LEASE

Exhibit 10.20

PARAMOUNT GROUP, INC.

as Agent for

900 THIRD AVENUE, L. P.

Landlord,

-and-

HUDSON SECURITIES, INC.

Tenant.

L E A S E

Dated: April 29 ^th , 2009

TABLE OF CONTENTS

 

 

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LEASE

LEASE, dated as of April 29 ^th , 2009, between PARAMOUNT GROUP, INC., as Agent for 900 THIRD AVENUE, L. P. (Landlord), having offices at 1633 Broadway and HUDSON SECURITIES, INC. (Tenant), a Delaware corporation, with a Federal Tax Identification Number of 22-481089 and having an office at 111 Town Square Place, 15 ^th Floor, Jersey City, NJ 07310 (Lease).

W I T N E S S E T H :

ARTICLE 1

Premises, Term, Purposes and Rent

Section 1.01 Landlord does hereby lease to Tenant, and Tenant does hereby hire from Landlord, subject to any ground and/or underlying leases and/or mortgages as herein provided, and upon and subject to the covenants, agreements, terms, provisions and conditions of this Lease, for the term herein stated, a portion of the 14 ^th floor substantially as shown hatched on the rental plan annexed hereto as Exhibit A, in the building known as and located at 900 Third Avenue, New York, New York (Building). Said leased premises, together with all Appurtenances, as herein defined, (except Tenant’s Property, herein defined) are herein called the “Premises”. The plot of land on which the Building is located is herein called the “Land”.

Section 1.02 The term of this Lease shall commence on the date Landlord delivers possession of the Premises to Tenant with Landlord’ Work as hereinafter defined substantially complete (subject to Section 2.02 hereof) or on such earlier date as Tenant or anyone claiming under or through Tenant shall occupy the Premises or any part thereof (Term Commencement Date) and shall end three (3) years and two (2) months thereafter (Expiration Date) or on such earlier date upon which said term may expire or be terminated as herein provided or pursuant to law. Notwithstanding the Term Commencement Date, this Lease shall be effective from and after the date hereof and all of the provisions of this Lease shall be effective as of the date hereof, except for those provisions which specifically commence from and after the Term Commencement Date.

 

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Section 1.03 The Premises shall be used for the following, but no other purpose, namely: executive and general offices of Tenant (and customary ancillary uses associated therewith provided the same do not otherwise violate the Certificate of Occupancy for the Building or the remaining terms and conditions of this Lease).

Section 1.04 The rent reserved under this Lease for the term hereof shall be and consist of the following fixed rent (Fixed Rent), namely; $255,300.00 per annum, commencing on the Term Commencement Date and continuing through the balance of the Lease term. The Fixed Rent shall be payable in equal monthly installments in advance on the first day of each and every calendar month during said term (except that Tenant shall pay the first monthly installment on the execution hereof), plus such additional rent and other charges as shall become due and payable hereunder, which additional rent and other charges shall be payable as herein provided; all to be paid to Landlord at Post Office Box 11433, New York, NY 10286-1433, or such other place as Landlord may designate, in lawful money of the United States of America.

Section 1.05 Tenant does hereby covenant and agree promptly to pay the Fixed Rent, additional rent and other charges herein reserved as and when the same shall become due and payable, without demand therefor, and without any setoff or deduction whatsoever except as expressly provided for in this Lease, and to keep, observe and perform, and permit no violation of, each of Tenant’s obligations hereunder. If the Fixed Rent shall commence on any date other than the first day of a calendar month, the Fixed Rent for such calendar month shall be prorated.

Section 1.06 The parties hereby agree that for all purposes of this Lease the rentable area of the Premises is deemed to be 5,106 square feet. Neither party shall make any claim for either an increase or decrease in Fixed Rent or additional rent based on the rentable area of the Premises or any portion thereof being other than as set forth in the preceding sentence.

Section 1.07 In the event that the Term or Rent Commencement Date or Expiration Date is not a date certain, then Tenant agrees to execute, within fourteen (14) days after Landlord makes a request therefor, an agreement setting forth such dates, provided , however , that Tenant’s failure to execute said agreement shall in no way affect such dates or the validity of this Lease.

 

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Section 1.08 If any of the Fixed Rent or additional rent payable under this Lease shall be or become uncollectible, reduced or required to be refunded because of any legal requirements, Tenant shall enter into such agreement(s) and take such other legally permissible steps as Landlord may request to permit Landlord to collect the maximum rents which from time to time during the continuance of such legal requirements may be legally permissible and not in excess of the amounts reserved therefor under this Lease. Upon the termination of such legal requirements, (a) the rents hereunder shall be payable in the amounts reserved herein for the periods following such termination and (b) Tenant shall pay to Landlord, to the maximum extent legally permissible, an amount equal to (i) the rents which would have been paid pursuant to this Lease but for such legal requirements less (ii) the rents paid by Tenant during the period such legal requirements were in effect.

Section 1.09 In the event any of the conditions hereinafter set forth in Sections 12.01(a), 12.01(b) or 12.01(c) of this Lease occur at any time prior to the Term Commencement Date, then notwithstanding anything in this Lease or in any bankruptcy or insolvency law to the contrary, this Lease shall thereupon automatically become null and void ab initio .

Section 1.10 Provided that Tenant is not then in default of any of the terms, conditions, covenants or agreements of this Lease on its part to be performed, the Fixed Rent only shall be abated for the first two (2) months commencing on the Term Commencement Date. The date immediately following such two (2) month period shall herein be called the “Rent Commencement Date.”

ARTICLE 2

Completion and Occupancy

Section 2.01 Tenant acknowledges that it has inspected the Premises and agrees to accept possession of same in its “as-is” physical condition on the Term Commencement Date, it being understood and agreed that Landlord shall not be obligated to perform any alterations, improvements or repairs to the Premises or furnish to or remove from the Premises any alterations, improvements, fixtures, materials or any other property whatsoever, except that Landlord shall, at its sole expense, construct a glass office with two (2) entry doors as shown on the construction drawing attached hereto as Exhibit A-l (Landlord’s Work). In the event that Landlord is delayed in substantially completing Landlord’s Work and such delay was caused in any way by Tenant, then Landlord’s Work shall be deemed substantially complete on the day it otherwise would have been substantially completed but for Tenant-caused delays, and the

 

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Term Commencement Date shall be deemed to be said date despite the fact that Landlord’s Work was not substantially complete on said date. For purposes of Sections 1.02 and 2.01, the term “substantially complete” shall mean that only minor details of construction, mechanical adjustment or decoration remain to be performed, which will not prevent Tenant from performing the construction required to prepare the Premises for Tenant’s initial occupancy. Tenant further acknowledges that it shall not be entitled to any free rent (except as provided in Section 1.10 above), concessions, credits or contributions of money from Landlord with respect to the Premises. During the term of the Lease, Tenant shall be entitled to use, without cost, all furniture, fixtures and equipment (FF&E) existing in the Premises on the Term Commencement Date. Tenant shall accept the FF&E in its “as-is” condition and shall solely be responsible for all repairs, maintenance and replacements required to the FF&E. All FF&E shall remain within the Premises on the Expiration Date.

Section 2.02 Tenant may, from and after the Term Commencement Date, occupy the Premises for wiring, cabling, installing furniture, fixtures and equipment and to operate its business as long as Tenant is not interfering with Landlord’s Work pursuant to Section 2.01 hereof. Landlord and Tenant agree that any failure to have the Premises available to Tenant for its occupancy on a date certain shall in no way affect the validity of this Lease or the obligations of Tenant hereunder nor shall the same be construed in any wise to extend the term of this Lease or impose any liability on Landlord. The provisions of this Section 2.02 are intended to constitute “an express provision to the contrary” within the meaning of Section 223-a of the New York Real Property Law and any other similar law hereafter in force. The Fixed Rent reserved and covenanted to be paid under this Lease shall commence on the Rent Commencement Date. Tenant, by entering into occupancy of any part of the Premises, shall be conclusively deemed to have agreed that Landlord, up to the time of such occupancy, had performed all of its obligations hereunder with respect to such part and that such part was in satisfactory condition as of the date of such occupancy unless within fourteen (14) days after such date Tenant shall give written notice to Landlord specifying the respects in which the same was not in such condition.

