blocking,” as such terms are used in
\nthis Section, shall mean any blockage of more than thirty-three and one-third
\npercent (33 1\/3%) of the windows of the Premises), Tenant shall have the right
\nno later than fifteen (15) business days after the expiration of the Temporary
\nPeriod (the “RELOCATION NOTIFICATION PERIOD”) to elect to be relocated in the
\nBuilding to the Signage Substitution Space (as hereinafter defined), subject to
\nthe following terms and provisions:<\/p>\n
(i) Tenant shall provide Landlord with written notice (“TENANT’S
\nRELOCATION REQUEST”) of its intention to exercise its right to relocation under
\nthis Section 14.2(B) within the Relocation Notification Period (it being
\nunderstood that Landlord shall have the right to designate the Signage
\nSubstitution Space in accordance with the terms and provisions of this Section),
\nwhich notice shall contain a certificate of an authorized officer of Tenant
\ncertifying that the views and\/or light from the Premises have been substantially
\nblocked as a result of such permanent signage or improvement on the exterior of
\nthe Building.<\/p>\n
(ii) Landlord shall provide Tenant, no later than fifteen (15)
\nbusiness days after Landlord receives Tenant’s Relocation Request, with written
\nnotice (“LANDLORD’S SIGNAGE RELOCATION RESPONSE”) describing the Signage
\nSubstitution Space and specifying the rental rate therefor and the effective
\ndate of such substitution of the Signage Substitution Space; provided that such
\neffective date shall be no earlier than fifteen (15) days and no later than
\nthirty (30) days after Tenant’s receipt of Landlord’s Signage Relocation
\nResponse.<\/p>\n
(iii) (1) Subject to the provisions herein, the Signage Substitution
\nSpace shall (A) be located anywhere in the Building as Landlord shall determine
\nin its sole discretion, (B) contain at least the same number of offices as the
\nPremises, (C) have a similar or better layout as the Premises, (D) consist of at
\nleast the same square footage as the Premises and (E) have any exposure and not
\nbe substantially blocked by signage as of the date of Landlord’s Signage
\nRelocation Response; provided, however, that Landlord will use reasonable
\nefforts to provide that such Signage Substitution Space shall (x) contain at
\nleast the same number of windows as the Premises, (y) have the same or
\nsubstantially similar exposure and substantially similar views as the Premises,
\nand (z) be located on the fourteenth (14th) floor of the Building or higher.<\/p>\n
(2) In the event that the Signage Substitution Space shall
\neither (A) be on a floor lower than the fourteenth (14th) floor of the Building
\nor (B) be on a higher floor of the Building but with an exposure other than the
\nSouthwest exposure of the Premises, the Rent for such Signage Substitution Space
\nshall be the lesser of (x) the Rent set forth in subsection 1.2(iii) of this
\nLease, or (y) the then fair market rent for the Signage Substitution Space, as
\nsuch rent shall be reasonably determined by Landlord.<\/p>\n
(3) In the event that Landlord shall be unable to relocate
\nTenant to any Signage Substitution Space anywhere in the Building which complies
\nwith the provisions of Sections 14(B)(iii)(1)(A)(iii),(B), (C), (D) and (E)
\nabove, Tenant shall have the right to elect to terminate this Lease; provided
\nthat Tenant shall provide Landlord, no later than ten (10) business <\/p>\n
29<\/p>\n
days after Tenant receives Landlord’s Signage Relocation Response, written
\nnotice exercising its termination right and specifying the effective date of
\nsuch termination, which effective date shall be no earlier than fifteen (15)
\ndays and no later than sixty (60) days after Tenant’s receipt of Landlord’s
\nSignage Relocation Response, and whereupon such effective date this Lease shall
\nterminate and be of no further force and effect, except for such terms and
\nprovisions which by their express terms survive the termination hereof.<\/p>\n
(iv) Tenant may exercise its right to relocate to the Signage
\nSubstitution Space by providing Landlord with notice, no later than ten (10)
\nbusiness days after Tenant receives Landlord’s Signage Relocation Response,
\nwhich notice shall be irrevocable after Landlord’s receipt thereof. TIME IS OF
\nTHE ESSENCE WITH RESPECT TO THE FOREGOING TIME PERIOD AND NO EXTENSIONS SHALL BE
\nGRANTED BY LANDLORD. If Tenant does not deliver to Landlord its written response
\nto Landlord’s Signage Relocation Response in accordance with the foregoing
\nprovisions and within the applicable time period, then (a) Tenant shall have
\nforever waived and relinquished its right to relocate to any substitute space by
\nvirtue of any signage or other improvement blocking Tenant’s views, (b) Landlord
\nshall at any time thereafter be entitled to lease the Signage Substitute Space
\nto others as Landlord in its sole discretion may desire, and (c) Tenant, upon
\nLandlord’s request, shall promptly deliver to Landlord a notice acknowledging
\nthat Tenant has forever waived and relinquished its right to exercise the
\nrelocation right granted under this Section 14.2(B).<\/p>\n
(v) If Tenant timely accepts Landlord’s Signage Relocation
\nResponse in accordance with subsection (iv) above, then Landlord shall
\nsubstitute, instead of the Premises, other space of at least the area of the
\nPremises and satisfying the other conditions set forth herein (such other space
\nbeing hereinafter referred to as the “SIGNAGE SUBSTITUTION SPACE”) and, as of
\nthe effective date specified in Landlord’s Signage Relocation Response:<\/p>\n
(1) The description of the Premises set forth in the Lease
\nshall, without further act on the part of Landlord and Tenant, be deemed amended
\nso that the Signage Substitution Space shall be deemed to be the Premises under
\nthe Lease, and all of the terms, covenants, conditions and provisions and
\nagreements of the Lease shall continue in full force and effect and apply to the
\nSignage Substitution Space (it being understood and agreed that Tenant’s Rent
\nshall not increase as a result of such relocation but that Tenant’s Rent may
\ndecrease in accordance with Section 14.2(B)(iii) above only); and<\/p>\n
(2) Tenant shall move from the original Premises into the
\nSignage Substitution Space on or before the effective date of the Signage
\nSubstitution Space in its “AS IS” condition as of the effective date stated in
\nLandlord’s Signage Relocation Response, subject to the alterations Landlord is
\nrequired to perform pursuant to the provisions of this subsection 14(B)(v)(2).
\nIf Tenant exercises this relocation right, Landlord shall pay directly, upon
\npresentation of invoices, for any of Tenant’s actual and reasonable out-of-
\npocket expenses for moving and installing Tenant’s furniture, equipment,
\nsupplies, telephones and telephone equipment and all of Tenant’s other property
\nin the Premises from the original Premises to the Substitution Space, which move
\nand installation shall be accomplished during the period beginning with the
\nclose of Tenant’s business on a Friday and ending with the opening of Tenant’s
\nbusiness on the next following Monday, but Tenant shall not be compensated and<\/p>\n
30<\/p>\n
Landlord shall not be liable for any inconvenience to the Tenant or for any
\ninterruption of Tenant’s business or affairs. Additionally, Landlord, at
\nLandlord’s expense, shall alter the Signage Substitution Space in substantially
\nthe same manner as the original Premises were initially constructed by Tenant in
\nconnection with the Initial Alterations and the effective date of the
\nsubstitution of the Signage Substitution Space shall not be deemed to have
\noccurred until the substantial completion of such alterations, if any. If Tenant
\nrequests materials or installations in the Signage Substitution Space other than
\nthose originally installed by Landlord in the original Premises, if any, or if
\nTenant shall make any changes in the work, Landlord’s written consent thereto
\nshall be required and Tenant shall pay to Landlord, if Landlord so gives its
\nconsent, the extra costs of any such materials, installations or changes in the
\nwork. Landlord at its discretion may substitute materials of like quality for
\nthe materials originally utilized in proceeding with any such work.<\/p>\n
14.3 Landlord shall use reasonable efforts (which shall not include
\nany obligation to employ labor at overtime rates) to minimize disruption of
\nTenant’s business during any such entry upon the Premises by Landlord. It is
\nexpressly understood and agreed by and between Landlord and Tenant that if
\nTenant shall commence any action or proceeding seeking injunctive, declaratory
\nor monetary relief in connection with the rights reserved to Landlord under the
\nforegoing provision, or if Landlord shall commence any action or proceeding to
\nobtain access to the Premises in accordance with this Article 14, and if
\nLandlord shall prevail in any such action, then Tenant shall pay to Landlord, as
\nadditional rent under this Lease, a sum equal to all legal fees, costs and
\ndisbursements incurred by Landlord in any way related to or arising out of such
\naction or proceeding. Tenant understands and agrees that all parts (except
\nsurfaces facing the interior of the Premises) of all walls, windows and doors
\nbounding the Premises (including exterior Building walls, core corridor walls,
\ndoors and entrances), balconies, terraces and roofs adjacent to the Premises,
\nall space in or adjacent to the Premises used for shafts, stacks, stairways,
\nchutes, pipes, conduits, ducts, fan rooms, heating, air cooling, plumbing and
\nother mechanical facilities, service closets and other Building facilities are
\nnot part of the Premises and, pursuant to this Article 14, Landlord shall have
\nthe use thereof, as well as reasonable access thereto through the Premises for
\nthe purposes of operation, maintenance, alteration and repair.<\/p>\n
15. CERTIFICATE OF OCCUPANCY.<\/p>\n
Tenant shall not at any time use or occupy the Premises in violation
\nof the certificate of occupancy issued for the Premises or for the Building and
\nin the event that any department of the City or State of New York shall
\nhereafter at any time contend and\/or declare by notice, violation, order or in
\nany other manner whatsoever that the Premises are used for a purpose which is a
\nviolation of such certificate of occupancy, Tenant shall, upon five (5) business
\ndays’ written notice from Landlord, immediately discontinue such use of the
\nPremises. Failure by Tenant to discontinue such use after such notice shall be
\nconsidered a default in the fulfillment of a covenant of this Lease and Landlord
\nshall have the right to terminate this Lease immediately, and in addition
\nthereto shall have the right to exercise any and all rights and privileges and
\nremedies given to Landlord by and pursuant to the provisions of Articles 17 and
\n18 hereof. Landlord shall not, during the Term, amend such Certificate of
\nOccupancy to preclude the Permitted Uses or reduce the number of persons who may
\noccupy the Premises.<\/p>\n
31<\/p>\n
16. LANDLORD’S LIABILITY.<\/p>\n
The obligations of Landlord under this Lease shall not be binding upon
\nLandlord named herein after the sale, conveyance, assignment or transfer by such
\nLandlord (or upon any subsequent landlord after the sale, conveyance, assignment
\nor transfer by such subsequent landlord) of its interest in the Building, or the
\nReal Property, as the case may be, provided that such purchaser, grantee,
\nassignee or transferee shall assume in writing the obligations of Landlord
\nhereunder, and in the event of any such sale, conveyance, assignment or
\ntransfer, Landlord shall be and hereby is entirely freed and relieved of all
\ncovenants and obligations of Landlord hereunder, and it shall be deemed and
\nconstrued without further agreement between the parties or their successors in
\ninterest, or between the parties and the purchaser, grantee, assignee or other
\ntransferee that such purchaser, grantee, assignee or other transferee has
\nassumed and agreed to carry out any and all covenants and obligations of
\nLandlord hereunder. Neither the shareholders, directors or officers of
\nLandlord, if Landlord is a corporation, nor the partners and members comprising
\nLandlord (nor any of the shareholders, directors or officers of such partners or
\nmembers), if Landlord is a partnership or limited liability company
\n(collectively, the “Parties”), shall be liable for the performance of Landlord’s
\nobligations under this Lease. Tenant shall look solely to Landlord to enforce
\nLandlord’s obligations hereunder and shall not seek any damages against any of
\nthe Parties. The liability of Landlord for Landlord’s obligations under this
\nLease shall not exceed and shall be limited to Landlord’s interest in the
\nBuilding and the Real Property and Tenant shall not look to any other property
\nor assets of Landlord or the property or assets of any of the Parties in seeking
\neither to enforce Landlord’s obligations under this Lease or to satisfy a
\njudgment for Landlord’s failure to perform such obligations. Tenant waives, to
\nthe full extent permitted by law, any claim for indirect, consequential or
\npunitive damages, including loss of profits, in connection with any liability of
\nLandlord hereunder.<\/p>\n
17. DEFAULT.<\/p>\n
17.1 Upon the occurrence, at any time prior to or during the Term, of
\nany one or more of the following events (referred to as “EVENTS OF DEFAULT”):<\/p>\n
(1) if Tenant shall default in the payment when due of any installment
\nof Rent or in the payment when due of any additional rent, and such default
\nshall continue for a period of five (5) days after notice by Landlord to Tenant
\nof such default; or<\/p>\n
(2) if Tenant shall default in the observance or performance of any
\nterm, covenant or condition of this Lease on Tenant’s part to be observed or
\nperformed (other than the covenants for the payment of Rent and additional rent)
\nand either (x) Tenant shall fail to remedy such default within fifteen (15) days
\nafter notice by Landlord to Tenant of such default, or (y) if such default is of
\nsuch a nature that it cannot be completely remedied within said period of
\nfifteen (15) days, Tenant shall not commence the cure of such default within
\nsaid period of fifteen (15) days, thereafter diligently prosecute to completion
\nall steps necessary to remedy such default and completely remedy such default
\nwithin ninety (90) days of the notice from Landlord; or<\/p>\n
32<\/p>\n
(3) if Tenant shall default in the observance or performance of any
\nterm, covenant or condition on Tenant’s part to be observed or performed under
\nany other lease with Landlord or Landlord’s predecessor in interest of space in
\nthe Building and such default shall continue beyond any grace period set forth
\nin such other lease for the remedying of such default; or<\/p>\n
(4) if the Premises shall become deserted or abandoned; or<\/p>\n
(5) if Tenant’s interest in this Lease shall devolve upon or pass to
\nany person, whether by operation of law or otherwise, except as may be expressly
\npermitted under Article 12 hereof; or<\/p>\n
(6) if Tenant shall file a voluntary petition in bankruptcy or
\ninsolvency, or shall be adjudicated a bankrupt or insolvent, or shall file any
\npetition or answer seeking any reorganization, arrangement, composition,
\nreadjustment, liquidation, dissolution or similar relief under the present or
\nany future federal bankruptcy act or any other present or future applicable
\nfederal, state or other statute or law, or shall make an assignment for the
\nbenefit of creditors or shall seek or consent to or acquiesce in the appointment
\nof any trustee, receiver or liquidator of Tenant or of all or any part of
\nTenant’s property; or<\/p>\n
(7) if, within sixty (60) days after the commencement of any
\nproceeding against Tenant, whether by the filing of a petition or otherwise,
\nseeking any reorganization, arrangement, composition, readjustment, liquidation,
\ndissolution or similar relief under the present or any future federal bankruptcy
\nact or any other present or future applicable federal, state or other statute or
\nlaw, such proceeding shall not have been dismissed, or if, within sixty (60)
\ndays after the appointment of any trustee, receiver or liquidator of Tenant, or
\nof all or any part of Tenant’s property, without the consent or acquiescence of
\nTenant, such appointment shall not have been vacated or otherwise discharged, or
\nif any execution or attachment shall be issued against Tenant or any of Tenant’s
\nproperty pursuant to which the Premises shall be taken or occupied or attempted
\nto be taken or occupied; or<\/p>\n
(8) if within any 12 consecutive calendar month period, Tenant shall
\nhave on three (3) or more occasions failed to pay Rent or additional rent when
\ndue hereunder, or Landlord has had grounds to commence more than two summary
\nproceedings;<\/p>\n
then, upon the occurrence, at any time prior to or during the Term, of any one
\n—-
\nor more of such Events of Default, Landlord, at any time thereafter, at
