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Office Lease
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DRYLAND 52, LLC
Landlord
and
PERF GO GREEN HOLDINGS INC.
Tenant
Premise: 4th Floor
Date:
October 1, 2008
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Table of Contents
Page
Article 1. Basic Terms and
Definitions.............................. 2
Article 2. Demise;
Rent............................................. 3
Article 3.
Use......................................................
4
Article 4. Condition of the
Premises; Landlord's Work............... 4
Article 5. Tenant's
Work............................................ 5
Article 6. Real Estate
Taxes........................................ 6
Article 7. Intentionally
Omitted.................................... 7
Article 8. Electricity -
Rent Inclusion............................. 7
Article 9.
Services.................................................
8
Article 10.
Repairs..................................................
9
Article 11.
Laws.....................................................
10
Article 12. Subordination;
Estoppel Certificates..................... 10
Article 13.
Insurance................................................
10
Article 14.
Casualty.................................................
11
Article 15.
Condemnation.............................................
12
Article 16. Assignment and
Subletting................................ 13
Article 17.
Access...................................................
18
Article 18.
Default..................................................
19
Article 19.
Remedies.................................................
20
Article 20.
Security.................................................
22
Article 21.
Broker...................................................
24
Article 22.
Notices..................................................
24
Article 23. Representations and
Liability............................ 24
Article 24. End of
Term.............................................. 26
Article 25 Renewal
Option........................................... 27
Article 26.
Miscellaneous............................................
30
Exhibit A The
Premises
Exhibit B
Expenses
Exhibit C Landlord's
Regulations
Exhibit D Landlord's
Work
Schedule A Furniture
1
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Office Lease
Lease
dated __________________, 2008, between DRYLAND 52, LLC, a
Delaware
limited liability company ("Landlord"), and PERF GO GREEN HOLDINGS
INC., a
Delaware corporation ("Tenant").
Article 1.
Basic Terms and Definitions
Section
1.1 Brokers. Heritage Realty Services LLC and Plymouth
Partners,
Ltd.
Section
1.2 Electricity Factor. $10,289.50 per annum, subject to
adjustment as provided in this lease.
Section
1.3 Fixed Rent. The fixed annual rent payable by Tenant under
this
lease, which fixed annual rent shall be at the following rates
during the
following time periods:
------------------------------------------------------------------
Lease Year
Annual Fixed Rent
Monthly Fixed Rent
------------------------------------------------------------------
1
$197,784.00
$16,482.00
------------------------------------------------------------------
2
$203,712.00
$16,976.00
------------------------------------------------------------------
3
$209,820.00
$17,485.00
------------------------------------------------------------------
4
$216,108.00
$18,009.00
------------------------------------------------------------------
5
$222,588.00
$18,549.00
------------------------------------------------------------------
The Fixed Rent includes the Electricity Factor. For purposes
hereof, the term
"Lease Year" shall mean the period commencing on the Fixed Rent
Commencement
Date and ending on the last day of the month in which occurs the
day prior to
the first (1st) anniversary of the Fixed Rent Commencement Date and
each
successive twelve month period thereafter all or any part of which
occurs during
the Term (and the Renewal Term, as the case may be).
Section
1.4 Fixed Rent Commencement Date. The date which is three (3)
months after the Commencement Date.
Section
1.5 Landlord's Work. The work, if any, described on Exhibit D
to
this lease.
Section
1.6 Notice Address.
(a)
Landlord. Dryland 52, LLC, c/o Heritage Realty Services, LLC,
67
Irving Place, 4th Floor, New York, NY 10003.
(b)
Tenant. Prior to the Commencement Date - 645 Fifth Avenue, 8th
Floor,
New York, NY 10022; On and after the Commencement Date -- 12 E.
52nd Street, 4th
Floor, New York, NY 10022.
Section
1.7 Premises. The entire leasable portion (including the
toilets)
of the fourth (4th) floor shown as the non-hatched area on Exhibit
A to this
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lease in the building at 12 East 52nd Street ("Building"; the land
used in
connection with the Building is called "Land"). The Premises
include any
fixtures and improvements in the Premises on the Commencement Date,
Landlord's
Work, if any, and any other fixtures and improvements installed in
the Premises
by Landlord after the Commencement Date. All furniture set forth in
Schedule A
(the "Furniture") shall be delivered to Tenant simultaneously with
the delivery
of the Premises. The Furniture shall be delivered in its "as-is"
condition
without representation as to condition thereof. The Furniture shall
remain upon
and be surrendered with the Premises unless Landlord, by notice to
Tenant no
later than ten (10) days prior to the Expiration Date, elects to
relinquish
Landlord's right thereto and to have the Furniture removed by
Tenant, in which
event the same shall be removed from the Premises by Tenant prior
to the
Expiration Date, at Tenant's expense.