 

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ARTICLE 3

Use of Premises

Section 3.01 Tenant shall not use the Premises or any part thereof, or permit the Premises or any part thereof to be used in any manner which would violate the Certificate of Occupancy for the Building or, for any purpose other than the use hereinbefore specifically mentioned. Those portions, if any, of the Premises, identified as toilets and utility areas shall be used by Tenant only for the purposes for which they are designed.

Section 3.02 Tenant shall not use or permit the use of the Premises or any part thereof in any way which would violate any of the covenants, agreements, terms, provisions and conditions of this Lease or for any unlawful purposes or in any unlawful manner and Tenant shall not suffer or permit the Premises or any part thereof to be used in any manner or anything to be done therein or anything to be brought into or kept therein which, in the judgment of Landlord, shall in any way impair or tend to impair the character, reputation or appearance of the Building as a high quality office building, impair or interfere with or tend to impair or interfere with any of the Building services or the proper and economic heating, cleaning, air conditioning or other servicing of the Building or Premises, or impair or interfere with or tend to impair or interfere with the use of any of the other areas of the Building by, or occasion discomfort, inconvenience or annoyance to, any of the other tenants or occupants of the Building. No property other than such as might normally be brought upon or kept in the Premises as an incident to the reasonable use of the Premises for the purposes specified in this Lease shall be brought upon or kept in the Premises.

Section 3.03 If any governmental license or permit shall be required for the proper and lawful conduct of Tenant’s business or other activity carried on in the Premises, and if the failure to secure such license or permit might or would, in any way, affect Landlord, then Tenant, at Tenant’s expense, shall duly procure and thereafter maintain such license or permit and submit the same to inspection by Landlord. Tenant, at Tenant’s expense, shall at all times comply with the requirements of each such license or permit.

ARTICLE 4

Appurtenances, Etc., Not to be Removed

Section 4.01 All alterations, additions, decorations, fixtures, equipment, improvements, installations and appurtenances attached to, or built into the Premises prior to, at the commencement of or during the term hereof (Appurtenances), whether or not furnished or installed at the expense of Tenant or by Tenant, including without limitation, Tenant’s Changes as

 

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defined in Section 5.0l(e) hereof, shall be and remain part of the Premises and be deemed the property of Landlord and shall not be removed by Tenant, except as otherwise expressly provided in this Lease. Without limiting the generality of the immediately preceding sentence, all electric, plumbing, heating, sprinkler, dumbwaiter, elevator, pneumatic tube, telephone, telegraph, communication, radio and television systems, fixtures and outlets, Venetian blinds, partitions, railings, gates, doors, stairs, paneling, cupboards (whether or not recessed in paneling), molding, shelving, radiator enclosures, cork, rubber, tile and composition floors, and ventilating, silencing, air conditioning and cooling equipment shall be deemed included in such Appurtenances, if attached to or built into the Premises. Appurtenances shall also include, without limitation, all wiring, cables, risers and similar installations appurtenant thereto installed by Tenant in the risers or other common areas of the Building. Notwithstanding anything contained in this Section 4.01 to the contrary, any Appurtenances furnished and installed in any part of the Premises at the sole expense of Tenant (and with respect to which no credit or allowance shall have been granted to Tenant by Landlord and which was not furnished and installed in replacement of an item which Tenant would not be entitled to remove in accordance with this Article 4) and all of Tenant’s personal property (such Appurtenances as referred to in this sentence and Tenant’s personal property collectively “Tenant’s Property”) may be removed from the Building by Tenant prior to the Expiration Date, provided however, if and to the extent requested by Landlord in writing at least 30 days prior to the Expiration Date, all Appurtenances, Tenant’s Property and Tenant’s Changes so requested by Landlord shall be removed from the Building by Tenant prior to such Expiration Date. Tenant shall repair, restore, replace and/or rebuild (as the circumstances may require), in a good and workmanlike manner any damage to the Premises or the Building caused by such removal. At the time of installing any Appurtenance, Tenant’s Property or Tenant’s Changes, Tenant may request Landlord to waive Tenant’s obligation to remove in writing. Tenant shall not be obligated to remove any such Appurtenance, Tenant’s Property or Tenant’s Changes which are the subject of any such written waiver signed by Landlord but must provide a copy of such written waiver in the event that a dispute arises. Failure to provide a copy of any such waiver shall be presumptive evidence that a waiver was not granted. If any of the Appurtenances, Tenant’s Property or Tenant’s Changes which are required to be removed from the Building by Tenant are not so removed within the time above specified, then Landlord (in addition to all other rights and remedies to which Landlord may be entitled at any time) may at its election deem that the same has been abandoned by Tenant to Landlord, but no such election shall relieve Tenant of Tenant’s

 

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obligation to pay the expenses of removing the same from the Premises or the expense of repairing, restoring, replacing and/or rebuilding (as the circumstances may require) damage to the Premises or to the Building arising from such removal, which obligation shall survive the Expiration Date.

Section 4.02 All the perimeter walls and doors of the Premises, any balconies, terraces or roofs adjacent to the Premises, and any space in and/or adjacent to the Premises used for shafts, stairways, stacks, pipes, vertical conveyors, mail chutes, pneumatic tubes, conduits, ducts, electric or other utilities, rooms containing elevator or air conditioning machinery and equipment, sinks, or other similar or dissimilar Building facilities, and the use thereof, as well as access thereto (including the right to secure same) through the Premises for the purpose of such use and the operation, improvement, alteration, replacement, addition, repair, cleaning, maintenance, safety, security, and/or decoration thereof, are expressly reserved to Landlord.

ARTICLE 5

Various Covenants

Section 5.01 Tenant covenants and agrees that Tenant will:

(a) Take good care of and maintain in good order, condition and repair the Premises and Appurtenances, and, at Tenant’s sole cost and expense, make all non-structural repairs, restorations and/or replacements thereto as may be required to keep the Premises and Appurtenances in good order and condition. Tenant shall also be responsible, subject to Section 7.04 hereof, for the cost of all repairs, interior and exterior, structural and non-structural, ordinary and extraordinary, foreseen or unforeseen, in and to the Building and the facilities and systems thereof, the need for which arises out of (i) the performance or existence of Tenant’s Changes (herein defined), (ii) the installation, use or operation of Tenant’s Property, (iii) the moving of Tenant’s Property into or out of the Premises or the Building, (iv) Tenant’s compliance or non-compliance with any legal and/or insurance requirements or (v) the act, omission, misuse or neglect of Tenant or any of its subtenants or its or their agents, licensees or invitees. Any repairs in or to the Building and/or the facilities and systems thereof for which Tenant is so responsible shall be performed by Landlord at Tenant’s expense and Tenant shall pay Landlord’s charge therefor as additional rent hereunder within fourteen (14) days after

 

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Landlord gives Tenant an invoice therefor. All repairs and replacements made by or on behalf of Tenant or any person claiming through or under Tenant shall be made in conformity with the provisions of this Lease and shall be at least equal in quality and class to the original work or installation or the then standards for the Building established by Landlord.

(b) Faithfully observe and comply (and cause its agents, employees, invitees and licensees to observe and comply) with the rules and regulations annexed hereto and such additional reasonable rules and regulations (which additional rules and regulations shall not materially increase Tenant’s obligation hereunder, result in an increase in the Fixed Rent or additional rent payable hereunder or materially adversely affect Tenant’s use of the Premises) as Landlord hereafter at any time or from time to time may make and may communicate in writing to Tenant, provided, however, that in the case of any conflict between the provisions of this Lease and such rule or regulation, the provisions of this Lease shall control; and provided further that nothing contained in this Lease shall be construed to impose upon Landlord any duty or obligation to enforce the rules and regulations or the terms, covenants or conditions in any other lease as against any other tenant and; provided further that Landlord shall not be liable to Tenant for violation of the same by any other tenant, its employees, agents, visitors, invitees, subtenants or licensees. In enforcing the rules and regulations, Landlord agrees to treat similarly situated tenants in a similar fashion.