\nLandlord’s option, may give to Tenant a five (5) days’ notice of termination of
\nthis Lease and, in the event such notice is given, this Lease and the Term shall
\ncome to an end and expire (whether or not the Term shall have commenced) upon
\nthe expiration of said five (5) days with the same effect as if the date of
\nexpiration of said five (5) days were the Expiration Date, but Tenant shall
\nremain liable for damages as provided in Article 18 hereof.<\/p>\n
17.2 If, at any time, (i) Tenant shall be comprised of two (2) or
\nmore persons, or (ii) Tenant’s obligations under this Lease shall have been
\nguaranteed by any person other than Tenant, or (iii) Tenant’s interest in this
\nLease shall have been assigned, the word “Tenant”, as <\/p>\n
33<\/p>\n
used in clauses (6) and (7) of subsection 17. 1, shall be deemed to mean any one
\nor more of the persons primarily or secondarily liable for Tenant’s obligations
\nunder this Lease. Any monies received by Landlord from or on behalf of Tenant
\nduring the pendency of any proceeding of the types referred to in said clauses
\n(6) and (7) shall be deemed paid as compensation for the use and occupation of
\nthe Premises and the acceptance of any such compensation by Landlord shall not
\nbe deemed an acceptance of rent or a waiver on the part of Landlord of any
\nrights under said subsection 17.1.<\/p>\n
18. REMEDIES AND DAMAGES.<\/p>\n
18.1 (1) If an Event of Default shall occur and be continuing, or if
\nany execution or attachment shall be issued against Tenant or any of Tenant’s
\nproperty whereupon the Premises shall be taken or occupied or attempted to be
\ntaken or occupied by someone other than Tenant, or if Tenant shall fail to move
\ninto or take possession of the Premises within ninety (90) days after the
\nCommencement Date, or if this Lease and the Term shall expire and come to an end
\nas provided in Article 17:<\/p>\n
(a) Landlord and its agents and servants may immediately, or at any
\ntime after such default or after the date upon which this Lease and the Term
\nshall expire and come to an end, re-enter the Premises or any part thereof,
\nwithout notice, either by summary proceedings, or by any other applicable action
\nor proceeding, or by force or otherwise (without being liable to indictment,
\nprosecution or damages therefor), and may repossess the Premises and dispossess
\nTenant and any other persons from the Premises and remove any and all of their
\nproperty and effects from the Premises; and<\/p>\n
(b) Landlord, at Landlord’s option, may relet the whole or any part or
\nparts of the Premises from time to time, either in the name of Landlord or
\notherwise, to such tenant or tenants, for such term or terms ending before, on
\nor after the Expiration Date, at such rental or rentals and upon such other
\nconditions, which may include concessions and free rent periods, as Landlord, in
\nits sole discretion, may determine. Landlord shall have no obligation to relet
\nthe Premises or any part thereof and shall in no event be liable for refusal or
\nfailure to relet the Premises or any part thereof, or, in the event of any such
\nreletting, for refusal or failure to collect any rent due upon any such
\nreletting, and no such refusal or failure shall operate to relieve Tenant of any
\nliability under this Lease or otherwise to affect any such liability; Landlord,
\nat Landlord’s option, may make such repairs, replacements, alterations,
\nadditions, improvements, decorations and other physical changes in and to the
\nPremises as Landlord, in its sole discretion, considers advisable or necessary
\nin connection with any such reletting or proposed reletting, without relieving
\nTenant of any liability under this Lease or otherwise affecting any such
\nliability.<\/p>\n
(2) Tenant hereby waives the service of any notice of intention to re-
\nenter or to institute legal proceedings to that end which may otherwise be
\nrequired to be given under any present or future law. Tenant, on its own behalf
\nand on behalf of all persons claiming through or under Tenant, including all
\ncreditors, does further hereby waive any and all rights which Tenant and all
\nsuch persons might otherwise have under any present or future law to redeem the
\nPremises, or to re-enter or repossess the Premises, or to restore the operation
\nof this <\/p>\n
34<\/p>\n
Lease, after (i) Tenant shall have been dispossessed by a judgment or by
\nwarrant of any court or judge. or (ii) any re-entry by Landlord, or (iii) any
\nexpiration or termination of this Lease and the Term, whether such dispossess,
\nre-entry, expiration or termination shall be by operation of law or pursuant to
\nthe provisions of this Lease. The words “RE-ENTER”, “RE-ENTRY” and “RE-ENTERED”
\nas used in this Lease shall not be deemed to be restricted to their technical
\nlegal meanings. In the event of a breach or threatened breach by Tenant, or any
\npersons claiming through or under Tenant, of any term, covenant or condition of
\nthis Lease on Tenant’s part to be observed or performed, Landlord shall have the
\nright to enjoin such breach and the right to invoke any other remedy allowed by
\nlaw or in equity as if re-entry, summary proceedings and other special remedies
\nwere not provided in this Lease for such breach. The right to invoke the
\nremedies hereinbefore set forth are cumulative and shall not preclude Landlord
\nfrom invoking any other remedy allowed at law or in equity.<\/p>\n
18.2 (1) If this Lease and the Term shall expire and come to an end
\nas provided in Article 17, or by or under any summary proceeding or any other
\naction or proceeding, or if Landlord shall re-enter the Premises as provided in
\nsubsection 18.1, or by or under any summary proceeding or any other action or
\nproceeding, then, in any of said events:<\/p>\n
(a) Tenant shall pay to Landlord all Rent, additional rent and other
\ncharges payable under this Lease by Tenant to Landlord to the date upon which
\nthis Lease and the Term shall have expired and come to an end or to the date of
\nre-entry upon the Premises by Landlord, as the case may be;<\/p>\n
(b) Tenant also shall be liable for and shall pay to Landlord, as
\ndamages, any deficiency (referred to as “DEFICIENCY”) between the Rent reserved
\nin this Lease for the period which otherwise would have constituted the
\nunexpired portion of the Term and the net amount, if any, of rents collected
\nunder any reletting effected pursuant to the provisions of subsection 18.l(l)
\nfor any part of such period. The Deficiency shall also include all of
\nLandlord’s reasonable expenses in connection with the termination of this Lease,
\nor Landlord’s re-entry upon the Premises and with such reletting including, but
\nnot limited to, all reasonable repossession costs, brokerage commissions, legal
\nexpenses, attorneys’ fees and disbursements, alteration costs and other expenses
\nof preparing the Premises for such reletting. Any such Deficiency shall be paid
\nin monthly installments by Tenant on the days specified in this Lease for
\npayment of installments of Rent, Landlord shall be entitled to recover from
\nTenant each monthly Deficiency as the same shall arise, and no suit to collect
\nthe amount of the Deficiency for any month shall prejudice Landlord’s right to
\ncollect the Deficiency for any subsequent month by a similar proceeding; and<\/p>\n
(c) whether or not Landlord shall have collected any monthly
\nDeficiencies as aforesaid, Landlord shall be entitled to recover from Tenant,
\nand Tenant shall pay to Landlord, on demand, in lieu of any further Deficiencies
\nas and for liquidated and agreed final damages, a sum equal to the amount by
\nwhich the Rent reserved in this Lease for the period which otherwise would have
\nconstituted the unexpired portion of the Term exceeds the then fair and
\nreasonable rental value of the Premises for the same period, less the aggregate
\namount of Deficiencies theretofore collected by Landlord pursuant to the
\nprovisions of subsection 18.2(1)(b) for the same period; if, before presentation
\nof proof of such liquidated <\/p>\n
35<\/p>\n
damages to any court, commission or tribunal, the Premises, or any part thereof,
\nshall have been relet by Landlord for the period which otherwise would have
\nconstituted the unexpired portion of the Term, or any part thereof, the amount
\nof rent reserved upon such reletting shall be deemed, prima facie, to be the
\nfair and reasonable rental value for the part or the whole of the Premises so
\nrelet during the term of the reletting. For purposes of this calculation, (i)
\nall additional rent charges due hereunder shall be calculated on the assumption
\nthat they would continue to increase at the average rate of increase of
\nadditional rent charges in the 24 previous months (or during the prior term
\nhereunder if less); and, (ii) at Landlord’s election, the “fair and reasonable
\nrate”, if the Premises are not re-let, shall be deemed to be the rentable square
\nfootage of the Premises multiplied by the discounted average rental per square
\nfoot in the last three new leases (excluding renewals) written for space in the
\nBuilding, (or, if fewer than three leases have been written in the previous
\nthree months, the most recent lease, or any leases in those three months)
\ndiscounting for brokerage fees, free rent periods, landlord work letters, and
\nsimilar expenses, and without reference to any additional rent, escalation or
\npercentage rent clauses therein.<\/p>\n
(2) If the Premises, or any part thereof, shall be relet together with
\nother space in the Building, the rents collected or reserved under any such
\nreletting and the expenses of any such reletting shall be equitably apportioned
\nfor the purposes of this subsection 18.2. Tenant shall in no event be entitled
\nto any rents collected or payable under any reletting, whether or not such rents
\nshall exceed the Rent reserved in this Lease. Solely for the purposes of this
\nArticle, the term “Rent” as used in subsection 18.2(l) shall mean the Rent in
\neffect immediately prior to the date upon which this Lease and the Term shall
\nhave expired and come to an end, or the date of re-entry upon the Premises by
\nLandlord, as the case may be, adjusted to reflect any increase or decrease
\npursuant to the provisions of Article 28 hereof for the Comparison Year (as
\ndefined in said Article 28) immediately preceding such event. Nothing contained
\nin Article 17 or this Article 18 shall be deemed to limit or preclude the
\nrecovery by Landlord from Tenant of the maximum amount allowed to be obtained as
\ndamages by any statute or rule of law, or of any sums or damages to which
\nLandlord may be entitled in addition to the damages set forth in subsection
\n18.2(l) of this Article 18.<\/p>\n
18.3 All costs and expenses, including reasonable attorneys’ fees
\n(whether or not legal proceedings are instituted), involved in collecting Rents
\nor enforcing the obligations of Tenant under this Lease, including the cost and
\nexpense of instituting and prosecuting legal proceedings or recovering
\npossession of the Premises after a breach by Tenant or upon expiration or
\nearlier termination of this Lease, to the extent such costs and expenses have
\nnot already been paid as a Deficiency or as liquidated damages under subsection
\n ———-
\n18.2, shall be due and payable by Tenant as additional rent within 20 days of
\n—-
\ndemand.<\/p>\n
19. FEES AND EXPENSES.<\/p>\n
19.1 Curing Tenant’s Defaults. If Tenant shall default in the
\n ————————
\nobservance or performance of any term or covenant on Tenant’s part to be
\nobserved or performed under or by virtue of any of the terms or provisions in
\nany Article of this Lease, after notice and the expiration of any applicable
\ngrace period (except in the case of emergency where no such notice or grace
\nperiod shall apply) Landlord may immediately or at any time thereafter on ten
\n(10) days’ notice perform the same for the account of Tenant, and if Landlord
\nmakes any expenditures or <\/p>\n
36<\/p>\n
incurs any obligations for the payment of money in connection therewith
\nincluding, but not limited to, reasonable attorneys’ fees and disbursements in
\ninstituting, prosecuting or defending any action or proceeding, such sums paid
\nor obligations incurred with interest and costs shall be deemed to be additional
\nrent hereunder and shall be paid by Tenant to Landlord within ten (10) days of
\nrendition of any bill or statement to Tenant therefor.<\/p>\n
19.2 Late Charges. If Tenant shall fail to make payment of any
\n ————
\ninstallment of Rent or any additional rent within five (5) days after the date
\nwhen such payment is due, Tenant shall pay to Landlord, in addition to such
\ninstallment of Rent or such additional rent, as the case may be, as a late
\ncharge and as additional rent, interest on such unpaid sum based on a rate equal
\nto the lesser of (i) three percent (3%) per annum above the then current prime
\nrate or base rate charged by Citibank, N.A. or its successor and (ii) the
\nmaximum rate permitted by applicable law, computed from the date such payment
\nwas due to and including the date of payment.<\/p>\n
19.3 Attorneys’ Fees. In the event of any litigation or arbitration
\n —————
\nbetween Landlord and Tenant, and if Landlord shall substantially prevail on any
\nof Landlord’s claims, defenses or counterclaims therein, or substantially defeat
\nor cause the dismissal (with or without prejudice) or severance of any claim,
\ndefense or counterclaim advanced by Tenant, then Tenant shall be liable to and
\nshall pay to Landlord, Landlord’s reasonable attorneys’ fees in connection
\ntherewith. This obligation shall survive the termination of this Lease, and
\nshall apply to any proceeding in which Landlord seeks recovery (including
\njudgment for liability, and all efforts to collect thereon) of liquidated
\ndamages under Article 18.<\/p>\n
19.4 Additional Rent. All payments due from Tenant hereunder shall
\n —————
\nbe deemed, at Landlord’s option, additional rent, and all Landlord’s rights and
\nremedies with respect to Tenant’s obligation to pay Rent or Tenant’s failure to
\npay Rent shall apply also to Tenant’s obligation to pay additional rent, or
\nfailure to do so.<\/p>\n
20. NO REPRESENTATIONS BY LANDLORD.<\/p>\n
20.1 Landlord or Landlord’s agents have made no representations or
\npromises with respect to the Building, the Real Property, the Premises or Taxes
\n(as defined in Article 28 hereof) except as herein expressly set forth and no
\nrights, easements or licenses are acquired by Tenant by implication or otherwise
\nexcept as expressly set forth herein. All references in this Lease to the
\nconsent or approval of Landlord shall be deemed to mean the written consent of
\nLandlord or the written approval of Landlord and no consent or approval of
\nLandlord shall be effective for any purpose unless such consent or approval is
\nset forth in a written instrument executed by Landlord.<\/p>\n
20.2 Wherever in this Lease Landlord’s consent or approval is
\nrequired, if Landlord shall refuse such consent or approval, Tenant in no event
\nshall be entitled to make, nor shall Tenant make, any claim, and Tenant hereby
\nwaives any claim, of money damages (nor shall Tenant claim any money damaged by
\nway of set-off, counterclaim or defense) based upon any claim or assertion by
\nTenant that Landlord unreasonably withheld or unreasonably delayed its consent
\nor approval. Tenant’s sole remedy shall be an action or proceeding to enforce
\nany such provision, for specific performance, injunction or declaratory
\njudgment. Notwithstanding the <\/p>\n
37<\/p>\n
foregoing, Tenant shall be entitled to money damages only with respect to a
\nclaim that Landlord has unreasonably withheld its consent if it is expressly
\ndetermined in a final non-appealable court action or proceeding (as opposed to
\nan arbitration, which the parties agree cannot result in an award for damages)
\nthat Landlord has willfully and arbitrarily withheld its consent in bad faith
\nand without any good faith business justification.<\/p>\n
20.3 Any escalation provisions herein shall be deemed arbitrary
\nformulas, and not efforts to measure recoupment by Landlord of any particular
\nexpenses, and Landlord’s actual expenses shall not limit the amounts due under
\nthese arbitrary formulas. Any references herein to the square footage or
\nrentable square footage of the Premises or the Building are otherwise for
\npurposes of arbitrary formulas only, and not a representation as to the actual
\nsquare footage.<\/p>\n
21. END OF TERM.<\/p>\n
Upon the expiration or other termination of the Term, Tenant shall
\nquit and surrender to Landlord the Premises, broom clean, in good order and
\ncondition, ordinary wear and tear and damage for which Tenant is not responsible
\nunder the terms of this Lease excepted, and Tenant may remove all of its
\nproperty pursuant to Article 3 hereof. Tenant’s obligation to observe or
\nperform this covenant shall survive the expiration or sooner termination of the
\nTerm. If the last day of the Term or any renewal thereof falls on Saturday or
\nSunday this Lease shall expire on the business day immediately preceding.