Section
1.8 Security. $45,000.00.
Section
1.9 Taxes Base Year. The 12-month period ending June 30, 2009.
Section
1.10 Tenant's Share. 15.96 percent.
Section
1.11 Term. The period commencing on the date ("Commencement
Date")
which is the date that Landlord delivers to Tenant possession of
the Premises
with Landlord's Work, if any, substantially complete (or the date
possession is
deemed delivered and Landlord's Work, if any, is deemed
substantially complete
as provided in this lease), or any earlier date on which Tenant
first occupies
any part of the Premises for the conduct of business, and ending on
the date
(the "Expiration Date") which is the earlier of(i) the last day of
the month in
which occurs the fifth (5th) anniversary of the day immediately
preceding the
Fixed Rent Commencement Date, and (ii) the date the term of this
lease is
terminated pursuant to this lease.
Article 2.
Demise; Rent
Section
2.1 Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, the Premises, for the Term, at the Rent (as defined
below) and on
the other terms of this lease.
Section 2.2 Tenant
shall pay Landlord the Rent, without notice, deduction
or offset, in lawful money of the United States of America, at
Landlord's Notice
Address or another address Landlord designates, and as provided in
this lease.
The Fixed Rent shall be paid in equal monthly installments, in
advance, on the
first day of each calendar month during the Term, except that (a)
Tenant shall
not pay the Fixed Rent (other than the Electricity Factor, if
applicable) until
the Fixed Rent Commencement Date (i.e. the Fixed Rent shall abate
at the rate of
$15,624.54 per month for each of the first three (3) full calendar
months of the
Term) and (b) on the signing and delivery of this lease by Tenant,
Tenant shall
pay Landlord one full monthly installment of the Fixed Rent, to be
applied to
the first full monthly installment of the Fixed Rent due under this
lease. If
the Fixed Rent Commencement Date is not the first day of a month,
the Fixed Rent
for the month in which the Fixed Rent Commencement Date occurs
shall be
apportioned according to the number of days in that month. All
sums, other than
the Fixed Rent, payable by Tenant to Landlord under this lease,
including the
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payment of deficiencies in the Security, if any, are considered
additional rent
(and the Fixed Rent and all additional rent are collectively called
"Rent").
Landlord's delay in rendering, or failure to render, any statement
required to
be rendered by Landlord for any Rent for any period shall not waive
Landlord's
right to render a statement or collect that Rent for that or any
subsequent
period. The rendering of an incorrect statement shall not waive
Landlord's right
to render a corrected statement for the period covered by the
incorrect
statement and collect the correct amount of the Rent.
Section
2.3 If Landlord fails to give Tenant possession of the Premises
on
any specific date, Landlord shall have no liability to Tenant and
this lease
shall remain in full force and effect according to its terms, but
the Term and
the Rent shall not commence until the Commencement Date (or, with
respect to the
Fixed Rent, the Fixed Rent Commencement Date, if applicable).
Tenant waives any
right to rescind this lease under Section 223 a of the New York
Real Property
Law or any successor statute of similar import then in force and
further waives
the right to recover any damages which may result from Landlord's
failure to
deliver possession of all or any portion of the Premises for any
reason
whatsoever, except as expressly provided herein.
Article 3.
Use
Section
3.1 Tenant may use the Premises only for general office use
(the
"Permitted Use") and no other use. Tenant shall not (a) cause
waste, or do
anything that, in Landlord's reasonable judgment, disturbs other
occupants of
the Building or is obscene, (b) place any sign or other item
outside the
Premises or the Building, or on any window or door of the Premises,
or in the
Premises if it can be seen from outside the Premises, except a
Building standard
identification sign on Tenant's entrance door, Building standard
window
coverings or other sign or item expressly permitted by this lease,
(c) cause the
release in or from the Premises of any hazardous material, or any
other item
which is deemed hazardous under any Law (as defined below), (d)
place a load on
any floor of the Premises exceeding the floor load per square foot
which the
floor was designed to carry and which is allowed by any Law, or (e)
otherwise
use the Premises for any use that violates any certificate of
occupancy (or
similar instrument), any other provision of this lease or any
Law.
Section
3.2 Tenant shall comply with the existing rules and regulations
of
the Building attached to this lease as Exhibit C, and any future
rules and
regulations adopted by Landlord in connection with the Building
(collectively,
"Landlord's Regulations"). Landlord is not required to enforce
Landlord's
Regulations or any other lease and Landlord shall not be liable to
Tenant for a
violation of Landlord's Regulations or any other lease. Landlord's
failure to
enforce Landlord's Regulations against Tenant or any other occupant
of the
Building shall not be considered a waiver of Landlord's
Regulations.