(c) Permit Landlord and any mortgagee of the Building and/or the Land or of the interest of Landlord therein and any lessor under any ground or underlying lease, and their representatives, to enter the Premises at all reasonable hours upon reasonable prior oral notice (except in the case of an emergency when no notice will be required) for the purposes of inspection, or of making repairs, replacements or improvements in or to the Premises or the Building or equipment, or of complying with all laws, orders and requirements of governmental or other authority or of fulfilling any obligation or exercising any right reserved to Landlord by this Lease (including the right during the progress of such repairs, replacements or improvements or while performing work and furnishing materials in connection with compliance with any such laws, orders or requirements, to keep and store within the Premises all necessary materials, tools and equipment).

 

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(d) Make no claim against Landlord, or any lessor under any ground or underlying lease, or any mortgagee under any mortgage or trust indenture (collectively herein the “Indemnitees”) for any damage to property entrusted to employees of Landlord or for any loss of or damage to any property by theft (including damage resulting from theft or attempted theft) or any injury or damage to Tenant or other persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water, rain or snow or leaks from any part of the Building or from the pipes, appliances or plumbing works or from the roof, street or subsurface or from any other place or by dampness, or caused by other tenants or persons in the Building, or by any other cause of whatsoever nature (including, without limitation, damage or injury caused by any hazardous or dangerous condition, waste, material and/or substance (as the same may be defined in any local, state or federal rule, regulation or statute)), unless caused by or due to the sole negligence of Landlord, its agents, servants or employees.

(e) (i) Make no alterations, decorations, installations, repairs, additions, improvements or replacements including Tenant’s initial work in the Premises necessary for Tenant’s occupancy thereof (herein collectively called “Tenant’s Changes”) in, to or about the Premises without Landlord’s prior written consent; provided, however, Landlord agrees (1) that Tenant shall not be required to obtain Landlord’s prior written consent to Tenant’s Changes which (a) are non-structural and decorative in nature and/or do not involve the perforation of any floor slab, (b) do not connect to or adversely affect any of the Building’s systems, (c) are not visible from outside the Premises, (d) do not cost in excess of $50,000, (e) do not affect, nor are visible from, the exterior of the Building, and (f) do not affect the common corridor of any floor on which the Premises are located (if any) or any other common areas of the Building, provided that Tenant gives Landlord (x) no less than fourteen (14) business days’ prior written notice of its intention to so perform such Tenant’s Changes along with copies of the plans and specifications related thereto (or a detailed sketch for those Tenant’s Changes for which plans and specifications are not customarily prepared) and (y) such other information which Landlord reasonably requests with respect thereto within five (5) business days’ after the same is requested, and (2) to be reasonable in granting or withholding its consent to Tenant’s Changes which meet the criteria set forth in (a), (b), (c), (e), and (f) but cost in excess of $50,000. Tenant’s Changes shall only be performed by contractors, subcontractors or mechanics approved by Landlord. Tenant’s Changes shall be done at Tenant’s sole expense and at such times and in such manner as Landlord may from time to time designate.

 

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(ii) Prior to the commencement of any Tenant’s Changes, Tenant shall submit to Landlord, (1) for Landlord’s written approval, three (3) complete sets of the plans and specifications (to be prepared by and at the expense of Tenant) of such proposed Tenant’s Changes in detail satisfactory to Landlord, and (2) upon Landlord’s request, at Tenant’s sole cost and expense, either (i) a completion bond, issued by a surety company acceptable to Landlord in an amount at least equal to the estimated cost of such Tenant’s Changes or (ii) at Tenant’s option, an irrevocable letter of credit, drawn on a bank which is a member of The New York Clearing House Association and otherwise satisfactory to Landlord, in an amount equal to one hundred twenty-five percent (125%) of Landlord’s estimate of the cost of performing such Tenant’s Changes, in each case guaranteeing to Landlord the completion of such Tenant’s Changes within a reasonable time, as follows: (A) free and clear of all liens, conditional bills of sale, security agreements and other claims, charges and encumbrances (other than security agreements or other encumbrances in favor of any mortgagee of Landlord) and (B) in accordance with the requirements of this Lease. Landlord shall respond to Tenant’s request for approval of Tenant’s plans within ten (10) business days after Landlord’s receipt of such plans. In no event shall any material or equipment be incorporated in or to the Premises in connection with any such Tenant’s Changes which is subject to any lien, security agreement, charge, mortgage or other encumbrance of any kind whatsoever or is subject to any conditional sale or other similar or dissimilar title retention agreement. Any mechanic’s lien filed against the Premises or the Building for work done for, or claimed to have been done for, or materials furnished to, or claimed to have been furnished to, Tenant shall be discharged by Tenant within fourteen (14) days thereafter, at Tenant’s expense, by filing the bond required by law or otherwise.

(iii) All Tenant’s Changes shall at all times comply with (x) all applicable laws, rules, orders and regulations of governmental authorities having jurisdiction thereover and all applicable insurance requirements, (y) the rules and regulations of Landlord for tenant alterations, and (z) the plans and specifications submitted to and approved by Landlord and Tenant’s construction contract incorporating such plans and specifications. In connection with any Tenant’s Changes, Tenant shall pay to Landlord, as additional rent, within fourteen (14) days after demand a fee equal to the actual out-of-pocket costs incurred by Landlord in connection with, or relating to, any such Tenant’s Changes. No Tenant’s Changes shall be undertaken, started or begun by Tenant or by its agents, employees, contractors or anyone else acting for or on behalf of Tenant until Landlord has approved such plans and specifications, and no amendments or additions to such plans and specifications shall be made without the prior written consent of Landlord.

 

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Unless all of the conditions contained in this Section 5.01(e) are fully satisfied, Landlord shall have the right, in Landlord’s sole and absolute discretion, to withhold its consent to any Tenant’s Changes. Landlord’s consent to such plans and specifications shall create no responsibility or liability on the part of Landlord with respect to their completeness, design sufficiency or compliance with all applicable laws and/or insurance requirements; nor shall Landlord’s execution of any documents required to be filed with any governmental authority in connection with Tenant’s installations or changes create any responsibility or liability on the part of Landlord to take remedial measures to bring any Tenant’s installations or changes into compliance with applicable legal and/or insurance requirements (such responsibility or liability being allocated hereunder to Tenant). If any Tenant’s Changes are made or installed in violation of this Section 5.01(e), Landlord may, at Tenant’s sole cost and expense, without incurring any liability to Tenant whatsoever, enter upon the Premises and remove such illegitimate Tenant’s Changes and repair any damage caused by the installation and/or removal of the same.

(iv) In connection with the completion of Tenant’s Changes or in the performance of any other activities within the Building by or on behalf of Tenant: (a) neither Tenant nor its agents, contractors or subcontractors shall interfere with the operations of the Building or any work being done by Landlord or its agents, contractors or subcontractors in the Building; (b) Tenant shall comply with any reasonable work schedule, rules and regulations proposed by Landlord or its agents; (c) Tenant shall conform to all of Landlord’s labor regulations and shall not do or permit anything to be done that might create any work stoppage, picketing or other labor disruption or dispute; and (d) the labor employed or contracted for by Tenant shall be harmonious and compatible with the labor employed or contracted for by Landlord in the Building, it being agreed that, if in Landlord’s judgment Tenant’s labor is incompatible, Tenant shall forthwith upon Landlord’s demand withdraw Tenant’s labor from the Premises. If Tenant fails to take any such actions regarding labor matters, Landlord shall have the right, in addition to any other rights and remedies available to it under this Lease or pursuant to law or equity, to seek immediate injunctive relief. Tenant further agrees that it will, prior to the commencement of any work in the Premises, deliver to Landlord original certificates of insurance evidencing worker’s compensation, public liability, property damage and such other insurance coverages in such amounts as are acceptable to Landlord in connection with Tenant’s Changes. Tenant shall keep records of Tenant’s Changes costing in excess of $50,000, and of the cost thereof for a period of four (4) years. Tenant shall,

 

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within sixty (60) days after demand by Landlord, furnish to Landlord copies of such records. Upon completion of any Tenant Changes, Tenant shall deliver to Landlord dimensioned reproducible mylars and CADD disk of “as-built” plans for such Tenant Changes.