\nTenant expressly waives, for itself and for any person claiming through or under
\nTenant, any rights which Tenant or any such person may have under the provisions
\nof Section 2201 of the New York Civil Practice Law and Rules and of any
\nsuccessor law of like import then in force in connection with any holdover
\nsummary proceedings which Landlord may institute to enforce the foregoing
\nprovisions of this Article 21. In addition, the parties recognize and agree
\nthat the damage to Landlord resulting from any failure by Tenant to timely
\nsurrender possession of the Premises as aforesaid will be substantial, will
\nexceed the amount of the monthly installments of the Rent theretofore payable
\nhereunder, and will be impossible to accurately measure. Tenant therefore
\nagrees that if possession of the Premises is not surrendered to Landlord by
\nTenant or any subtenant or other occupant within twenty-four (24) hours after
\nthe Expiration Date or sooner termination of the Term, in addition to any other
\nrights or remedy Landlord may have hereunder or at law, Tenant shall pay to
\nLandlord for each month and for each portion of any month during which Tenant
\nholds over in the Premises after the Expiration Date or sooner termination of
\nthis Lease, a sum equal to the greater of (i) two (2) times the aggregate of
\nthat portion of the Rent and all additional rent which was payable under this
\nLease during the last month of the Term, or (ii) the then Fair Market Value of
\nthe Premises, as determined by Landlord. Landlord may consider items of
\nTenant’s Property that remain in the Premises after the expiration or earlier
\ntermination of the Term to have been abandoned. In that event, Landlord may, at
\nits option either (i) retain such items as its property or dispose of them
\nwithout accountability in such manner as Landlord shall determine, all at
\nTenant’s expense, or (ii) remove and store such items for Tenant. Tenant shall
\nreimburse Landlord for the reasonable expenses incurred in connection with such
\ndisposal or removal and storage within 20 days after receipt for an invoice
\ntherefor. The provisions of this subsection shall survive the expiration of the
\n ———-
\nTerm. If the Premises are not surrendered upon the expiration or earlier
\ntermination of this Lease with respect to all or any portion of the Premises,
\nTenant hereby indemnifies Landlord against loss, cost, injury, damage, claim,
\nexpense, or liability (including attorneys’ fees and <\/p>\n
38<\/p>\n
disbursements) resulting from delay by Tenant in so surrendering the same,
\nincluding any claims made by any succeeding tenant or prospective tenant founded
\nupon such delay. Nothing herein contained shall be deemed to permit Tenant to
\nretain possession of the Premises after the Expiration Date or sooner
\ntermination of this Lease and no acceptance by Landlord of payments from Tenant
\nafter the Expiration Date or sooner termination of the Term shall be deemed to
\nbe other than on account of the amount to be paid by Tenant in accordance with
\nthe provisions of this Article 21, which provisions shall survive the Expiration
\nDate or sooner termination of this Lease.<\/p>\n
22. QUIET ENJOYMENT.<\/p>\n
Landlord covenants and agrees with Tenant that upon Tenant paying the
\nRent and additional rent and observing and performing all the terms, covenants
\nand conditions, on Tenant’s part to be observed and performed, Tenant may
\npeaceably and quietly enjoy the Premises subject, nevertheless, to the terms and
\nconditions of this Lease including, but not limited to, Article 16 hereof and to
\nall Superior Leases and Mortgages.<\/p>\n
23. FAILURE TO GIVE POSSESSION.<\/p>\n
Except as provided in subsection 1.3 hereof, Tenant waives any right
\nto rescind this Lease under Section 223-a of the New York Real Property Law or
\nany successor statute of similar import then in force and further waives the
\nright to recover any damages which may result from Landlord’s failure to deliver
\npossession of the Premises on the date set forth in Article 1 hereof for the
\nCommencement of the Term. If Landlord shall be unable to give possession of the
\nPremises on such date, and provided Tenant is not responsible for such inability
\nto give possession, the Rent reserved and covenanted to be paid herein shall not
\ncommence until the date specified in subsection 1.3 hereof, and no such failure
\nto give possession on such date shall in any wise affect the validity of this
\nLease or the obligations of Tenant hereunder or give rise to any claim for
\ndamages by Tenant or claim for rescission of this Lease, nor shall same be
\nconstrued in any wise to extend the Term except as otherwise provided in
\nsubsection l.3 hereof. If permission is given to Tenant to enter into the
\npossession of the Premises or to occupy premises other than the Premises prior
\nto the Commencement Date, for the conduct of Tenants business, Tenant covenants
\nand agrees that such occupancy shall be deemed to be under all the terms,
\ncovenants, conditions and provisions of this Lease, including the covenant to
\npay Rent.<\/p>\n
24. NO WAIVER.<\/p>\n
If there be any agreement between Landlord and Tenant providing for
\nthe cancellation of this Lease upon certain provisions or contingencies and\/or
\nan agreement for the renewal hereof at the expiration of the Term, the right to
\nsuch renewal or the execution of a renewal agreement between Landlord and Tenant
\nprior to the expiration of the Term shall not be considered an extension thereof
\nor a vested right in Tenant to such further term, so as to prevent Landlord from
\ncanceling this Lease and any such extension thereof during the remainder of the
\noriginal Term; such privilege, if and when so exercised by Landlord, shall
\ncancel and terminate this Lease and any such renewal or extension previously
\nentered into between Landlord and Tenant or the right of Tenant to any such
\nrenewal or extension; any right herein contained on the part of Landlord to<\/p>\n
39<\/p>\n
cancel this Lease shall continue during any extension or renewal hereof; any
\noption on the part of Tenant herein contained for an extension or renewal hereof
\nshall not be deemed to give Tenant any option for a further extension beyond the
\nfirst renewal or extended term. No act or thing done by Landlord or Landlord’s
\nagents during the Term shall be deemed an acceptance of a surrender of the
\nPremises, and no agreement to accept such surrender shall be valid unless in
\nwriting signed by Landlord. No employee of Landlord or of Landlord’s agents
\nshall have any power to accept the keys of the Premises prior to the termination
\nof this Lease. The delivery of keys to any employee of Landlord or of
\nLandlord’s agents shall not operate as a termination of this Lease or a
\nsurrender of the Premises. In the event Tenant at any time desires to have
\nLandlord sublet the Premises for Tenant’s account, Landlord or Landlord’s agents
\nare authorized to receive said keys for such purpose without releasing Tenant
\nfrom any of the obligations under this Lease, and Tenant hereby relieves
\nLandlord of any liability for loss of or damage to any of Tenant’s effects in
\nconnection with such subletting. The failure of Landlord or Tenant to seek
\nredress for violation of, or to insist upon the strict performance, of. any
\ncovenant or condition of this Lease, or any of the Rules and Regulations set
\nforth or hereafter adopted by Landlord; shall not prevent a subsequent act,
\nwhich would have originally constituted a violation, from having all force and
\neffect of an original violation. The receipt by Landlord of Rent with knowledge
\nof the breach of any covenant of this Lease shall not be deemed a waiver of such
\nbreach. The failure of Landlord to enforce any of the Rules and Regulations set
\nforth, or hereafter adopted, against Tenant and\/or any other tenant in the
\nBuilding shall not be deemed a waiver of any such Rules and Regulations. No
\nprovision of this Lease deemed to have been waived by Landlord or Tenant, unless
\nsuch waiver be in writing signed by the party against which such waiver is
\ncharged. No payment by Tenant or receipt by Landlord of a lesser amount than
\nthe monthly Rent herein stipulated shall be deemed to be other than on account
\nof the earliest stipulated Rent, or as Landlord may elect to apply same, nor
\nshall any endorsement or statement on any check or any letter accompanying any
\ncheck or payment as Rent be deemed an accord and satisfaction, and Landlord may
\naccept such check or payment without prejudice to Landlord’s right to recover
\nthe balance of such Rent or pursue any other remedy in this Lease provided.