Article 4.
Condition of the Premises; Landlord's Work
Section
4.1 Tenant has examined the Premises and, subject to Landlord
performing Landlord's Work, if any, (a) Tenant shall accept
possession of the
Premises in its "AS IS" condition, and (b) Landlord has no
obligation to perform
any work, supply any materials, incur any expenses or make any
installations to
prepare the Premises for Tenant's occupancy.
4
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Section
4.2 Landlord shall, at its expense, in a Building standard
manner,
using Building standard materials, in accordance with all
applicable Laws
perform Landlord's Work, if any. If requested by Landlord or
Tenant, Landlord
and Tenant shall promptly sign and deliver a confirmation of the
Commencement
Date, the Fixed Rent Commencement Date, if any, the scheduled
Expiration Date
and any other dates referred to in this lease, but the failure to
do so shall
not change those dates.
Section
4.3 If the substantial completion of Landlord's Work, if any,
or
delivery of possession of the Premises by Landlord to Tenant, is
delayed due to
any act or omission of Tenant or Tenant's employees, agents or
contractors (a)
Landlord's Work shall be deemed substantially complete and
possession shall be
deemed delivered on the date Landlord's Work would have been
substantially
complete or possession would have been delivered but for that act
or omission
and (b) Tenant shall reimburse Landlord for all additional costs
incurred by
Landlord as the result of the delay.
Article 5.
Tenant's Work
Section
5.1 Except as may be expressly provided in this lease, Tenant
shall not make any alterations, installations, additions or other
changes to the
Premises, the Building, the Building systems, or any part thereof
(collectively,
"Tenant's Work"), without Landlord's prior written consent in each
instance,
which may be withheld in Landlord's sole discretion. However, if
Tenant's Work
consists solely of the painting, carpeting or decorating of the
Premises and
will cost less than $10,000 in the aggregate, then Landlord's
consent shall not
be required, provided (i) Tenant gives Landlord 10 days prior
notice of such
Tenant's Work (with reasonable details of the work to be
performed), and (ii)
all of the other applicable provisions of this lease shall apply.
Any Tenant's
Work consented to by Landlord (or permitted by the immediately
preceding
sentence) shall (a) not (i) affect any part of the Building outside
the
Premises, (ii) adversely affect any structural element of the
Building (iii)
adversely affect any Building system, (b) be performed only by
contractors or
subcontractors approved by Landlord, and (c) be performed, at
Tenant's expense,
in a professional manner using new materials of first class quality
and in
compliance with this lease, all Laws and any plans therefor
approved by
Landlord.
Section
5.2 If, in connection with any act or omission of Tenant or
Tenant's employees, agents or contractors, a mechanic's lien, other
encumbrance
or violation is filed against Landlord, or any part of the
Premises, the
Building or Tenant's Work, Tenant shall, at Tenant's expense, have
it removed
within 30 days after Tenant receives notice of the filing. Tenant
shall not
employ, or permit the employment of, any contractor, subcontractor
or other
worker in the Premises if such employment shall, in Landlord's
reasonable
judgment, interfere or cause conflict with other contractors,
subcontractors or
workers in the Building. Tenant shall immediately stop work or
other activity if
Landlord notifies Tenant that continuing such work or activity
would violate
Landlord's union contracts affecting the Building, or create any
work stoppage,
picketing, labor disruption or dispute or any interference with the
business of
Landlord or any tenant or occupant of the Building.
5
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Section
5.3 Subject to Section 1.9 with respect to the Furniture, on or
before the Expiration Date, Tenant shall, at Tenant's expense,
remove from the
Premises and the Building (a) Tenant's trade fixtures, equipment
and personal
property which are removable without material damage to the
Premises or the
Building ("Tenant's Property"), and (b) at the request of Landlord,
any Tenant's
Work performed by Tenant.
Article 6.
Real Estate Taxes.
Section
6.1 The following defined terms are used in this Article:
(a) Taxes.
The aggregate of all real estate taxes, assessments (special or
otherwise), and other charges (including business improvement
district charges
and payments in lieu of Taxes) of any Authority (as defined below)
assessed
against all or any part of the Building or the Land. If the method
of taxation
is changed so that in lieu of, as an addition to or as a substitute
for all or
any part of the real estate taxes, assessments or charges assessed
against all
or any part of the Building or the Land, there is assessed any
other tax,
assessment or charge, including one based on the rents received
from the
Building or the Land, all such taxes, assessments and charges shall
be
considered Taxes.