(f) Not do or permit to be done any act or thing in the Premises which will invalidate or be in conflict with fire insurance policies issued for office buildings in the Borough of Manhattan, City of New York, and not do anything or permit anything to be done, or keep anything or permit anything to be kept, in the Premises which would increase the fire or other casualty insurance rate on the Building or the property therein, or which would result in insurance companies of good standing refusing to insure the Building or any such property in amounts and against risks as reasonably determined by Landlord, or otherwise result in non-compliance with the requirements and recommendations of the National Board of Fire Underwriters or similar organizations promulgating requirements and recommendations with respect to the Premises. If by reason of failure of Tenant to comply with the provisions of this paragraph including, but not limited to, the mere use to which Tenant puts the Premises, the fire insurance rate payable by Landlord shall at the beginning of this Lease or at any time thereafter be higher than it otherwise would be, then Tenant shall reimburse Landlord, as additional rent hereunder, for that part of all fire insurance premiums thereafter paid by Landlord which shall have been charged because of such failure or use by Tenant, and shall make such reimbursement upon the first day of the month following such outlay by Landlord. In any action or proceeding wherein Landlord and Tenant are parties, a schedule or “make up” rate for the Building or Premises issued by the New York Fire Insurance Rating Organization, or other body making fire insurance rates for the Premises, shall be conclusive evidence of the facts therein stated and of the several items and charges in the fire insurance rate then applicable to the Premises. That the Premises are being used for the purpose set forth in Article 3 hereof, shall not relieve Tenant from the foregoing duties, obligations and expenses (except that if premiums are being raised generally for office buildings then such increase shall be reflected as part of Operating Expenses, as herein defined).

(g) Permit Landlord, at reasonable times upon reasonable prior oral notice, to show the Premises to any lessor under any ground or underlying lease, or any lessee or mortgagee, or any prospective purchaser, lessee, mortgagee, or assignee of any mortgage of the Building and/or the Land or of Landlord’s interest therein, and their representatives, and during the period of ten (10) months immediately preceding the Expiration Date with respect to any part of the Premises similarly show any part of the Premises to any person contemplating the leasing of all or a portion of the same.

 

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(h) At the end of the term, quit and surrender to Landlord the Premises “broom clean” and in good order and condition, reasonable wear and tear excepted, and Tenant shall remove Tenant’s Changes and/or Tenant’s Property as Landlord elects to have Tenant remove. Tenant shall give Landlord thirty (30) days’ prior written notice of the day it intends to vacate the Premises. Upon receipt of said notice Landlord and Tenant shall agree on a mutually convenient time, but in no event later than thirty (30) days prior to the Expiration Date, in order to perform a joint inspection of the Premises. In the event that Tenant fails to give such notice or arrange such joint inspection, Landlord’s inspection at or after Tenant’s vacating the Premises shall be deemed conclusively correct for determining Tenant’s responsibility for removal, repairs or restoration. If the last day of the term of this Lease falls on Sunday or a legal holiday, this Lease shall expire on the business day immediately preceding. Tenant expressly waives, for itself and for any person claiming through or under Tenant, any rights which Tenant or such person may have under the provisions of Section 2201 of the New York Civil Practice Law and Rules and any similar successor law of the same import then in force, in connection with any holdover proceedings which Landlord may institute to enforce the provisions of this paragraph (h). If the Premises shall not be surrendered on the Expiration Date, Tenant hereby indemnifies Landlord against liability resulting from delay by Tenant in so surrendering the Premises, including any claims made by any succeeding tenant or prospective tenant founded upon such delay, as well as for any and all loss, liability, damages, costs and expenses (including reasonable counsel fees and disbursements) incurred in connection therewith. If Tenant shall remain in possession of the Premises after the Expiration Date without the execution of a new lease (whether or not with the consent or acquiescence of Landlord), Tenant’s occupancy shall be deemed to be that of a tenancy-at-will, and in no event from month-to-month or from year-to-year, and it shall be subject to all of the other terms of this Lease applicable thereto, including those set forth in this paragraph (h). In the event that Tenant defaults or remains in possession of the Premises or any part thereof after the expiration of the tenancy-at-will created hereby then Tenant’s occupancy shall be deemed a tenancy-at sufferance and not a tenancy-at-will. Nothing contained herein shall be construed to constitute Landlord’s consent to Tenant holding over after the Expiration Date or to give Tenant the right to hold over after the Expiration Date. During the period in which Tenant holds over, Tenant shall pay rent to

 

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Landlord at a monthly rental equal to the greater of (i) 1.5 times the monthly Fixed Rent, plus all additional rent and other charges last payable by Tenant hereunder, or (ii) Landlord’s then asking price, on a monthly basis, for comparable space in the Building (or, if Landlord shall have no quoted price, the monthly rental equal to the prevailing rate for comparable space in comparable buildings in the vicinity of the Building). Tenant’s obligations under this paragraph (h) shall survive the expiration of this Lease.

(i) At any time and from time to time upon not less than ten (10) business days’ prior notice by Landlord to Tenant, execute, acknowledge and deliver to Landlord, or to anyone else Landlord shall designate, a statement of Tenant (or if Tenant is a corporation, an appropriate officer of Tenant) in writing certifying to Landlord or to anyone else Landlord shall designate that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating the modifications), specifying the dates to which the Fixed Rent, additional rent and other charges have been paid in advance, if any, and stating whether or not to the best knowledge of the signer of such certificate Landlord is in default in performance of any provision of this Lease and, if so, specifying each such default of which the signer may have knowledge, and further stating such other items or information as Landlord or Landlord’s designee may request, including without limitation, Tenant’s undertaking not to pay any rent or other charges for more than a specified period in advance of the due dates therefor set forth herein; it being intended that any such statement so delivered may be relied upon by the person to whom the statement is given. If Tenant fails to execute and deliver the statement as and when required by this Section 5.01 (i), then: (1) notwithstanding any other provision of this Lease, such failure shall constitute a default under this Lease beyond any applicable cure period entitling Landlord to the same rights and remedies as if such default was with respect to nonpayment of Fixed Rent, and (2) Tenant shall thereupon constitute and appoint Landlord and/or its successors in interest as Tenant’s attorney-in-fact to execute and deliver any such statement or statements for and on behalf of Tenant.

(j) Not move any safe, heavy machinery, heavy equipment, freight, bulky matter or fixtures into or out of the Building without Landlord’s prior written consent not to be unreasonably withheld or delayed. If such safe, machinery, equipment, freight, bulky matter or fixtures require special handling, Tenant agrees to employ only persons holding a Master Rigger’s License to do said work, and that all work in connection therewith shall comply with the Administrative Code of the City

 

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of New York. Notwithstanding said consent of Landlord, Tenant shall defend and indemnify Landlord for, and hold Landlord harmless and free from, all loss, costs, liabilities and damages sustained by person or property, as well as for all expenses and reasonable attorneys’ fees incurred in connection therewith, and all costs incurred in repairing any damage to the Building or Appurtenances (including, without limitation, Landlord’s charge for any repairs performed by Landlord’s employees).