\nThis Lease contains the entire agreement between the parties and all prior
\nnegotiations and agreements are merged in this Lease. Any executory agreement
\nhereafter made shall be ineffective to change, modify, discharge or effect an
\nabandonment of it in whole or in part unless such executory agreement is in
\nwriting and signed by the party against whom enforcement of the change,
\nmodification, discharge or abandonment is sought.<\/p>\n
25. WAIVER OF TRIAL BY JURY.<\/p>\n
It is mutually agreed by and between Landlord and Tenant that the
\nrespective parties hereto shall and they hereby do waive trial by jury in any
\naction, proceeding or counterclaim brought by either of the parties hereto
\nagainst the other on any matters whatsoever arising out of or in any way
\nconnected with this Lease, the relationship of Landlord and Tenant, Tenant’s use
\nor occupancy of the Premises, and\/or any claim of injury or damage, or for the
\nenforcement of any remedy under any statute, emergency or otherwise. Tenant
\nshall not interpose any counterclaim it may otherwise assert in any summary
\nproceeding or any other action for possession whether such summary proceeding or
\nother action is based on nonpayment of Rents or on Tenant’s holding over after
\nexpiration of the Term or on any other basis whatsoever, unless such
\ncounterclaim is a statutory mandatory counterclaim.<\/p>\n
40<\/p>\n
26. INABILITY TO PERFORM.<\/p>\n
Except as otherwise set forth in this Lease, this Lease and the
\nobligation of Tenant to pay rent hereunder and perform all of the other
\ncovenants and agreements hereunder on the part of Tenant to be performed shall
\nin no wise be affected, impaired or excused because Landlord is unable to
\nfulfill any of its obligations under this Lease expressly or impliedly to be
\nperformed by Landlord or because Landlord is unable to make, or is delayed in
\nmaking any repairs, additions, alterations, improvements or decorations or is
\nunable to supply or is delayed in supplying any equipment or fixtures if
\nLandlord is prevented or delayed from so doing by reason of strikes or labor
\ntroubles or by accident or by any cause whatsoever reasonably beyond Landlord’s
\ncontrol, including but not limited to, laws, governmental preemption in
\nconnection with a National Emergency or by reason of any rule, order or
\nregulation of any federal, state, county or municipal authority or any
\ndepartment or subdivision thereof or any government agency or by reason of the
\nconditions of supply and demand which have been or are affected by war or other
\nemergency.<\/p>\n
27. BILLS AND NOTICES.<\/p>\n
Except as otherwise expressly provided in this Lease, any bills,
\nstatements, notices, demands, requests or other communications given or required
\nto be given under this Lease shall be deemed sufficiently given or rendered if
\nin writing, sent by registered or certified mail (return receipt requested) or
\nby nationally recognized overnight courier addressed (a) to Tenant (i) at
\nTenant’s address set forth in this Lease if mailed prior to Tenant’s taking
\npossession of the Premises, or (ii) at the Building if mailed subsequent to
\nTenant’s taking possession of the Premises, or (iii) at any place where Tenant
\nor any agent or employee of Tenant may be found if mailed subsequent to Tenant’s
\nvacating, deserting, abandoning or surrendering the Premises, or (b) to Landlord
\nat Landlord’s address set forth in this Lease, with a copy to: Sidley & Austin,
\n875 Third Avenue, New York, New York 10022, Attn: Alan S. Weil, Esq., or (c) to
\nsuch other address as either Landlord or Tenant may designate as its new address
\nfor such purpose by notice given to the others in accordance with the provisions
\nof this Article 27. Any such bill, statement, demand, request or other
\ncommunication shall be deemed to have been rendered or given on the date which
\nis (i) two (2) business days after the date when it shall have been mailed, and
\n(ii) one (1) business day after the date when it shall have been sent by
\novernight courier as provided in this Article 27.<\/p>\n
28. ESCALATION.<\/p>\n
28.1 In a determination of any increase or decrease in the Rent under
\nthe provisions of this Article 28, Landlord and Tenant agree as follows:<\/p>\n
(i) “TAXES” shall mean the aggregate amount of (a) all real estate
\ntaxes, assessments (special or otherwise), sewer and water rents, rates and
\ncharges and any other governmental levies, impositions or charges, whether
\ngeneral, special, ordinary, extraordinary, foreseen or unforeseen, which may be
\nassumed, levied or imposed upon all or any part of the Real Property (including,
\nwithout limitation, (i) assessments made upon or with respect to any “air
\nrights”, (ii) any assessments levied after the date of this Lease for public
\nbenefits to the Real Property or the Building, and (iii) any assessments imposed
\nby the Times Square Business <\/p>\n
41<\/p>\n
Improvements District or similar organization), and (b) any expenses (including
\nattorneys’ fees and disbursements and experts’ and other witness’ fees) incurred
\nin contesting any of the foregoing or the Assessed Valuation of all or any part
\nof the Real Property but not in excess of the refund or reduction actually
\nreceived, but Taxes shall not include (x) any interest or penalties incurred by
\nLandlord as a result of Landlord’s late payment of Taxes, or (y) any franchise,
\nestate or inheritance taxes. If at any time after the date hereof the methods of
\ntaxation prevailing at the date hereof shall be altered so that in addition to,
\nin lieu of or as a substitute for the whole or any part of the taxes,
\nassessments, rents, rates, charges, levies or impositions now assessed, levied
\nor imposed upon all or any part of the Real Property, there shall be assessed,
\nlevied or imposed (1) a tax, assessment, levy, imposition or charge based on the
\nincome or rents received therefrom whether or not wholly or partially as a
\ncapital levy or otherwise, or (2) a tax, assessment, levy, imposition or charge
\nmeasured by or based in whole or in part upon all or any part of the Real
\nProperty and imposed upon Landlord, or (3) a license fee measured by the rents,
\nor (4) any other tax, assessment, levy, imposition. charge or license fee
\nhowever described or imposed, then all such taxes, assessments, levies,
\nimpositions, charges or license fees or the part thereof so measured or based
\nshall be deemed to be Taxes.<\/p>\n
(ii) “ASSESSED VALUATION” shall mean the actual amount (and not the so
\ncalled “target” amount) for which the Real Property is assessed pursuant to
\napplicable provisions of the New York City Charter and of the Administrative
\nCode of the City of New York for the purpose of imposition of Taxes.<\/p>\n
(iii) “TAX YEAR” shall mean the period July I through June 30 (or
\nsuch other period as hereinafter may be duly adopted by the City of New York as
\nits fiscal year for real estate tax purposes).<\/p>\n
(iv) “COMPARISON YEAR” shall mean any Tax Year commencing subsequent
\nto the first day of the Base Tax Year, for any part or all of which there is an
\nincrease in the Rent pursuant to subsection 28.2 of this Article 28.<\/p>\n
(v) “LANDLORD’S STATEMENT” shall mean an instrument or instruments
\ncontaining a comparison of any increase or decrease in the Rent for the
\npreceding Comparison Year pursuant to the provisions of this Article 28.<\/p>\n
28.2 (1) If the Taxes payable for any Comparison Year (any part or
\nall of which falls within the Term) shall represent an increase above the Base
\nTaxes. then the Rent for such Comparison Year and continuing thereafter until a
\nnew Landlord’s Statement is rendered to Tenant, shall be increased by Tenant’s
\nProportionate Share of such increase. The Taxes shall be initially computed on
\nthe basis of the Assessed Valuation in effect at the time Landlord’s Statement
\nis rendered (as the Taxes may have been settled or finally adjudicated prior to
\nsuch time) regardless of any then pending application, proceeding or appeal
\nrespecting the reduction of any such Assessed Valuation, but shall be subject to
\nsubsequent adjustment as provided in subsection 28.4(l)(a).<\/p>\n
(2) INTENTIONALLY DELETED.<\/p>\n
42<\/p>\n
28.3 (1) At any time prior to, during or after any Comparison Year
\nLandlord shall render to Tenant a Landlord’s Statement or Statements showing
\nseparately or together (i) a comparison of the Taxes payable for the Comparison
\nYear with the Base Taxes, accompanied, upon Tenant’s request therefor, by copies
\nof the applicable real property tax bills, and (ii) the amount of the increase
\nin the Rent resulting from each of such comparison. Landlord’s failure to
\nrender a Landlord’s Statement during or with respect to any Comparison Year
\nshall not prejudice Landlord’s right to render a Landlord’s Statement during or
\nwith respect to any subsequent Comparison Year, and shall not eliminate or
\nreduce Tenant’s obligation to pay increases in the Rent pursuant to this Article
\n28 for such Comparison Year.<\/p>\n
(2) (a) With respect to an increase in the Rent resulting from an
\nincrease in the Taxes for any Comparison Year above the Base Taxes, Tenant, in
\ncase of an increase, shall pay to Landlord, a sum equal to one-half (1\/2) of
\nsuch increase on the first day of June and December of each calendar year. If
\nLandlord’s Statement shall be furnished to Tenant after the commencement of the
\nComparison Year to which it relates, then (i) until Landlord’s Statement is
\nrendered for such Comparison Year, Tenant shall pay one-half (1\/2) of Tenant’s
\nProportionate Share of Taxes for such Comparison Year on the first day of June
\nand December, as described above, based upon the last prior Landlord’s Statement
\nrendered to Tenant with respect to Taxes, and (ii) Tenant shall, within ten (10)
\nbusiness days after Landlord’s Statement is furnished to Tenant, pay to Landlord
\nan amount equal to any underpayment of the installments of Taxes theretofore
\npaid by Tenant for such Comparison Year and, in the event of an overpayment by
\nTenant, Landlord shall permit Tenant to credit the amount of such overpayment
\nagainst subsequent payments (i) of Taxes, and (ii) so long as Tenant shall not
\nbe in default beyond any applicable notice and cure periods, of Rent. If during
\nthe Term of this Lease, Taxes are required to be paid (either to the appropriate
\ntaxing authorities or as tax escrow payments to a mortgagee or ground lessor) in
\nfull or in monthly, quarterly, or other installments, on any other date or dates
\nthan as presently required, then, at Landlord’s option, Tenant’s Proportionate
\nShare with respect to Taxes shall be correspondingly accelerated or revised so
\nthat Tenant’s Proportionate Share is due at least 30 days prior to the date
\npayments are due to the taxing authorities or the superior mortgagee or ground
\nlessor, as the case may be. The benefit of any discount for any early payment
\nor prepayment of Taxes shall accrue solely to the benefit of Landlord, and such
\ndiscount shall not be subtracted from Tenant’s Proportionate Share of such
\nTaxes.<\/p>\n
(b) Following each Landlord’s Statement, a reconciliation shall be
\nmade as follows: Tenant shall be debited with any increase in the Rent shown on
\nsuch Landlord’s Statement and credited with the aggregate, if any, paid by
\nTenant on account in accordance with the provisions of subsection 28.3(2)(a) for
\nthe Comparison Year in question. Tenant shall pay any net debit balance to
\nLandlord within fifteen (15) days next following rendition by Landlord, either
\nin accordance with the provisions of Article 27 hereof or by personal delivery
\nto the Premises, of an invoice for such net debit balance, any net credit
\nbalance shall be applied against the next accruing monthly installment of Rent.<\/p>\n
28.4 (1) (a) In the event that, after a Landlord’s Statement has been
\nsent to Tenant, an Assessed Valuation which had been utilized in computing the
\nTaxes for a Comparison Year is reduced (as a result of settlement, final
\ndetermination of legal proceedings or otherwise), and as a <\/p>\n
43<\/p>\n
result thereof a refund of Taxes is actually received by or on behalf of
\nLandlord, then, promptly after receipt of such refund, Landlord shall send
\nTenant a statement adjusting the Taxes for such Comparison Year (taking into
\naccount the expenses mentioned in the last sentence of subsection 28.1(1)) and
\nsetting forth Tenant’s Proportionate Share of such refund and Tenant shall be
\nentitled to receive such Share by way of a credit against the Rent next becoming
\ndue after the sending of such Statement or by refund to Tenant if such reduction
\nrelates to the last Comparison Year of the Term; provided, however, that
\nTenant’s Share of such refund shall be limited to the amount, if any, which
\nTenant had theretofore paid to Landlord as increased Rent for such Comparison
\nYear on the basis of the Assessed Valuation before it had been reduced and,
\nprovided further that Tenant shall not be entitled to its share of such refund
\nif Tenant is then in default hereunder beyond the expiration of applicable
\nnotice and grace periods. Only Landlord shall be eligible to institute tax
\nreduction or other proceedings to reduce the Assessed Valuation of the Real
\nProperty or the Building and the filing of any such proceeding by Tenant without
\nLandlord’s prior written consent shall constitute a default hereunder.<\/p>\n
(b) In the event that, after a Landlord’s Statement has been sent to
\nTenant, the Assessed Valuation which had been utilized in computing the Base
\nTaxes is reduced (as a result of settlement, final determination of legal
\nproceedings or otherwise) then, and in such event: (i) the Base Taxes shall be
\nretroactively adjusted to reflect such reduction, and (ii) all retroactive
\nadditional rent resulting from such retroactive adjustment shall be forthwith
\npayable when billed by Landlord. Landlord promptly shall send to Tenant a
\nstatement setting forth the basis for such retroactive adjustment and additional
\nrent payments.<\/p>\n
(2) Any Landlord’s Statement sent to Tenant shall be conclusively
\nbinding upon Tenant unless, within forty-five (45) days after such statement is
\nsent, Tenant shall (i) pay to Landlord the amount set forth in such statement,
\nwithout prejudice to Tenant’s right to dispute the same, and (ii) send a written
\nnotice to Landlord objecting to such statement and specifying the respects in
\nwhich such statement is claimed to be incorrect. If such notice is sent, the
\nparties recognize the unavailability of Landlord’s books and records because of
\nthe confidential nature thereof and hence agree that either party may refer the
\ndecision of the issues raised to a reputable independent firm of certified
\npublic accountants selected by Landlord and reasonably acceptable to Tenant, and
\nthe decision of such accountants shall be conclusively binding upon the parties.