(b) Tax Year. Each
period of twelve (12) months, commencing on the first
day of July of each such period, in which occurs any part of the
Term, or such
other period of twelve (12) months occurring during the Term as
hereafter may be
duly adopted as the fiscal year for real estate tax purposes of the
City of New
York. If a fiscal period fixed by any Authority for any component
of Taxes is a
period other than a Tax Year, then such component of Taxes shall be
averaged
over the number of calendar months in such fiscal period (to
determine the
average monthly Taxes payable during such fiscal period) and each
such monthly
amount shall be included in Taxes for the Tax Year in which such
calendar month
occurs.
(c)
Tenant's Tax Payment. Tenant's Share of the excess of Taxes for
any
Tax Year over Taxes for the Taxes Base Year.
Section
6.2 If for any reason, foreseen or unforeseen, Taxes for any
Tax
Year, all or any part of which falls within the Term, exceed Taxes
for the Taxes
Base Year, then Tenant shall pay to Landlord Tenant's Tax Payment
within 15 days
following Tenant's receipt of a demand therefor. If Landlord
requests, Tenant
shall pay to Landlord Tenant's Tax Payment as reasonably estimated
by Landlord
from time to time in monthly or other periodic installments, in
advance, on the
first day of each calendar month or other period. If, for any Tax
Year (or any
part of a Tax Year), the aggregate amount collected by Landlord
from Tenant is
not sufficient to pay Tenant's Tax Payment for that Tax Year or
that part of a
Tax Year, Landlord may give notice to Tenant, and Tenant shall pay
to Landlord
the deficiency within 15 days following Tenant's receipt of
Landlord's request.
If, however, the aggregate amount collected by Landlord from Tenant
is greater
than Tenant's Tax Payment, Landlord shall credit the excess against
Tenant's
next payments under this lease or, if any excess is due Tenant at
the Expiration
Date, Landlord shall promptly pay that excess to Tenant. If the
Commencement
Date or the Expiration Date is a date other than the first or last
day of a Tax
Year, Tenant's Tax Payment for that Tax Year shall be apportioned
according to
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the number of days of that Tax Year within the Term. Tenant shall,
to the extent
not paid by Tenant to Landlord as part of Taxes, pay to Landlord,
within 15 days
following Tenant's receipt of Landlord's request, any occupancy,
rent or other
tax now or hereafter imposed on Tenant which (a) must be collected
by Landlord,
(b) is payable by Landlord if not paid by Tenant or (c) is a lien
on any part of
the Building or the Land. Tenant shall also pay to Landlord, within
15 days
following Tenant's receipt of Landlord's invoice, Tenant's Share of
the
reasonable expenses incurred to contest any Taxes applicable to any
part of the
Term (prorated for any partial `Tax Year within the Term) which
have not been
previously reimbursed to Landlord.
Article 7.
Intentionally Omitted
Article 8.
Electricity - Rent Inclusion
Section 8.1 Subject to
the provisions of this Article, Landlord shall
provide electricity to the Premises through the existing electrical
system of
the Building for reasonable use for lighting and normal office
equipment.
Landlord shall not be liable to Tenant for any failure, defect or
interruption
of electric service for any reason. Tenant's use of electricity in
the Premises
shall not at any time exceed the capacity of the electrical system
within or
serving the Premises and Tenant shall not overload any component of
such system.
Tenant shall, at Tenant's expense, furnish and install all lighting
tubes,
lamps, bulbs and ballasts required in the Premises. Landlord shall
select (and
may from time to time change) the utility or other supplier
providing
electricity to the Building and the Premises. Tenant shall comply
with all
rules, regulations and other requirements of the utility or other
supplier.
Section
8.2 Landlord may, at any time, cause Landlord's electric
consultant to survey the lighting and equipment in the Premises and
to estimate
the annual cost of the electrical usage in the Premises (including
the
electrical usage of all components, serving only the Premises, of
the Building's
heating, ventilating and air-conditioning systems), considering
consumption,
demand and all other relevant factors and based on the electric
rate schedule
pursuant to which Landlord purchases electricity for the Building,
applied as if
Tenant's usage were the only usage in the Building. If the annual
cost estimated
by Landlord's consultant exceeds the Electricity Factor then in
effect, the
Electricity Factor and the Fixed Rent shall be increased by the
amount of such
excess, effective as of the date of the survey or, if performed in
connection
with Tenant's initial occupancy of the Premises, as of the
Commencement Date.
The amount of any increase for the period from the effective date
of the
increase to the last day of the month in which Tenant receives
notice of the
increase shall be paid within 10 days following Tenant's receipt of
Landlord's
statement.