(k) To the extent not prohibited by applicable law and to the extent not caused by the sole negligence of Landlord, indemnify, defend and save harmless, the Indemnitees, and their respective officers, directors, contractors, agents and employees, from and against any and all liability (statutory or otherwise), claims, actions, suits, demands, damages, judgments, costs, interest and expenses of any kind or nature of anyone whomsoever (including, but not limited to, counsel fees and disbursements incurred in the defense of any action or proceeding), to which they may be subject or which they may suffer by reason of any claim for, any injury to, or death of, any person or persons, theft or damage to property (including any loss of use thereof) or damage to the Building or Appurtenances or otherwise arising from or in connection with the use of or from any work, installation or thing whatsoever done (other than by Landlord or its agents or employees) in or about the Premises and/or the Building prior to, during or subsequent to, the term of this Lease, or arising from any condition of the Premises and/or the Building due to or resulting from any default by Tenant in the performance of Tenant’s obligations under this Lease or from any act, omission or negligence of Tenant or any of Tenant’s officers, directors, agents, contractors, employees, subtenants, licensees or invitees. Where not prohibited by applicable law, no workers’ compensation claim by any of Tenant’s employees will be subrogated against Landlord. Tenant’s obligations under this paragraph shall survive the Expiration Date.

(l) Not do or permit to be done any act or thing which would cause any hazardous or dangerous condition, waste, material and/or substance (as the same may be defined in any local, state or federal rule, regulation or statute) to be used, stored, transported, released, handled, produced, created, disposed of, or installed in, on, from, or at the Premises and/or the Building, except for small amounts of standard office and cleaning supplies; provided that all such materials and/or substances (i) shall at all times be used, stored, transported, released, handled, produced, created, disposed of, and/or installed in compliance with all applicable legal and/or insurance requirements, (ii) shall not create any additional

 

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burden on Landlord to notify other tenants, the public or any governmental authority of the existence of such materials and/or substances and (iii) shall not cause any increase in Landlord’s insurance rates. Landlord shall not be deemed responsible for and Tenant agrees to indemnify and defend Landlord for, and hold Landlord harmless and free from, any and all loss, liability, damages, costs and expenses sustained by person or property and any and all loss, liability, damages, costs and expenses incurred by Landlord with respect to or in settlement of any claims or judgments brought in connection with any environmental condition in the Premises or the Building created or caused by Tenant or its agents, including reasonable counsel fees and disbursements incurred in connection therewith. Tenant shall be responsible for all adverse affects of backflow, backfeed, harmonics and other like-type conditions, whether to, in, at, or outside the Building, which emanate from, are caused by, or relate to the Premises and/or the systems serving the Premises and/or the equipment, machinery, fixtures, furnishings, products and lighting located in the Premises.

Section 5.02 Landlord covenants and agrees that Landlord will:

(a) use reasonable efforts not to interfere with Tenant’s business during such times as Landlord exercises its rights under the various provisions of this Lease which permit Landlord to perform work, repairs, improvements, maintenance and/or alterations to the Building (including the Premises) but Landlord shall not be required to perform the same on an overtime or premium pay basis; and

(b) give Tenant reasonable prior oral notice of all entry into the Premises (except in the case of an emergency when no such notice shall be required).

ARTICLE 6

Changes or Alterations by Landlord

Section 6.01 Landlord reserves the right to make such changes, alterations, additions, improvements, repairs or replacements in or to the Building (including the Premises) and the fixtures and equipment thereof, as well as in or to the street entrances, halls, passages, elevators, escalators, stairways and other parts thereof, and to erect, maintain and use pipes, ducts and conduits in and through the Premises, all as Landlord may deem necessary or desirable; provided , however , Landlord agrees that the end result of any of the foregoing shall

 

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not materially interfere with Tenant’s use of the Premises or access thereto. Nothing contained in this Article 6 shall relieve Tenant of any duty, obligation or liability of Tenant with respect to making any repair, replacement or improvement or complying with any law, order or requirement of any governmental or other authority.

Section 6.02 Landlord reserves the right to name the Building and to change the name or address of the Building at any time and from time to time. Neither this Lease nor any use by Tenant shall give Tenant any easement or other right in or to the use of any door or any passage or any concourse or any plaza connecting the Building with any subway or any other building or to any public conveniences, and the use of such doors, passages, concourses, plazas and conveniences may, without notice to Tenant be regulated or discontinued at any time by Landlord. If at any time any windows of the Premises are (i) broken, temporarily darkened (which shall not be construed as encompassing any solar-tinting and/or blinds that Landlord may require) or obstructed incident to or by reason of repairs, replacements, maintenance and/or cleaning in, on, to or about the Building or any part or parts thereof or (ii) permanently darkened (which shall not be construed as encompassing any solar-tinting and/or blinds that Landlord may require) for any reason whatsoever beyond Landlord’s control or (iii) temporarily or permanently closed or rendered inoperable for any reason whatsoever including, but not limited to, Landlord’s own acts, Landlord shall not be liable for any damage Tenant may sustain thereby and Tenant shall not be entitled to any compensation therefor or abatement of rent nor shall the same release Tenant from its obligations hereunder or constitute an eviction.

Section 6.03 Except as provided in Article 7 and Section 17.05 of this Lease, there shall be no allowance to Tenant for a diminution of rental value, the same shall not constitute an eviction of Tenant in whole or in part and Landlord shall incur no liability whatsoever by reason of inconvenience, annoyance, or injury to business arising from Landlord, Tenant or others making any changes, alterations, additions, improvements, repairs or replacements in or to any portion of the Building or the Premises or in the Appurtenances thereof or in the taking or storing of material in the Premises in connection therewith and no liability shall be incurred by Landlord for failure of Landlord or others to make any changes, alterations, additions, improvements, repairs or replacements in or to any portion of the Building or the Premises, or in the Appurtenances.

 

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ARTICLE 7

Damage by Fire, Etc.

Section 7.01 Subject to Section 7.02, if any part of the Premises shall be damaged by fire or other casualty, Tenant shall give prompt written notice thereof to Landlord and Landlord shall proceed with reasonable diligence, and in a manner consistent with the provisions of any ground or underlying lease and any mortgage affecting the same or the Land and/or the Building or Landlord’s interest therein, to repair such damage, and if any part of the Premises shall be rendered untenantable by reason of such damage, the annual Fixed Rent payable hereunder shall be abated (not to exceed the amount Landlord is reimbursed by net insurance proceeds) to the extent that such Fixed Rent relates to such part of the Premises for the period from the date of such damage to the date when such part of the Premises shall have been made tenantable or to such earlier date upon which the full term of this Lease with respect to such part of the Premises shall expire or terminate. If Landlord or any holder of any superior mortgage (as herein defined) or any lessor under any superior lease (as herein defined) shall be unable to collect the insurance proceeds (including rent insurance) applicable to such damage because of some action or inaction on the part of Tenant or Tenant’s agents, contractors, employees, guests, invitees or licensees, then Landlord’s charge for repairing such damage shall be paid by Tenant and there shall be no abatement of rent. Landlord shall not be liable for any inconvenience or annoyance to Tenant or injury to the business of Tenant resulting in any way from such damage or the repair thereof. Tenant acknowledges and agrees that Landlord shall not: (i) carry insurance of any kind on any Appurtenances, Tenant’s Property, or Tenant’s Changes or (ii) be obligated to repair any damage thereto or replace any of same, which obligation shall be the sole responsibility of Tenant.

Section 7.02 If substantial alteration or reconstruction of the Building shall, in the sole opinion of Landlord, be required as a result of damage by fire or other casualty (whether or not the Premises shall have been damaged by such fire or other casualty) or if all or any portion of the Premises shall be damaged by fire or other casualty during the last two (2) years of the term of this Lease, then this Lease and the term and estate hereby granted may be terminated by Landlord by its giving to Tenant within one hundred twenty (120) days after the date of such damage written notice specifying a date, not less than thirty (30) days after the giving of such notice, for such termination.