\nThe fees and expenses involved in such decision shall be borne by the
\nunsuccessful party (and if both parties are partially unsuccessful, the
\naccountants shall apportion the fees and expenses between the parties based on
\nthe degree of success of each party).<\/p>\n
(3) Anything in this Article 28 to the contrary notwithstanding, under
\nno circumstances shall the rent payable under this Lease be less than the Rent
\nset forth in Article 1 hereof.<\/p>\n
(4) The expiration or termination of this Lease during any Comparison
\nYear for any part or all of which there is an increase in the Rent under this
\nArticle shall not affect the rights or obligations of the parties hereto
\nrespecting such increase and any Landlord’s Statement relating to such increase
\nmay, on a pro rata basis, be sent to Tenant subsequent to, and all such rights
\nand obligations shall survive, any such expiration or termination. Any payments
\ndue under such Landlord’s Statement shall be payable within twenty (20) days
\nafter such <\/p>\n
44<\/p>\n
statement is sent to Tenant. In the event Tenant has made a payment for a period
\nbeyond the expiration or termination of this Lease, Landlord, upon such
\nexpiration or termination, shall promptly refund same to Tenant.<\/p>\n
28.5 If any capital improvement is made to the Real Property during
\nany calendar year during the Term in compliance with requirements of any
\nFederal, state or local law or governmental regulation first effective after the
\nCommencement Date, whether or not such law or regulation is valid or mandatory
\nand whether or not such law or regulation is related to the Premises or to
\nTenant’s use or Tenant’s occupancy of the Premises, then Tenant shall pay to
\nLandlord, immediately upon demand therefor, Tenant’s Proportionate Share of the
\nannual amortization, with interest, of the cost of such improvement in each
\ncalendar year during the Term during which such amortization occurs.<\/p>\n
29. SERVICES.<\/p>\n
29.1 Elevator.
\n ——– <\/p>\n
(1) Landlord shall provide passenger elevator facilities on business
\ndays from 8:00 a.m. to 6:00 p.m. and shall have one elevator in the bank of
\nelevators servicing the Premises available at all other times.<\/p>\n
(2) Tenant shall have the right to use the freight elevator in the
\nBuilding (on a priority but not exclusive) basis for four (4) hours on the date
\nof Tenant’s move-in and such use shall be without charge to Tenant but which
\nshall be subject to Landlord’s Rules and Regulations regarding such use
\n(including advance notice and reservation of such use). All other freight
\nelevator use shall be subject to Landlord’s Rules and Regulations regarding such
\nuse, including any charges for such use. At all other times, Tenant shall have
\nthe right to use the freight elevator in the Building, on a non-priority and
\nnon-exclusive basis which shall be subject to Landlord’s building rules and
\nregulations regarding such use, including charges for overtime hour use.<\/p>\n
29.2 Heating. Landlord shall furnish heat to the Premises when and
\n ——-
\nas required by law, on business days from 8:00 a.m. to 6:00 p.m. in amounts and
\nat temperatures sufficient, in Landlord’s reasonable judgment, for Tenant’s
\ncomfortable use and occupancy of the Premises.<\/p>\n
29.3 Cooling. Landlord, at Landlord’s expense, shall furnish air-
\n ——-
\ncooling consistent with other comparable buildings in Manhattan on business days
\nfrom 8:00 a.m. to 6:00 p.m. from May 15 through September 15 of each year
\nduring, the Term when, in the judgment of Landlord, reasonably exercised, it may
\nbe required for the comfortable occupancy of the Premises, and shall ventilate
\nthe Premises on business days and for similar hours during other months of the
\nyear. Anything in this subsection 29.3 to the contrary notwithstanding,
\nLandlord shall not be responsible if the normal operation of the Building air
\ncooling system shall fail to provide cooled air at reasonable temperatures,
\npressures or degrees of humidity or any reasonable volumes or velocities in any
\nparts of the Premises (i) which, by reason of any machinery or equipment
\ninstalled by or on behalf of Tenant or any person claiming through or under
\nTenant, shall have an electrical load in excess of the average electrical load
\nand human occupancy factors for the <\/p>\n
45<\/p>\n
Building air-cooling system as designed, or (ii) because of any rearrangement of
\npartitioning or other Alterations made or performed by or on behalf of Tenant or
\nany person claiming through or under Tenant other than in connection with
\nLandlord’s Initial Construction. Tenant agrees to keep and cause to be kept
\nclosed all of the windows in the Premises whenever the air-cooling system is in
\noperation and agrees to lower and close the blinds when necessary because of the
\nsun’s position whenever the air-cooling system is in operation. Tenant at all
\ntimes agrees to cooperate fully with Landlord and to abide by the regulations
\nand requirements which Landlord may prescribe for the proper functioning and
\nprotection of the air-cooling system. Landlord, throughout the Term, shall have
\nreasonable access pursuant to the terms of this Lease, to any and all mechanical
\ninstallations of Landlord, including but not limited to air cooling, fan,
\nventilating, machine rooms and electrical closets.<\/p>\n
29.4 After Hours Services. The Rent does not reflect or include any
\n ——————–
\ncharge to Tenant for the furnishing or distributing of any necessary elevator
\nfacilities, heat, cooled air or mechanical ventilation to the Premises during
\nperiods other than the hours and days set forth above in this Article 29 for the
\nfurnishing and distributing of such services (such other periods being referred
\nto as “OVERTIME PERIODS”). Accordingly, if Landlord shall furnish any such
\nelevator facilities (other than as required pursuant to Subsection 29.1 hereof),
\nheat, cooled air or mechanical ventilation to the Premises at the request of
\nTenant during Overtime Periods, Tenant shall pay Landlord additional rent for
\nsuch services at the standard rates then fixed by Landlord for the Building.
\nLandlord shall not be required to furnish any such services during any Overtime
\nPeriods unless Landlord has received advance notice from Tenant requesting such
\nservices twenty-four (24) hours prior to the time when such services shall be
\nrequired. If Tenant fails to give Landlord such advance notice requesting such
\nservices during any Overtime Periods, then, whether or not the Premises are
\ninhabitable during such Periods, failure by Landlord to furnish or distribute
\nany such services during such Periods shall not constitute an actual or
\nconstructive eviction, in whole or in part, or entitle Tenant to any abatement
\nor diminution of rent, or relieve Tenant from any of its obligations under this
\nLease, or impose any liability upon Landlord or its agents by reason of
\ninconvenience or annoyance to Tenant, or injury to or interruption of Tenant’s
\nbusiness or otherwise.<\/p>\n
29.5 Cleaning. Landlord, at Landlord’s expense, shall cause the
\n ——–
\nPremises to be kept clean in building standard manner by performing the cleaning
\nservices set forth in the cleaning specifications attached hereto as Exhibit 2.
\nIf, however, the Premises are to be kept clean by Tenant, it shall be done at
\nTenant’s sole expense, in a manner satisfactory to Landlord and no one other
\nthan persons approved by Landlord shall be permitted to enter the Premises or
\nthe Building for such purpose. Tenant shall pay to Landlord the cost of removal
\nof any of Tenant’s refuse and rubbish from the Premises and the Building to the
\nextent that the same exceeds the refuse and rubbish usually attendant upon the
\nuse of such Premises as offices. Bills for the same shall be rendered by
\nLandlord to Tenant at such time as Landlord may elect and shall be due and
\npayable within five (5) days after the same have been rendered and the amount of
\nsuch bills shall be deemed to be, and be paid as additional rent.<\/p>\n
29.6 Sprinkler System. If there now is or shall be installed in the
\n —————-
\nBuilding a “sprinkler system”, and such system or any of its appliances shall be
\ndamaged or injured or not in proper working order by reason of any act or
\nomission of Tenant, Tenant’s agents, servants, employees, <\/p>\n
46<\/p>\n
licensees or visitors, Tenant shall forthwith restore the same to good working
\ncondition at its own expense; and if the New York Board of Fire Underwriters or
\nthe New York Fire Insurance Rating Organization or any bureau, department or
\nofficial of the state or city government, shall require or recommend that any
\nchanges, modifications, alterations or additional sprinkler heads or other
\nequipment be made or supplied by reason of Tenant’s business, or the location of
\nthe partitions, trade fixtures, or other contents of the Premises, Tenant shall,
\nat Tenant’s expense, promptly make and supply such changes, modifications,
\nalterations, additional sprinkler heads or other equipment; otherwise, Landlord
\nshall maintain, at Tenant’s expense, such sprinkler system.<\/p>\n
29.7 Water. Landlord shall provide hot and cold water for ordinary
\n —–
\ndrinking, cleaning and lavatory purposes. If Tenant requires, uses or consumes
\nwater for any purpose in addition to ordinary drinking, cleaning or lavatory
\npurposes, Landlord may install a water meter and thereby measure Tenant’s water
\nconsumption for all purposes. In such event (a) Tenant shall pay Landlord for
\nthe cost of the meter and the cost of the installation thereof and through the
\nduration of Tenant’s occupancy Tenant shall keep said meter and installation
\nequipment in good working order and repair at Tenant’s own cost and expense in
\ndefault of which Landlord may cause such meter and equipment to be replaced or
\nrepaired and collect the reasonable cost thereof from Tenant; (b) Tenant agrees
\nto pay for water consumed, as shown on said meter as and when bills are
\nrendered, and on default in making such payment Landlord may pay such charges
\nand collect the same from Tenant; and (c) Tenant covenants and agrees to pay the
\nsewer rent, charge or any other tax, rent, levy or charge which now or hereafter
\nis assessed, imposed or shall become a lien upon the Premises or the realty of
\nwhich they are part pursuant to law, order or regulation made or issued in
\nconnection with any such metered use, consumption, maintenance or supply of
\nwater, water system, or sewage or sewage connection or system. The bill
\nrendered by Landlord for the above shall be based upon Tenant’s consumption and
\nshall be payable by Tenant as additional rent within five (5) days of rendition.
\nAny such costs or expenses incurred or payments made by Landlord for any of the
\nreasons or purposes hereinabove stated shall be deemed to be additional rent
\npayable by Tenant and collectible by Landlord as such. Independently of and in
\naddition to any of the remedies reserved to Landlord hereinabove or elsewhere in
\nthis Lease, Landlord may sue for and collect any monies to be paid by Tenant or
\npaid by Landlord for any of the reasons or purposes hereinabove set forth.<\/p>\n
29.8 Electricity Service.
\n ——————- <\/p>\n
(1) Landlord, at Landlord’s expense, shall redistribute or furnish
\nelectrical energy to or for the use of Tenant in the Premises for the operation
\nof the lighting fixtures and the electrical receptacles installed in the
\nPremises on the Commencement Date and the ordinary and customary office business
\nmachines including, without limitation, word processing, typewriters and
\nphotocopying machines, used by Tenant. There shall be no specific charge by way
\nof measuring such electrical energy on any meter or otherwise, as the charge for
\nthe service of redistributing or furnishing such electrical energy has been
\nincluded in the Rent on a so-called “rent inclusion” basis. The parties agree
\nthat although the charge for the service of redistributing or furnishing
\nelectrical energy is included in the Rent on a so called “rent inclusion” basis,
\nthe value to Tenant of such service may not be fully reflected in the Rent.
\nAccordingly, Tenant agrees that Landlord, at Landlord’s expense, may cause an
\nindependent electrical engineer or electrical consulting firm, selected by
\nLandlord, to make a determination, <\/p>\n
47<\/p>\n
following the commencement of Tenant’s normal business activities in the
\nPremises, of the full value to Tenant of such services supplied by Landlord, to
\nwit: the estimated actual electrical energy consumed by Tenant annually based
\nupon the estimated capacity of the electrical feeders, risers and wiring and
\nother electrical facilities serving the Premises and used by Tenant. Such
\nengineer or consulting firm shall certify such determination in writing to
\nLandlord and Tenant. Thereafter, Landlord may from time to time at its option
\ncause such engineer or consulting firm to make subsequent determinations of the
\nthen full value of such services supplied to Tenant on the basis set forth in
\nthe immediately preceding sentence. If it shall be determined that the full
\nvalue to Tenant of the electric service is in excess of the Electrical Inclusion
\nFactor, the parties shall enter into a written supplementary agreement, in form
\nsatisfactory to Landlord and Tenant, modifying this Lease as of the Commencement
\nDate by increasing the Rent and the Electrical Inclusion Factor for the entire
\nTerm by an annual amount equal to such excess. However, if it shall be so
\ndetermined that the full value to Tenant of such service does not exceed the
\nElectrical Inclusion Factor, no such agreement shall be executed and there shall
\nbe no increase or decrease in the Rent or the Electrical Inclusion Factor by
\nreason of such determination. If either the quantity or character of electrical
\nservice is changed by the public utility or other company supplying electrical
\nservice to the Building or is no longer available or suitable for Tenant’s
\nrequirements, no such change, unavailability or unsuitability shall constitute
\nan actual or constructive eviction, in whole or in part, or entitle Tenant to
\nany abatement or diminution of rent, or relieve Tenant from any of its
\nobligations under this Lease, or impose any liability upon Landlord, or its
\nagents, by reason of inconvenience or annoyance to Tenant, or injury to or
\ninterruption of Tenant’s business, or otherwise.<\/p>\n
(2) Subject to the provisions of subsection 29.8(3), any additional
\nfeeders or risers to be installed to supply Tenant’s additional electrical
\nrequirements, and all other equipment proper and necessary in connection with
\nsuch feeders or risers, shall be installed by Landlord upon Tenant’s request, at
\nthe sole cost and expense of Tenant, provided that, in Landlord’s judgment, such
\nadditional feeders or risers are necessary and are permissible under applicable
\nlaws and insurance regulations and the installation of such feeders or risers
\nwill not cause permanent damage or injury to the Building or the Premises or
\ncause or create a dangerous or hazardous condition or entail excessive or
\nunreasonable alterations or interfere with or disturb other tenants or occupants
\nof the Building. Tenant covenants that at no time shall the use of electrical
\nenergy in the Premises exceed the capacity of the existing feeders or wiring
\ninstallations then serving the Premises. Tenant shall not make or perform, or
\npermit the making, or performance of, any Alterations to wiring installations or
\nother electrical facilities in or serving the Premises or any additions to the
\nbusiness machines, office equipment or other appliances in the Premises which
\nutilize electrical energy without the prior consent of Landlord in each
\ninstance. Any such Alterations, additions or consent by Landlord shall be
\nsubject to the provisions of subsection 29.8(3), as well as to other provisions
\nof this Lease including, but not limited to, the provisions of Article 3 hereof.<\/p>\n
(3) If, at any time or times during the Term, electrical feeders,
\nrisers, wiring or other electrical facilities serving the Premises shall be
\ninstalled by Landlord, Tenant or others, on behalf of Tenant or any person
\nclaiming through or under Tenant in addition to the feeders, risers, wiring or
\nother electrical facilities necessary to serve the lighting fixtures and
\nelectrical receptacles installed in the Premises on the Commencement Date and
\nthe ordinary and <\/p>\n
48<\/p>\n
customary office business machines used by Tenant, the Rent and Electrical
\nInclusion Factor each shall be increased in an annual amount which shall reflect
\nthe value to Tenant of the additional service to be furnished by Landlord in
\naccordance with Subsection 29.8(l). The amount of any such increase in the Rent
\nand the Electrical Inclusion Factor shall be determined by an independent
\nelectrical engineer or electrical consulting firm selected by Landlord who shall
\ncertify such determination in writing to Landlord and Tenant. Following any such
\ndetermination, Landlord and Tenant shall enter into a written supplementary
\nagreement, in form satisfactory to Landlord and Tenant, modifying this Lease by
\nincreasing the Rent and the Electrical Inclusion Factor for the remainder of the
\nTerm in an annual amount equal to the value of such additional service as so
\ndetermined. Any such increase shall be effective as of the date of the first
\navailability to Tenant of such additional service and shall be retroactive to
\nsuch date if necessary.<\/p>\n
(4) If, at any time or times after the date hereof, the rates at which
\nLandlord purchases electrical energy from the public utility corporation
\nsupplying electrical service to the Building or any charges incurred or taxes
\npayable by Landlord in connection therewith shall be increased, the Rent and the
\nElectrical Inclusion Factor shall be increased upon demand of Landlord by a
\npercentage equal to the percentage of such increase. Any such increase in the
\nRent and the Electrical Inclusion Factor shall be effective as of the date of
\nsuch increase in rates, charges or taxes, and shall be retroactive to such date
\nif necessary. Anything in this subsection 29.8(4) to the contrary
\nnotwithstanding, under no circumstances shall the Electrical Inclusion Factor be
\nan amount less than the amount set forth in subsection 29.8(l).<\/p>\n
(5) Any increase in the Rent pursuant to the provisions of this
\nsubsection 29.8 with respect to the period from the effective date of such
\nincrease to the last day of the month in which such increase shall be fixed by
\nagreement or determination shall be payable by Tenant upon demand of Landlord.