Section
8.3 If at any time the electric rates on the schedule pursuant
to
which Landlord purchases electricity for the Building are increased
(including
by reason of Landlord changing the electricity supplier for the
Building),
Landlord may estimate the resulting increase in Landlord's annual
cost to supply
electricity to the Premises and, effective on the date of the
increase in the
electric rates, the Electricity Factor and the Fixed Rent shall be
increased by
the amount estimated. The amount of the increase for the period
from the
effective date of the increase to the last day of the month in
which Tenant
receives notice of the increase shall be paid within 10 days
following Tenant's
receipt of Landlord's statement.
7
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Section
8.4 If any tax or other charge is imposed on Landlord's receipt
of
Rent under this Article, Tenant shall pay such tax or other charge
to Landlord
within 15 days following receipt of Landlord's statement, and
Landlord shall
remit same to the appropriate Authority. Landlord and Tenant shall
sign,
acknowledge and deliver to each other an agreement in such form as
Landlord
reasonably requires to reflect each change in the Electricity
Factor and the
Fixed Rent under this Article, but no delay or failure to do so
shall change the
effective date of the increase.
Article 9.
Services
Section
9.1 Elevators. Landlord shall (unless the Premises are on
street
level) provide non-exclusive passenger elevator service via one
automatic
elevator twenty-four (24) hours per day, seven (7) days per week.
Tenant shall
be permitted to use the passenger elevator at the Building on a
non-exclusive
basis as a freight elevator, which use shall be subject to
Landlord's prior
approval as to manner and scheduling of such use, and Tenant's
payment of
Landlord's actual out of pocket costs for such use. The use of the
elevator
shall be subject to the Building Rules and Regulations. For
purposes of this
lease, "Business Days" shall mean all days, excluding Saturdays,
Sundays, and
holidays observed by the State of New York, the Federal Government
or the labor
unions servicing the Building and "Business Hours" shall mean 8:00
a.m. to 6:00
p.m. on Business Days.
Section
9.2 Heat, Ventilation and Air Conditioning. Landlord shall use
commercially reasonable efforts to provide to the Premises through
the existing
Building system, when and as required for the comfortable occupancy
of the
Premises (as reasonably determined by Landlord), heat, ventilation
and air
conditioning, on Business Days during Business Hours. Landlord
makes no
representation and shall have no obligation or liability with
respect to the
performance of such Building system by reason of (a) the use of the
Premises, or
any part thereof, in a manner exceeding the design criteria of the
system, (b)
any Tenant's Work, (c) any other act of Tenant or Tenant's
employees or
contractors or (d) any other event not exclusively within
Landlord's control.
Section
9.3 Cleaning. Landlord shall after Business Hours on every
Business Day provide cleaning service for the Premises in a manner
which is then
standard for the Building, excluding any portions of the Premises
used for the
storage, preparation, service or consumption of food or beverages
or duplicating
(except for any area used for a single duplicating machine). Tenant
shall pay to
Landlord or Landlord's cleaning contractor, within 15 days
following Tenant's
receipt of a bill, the cost of removing Tenant's refuse and rubbish
from the
Premises and the Building to the extent it exceeds waste basket
refuse and
rubbish. Tenant shall, at Tenant's expense, cause all portions of
the Premises
used for the storage, preparation, service or consumption of food
or beverages
or duplicating (except for any area used for a single duplicating
machine) to be
cleaned by Landlord's cleaning contractor, in a manner reasonably
satisfactory
to Landlord.
Section
9.4 Water; Lavatories. Landlord shall provide to the Premises
hot
and cold domestic water for ordinary drinking, pantry and lavatory
purposes.
8
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Section
9.5 Access. Tenant shall have access to the Premises 24 hours
each
day, seven days each week pursuant to procedures established by
Landlord (but
Landlord shall have no obligation to Tenant to remove any snow, ice
or other
obstructions except on Business Days during Business Hours and
Landlord may
impose, temporarily from time to time, or permanently, security
procedures).
Tenant shall be provided eleven (11) access cards for Tenant's
access to the
Building and to the Premises.
Section
9.6 Overtime, Extra or Outside Services. If, upon Tenant's
request, Landlord provides Tenant with any service (including any
service
furnished at times other than Business Hours) which Landlord is not
required to
furnish pursuant to this lease, Tenant shall pay to Landlord,
within 10 days
following Tenant's receipt of a bill, Landlord's then established
charge for
that service.
Section
9.7 No Warranty by Landlord. Landlord shall have no obligation
to
provide to Tenant or the Premises any services except as
specifically set forth
in this lease. Landlord does not warrant that any Building system
or service to
be provided by Landlord, or any other systems or services which
Landlord may
provide (a) shall be adequate for Tenant's purposes or (b) shall be
free from
interruption or reduction. Building systems and services, including
access, may
be interrupted or reduced by reason of Laws, repairs or changes
which are, in
Landlord's judgment, necessary or desirable, or Unavoidable Events
(as defined
below), in which event such interruption or reduction shall not (i)
constitute
an actual or constructive eviction, or a disturbance of Tenant's
use of the
Premises, (ii) entitle Tenant to any compensation or abatement of
the Rent,
(iii) relieve Tenant from any obligation under this lease, or (iv)
impose any
obligation or liability on Landlord.