 

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Section 7.03 Landlord and Tenant shall each secure an appropriate clause in, or an endorsement upon, each all risk property damage policy obtained by it and covering the Building, the Premises or Tenant’s Property pursuant to which the respective insurance companies waive subrogation or permit the insured, prior to any loss, to waive any claim it might have against the other. Provided the terms of the applicable insurance policy will not be violated or rendered unenforceable, the waiver of subrogation or permission for waiver of any claim hereinbefore referred to shall extend to the agents of each party.

Section 7.04 Notwithstanding any other provision of this Lease to the contrary (other than the second sentence of Section 7.01) with respect to any property whether insured or not, each party hereby releases the other and its partners, agents and employees with respect to any claim (including a claim for negligence) which it might otherwise have against the other party for loss, damage or destruction with respect to its property by fire or other casualty (including rental value or business interruption, as the case may be) occurring during the term of this Lease. Nothing in this Section 7.04 shall relieve Tenant or Landlord of its obligations to make repairs to the Premises in accordance with the terms of this Lease.

Section 7.05 This Lease shall be considered an express agreement governing any case of damage to or destruction of the Building or any part thereof by fire or other casualty, and Section 227 of the Real Property Law of the State of New York providing for such a contingency in the absence of express agreement, and any other law of like import now or hereafter in force, shall have no application in such case.

Section 7.06 Notwithstanding the above to the contrary, in the event that more than fifty percent (50%) of the Premises shall be damaged by fire or other casualty and restoration is not substantially completed by Landlord within one (1) year after the occurrence of said casualty, subject to extension for circumstances beyond Landlord’s reasonable control (the “Restoration Period”), then Tenant shall be entitled to terminate this Lease provided Landlord receives a written termination notice (which shall be deemed irrevocable) from Tenant within fourteen (14) business days after the expiration of the Restoration Period, time being of the essence. In the event that Landlord does not receive said notice within said fourteen (14) business day period, then Tenant’s right to terminate pursuant to this Section 7.06 shall be void and of no further force or effect.

 

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ARTICLE 8

Condemnation

Section 8.01 In the event that the whole of the Premises shall be lawfully condemned or taken in any manner for any public or quasi-public use, this Lease and the term and estate hereby granted shall forthwith cease and terminate as of the date of vesting of title. In the event that only a part of the Premises shall be so condemned or taken, then, effective as of the date of vesting of title, the Fixed Rent hereunder shall be abated in an amount thereof apportioned according to the area of the Premises so condemned or taken. In the event that only a part of the Building shall be so condemned or taken, then Landlord (whether or not the Premises be affected) may, at Landlord’s option, terminate this Lease and the term and estate hereby granted as of the date of such vesting of title by notifying Tenant in writing of such termination within one hundred twenty (120) days following the date on which Landlord shall have received notice of vesting of title. If Landlord does not elect to terminate this Lease, as aforesaid, this Lease shall be and remain unaffected by such condemnation or taking, except that the Fixed Rent payable hereunder shall be abated to the extent, if any, hereinbefore provided in this Article 8. In the event that only a part of the Premises shall be so condemned or taken and this Lease and the term and estate hereby granted with respect to the remaining portion of the Premises are not terminated as hereinbefore provided, Landlord will, with reasonable diligence and at its expense, restore the remaining portion of the Premises as nearly as practicable to the same condition as it was in prior to such condemnation or taking. However, Landlord shall not be obligated to repair any damage to Tenant’s Property or replace the same.

Section 8.02 In the event of a termination of this Lease pursuant to Section 8.01 of this Article 8, this Lease and the term and estate hereby granted shall expire as of the date of such termination with the same effect as if that were the date hereinbefore set for the expiration of the full term of this Lease, and the Fixed Rent payable hereunder shall be apportioned as of such date.

Section 8.03 In the event of any condemnation or taking hereinbefore mentioned of all or a part of the Building, Landlord shall be entitled to receive the entire award in the condemnation proceeding, including any award made for the value of the estate vested by this Lease in Tenant, and Tenant hereby expressly assigns to Landlord any and all right, title and

 

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interest of Tenant now or hereafter arising in or to any such award or any part thereof, and Tenant shall be entitled to receive no part of such award. The foregoing shall not prohibit Tenant’s independent claim for the value of Tenant’s trade fixtures and moving expenses and any other claim permitted under law so long as any award made to Tenant based upon such claim does not reduce the award otherwise payable to Landlord.

Section 8.04 Notwithstanding anything hereinabove contained in this Article, if all or any portion of the Premises shall be lawfully condemned or taken for any temporary public or quasi-public use, this Lease shall not terminate and Tenant shall continue to perform or observe all of Tenant’s obligations hereunder as though such condemnation or taking had not occurred, except only as Tenant may be prevented from so doing by reason of the lawful use and occupancy of the Premises or portion thereof affected by such condemnation or taking during such temporary period. In the event of any such condemnation or taking, Tenant shall be entitled to receive the award with respect to the Premises or portion thereof covered by such condemnation or taking (whether paid as damages, rent or otherwise), unless the period of occupancy extends beyond the termination of this Lease, in which case Landlord shall be entitled to such part of such award as shall be properly allocable to the cost of restoration of the Premises and the balance of said award shall be apportioned between Landlord and Tenant as of the scheduled Expiration Date. If such condemnation or taking shall end before the Expiration Date, Tenant shall, at its sole cost and expense, restore the Premises as nearly as possible to the condition in which they were prior to such condemnation or taking.

ARTICLE 9

Compliance with Laws

Section 9.01 Tenant, at Tenant’s expense, shall comply with all laws and ordinances, and all rules, orders and regulations of all governmental authorities and of all insurance bodies, at any time duly issued or in force, applicable to the Premises or any part thereof or to Tenant’s use or alteration thereof, except that Tenant shall not hereby be under any obligation to comply with any law, ordinance, rule, order or regulation requiring any structural alteration of or in connection with the Premises, unless such alteration is required by reason of a condition which has been created by, or at the instance of Tenant, or is attributable to the specific manner of use (as opposed to mere office use) to which Tenant puts the Premises, or Tenant’s alteration thereof, or is required by

 

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reason of a breach of any of Tenant’s covenants and agreements hereunder. Where any structural alteration of or in connection with the Premises is required by any such law, ordinance, rule, order or regulation, and, by reason of the express exception hereinabove contained, Tenant is not under any obligation to make such alteration, then Landlord shall make such alteration and, subject to Section 26.04, pay the cost thereof. Landlord represents to Tenant that the condition of the Premises on the Term Commencement Date shall comply with all applicable laws and other governmental requirements.

ARTICLE 10

Accidents to Plumbing and Other Systems

Section 10.01 Tenant shall give to Landlord prompt written notice of any damage to, or defective condition in, any part or appurtenance of the Building’s plumbing, electrical, heating, air conditioning (excluding any supplemental air conditioning units and equipment servicing the Premises which shall be Tenant’s responsibility to repair, maintain and replace) or other systems serving, located in, or passing through the Premises (collectively, the Systems) Following such notice, any such damage to or defective condition of the Systems shall be remedied by Landlord with reasonable diligence, but if such damage or defective condition was caused by, or resulted from the use by, Tenant or by the employees, agents, licensees or invitees of Tenant, Landlord’s charge for the remedy thereof shall be paid by Tenant. Tenant shall not be entitled to claim any damages arising from any such damage or defective condition unless the same shall have been caused by the sole negligence of Landlord in the operation or maintenance of the Premises or Building and the same shall not have been remedied by Landlord with reasonable diligence after written notice thereof from Tenant to Landlord; nor shall Tenant be entitled to claim any eviction by reason of any such damage or defective condition. Notwithstanding anything contained in this Lease to the contrary, Landlord shall not be responsible for repairing any portion of the Systems serving the Premises (whether located within or outside the Premises) which were installed by or on behalf of Tenant.