\nThe monthly installments of the Rent payable after the date upon which any such
\nincrease is so fixed shall be proportionately adjusted to reflect such increase
\nin the Rent.<\/p>\n
(6) Landlord shall have the option of installing submeters at
\nLandlord’s expense to measure Tenant’s consumption of electrical energy. In the
\nevent Landlord exercises such option, the Rent shall be reduced by an amount
\nequal to the then Electrical Inclusion Factor with such reduction to be
\neffective as of the commencement of the operation of such submeters. If
\nLandlord exercises such option, Tenant shall pay to Landlord, as additional
\nrent, on demand, from time to time, but no more frequently than monthly, for its
\nuse of electrical energy in the Premises, based upon both consumption and demand
\nfactors, at the higher of (x) the seasonally adjusted rate then payable by
\nLandlord to the utility company, or (y) the seasonally adjusted rate which
\nTenant would have been required to pay directly to the utility company had the
\nutility company provided such service directly to Tenant, plus Landlord’s charge
\nfor (i) a reimbursement for out-of-pocket expenses incurred by Landlord in
\nconnection with the retention of a submetering company or other professionals to
\nmonitor and measure Tenant’s submeters, and (ii) a charge for Landlord’s
\noverhead, administration and supervision in connection therewith equal to five
\npercent (5%) of the bill for such electricity services. In the event more than
\none meter measures the electric service to Tenant, the electric service rendered
\nthrough each meter shall be computed and billed as if one (1) meter measured
\nsuch electric service. For the purpose of this subsection 29.8(6) the rate to
\nbe paid by Tenant in the event of <\/p>\n
49<\/p>\n
submetering shall include any taxes, energy charges, demand charges, fuel
\nadjustment charges, rate adjustment charges, or other charges imposed in
\nconnection therewith. If any tax shall be imposed upon Landlord’s receipts from
\nthe sale or resale of electrical energy to Tenant by any federal, state, city or
\nlocal authority, the pro rata share of such tax allocable to the electrical
\nenergy service received by Tenant shall be passed on to, included in the bill of
\nand paid by Tenant.<\/p>\n
(7) Landlord reserves the right to discontinue furnishing electricity
\nto a majority of office tenants of the Building, including, without limitation,
\nTenant’s Premises on not less than thirty (30) days’ notice to Tenant. If
\nLandlord exercises such right to discontinue, or is compelled to discontinue
\nfurnishing electricity to Tenant, this Lease shall continue in full force and
\neffect and shall be unaffected thereby, except only that from and after the
\neffective date of such discontinuance, Landlord shall not be obligated to
\nfurnish electricity to Tenant and the Rent shall be reduced by an amount equal
\nto the then Electrical Inclusion Factor. If Landlord so discontinues furnishing
\nelectricity to Tenant, Tenant shall arrange to obtain electricity directly from
\nthe public utility or other company servicing the Building. Such electricity
\nmay be furnished to Tenant by means of the then existing electrical facilities
\nserving the Premises to the extent that the same are available, suitable and
\nsafe for such purposes. All meters and all additional panel boards, feeders,
\nrisers, wiring and other conductors and equipment which may be required to
\nobtain electricity, of substantially the same quantity, quality and character,
\nshall be installed by Landlord, at Tenant’s sole cost and expense. Landlord
\nshall not voluntarily discontinue furnishing electricity to Tenant unless it
\nlikewise discontinues furnishing electricity to all tenants of office space on
\nthe same floor of the Building, or until Tenant is able to receive electricity
\ndirectly from the public utility or other company servicing the Building.<\/p>\n
(8) Landlord shall not be liable to Tenant in any way for any
\ninterruption, curtailment or failure, or defect in the supply or character of
\nelectricity furnished to the Premises by reason of any requirement, act or
\nomission of Landlord or of any public utility or other company servicing the
\nBuilding with electricity or for any other reason except Landlord’s negligence
\nor willful misconduct.<\/p>\n
29.9 Interruption of Services. Landlord reserves the right to stop
\n ————————
\nthe service of the HVAC System or the elevator, electrical, plumbing, or other
\nmechanical systems or facilities in the Building when necessary, by reason of
\naccident or emergency, or for repairs, additions, alterations, replacements,
\ndecorations or improvements in the reasonable judgment of Landlord desirable or
\nnecessary to be made, until said repairs, alterations, replacements or
\nimprovements shall have been completed; provided Landlord shall use reasonable
\nefforts to minimize interference with Tenant’s occupancy of the Premises.
\nLandlord shall have no responsibility or liability for interruption, curtailment
\nor failure to supply cooled or outside air, heat, elevator, plumbing or
\nelectricity when prevented by exercising its right to stop service or by
\nstrikes, labor troubles or accidents or by any cause whatsoever reasonable
\nbeyond Landlord’s control, or by failure of independent contractors to perform
\nor by laws, orders, rules or regulations of any federal, state, county or
\nmunicipal authority, or failure of suitable fuel supply, or inability by
\nexercise of reasonable diligence to obtain suitable fuel or by reason of
\ngovernmental preemption in connection with a National Emergency or by reason of
\nthe conditions of supply and demand which have been or are affected by war or
\nother emergency. The exercise of such right or such <\/p>\n
50<\/p>\n
failure by Landlord shall not constitute an actual or constructive eviction, in
\nwhole or in part, or entitle Tenant to any compensation or to any abatement or
\ndiminution of rent, or relieve Tenant from any of its obligations under this
\nLease, or impose any liability upon Landlord or its agents by reason of
\ninconvenience or annoyance to Tenant, or injury to or interruption of Tenant’s
\nbusiness, or otherwise.<\/p>\n
29.10 Outside Services. It is expressly agreed that only Landlord or
\n —————-
\nany one or more persons, firms or corporations authorized in writing by Landlord
\nwill be permitted to furnish laundry, linen, towels, drinking water, ice and
\nother similar supplies and services to tenants and licensees in the Building.
\nLandlord may fix, in its reasonable discretion, at any time and from time to
\ntime, the hours during which and the regulations under which such supplies and
\nservices are to be furnished and under which foods and beverages may be brought
\ninto the Building by persons other than regular employees of Tenant.<\/p>\n
29.11 Directory Listings. If a directory is installed by Landlord,
\n ——————
\nTenant shall have the right to its proportionate share of the Building’s
\ndirectory listings for the names of Tenant and its employees. Any additional
\nlistings shall be at the sole but reasonable expense of Tenant.<\/p>\n
30. PARTNERSHIP TENANT.<\/p>\n
If Tenant is a partnership (or is comprised of two (2) or more
\npersons, individually and as co-partners of a partnership) or if Tenant’s
\ninterest in this Lease shall be assigned to a partnership (or to two (2) or more
\npersons, individually and as co-partners of a partnership) pursuant to Article
\n12 (any such partnership and such persons are referred to in this Article 30 as
\n“PARTNERSHIP TENANT”), the following provisions of this Article 30 shall apply
\nto such Partnership Tenant: (i) the liability of each of the parties comprising
\nPartnership Tenant shall be joint and several, and (ii) each of the parties
\ncomprising Partnership Tenant hereby consents in advance to, and agrees to be
\nbound by, any written instrument which may hereafter be executed, changing,
\nmodifying or discharging this Lease, in whole or in part, or surrendering all or
\nany part of the Premises to Landlord, and by any notices, demands, requests or
\nother communications which may hereafter be given by Partnership Tenant or by
\nany of the parties comprising Partnership Tenant, and (iii) any bills,
\nstatements, notices, demands, requests other communications given or rendered to
\nPartnership Tenant and to all such parties shall be binding upon Partnership
\nTenant and all such parties, and (iv) if Partnership Tenant shall admit new
\npartners, all of such new partners shall, by their admission to Partnership
\nTenant, be deemed to have assumed performance of all of the terms, covenants and
\nconditions of this Lease on Tenant’s part to be observed and performed, and (v)
\nPartnership Tenant shall give prompt notice to Landlord of the admission of any
\nsuch new partners, and upon demand of Landlord, shall cause each such new
\npartner to execute and deliver to Landlord an agreement in form satisfactory to
\nLandlord, wherein each such new partner shall assume performance of all the
\nterms, covenants and conditions of this Lease on Tenant’s part to be observed
\nand performed (but neither Landlord’s failure to request any such agreement nor
\nthe failure of any such new partner to execute or deliver any such agreement to
\nLandlord shall vitiate the provisions of subdivision (iv) of this Article 30).<\/p>\n
31. VAULT SPACE.<\/p>\n
51<\/p>\n
Any vaults, vault space or other space outside the boundaries of the
\nReal Property, notwithstanding anything contained in this Lease or indicated on
\nany sketch, blueprint or plan are not included in the Premises. Landlord makes
\nno representation as to the location of the boundaries of the Real Property.
\nAll vaults and vault space and all other space outside the boundaries of the
\nReal Property which Tenant may be permitted to use or occupy is to be used or
\noccupied under a revocable license, and if any such license shall be revoked, or
\nif the amount of such space shall be diminished or required by any Federal,
\nState or Municipal authority or by any public utility company, such revocation,
\ndiminution or requisition shall not constitute an actual or constructive
\neviction, in whole or in part, or entitle Tenant to any abatement or diminution
\nof rent, or relieve Tenant from any of its obligations under this Lease, or
\nimpose any liability upon Landlord. Any fee, tax or charge imposed by any
\ngovernmental authority for any such vaults, vault space or other space shall be
\npaid by Tenant.<\/p>\n
32. SECURITY DEPOSIT\/LETTER OF CREDIT.<\/p>\n
32.1 Tenant shall, upon the execution of this Lease by Tenant,
\ndeliver to Landlord a letter of credit (the “LETTER OF CREDIT”) issued in favor
\nof the Landlord in the sum of the Security Deposit ($35,127.00), as security for
\nthe faithful performance and observance by Tenant of the terms, conditions and
\nprovisions of this Lease, including without limitation the surrender of
\npossession of the Premises to Landlord as herein provided. In the event Tenant
\ndefaults in respect of any of the terms of this Lease including, but not limited
\nto, the payment of Rent and additional rent after notice and the expiration of
\nany applicable cure period, Landlord may draw upon the Letter of Credit to the
\nextent required for the payment of any sum as to which Tenant is in default or
\nfor any sum which Landlord may have expended or may be required to expend by
\nreason of Tenant’s default, including any damages or deficiency accrued before
\nor after summary proceedings or other re-entry by Landlord. In addition,
\nLandlord may draw upon the Letter of Credit to the extent required to compensate
\nLandlord for the actual costs incurred by Landlord in leasing the Premises,
\nincluding, without limitation, the unamortized portion of Tenant’s free rent
\nperiod, if any. In the event Landlord draws upon the Letter of Credit and
\napplies or retains any portion or all of the sum received upon such draw, Tenant
\nshall forthwith take such action as is necessary to restore the face amount of
\nthe Letter of Credit so that at all times the amount of the Letter of Credit
\nshall be equal to the Security Deposit.<\/p>\n
32.2 The Letter of Credit shall be an irrevocable, unconditional
\nletter of credit with an initial term of not less than one (1) year from the
\nCommencement Date of this Lease. Without further act or instrument required by
\nLandlord, the Letter of Credit shall be automatically renewed for successive one
\n(1) year periods throughout the remainder of the Term unless, not less than
\nforty-five (45) days prior to the then current expiration date of the Letter of
\nCredit the issuing bank notifies Landlord of its intention not to renew the
\nLetter of Credit. The Letter of Credit (or any renewal, extension or
\nreplacement thereof) shall continue in full force and effect and shall be
\nmaintained in its full face amount for two (2) calendar months beyond the
\nexpiration of the Term of this Lease (including any extension of the Term
\nhereof). The Letter of Credit shall (i) be negotiable and freely transferable
\nin connection with a sale or transfer by Landlord as hereinafter described; (ii)
\nbe issued or confirmed by a New York City banking institution reasonably
\nacceptable to Landlord which is a member of the New York Clearing House
\nAssociation; (iii) provide for payment of all or any portion of the face amount
\nof the Letter of <\/p>\n
52<\/p>\n
Credit to Landlord upon the receipt by the issuing bank of a statement signed by
\na representative of Landlord that Landlord is entitled to such amount pursuant
\nto the terms of this Lease and (iv) be otherwise in form and substance
\nreasonably satisfactory to Landlord. Landlord’s receipt of notice from the
\nissuing bank of its intention not to renew the Letter of Credit or Tenant’s
\nfailure to deliver a renewal or replacement letter of credit shall entitle
\nLandlord to draw the full face amount of the Letter of Credit and retain such
\nsum as security hereunder in lieu of the Letter of Credit. Tenant’s failure to
\nmaintain the Letter of Credit or to substitute a cash security deposit as a
\nreplacement therefor shall constitute a default under this Lease.<\/p>\n
32.3 In the event that Tenant shall fully and faithfully comply with
\nall of the terms of this Lease, the Letter of Credit shall be returned to Tenant
\npromptly after the Expiration Date or sooner termination of this Lease (other
\nthan a termination which results from Tenant’s default hereunder). In the event
\nof a sale of the Building or leasing of the Building, of which the Premises form
\na part, Landlord shall have the right to transfer the Letter of Credit to the
\nvendee or lessee. Landlord upon such transfer shall be released by Tenant from
\nall liability for the return of such security and Tenant agrees to look solely
\nto the new landlord for the return of said security. It is agreed that the
\nprovisions hereof shall apply to every transfer or assignment made of the
\nsecurity to a new landlord.<\/p>\n
33. CAPTIONS.<\/p>\n
The Captions are inserted only as a matter of convenience and for
\nreference and in no way define, limit or describe the scope of this Lease or the
\nintent of any provision thereof.<\/p>\n
34. ADDITIONAL DEFINITIONS.<\/p>\n
34.1 The term “OFFICE” or “OFFICES”, wherever used in this Lease,
\nshall not be construed to mean premises used as a store or stores, for the sale
\nor display, at any time, of goods, wares or merchandise, of any kind, or as a
\nrestaurant, shop, booth, bootblack or other stand, barber shop, or for other
\nsimilar purposes or for manufacturing.<\/p>\n
34.2 The words “RE-ENTER” and “RE-ENTRY” as used in this Lease are
\nnot restricted to their technical legal meaning.<\/p>\n
34.3 The term “BUSINESS DAYS,” if and when used in this Lease, shall
\nexclude Saturdays, Sundays and all days observed by (i) the State or Federal
\nGovernment, or (ii) any applicable union, legal or trade holidays, as the case
\nmay be.<\/p>\n
35. PARTIES BOUND.<\/p>\n
The covenants, conditions and agreements contained in this Lease shall
\nbind and inure to the benefit of Landlord and Tenant and their respective heirs,
\ndistributees, executors, administrators, successors, and, except as otherwise
\nprovided in this Lease, their assigns.<\/p>\n
36. BROKER.<\/p>\n
53<\/p>\n
Each of Landlord and Tenant represents to the other that it has dealt
\nwith no broker in connection with this Lease other than the Broker.