Article
10. Repairs
Section
10.1 Tenant shall, at Tenant's expense, maintain and repair the
Premises (including the lavatories within the Premises) and all
Building systems
within and serving only the Premises, subject to reasonable wear
and tear and
damage for which Tenant is not responsible pursuant to this lease.
If the
Premises are on street level with an entry from the street directly
into the
Premises, Tenant shall, at Tenant's expense (a) maintain and repair
the
sidewalks abutting the Premises and (b) keep those sidewalks free
of rubbish,
snow, ice and other obstructions, and otherwise in a safe and clean
condition,
subject to reasonable wear and tear and damage for which Tenant is
not
responsible pursuant to this lease. Subject to Section 13.4, all
damage to the
Building (including the Building systems) or the Land resulting
from any act or
omission of Tenant or Tenant's employees or contractors, shall be
repaired, at
Tenant's expense, by Tenant to the reasonable satisfaction of
Landlord or, at
Landlord's option, by Landlord. Tenant shall give prompt notice to
Landlord if
any portion of the Premises or any Building system within the
Premises requires
repair. Tenant shall, at Tenant's expense, cause vermin within the
Premises to
be exterminated (as reasonably required by Landlord).
Section
10.2 Landlord shall have no liability to Tenant, there shall be
no
abatement of the Rent and there shall not be deemed to be any
actual or
constructive eviction of Tenant arising from Landlord performing
any repairs or
other work to any portion of the Building (including the Premises
or the
Building systems).
9
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Article
11. Laws
Section
11.1 Tenant shall, at Tenant's expense, comply with all present
and future laws, rules, regulations, orders, ordinances, judgments,
requirements
and (if Landlord adopts same) recommendations (collectively,
"Laws"), of the
United States of America, the State of New York, the City of New
York, or any
present or future subdivision, court, agency, department,
commission, board,
bureau or instrumentality thereof, and any fire insurance rating
body
(collectively, "Authority") applicable to Tenant's occupancy of the
Premises,
Tenant's Work, Tenant's Property or the Premises. If, however,
compliance
requires structural work to the Premises or any work to the
Building systems
within and serving only the Premises, Tenant shall comply, at
Tenant's expense,
only if the obligation to comply arises from Tenant's Work,
Tenant's Property or
Tenant's manner of using the Premises (and, in such event, Landlord
may, at
Landlord's option, perform the work, at Tenant's expense, to be
paid within 15
days following Tenant's receipt of a bill). If Tenant's manner of
using the
Premises requires work outside the Premises or to any Building
system serving
areas outside the Premises, Tenant shall cease that manner of using
the Premises
unless Landlord, at Landlord's option, agrees to perform that work,
at Tenant's
expense, to be paid within 15 days following Tenant's receipt of a
bill.
Article
12. Subordination; Estoppel Certificates
Section
12.1 This lease, and the rights of Tenant under this lease, are
subject and subordinate in all respects to all present and future
underlying
leases of the Building, including all modifications, extensions and
replacements
thereof ("Superior Leases") and all present and future mortgages on
any Superior
Lease or on the Building, including all modifications, extensions,
supplements,
consolidations and replacements thereof ("Mortgages"), and all
advances under
any Mortgage. This Section is self-operative and no further
instrument of
subordination is required. Tenant shall, within 15 days following
receipt of
Landlord's request, sign, acknowledge and deliver any instrument
that Landlord,
any landlord under a Superior Lease ("Superior Landlord") or any
mortgagee under
a Mortgage ("Mortgagee") may request to evidence that
subordination.
Section
12.2 Tenant shall, at any time and from time to time, within 10
days following its receipt of a request from Landlord, sign,
acknowledge and
deliver to Landlord or any other person designated by Landlord a
certification
(a) that this lease is in full force and effect and has not been
modified (or,
if modified, setting forth all modifications), (b) the date to
which the Rent
has been paid, (c) stating whether or not, to the best of its
knowledge, there
is any default on the party of either party hereto, and (d) with
respect to any
other factual matters reasonably requested by Landlord. Any
certification
delivered pursuant to this Section may be relied upon by the
requesting party or
any other person designated by the other party.