Section 10.02 Landlord shall, at its sole cost and expense (except as otherwise provided herein), keep and maintain in good repair and working order and make all repairs to and perform necessary maintenance upon the Building and all parts thereof, including structural elements, life-safety, plumbing, electrical and HVAC systems within the Building which generally service the Building and are required in the normal maintenance

 

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and operation of the Building. Notwithstanding anything in this Section 10.02 or elsewhere in this Lease to the contrary, it is agreed that Landlord is not obligated hereunder to maintain the Building in any better repair or working order than as it exists on the date hereof.

ARTICLE 11

Notices and Service of Process

Section 11.01 (a) Except as otherwise set forth below, any notice, consent, approval, demand or statement hereunder by either party to the other party shall be in writing and shall be deemed to have been duly given only if sent by (i) registered or certified mail, return receipt requested, or (ii) by messenger or recognized overnight courier (requiring signed receipt), in either event addressed to such other party, which address for Landlord shall be the address as hereinbefore set forth, Attention: Senior Vice President - Office Buildings, with copies to the Vice President of Property Management, at the address as hereinbefore set forth, and to the Building Manager, in care of the Building Office, 900 Third Avenue, New York, NY 10022, and for Tenant shall be the Premises (or Tenant’s address as hereinbefore set forth if mailed prior to Tenant’s occupancy of the Premises), or if the address of such other party for notices shall have been duly changed as herein provided, if mailed, as aforesaid, to such other party at such changed address. Either party may at any time change the address for such notices, consents, approvals, demands or statements by mailing, as aforesaid, to the other party a notice stating the change and setting forth the changed address. If the term “Tenant”, as used in this Lease, refers to more than one person, any notice, consent, approval, demand or statement given as aforesaid to any one of such persons shall be deemed to have been duly given to Tenant. Any notice, consent, approval, demand or statement given pursuant to the above shall be deemed received on the day of delivery (with signed receipt) or rejection, as the case may be.

(b) Tenant acknowledges and agrees that all disputes arising, directly or indirectly, out of or relating to this Lease should be dealt with by application of the laws of the State of New York and adjudicated in the state courts of the State of New York sitting in New York County or the Federal courts sitting in the State of New York in New York County; and hereby expressly and irrevocably submits Tenant to the jurisdiction of such courts in any suit, action or proceeding arising, directly or indirectly, out of or relating to this Lease. So far as is permitted under the applicable law, this consent to personal

 

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jurisdiction shall be self-operative and no further instrument or action, other than service of process in one of the manners permitted by law, shall be necessary in order to confer jurisdiction upon Tenant in any such court. Provided that service of process is effected upon Tenant in one of the manners permitted by law, Tenant irrevocably waives, to the fullest extent permitted by law, and agrees not to assert, by way of motion, as a defense or otherwise, (i) any objection which it may have, or may hereafter have to the laying of the venue of any such suit, action or proceeding brought in such a court as is mentioned in the previous paragraph, (ii) any claim that any such suit, action or proceeding brought in such a court has been brought in an inconvenient forum, or (iii) any claim that it is not personally subject to the jurisdiction of the above-named courts. Tenant hereby further irrevocably consents to the service of process in any suit, action or proceeding by the mailing or delivery of the appropriate documents (e.g., process or summons) by Landlord to the Premises and delivered in one of the manners set forth in 11.01(a) above. Nothing herein shall in any way be deemed to limit the ability of Landlord to serve any such papers in any other manner permitted by applicable law.

(c) Notwithstanding anything contained in this Lease to the contrary, bills for additional rent shall be deemed to have been duly given if sent to Tenant only (and no other party need receive it in order for the same to be deemed duly given) at the Premises (or Tenant’s address as hereinbefore set forth if mailed prior to Tenant’s occupancy of the Premises) by first class mail (and which need not be registered, certified or return receipt requested) or by messenger or recognized overnight courier without, in any case, the requirement of a signed receipt.

Section 11.02 Any notice which Landlord gives to Tenant (or any other party) prior to being notified of the assignment of this Lease (or the transfer of any interest in any portion of the Premises) shall be binding upon any such assignee (or party acquiring the interest) notwithstanding the fact that said assignee (or party acquiring the interest) did not receive any such notice. Any action that Landlord may institute against Tenant (or any other party) prior to being notified of the assignment of this Lease (or the transfer of any interest in any portion of the Premises) shall be binding upon any such assignee (or party acquiring the interest) notwithstanding the fact that said assignee (or party acquiring the interest) is not named in any such action. This Section 11.02 shall not be construed as negating the requirement of obtaining Landlord’s prior written consent under Article 25 in those instances where the same is required.

 

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ARTICLE 12

Conditions of Limitation

Section 12.01 This Lease and the term and estate hereby granted are subject to the limitation that:

(a) in case Tenant shall make an assignment of its property for the benefit of creditors or shall file a voluntary petition under any bankruptcy or insolvency law, or an involuntary petition under any bankruptcy or insolvency law shall be filed against Tenant and such involuntary petition is not dismissed within sixty (60) days after the filing thereof,

(b) in case a petition is filed by or against Tenant under the reorganization provisions of the United States Bankruptcy Code or under the provisions of any law of like import, unless such petition under said reorganization provisions be one filed against Tenant which is dismissed within sixty (60) days after its filing,

(c) in case a receiver, trustee or liquidator shall be appointed for Tenant or of or for the property of Tenant, and such receiver, trustee or liquidator shall not have been discharged within sixty (60) days from the date of his appointment,

(d) in case Tenant shall default in the payment of any Fixed Rent or additional rent or any other charge payable hereunder by Tenant to Landlord on any date upon which the same becomes due, and such default shall continue for five (5) business days’ after Landlord shall have given to Tenant a written notice specifying such default,

(e) in case Tenant shall default in the due keeping, observing or performance of any covenant, agreement, term, provision or condition of Article 3 hereof on the part of Tenant to be kept, observed or performed and if such default shall continue and shall not be remedied by Tenant within seventy-two (72) hours after Landlord shall have given to Tenant a written notice specifying the same,

(f) in case Tenant shall default in the due keeping, observing or performance of any of Tenant’s obligations hereunder (other than a default of the character referred to in clauses (d) or (e) of this Section 12.01), and if such default shall continue and shall not be remedied by Tenant within twenty (20) days after

 

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Landlord shall have given to Tenant a written notice specifying the same, or, in the case of such a default which for causes beyond Tenant’s control (which shall not include insufficiency of funds) cannot with due diligence be cured within said period of twenty (20) days, if Tenant (i) shall not, promptly upon the giving of such notice, advise Landlord in writing of Tenant’s intention to take all steps necessary to remedy such default with due diligence, (ii) shall not duly institute and thereafter diligently prosecute to completion all steps necessary to remedy the same, (iii) shall not remedy the same within a reasonable time after the date of the giving of said notice by Landlord,

(g) in case any event shall occur or any contingency shall arise whereby this Lease or the estate hereby granted or the unexpired balance of the term hereof would, by operation of law or otherwise, devolve upon or pass to any firm, association, corporation, person or entity other than Tenant except as expressly permitted under Article 25 hereof, or whenever Tenant shall desert or abandon the Premises or the same shall become vacant (whether the keys be surrendered or not and whether the rent be paid or not), or

(h) in case Tenant shall default in the payment of any Fixed Rent or additional rent or any other charge payable hereunder or in the performance of any other of Tenant’s obligations hereunder more than three times, in the aggregate, in any period of twelve (12) months, notwithstanding that such defaults shall have been cured within the applicable cure period,

then, in any of said cases, Landlord may give to Tenant a notice of intention to end the term of this Lease at the expiration of three (3) days from the date of the giving of such notice, and, in the event such notice is given, the expiration of said three (3) day period shall become the Expiration Date, but Tenant shall remain liable for damages as provided in this Lease or pursuant to law. The specified conditions of limitation in this Article 12 are not intended to be exclusive and Landlord may invoke any additional remedies and/or rights which it may have at law or in equity, including, without limitation, the right to bring a “chronic non-payment” action. If the term “Tenant”, as used in this Lease, refers to more than one person, then as used in clauses (a), (b) and (c) of this Section 12.01, said term shall be deemed to include all such persons or any one of them; if any of the obligations of Tenant under this Lease is guaranteed, the term “Tenant”, as used in said clauses, shall be deemed to include also the guarantor or, if there be more than one guarantor, all or any one of them; and, if this Lease shall have been assigned, the term “Tenant”, as used in said clauses, shall be deemed to include the assignee and the assignor or either of

 

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them under any such assignment unless Landlord shall, in connection with such assignment, release the assignor from any further liability under this Lease, in which event the term “Tenant”, as used in said clauses, shall not include the assignor so released.