\nCommissions, if any, due to the Broker shall be paid by Landlord pursuant to a
\nseparate agreement. Each of Landlord and Tenant agrees to indemnify, defend and
\nhold harmless the other from and against any claims, based or alleged to be
\nbased upon the acts or omissions of the indemnifying party, for any brokerage
\ncommission or finder’s fee with respect to this Lease by persons other than the
\nBroker, and for all costs, expenses and liabilities incurred in connection with
\nsuch claims, including reasonable attorneys’ fees and disbursements arising out
\nof a breach of the foregoing representation.<\/p>\n
37. INDEMNITY.<\/p>\n
Tenant shall not do or permit any act or thing to be done upon the
\nPremises which may subject Landlord to any liability or responsibility for
\ninjury, damages to persons or property or to any liability by reason of any
\nviolation of law or of any legal requirement of public authority, but shall
\nexercise such control over the Premises as to fully protect Landlord against any
\nsuch liability. Tenant agrees to indemnify, defend, protect and hold harmless
\nLandlord and its agents from and against (a) all claims of whatever nature
\nagainst Landlord and its agents (including, without limitation, all claims
\narising from any accident, injury or damage caused to any person or to the
\nproperty of any person) arising from any act, omission or negligence of Tenant,
\nor Tenant’s assignees, sublessee, contractors, licensees, agents, servants,
\nemployees, invitees or visitors, in the Premises, (b) all claims against
\nLandlord arising from any accident, injury or damage occurring outside of the
\nPremises but anywhere within or about the Real Property, where such accident,
\ninjury or damage results or is claimed to have resulted from any act, omission
\nor negligence of only Tenant or Tenant’s assignees, sublessee, contractors,
\nlicensees, agents, servants, employees, invitees or visitors, and (c) any
\nbreach, violation or nonperformance of any covenant, condition or agreement in
\nthis Lease set forth and contained on the part of Tenant to be fulfilled, kept,
\nobserved and performed. This indemnity and hold harmless agreement shall
\ninclude indemnity from and against any and all liability, fines, suits, demands,
\ncosts and expenses of any kind or nature incurred in or in connection with any
\nsuch claim or proceeding brought thereon, and the defense thereof with counsel
\napproved by Landlord in writing, which approval shall not be unreasonably
\nwithheld or delayed. In addition, Landlord shall have the right, at Tenant’s
\nsole, but reasonable, cost and expense, to retain its own counsel in any such
\nactions brought against Landlord. This Article shall survive the expiration or
\nearlier termination of this Lease.<\/p>\n
38. ADJACENT EXCAVATION-SHORING.<\/p>\n
If an excavation shall be made upon land adjacent to the Premises, or
\nshall be authorized to be made, or if scaffolding shall be erected on or
\nadjacent to the Building, Tenant shall afford to the person causing or
\nauthorized to cause such excavation or construction, license to enter upon the
\nPremises for the purpose of doing such work as said person shall deem necessary
\nto preserve the wall or the Building from injury or damage and to support the
\nsame by improper foundations without any claim for damages or indemnity against
\nLandlord, or diminution or abatement of rent. Landlord shall use reasonable
\nefforts to cause the performance of such excavation to occur expeditiously and
\nwith minimum interference to Tenant’s occupancy of the Premises.<\/p>\n
54<\/p>\n
39. MISCELLANEOUS.<\/p>\n
39.1 No Offer. This Lease is not an offer by Landlord or Tenant and
\n ——–
\nit is understood that this Lease shall not be binding upon Landlord or Tenant
\nunless and until Landlord and Tenant shall have executed and delivered a fully
\nexecuted copy of this Lease to the other party.<\/p>\n
39.2 Signatories. If more than one person executes this Lease as
\n ———–
\nTenant, each of them understands and hereby agrees that the obligations of each
\nof them under this Lease are and shall be joint and several, that the term
\n“Tenant” as used in this Lease shall mean and include each of them jointly and
\nseverally and that the act of or notice from, or notice or refund to, or the
\nsignature of, any one or more of them, with respect to the tenancy and\/or this
\nLease, including, but not limited to, any renewal, extension, expiration,
\ntermination or modification of this Lease, shall be binding upon each and all of
\nthe persons executing this Lease as Tenant with the same force and effect as if
\neach and all of them had so acted or so given or received such notice or refund
\nor so signed.<\/p>\n
39.3 Certificates. From time to time, within ten (10) days next
\n ————
\nfollowing Landlord’s request, Tenant shall deliver to Landlord a written
\nstatement executed and acknowledged by Tenant, in form reasonably satisfactory
\nto Landlord, (i) stating that this Lease is then in full force and effect and
\nhas not been modified (or if modified, setting forth all modifications), (ii)
\nsetting forth the date to which the Rent, additional rent and other charges
\nhereunder have been paid, together with the amount of fixed base monthly Rent
\nthen payable, (iii) stating whether or not, to the best knowledge of Tenant,
\nLandlord is in default under this Lease, and, if Landlord is in default, setting
\nforth the specific nature of all such defaults, stating the amount of the
\nsecurity deposit under this Lease, (iv) stating whether there are any subleases
\naffecting the Premises, (v) stating the address of Tenant to which all notices
\nand communication under the Lease shall be sent, the Commencement Date and the
\nExpiration Date, and (vi) as to any other matters requested by Landlord. Tenant
\nacknowledges that any statement delivered pursuant to this subsection 39.3 may
\nbe relied upon by any purchaser or owner of the Real Property or the Building,
\nor Landlord’s interest in the Real Property or the Building or any Superior
\nLease, or by any mortgagee of a Mortgage, or by any assignee of any mortgagee of
\na Mortgage, or by any lessor under any Superior Lease. So long as Tenant shall
\nnot be in default beyond any applicable notice and cure period, within ten (10)
\nbusiness days following Tenant’s written request, Landlord shall deliver a
\nstatement to Tenant regarding the matters set forth in clauses (i), (ii) and, to
\nthe best knowledge of Landlord, (iii) of this Section 39.3, provided that
\nLandlord’s failure to deliver such a statement shall not subject Landlord to any
\nliability to Tenant hereunder and shall not be deemed a default by Landlord
\nhereunder entitling Tenant to terminate this Lease or to refuse or fail to
\nperform any other obligation of Tenant hereunder.<\/p>\n
39.4 Governing Law, Venue. (a) This Lease shall be governed by, and
\n ——————–
\nbe construed in accordance with, the laws of the State of New York without
\nregard to the principles of conflicts of laws. To the fullest extent permitted
\nby law, Tenant hereby unconditionally and irrevocably waives any claims to
\nassert that the law of any other jurisdiction governs this Lease and agrees that
\nthis Lease shall be governed by and construed in accordance with the laws of the
\nState of New York pursuant to (S) 5-1401 of the New York General Obligations
\nLaw.<\/p>\n
55<\/p>\n
(b) Any legal suit, action or proceeding against Tenant or Landlord
\narising out of or relating to this Lease may be instituted in any federal or
\nstate court in New York, New York, pursuant to (S) 5-1402 of the New York
\nGeneral Obligations Law, and Tenant hereby waives any objection which it may now
\nor hereafter have to the laying of venue of any such suit, action or proceeding
\nincluding, without limitation, any claim of forum non conveniens pursuant to any
\nrule of common law and\/or any applicable federal or state statute, law or
\nprovision, and Tenant hereby irrevocably submits to the jurisdiction of any such
\ncourt in any suit, action or proceeding.<\/p>\n
39.5 Rent Restrictions. If the amount of the Rents payable under
\n —————–
\nthis Lease exceeds that allowed by the terms of any valid government restriction
\nthat limits the amount of rent or other charges that a commercial lessor may
\ncharge or collect, the amount of Rents payable under this Lease shall be the
\nmaximum permitted by such restriction for the period of time during which such
\nrestriction remains in effect. All increases in Rents provided for in this
\nLease shall, however, to the extent permitted by law, be calculated upon the
\namount of the Rents that would have been payable in the absence of such
\nrestriction, and, effective as of the expiration of such restriction, the Rents
\npayable hereunder shall be increased to the amount that would have prevailed had
\nsuch restriction never been in effect. Moreover, to the fullest extent
\npermitted by law, on the first due date for an installment of Rent following
\nexpiration of such restriction, Tenant shall pay to Landlord, as additional
\nrent, an amount equal to the difference between the amount of Rents that Tenant
\nwould have paid if such restriction had not been in force and the amount of
\nRents actually paid by Tenant during the period in which such restriction
\nremained in effect.<\/p>\n
40. TENANT RELOCATION.<\/p>\n
It is specifically agreed between Landlord and Tenant that Landlord
\nshall have the one (1) time right at any time during the Term of this Lease
\n(including without limitation the primary or any renewal or extension term
\nthereof) to substitute, instead of the Premises, other space of at least the
\narea of the Premises (such other space being hereinafter referred to as the
\n“SUBSTITUTION SPACE”) located anywhere in the Building; provided, however, that
\nsuch Substitution Space (i) contains at least the same number of windows (with
\nthe same or substantially similar exposure) and at least the same number of
\noffices as the Premises, (ii) consists of at least the same square footage as
\nthe Premises, (iii) has a similar or better layout as the Premises and (iv) is
\nnot substantially blocked by signage. Landlord shall exercise such right by
\ngiving Tenant at least thirty (30) days’ prior written notice specifying the
\neffective date of such substitution of the Substitution Space, whereupon, as of
\nsuch effective date:<\/p>\n
(a) The description of the Premises set forth in the Lease shall,
\nwithout further act on the part of Landlord or Tenant, be deemed amended so that
\nthe Substitution Space shall be deemed to be the Premises under the Lease, and
\nall of the terms, covenants, conditions and provisions and agreements of the
\nLease shall continue in full force and effect and apply to the Substitution
\nSpace; and<\/p>\n
56<\/p>\n
(b) Tenant shall move from the original Premises into the Substitution
\nSpace on or before the effective date stated in Landlord’s notice and shall
\nvacate and surrender possession to Landlord of the original Premises; and<\/p>\n
(c) Subject to the other provisions of this subsection (c), Tenant
\nshall be deemed to have accepted possession of the Substitution Space in its “AS
\nIS” condition as of the effective date stated in Landlord’s notice. If Landlord
\nexercises this relocation right, Landlord shall pay directly, upon presentation
\nof invoices, for any of Tenant’s actual and reasonable out-of-pocket expenses
\nfor moving and installing Tenant’s furniture, equipment, supplies, telephones
\nand telephone equipment and all of Tenant’s other property in the Premises from
\nthe original Premises to the Substitution Space, which move and installation
\n(the “MOVE”) shall be accomplished during the period beginning with the close of
\nTenant’s business on a Friday and ending with the opening of Tenant’s business
\non the next following Monday, but Tenant shall not be compensated and Landlord
\nshall not be liable for any inconvenience to the Tenant or for any interruption
\nof Tenant’s business or affairs. Additionally, Landlord, at Landlord’ s
\nexpense, shall alter the Substitution Space in substantially the same manner as
\nthe original Premises were initially constructed by Tenant in connection with
\nthe Initial Alterations and the effective date of the substitution of the
\nSubstitution Space shall not be deemed to have occurred until the substantial
\ncompletion of such alterations. If Tenant requests materials or installations
\nin the Substitution Space other than those originally installed by Landlord in
\nthe original Premises or if Tenant shall make any changes in the work,
\nLandlord’s written consent thereto shall be required and Tenant shall pay to
\nLandlord, if Landlord so gives its consent, the extra costs of any such
\nmaterials, installations or changes in the work. Landlord at its discretion may
\nsubstitute materials of like quality for the materials originally utilized in
\nproceeding with any such work.<\/p>\n
(d) In the event that the Substitution Space shall either (A) be on a
\nfloor lower than the fourteenth (14th) floor of the Building or (B) be on a
\nhigher floor of the Building but with an exposure other than the Southwest
\nexposure of the Premises, the Rent for such Substitution Space shall be the