Article
l3. Insurance
Section
13.1 Tenant shall, at Tenant's expense, maintain at all times
during the Term and at all times when Tenant is in possession of
the Premises,
the following insurance (the forms and deductibles for which must
be acceptable
to Landlord): (a) commercial general liability insurance in respect
of the
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Premises, on an occurrence basis, with a combined single limit
(annually and per
occurrence and location) of not less than $5,000,000, naming as
additional
insureds Landlord and any other person designated by Landlord, in
compliance
with this Article, (b) property insurance in an amount equal to 100
percent of
full replacement value covering Tenant's Work, Tenant's Property
and the
property of third parties located in the Premises, against fire and
other risks
included in the standard New York form of property insurance,
including business
interruption, and (c) such other insurance as Landlord may
reasonably require.
Landlord shall have the right at any time and from time to time to
reasonably
require Tenant to increase the amount of the commercial general
liability
insurance required to be maintained by Tenant under this lease.
Section
13.2 Tenant shall deliver to Landlord and each additional
insured
(a) certificates in form reasonably acceptable to Landlord
evidencing the
insurance required by this lease to be maintained by Tenant before
the
Commencement Date, and at least 15 days before the expiration of
any such
insurance, and (b) upon request, a copy of each insurance policy.
All required
insurance shall be primary, issued by companies reasonably
satisfactory to
Landlord and contain a provision whereby it cannot be canceled
unless Landlord
and any additional insureds are given at least 30 days' prior
written notice of
the cancellation. Tenant shall not carry separate or additional
commercial
general liability insurance, concurrent in form or contributing
with any
insurance required under this lease unless the parties required by
this lease to
be named as additional insureds are also named as additional
insureds in such
separate additional insurance policy. Tenant may carry any required
insurance
under a blanket policy if that policy complies with the
requirements of this
lease.
Section
13.3 Tenant shall not do or permit to be done any act which
shall
invalidate or be in conflict with Landlord's insurance policies, or
increase the
rates of insurance applicable to the Building. If, as the result of
a Default
(as defined below), the insurance rates for the Building increase,
in addition
to any other obligation or liability of Tenant or any right or
remedy of
Landlord, Tenant shall reimburse Landlord for the increased
premiums, within 15
days following Tenant's receipt of Landlord's request.
Section
13.4 Tenant shall, to the extent obtainable, procure a clause
in,
or endorsement on, any property insurance carried by it, pursuant
to which the
insurance company waives its right of subrogation against Landlord
and its
agents and employees or consents to a waiver of the right of
recovery against
Landlord and its agents and employees. Tenant hereby releases
Landlord (and its
agents and employees) with respect to any claim (including a claim
for
negligence) Tenant may have against Landlord for damage or loss
covered (or
required under this lease to be covered) by Tenant's property
insurance
(including business interruption).
Section
13.5 The provisions of this Article shall apply to any
subtenant
or other occupant of the Premises.
Article
l4. Casualty
Section
14.1 If (a) the Premises is damaged by fire or other casualty,
or
(b) the Building (including any Building system) is damaged by fire
or other
casualty so that Tenant is deprived of reasonable access to the
Premises or any
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part of the Premises, Tenant shall give prompt notice to Landlord.
Subject to
the provisions of this Article, (1) Landlord shall, at Landlord's
expense,
repair the damage (but only to the extent that Landlord receives
insurance
proceeds for such repair), excluding the damage to Tenant's Work or
Tenant's
Property, and (2) Tenant shall, at Tenant's expense, promptly
remove Tenant's
Property from the Premises to the extent required by Landlord in
connection with
Landlord's repair of the damage. Until the repairs to be performed
by Landlord
are substantially completed, the Rent shall be reduced in
proportion to the area
of the Premises to which Tenant shall not have reasonable access or
which is
unusable by Tenant for the reasonable conduct of Tenant's normal
business in the
Premises.
Section 14.2 If
Landlord reasonably estimates that either (x) the time
period to repair any damage to the Building caused by fire or other
casualty
will exceed 180 days, or (y) the cost of repairing any such damage
to the
Building exceeds 25 percent of the replacement cost of the
Building, then (in
either such case), whether or not the Premises are damaged,
Landlord shall have
the right, by notice to Tenant within 60 days following the date of
the damage,
to terminate this lease (effective as of the date set forth in such
notice).
Section
14.3 If(a) this lease is not terminated as provided in this
Article, (b) the repair required by this Article to be performed by
Landlord is
not substantially complete one year following the fire or other
casualty, and
(c) there is then no Default, then Tenant shall have the right, by
notice to
Landlord within 10 days following the end of that period, to
terminate this
lease effective the date which is 30 days following the date of its
notice, in
which event Tenant shall pay the Rent to the date of termination
(or the date of
the fire or other casualty for that part of the Premises with
respect to which
the Rent is reduced pursuant to Section 14.1), and the Term shall
expire on that
date.