Section 12.02 Intentionally deleted.

ARTICLE 13

Re-entry by Landlord

Section 13.01 If this Lease shall terminate as provided in Article 12 hereof provided, Landlord or Landlord’s agents may immediately or at any time thereafter re-enter into or upon the Premises, or any part thereof, in the name of the whole, either by summary dispossess proceedings or by any suitable action or proceeding at law, or by force or otherwise (to the extent permitted by New York law), without being liable to indictment, prosecution or damages therefor, and may repossess the same, and may remove any persons therefrom, to the end that Landlord may have, hold and enjoy the Premises again as and of its first estate and interest therein. The words “re-enter”, “re-entry” and “re-entering” as used in this Lease are not restricted to their technical legal meanings.

Section 13.02 In the event of any termination of this Lease under the provisions of Article 12 hereof or in the event that Landlord shall re-enter the Premises under the provisions of this Article 13 or in the event of the termination of this Lease (or of re-entry) by or under any summary dispossess or other proceeding or action or other measure undertaken by Landlord for the enforcement of its aforesaid right of re-entry or any provision of law (any such termination of this Lease being herein called a “Default Termination”), Tenant shall thereupon pay to Landlord the Fixed Rent, additional rent and any other charge payable hereunder by Tenant to Landlord up to the time of such Default Termination or of such recovery of possession of the Premises by Landlord, as the case may be, and shall also pay to Landlord damages as provided in Article 14 hereof or pursuant to law. Also, in the event of a Default Termination Landlord shall be entitled to retain all moneys, if any, paid by Tenant to Landlord, whether as advance rent, security or otherwise, but such moneys shall be credited by Landlord against any Fixed Rent, additional rent or any other charge due from Tenant at the time of such Default Termination or, at Landlord’s option, against any damages payable by Tenant under Article 14 hereof or pursuant to law.

 

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Section 13.03 In the event of a breach or threatened breach on the part of Tenant with respect to any of Tenant’s obligations hereunder, Landlord shall also have the right of injunction. The specified remedies to which Landlord may resort hereunder are cumulative and are not intended to be exclusive of any other remedies or means of redress to which Landlord may lawfully be entitled at any time and Landlord may invoke any remedy allowed at law or in equity as if specific remedies were not herein provided for.

ARTICLE 14

Damages

Section 14.01 In the event of a Default Termination of this Lease, Tenant will pay to Landlord as damages, at the election of the Landlord, either:

(a) a sum which at the time of such Default Termination represents the then value of the excess, if any, of the Present Value, as herein defined, of (1) the aggregate of the Fixed Rent and the additional rent under Article 26 (if any) which would have been payable hereunder by Tenant for the period commencing with the day following the date of such Default Termination and ending with the scheduled Expiration Date, over (2) the aggregate fair rental value of the Premises for the same period as determined by an independent real estate appraiser named by Landlord and employed at Tenant’s expense, in which case such liquidated damages shall be accelerated to be due and payable to Landlord in one lump sum on demand at any time commencing with the day following the date of such Default Termination and shall bear interest at the Default Rate, as herein defined, until paid, or

(b) sums equal to the aggregate of the Fixed Rent and the additional rent under Article 26 (if any) which would have been due and payable by Tenant during the remainder of the term had this Lease not terminated by such Default Termination, in which case such liquidated damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Default Termination of this Lease and continuing until the scheduled Expiration Date but for such Default Termination; provided, however, that if Landlord shall relet all or any part of the Premises for all or any part of said period, Landlord shall credit Tenant with the net rents received by Landlord from such reletting until the scheduled Expiration Date, such net rents to be determined by first deducting from the

 

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gross rents as and when received by Landlord from such reletting the expenses incurred or paid by Landlord in terminating this Lease and of re-entering the Premises and of securing possession thereof, as well as the expenses of reletting, including altering and preparing the Premises for new tenants, brokers’ commissions and all other expenses properly chargeable against the Premises and the rental therefrom in connection with such reletting, it being understood that any such reletting may be for a period equal to or shorter or longer than said period; provided, further that (i) in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder, (ii) in no event shall Tenant be entitled, in any suit for the collection of damages pursuant to this clause (b), to a credit in respect of any net rents from a reletting except to the extent that such net rents are actually received by Landlord prior to the commencement of each suit, and (iii) if the Premises or any part thereof should be relet in combination with other space, then appropriate apportionment on a square foot rentable area basis shall be made of the rent received from such reletting and of the expenses of reletting. Landlord shall have no obligation whatsoever to mitigate its damages upon Tenant’s default under this Lease and Landlord shall not be liable in any way whatsoever for the failure to relet all or any portion of the Premises.

For the purposes of subdivision (a) of this Section 14.01, the amount of additional rent which would have been payable by Tenant under Article 26 hereof, for each Tax Year and/or Operating Year (as herein defined) ending after such Default Termination, shall be deemed an amount equal to the amount of such additional rent payable by Tenant for the Tax Year and/or Operating Year (as the case may be) ending immediately preceding such Default Termination. Suit or suits for the recovery of such damages, or any installments thereof, may be brought by Landlord from time to time at its election commencing at any time following a Default Termination, and nothing contained herein shall be deemed to require Landlord to postpone suit until the scheduled Expiration Date. “Present Value” shall be computed by discounting such amount to present value at a discount rate equal to the most recent GNP Deflator as released monthly by the United States Department of Commerce, Bureau of Economic Analysis. “Default Rate” shall mean the lesser of (i) eighteen percent (18%) per annum or (ii) the highest rate of interest permitted by New York State law.

Section 14.02 Nothing herein contained shall be construed as limiting or precluding the recovery by Landlord against Tenant of any sums or damages to which, in addition to the damages particularly provided above, Landlord may lawfully be

 

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entitled by reason of any default hereunder on the part of Tenant. Tenant hereby waives any claim for money damages wherever in this Lease it is provided that Landlord shall not unreasonably withhold or delay any consent or approval, in the event that Landlord shall unreasonably withhold or delay such consent or approval, nor shall Tenant claim any such money damages by way of setoff, counterclaim or defense.

Section 14.03 Notwithstanding any provision of this Lease to the contrary, in no event shall Landlord or Tenant (except as to Tenant as set forth in Section 5.01(h)) be liable for any indirect, special consequential or punitive damages in connection with any claimed or actual breach of this Lease.

ARTICLE 15

Waivers by Tenant

Section 15.01 Tenant, for Tenant, and on behalf of any and all firms, corporations, associations, persons or entities claiming through or under Tenant, including creditors of all kinds, does hereby waive and surrender all right and privilege which they or any of them might have under or by reason of any present or future law to redeem the Premises or to have a continuance of this Lease for the full term hereby demised after Tenant is dispossessed or ejected therefrom by process of law or under the terms of this Lease or after the termination of this Lease as herein provided or pursuant to law. Tenant also waives the provisions of any law relating to notice and/or delay in levy of execution in case of an eviction or dispossess. If Landlord commences any summary proceeding, Tenant agrees that Tenant will not interpose any counterclaim of whatever nature or description in any such proceeding (except compulsory counterclaims). Landlord hereby waives any statutory lien it may possess.

ARTICLE 16

Waiver of Trial by Jury

Section 16.01 It is mutually agreed by and between Landlord and Tenant that, except in the case of any action, proceeding or counterclaim brought by either of the parties against the other for personal injury or property damage, the respective parties hereto shall, an