\nlesser of (x) the Rent set forth in subsection 1.2(iii) of this Lease, or (y)
\nthe then fair market rent for the Substitution Space, as such rent shall be
\nreasonably determined by Landlord.<\/p>\n
[NO FURTHER TEXT ON THIS PAGE]<\/p>\n
57<\/p>\n
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
\nLease as of the day and year first above written.<\/p>\n
LANDLORD:<\/p>\n
ZAPCO 1500 INVESTMENT, L.P.<\/p>\n
By: Intertech 1500 Co., LLC,
\n general partner<\/p>\n
By: Zapco Holdings, Inc.,
\n member<\/p>\n
By: \/s\/ Authorized Officer
\n ——————————-<\/p>\n
TENANT:<\/p>\n
SALON INTERNET, INC.<\/p>\n
By: \/s\/ Authorized Officer
\n —————————— <\/p>\n
Tenant’s Federal I.D. Number: 943228750<\/p>\n
58<\/p>\n
SCHEDULE A<\/p>\n
RULES AND REGULATIONS<\/p>\n
To the extent there is any conflict or inconsistency between any of the
\nRules and Regulations and the provisions of the Lease, the provisions of the
\nLease shall govern.<\/p>\n
1. The rights of each tenant in the Building to the entrances, corridors
\nand elevators of the Building are limited to ingress to and egress from such
\ntenant’s premises and no tenant shall use, or permit the use of the entrances,
\ncorridors, or elevators for any other purpose. No tenant shall invite to its
\npremises, or permit the visit of persons in such numbers or under such
\nconditions as to interfere with the use and enjoyment of any of the plazas,
\nentrances, corridors, elevators and other facilities of the Building by other
\ntenants. No tenant shall encumber or obstruct, or permit the encumbrances or
\nobstruction of any of the sidewalks, plazas, entrances, corridors, elevators,
\nfire exits or stairways of the Building. No tenant shall permit the use of any
\npublic areas in or adjacent to the Building for smoking. Tenants shall cause all
\nemployees and visitors to comply with all state and local smoking regulations as
\nin effect from time to time. Landlord reserves the right to control and operate
\nthe public portions of the Building, the public facilities, as well as
\nfacilities furnished for the common use of the tenants, in such manner as
\nLandlord deems best for the benefit of the tenants generally.<\/p>\n
2. Landlord may refuse admission to the Building outside of ordinary
\nbusiness hours to any person not known to the watchman in charge or not having a
\npass issued by Landlord or not properly identified, and may require all persons
\nadmitted to or leaving the Building outside of ordinary business hours to
\nresister. Tenants’ employees, agents and visitors shall be permitted to enter
\nand leave the Building whenever appropriate arrangements have been previously
\nmade between Landlord and the tenant with respect thereto. Each tenant shall be
\nresponsible for all persons for whom it requests such permission and shall be
\nliable to Landlord for all acts of such persons. Any person whose presence in
\nthe Building at any time shall, in the judgment of Landlord, be prejudicial to
\nthe safety, character, reputation or interests of the Building or its tenants
\nmay be denied access to the Building or may be ejected therefrom. In case of
\ninvasion, riot, public excitement or other commotion Landlord may prevent all
\naccess to the Building during the continuance of the same, by closing the doors
\nor otherwise, for the safety of the tenants and protection of property in the
\nBuilding. Landlord may require any person leaving the Building with any package
\nor other object to exhibit a pass from the tenant from whose premises the
\npackage or object is being removed, but the establishment and enforcement of
\nsuch requirement shall not impose any responsibility of Landlord for the
\nprotection of any tenant against the removal of property from the premises of
\ntenant. Landlord shall, in no way, be liable to any tenant for damages or loss
\narising from the admission, exclusion or ejection of any person to or from a
\ntenant’s premises or the Building under the provisions of this rule.<\/p>\n
3. No tenant shall obtain or accept for use in its premises ice, drinking
\nwater, towels, barbering, boot blacking, floor polishing, lighting maintenance,
\ncleaning or other similar services from any persons not authorized by Landlord
\nin writing to furnish such services. Such services shall be furnished only at
\nsuch hours, in such places within the tenant’s premises and under such
\nregulation as may be fixed by Landlord.<\/p>\n
A-1<\/p>\n
4. No window or other air-conditioning units shall be installed by any
\ntenant, and only such window coverings as are supplied or permitted by Landlord
\nshall be used in a tenant’s premises.<\/p>\n
5. There shall not be used in any space, nor in the public halls of the
\nBuilding, either by any tenant or by jobbers, or other in the delivery or
\nreceipt of merchandise, any hand trucks, except those equipped with rubber tires
\nand side guards.<\/p>\n
6. All entrance doors in each tenant’s premises shall be left locked when
\nthe tenant’s premises are not in use. Entrance doors shall not be left open at
\nany time. All windows in each tenant’s premises shall be kept closed at all
\ntimes and all blinds therein above the ground floor shall be lowered when and as
\nreasonably required because of the position of the sun, during the operation of
\nthe Building air-conditioning system to cool or ventilate the tenants’ premises.<\/p>\n
7. No noise, including the playing of any musical instruments, radio or
\ntelevision, which, in the judgment of Landlord, might disturb other tenants in
\nthe Building, shall be made or permitted by any tenant. No dangerous,
\ninflammable, combustible or explosive object, material or fluid shall be brought
\ninto the Building by any tenant or with the permission of any tenant.<\/p>\n
8. All damages resulting from any misuse of the plumbing fixtures shall
\nbe borne by the tenant who, or whose servants, employees, agents, visitors or
\nlicensees, shall have caused the same. If, in Landlord’s reasonable judgment,
\ntenant has on more than six occasions in any 12 month period violated any of the
\nRules, then, in addition to all other rights and remedies, Landlord may engage
\nan outside security firm, at the tenant’s expense, chargeable as additional rent
\nto such tenant, to monitor for a reasonable time tenant’s compliance, and to
\ntake such steps as it sees fit, without any liability to Landlord, to prevent
\nany further violation of the rules.<\/p>\n
9. No signs, advertisement, notice or other lettering shall be exhibited,
\ninscribed, painted or affixed by any tenant on any part of the outside of the
\npremises or the Building without the prior written consent of Landlord. Signs
\nand lettering on doors shall be inscribed, painted, or affixed for each tenant
\nby Landlord at the expense of such tenant, and shall be of a size and color
\nreasonably acceptable to Landlord. Landlord may remove same without any
\nliability and may charge the expense incurred by such removal to the tenant or
\ntenants violating this rule. No tenant shall use any advertising which impairs
\nthe reputation of the Building. Landlord will provide Tenant’s proportionate
\nshare of listings on the lobby directory board (if the Building shall have such
\nlobby directory board). All other listings on such lobby directory board shall
\nbe installed by Landlord at Landlord’s sole discretion.<\/p>\n
10. No additional locks or bolts of any kind shall be placed upon any of
\nthe doors or windows in any tenant’s premises and no lock on any door therein
\nshall be changed or altered in any respect. Duplicate keys for a tenant’s
\npremises and toilet rooms shall be procured only from Landlord, which may make a
\nreasonable charge therefore. Upon the termination of a tenant’s lease, all keys
\nof the tenant’s premises and toilet rooms shall be delivered to Landlord.<\/p>\n
A-2<\/p>\n
11. Each tenant, shall, at its expense, provide artificial light in the
\npremises for Landlord’s agents, contractors and employees while performing
\njanitorial or other cleaning services and making repairs or alterations in said
\npremises.<\/p>\n
12. No tenant shall install or permit to be installed any vending machines
\nwithout Landlord’s prior written consent.<\/p>\n
13. No animals or birds, bicycles, mopeds or vehicles of any kind shall be
\nkept in or about the Building or permitted therein.<\/p>\n
14. No furniture, office equipment, packages or merchandise will be
\nreceived in the Building or carried up or down in the elevator, except between
\nsuch hours as shall be designated by Landlord. Landlord shall prescribe the
\ncharge for freight elevator use and the method and manner in which any
\nmerchandise, heavy furniture, equipment or safes shall be brought in or taken
\nout of the Building, and also the hours at which such moving shall be done.<\/p>\n
15. All electrical fixtures hung in offices or spaces along the perimeter
\nof any tenant’s Premises must be fluorescent, of a quality, type, design and
\nbulb color approved by Landlord unless the prior consent of Landlord has been
\nobtained for other lamping.<\/p>\n
16. The exterior windows and doors that reflect or admit light and air
\ninto any premises or the halls, passageways or other public places in the
\nBuilding, shall not be covered or obstructed by any tenant, nor shall any
\narticles be placed on the window sills.<\/p>\n
17. Canvassing, soliciting and peddling in the Building is prohibited and
\neach tenant shall cooperate to prevent same.<\/p>\n
18. No tenant shall do any cooking, conduct any restaurant, luncheonette
\nor cafeteria for the sale or service of food or beverages to its employees or to
\nothers, except as expressly approved in writing by Landlord. In addition, no
\ntenant shall cause or permit any odors of cooking or other processes or any
\nunusual or objectionable odors to emanate from the premises. The foregoing shall
\nnot preclude tenant from having food or beverages delivered to the premises,
\nprovided that no cooking or food preparation shall be carried out at the
\npremises. Notwithstanding the foregoing, Tenant shall be permitted to install a
\nrefrigerator, microwave oven and coffee maker in the Premises for the use solely
\nby Tenant, its employees and invitees.<\/p>\n
A-3<\/p>\n
EXHIBIT 1<\/p>\n
FLOOR PLAN OF PREMISES<\/p>\n
[FLOOR PLAN APPEARS HERE]<\/p>\n
EXHIBIT 2
\n CLEANING SPECIFICATIONS<\/p>\n
Contractor shall perform these services nightly between the hours of 5:00
\nP.M. and 8:00 A.M., Union Holidays excepted.<\/p>\n
I. DAILY SERVICES
\n ————–<\/p>\n
A. TENANT AREAS
\n ————<\/p>\n
1. Dust sweep all stone, ceramic tile, marble, terrazzo, asphalt
\ntile, and other types of flooring.<\/p>\n
2. Vacuum all carpet twice weekly, carpet sweep all areas three
\ntimes a week.<\/p>\n
3. Empty and clean all waste baskets and disposal receptacles.
\nRemove trash to designated areas.<\/p>\n
4. Empty and clean all ashtrays and screen sand urns. Contractor to
\nreplace sand as necessary.<\/p>\n
5. Dust all furniture, fixtures, chair rails, window unit covers and
\ntrim.<\/p>\n
6. Clean all glass furniture tops.<\/p>\n
7. Dust telephone with anti-bacterial cloth<\/p>\n
8. Wash clean all water fountains and coolers.<\/p>\n
B. PUBLIC CORRIDORS
\n —————-<\/p>\n
1. Damp mop tile, terrazzo and marble flooring.<\/p>\n
2. Vacuum carpet in public corridors.<\/p>\n
3. Clean all cigarette urns and replace sand as necessary.
\n(Contractor to furnish sand.)<\/p>\n
4. Clean all wall surfaces of finger marks, smudges, writing, etc.<\/p>\n
5. Dust elevator doors.<\/p>\n
C. CORE LAVATORIES
\n —————<\/p>\n
1. Scour, wash and disinfect both sides of all toilet seats, basins,
\nbowls and urinals.<\/p>\n
2. Wash floors, using proper disinfectants.<\/p>\n
E-1<\/p>\n
3. Wash and polish all mirrors, powder shelves, bright work
\nincluding flushometers.<\/p>\n
4. Dust and wash all partitions, tile walls dispensers and
\nreceptacles.<\/p>\n
5. Empty paper towel receptacles and remove trash to designated
\nareas.<\/p>\n
6. Empty and clean sanitary disposal receptacles (Contractor to
\nfurnish napkins).<\/p>\n
7. Fill all paper towel, soap and tissue dispensers.<\/p>\n
8. Report to Managing Agent any plumbing or mechanical deficiencies.<\/p>\n
II. PERIODIC SERVICES
\n —————–<\/p>\n
Contractor will furnish the following services at the specified
\nfrequency.<\/p>\n
A. LAVATORY
\n ——–<\/p>\n
1. Machine scrub floors monthly, or more frequently as necessary.<\/p>\n
2. Wash all partitions, tile walls and enamel surfaces monthly with
\nproper disinfectant.<\/p>\n
3. High dust all lights, walls and grilles monthly.<\/p>\n
B. GENERAL OFFICE AREAS
\n ——————–<\/p>\n
1. Wipe clean all aluminum, chrome and other metal work around
\nexterior windows as necessary.<\/p>\n
2. Dust all ventilating louvers and grilles within reach quarterly.<\/p>\n
3. Wash all waste receptacles quarterly, public areas only.<\/p>\n
4. Wash all lighting fixtures twice per year, public areas only.<\/p>\n
5. Dust all vertical surfaces not reached nightly, venetian blinds,
\npicture frames, charts and other hangings, quarterly.<\/p>\n
6. Wash all windows in the demised premises inside and outside,
\nquarterly.<\/p>\n
II. EXCLUDED AREAS & MATERIALS
\n ————————–<\/p>\n
1. Private bathrooms.<\/p>\n
2. Pantry area.<\/p>\n
E-2<\/p>\n
3. Hazardous waste.<\/p>\n
4. Medical waste.<\/p>\n
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