Section
14.4 The parties agree that this Article 14 constitutes an
express
agreement governing any case of damage or destruction of the
Premises or the
Building by fire or other casualty, and that Section 227 of the
Real Property
Law of the State of New York, which provides for such contingency
in the absence
of an express agreement, and any other law of like import now or
hereafter in
force shall have no application in any such case.
Article
15. Condemnation
Section
15.1 If as the result of a taking by condemnation or similar
legal
action of an Authority (a) all of the Premises, or so much thereof
as renders
the Premises wholly and permanently unusable by Tenant, is taken,
(b) a portion
of the Building or the Land is taken, resulting in Tenant no longer
having
reasonable access to or use of the Premises, (c) all or
substantially all of the
Building or the Land is taken or (d) a portion of the Building is
taken
resulting in Landlord's determination to demolish the Building, the
Term shall
expire on the date of the vesting of title. In that event, the Rent
shall be
apportioned as of the date of termination and any Rent paid by
Tenant to
Landlord for any period after that date shall be promptly refunded
by Landlord
to Tenant.
Section
15.2 In the event of any such taking of all or any part of the
Premises, the Building or the Land, Landlord shall be entitled to
receive the
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entire award. Tenant shall have no claim against Landlord or any
Authority for
the value of the unexpired portion of the Term or Tenant's Work,
and Tenant
hereby assigns to Landlord all of its right in and to any such
award.
Section
15.3 If a taking does not result in the termination of this
lease
(a) Landlord shall, at Landlord's expense, as soon as practicable,
restore that
part of the Premises, the Building or the Land not taken, so that
the Premises
are usable, and (b) from and after the date of the vesting of
title, the Rent
shall be reduced in the same proportion as the area of the
Premises, if any,
which was taken.
Article
l6. Assignment, Subletting and Mortgaging
(a) Tenant
shall not, whether voluntarily, involuntarily, or by operation
of law or otherwise (1) assign or otherwise transfer in whole or in
part this
lease or the term and estate hereby granted, (ii) sublet the
Premises or any
part thereof, or allow the same to be used or occupied by any
person other than
Tenant for any purpose (including desk space, mailing privileges or
otherwise),
or (iii) mortgage, pledge, encumber or otherwise hypothecate this
lease or the
Premises or any part thereof in any manner whatsoever, without in
each instance
obtaining the prior written consent of Landlord. The consent by
Landlord to a
particular assignment, subletting or mortgaging shall not in any
way be
considered a consent by Landlord to any other or further
assignment, subletting
or mortgaging.
(b) If
Tenant, or any subtenant, is a corporation, the provisions of
subdivision (a) of Section 16.1 shall apply to a transfer (by one
or more
transfers) of stock or any other mechanism (such as, by way of
example, the
issuance of additional stock, a stock voting agreement or change in
classes of
stock) which results in a change of control of Tenant (or such
subtenant) or, in
the event of a transfer permitted pursuant to subclauses (x), (y)
or (z) below,
transfers of stock which result in a change of control of such
transferee, as if
such transfer of stock which results in a change of control of
Tenant or such
transferee were an assignment of this lease, and if Tenant or such
transferee is
a partnership, limited liability company or joint venture, said
provisions shall
apply with respect to a transfer (by one or more transfers) of an
interest in
the distributions of profits and losses of such partnership,
limited liability
company or joint venture or other mechanism (such as, by way of
example, the
creation of additional general partnership, limited partnership or
membership
interests) which results in a change of control of such
partnership, limited
liability company or joint venture, as if such transfer of an
interest in the
distributions of profits and losses of such partnership, limited
liability
company or joint venture which results in a change of control of
such
partnership or joint venture were an assignment of this lease; but
said
provisions shall not apply to (x) transactions with a corporation
into or with
which Tenant is merged or consolidated, (y) transactions with a
corporation,
limited liability company or partnership to which substantially all
of Tenant's
assets are transferred or (z) transfers to any corporation, limited
liability
company or partnership which controls or is controlled by Tenant or
is under
common control with Tenant, provided that in any of such events (i)
the
successor to Tenant or transferee is a reputable entity of good
character and
has a net worth computed in accordance with generally accepted
accounting
principles at least equal to the greater of (1) the net worth of
Tenant
immediately prior to such merger, consolidation or transfer, or (2)
the net
worth of the Tenant herein named on the date of this lease, (ii)
proof
satisfactory to Landlord of such net worth shall have been
delivered to Landlord
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at least ten (10) days prior to the effective date of any such
transaction,
(iii) a duplicate original instrument of assignment in form and
substance
satisfactory to Landlord, duly executed by Tenant, shall have been
delivered to
Landlord at least ten (10) days prior to the effective date of any
such
transaction, (iv) an in
